Archive for December, 2005
Oyez! Oyez! Article III Groupie Is Back In Session
posted by Daniel Solove
Underneath Their Robes, the controversial blog by the no-longer anonymous Article III Groupie (David Lat) is back online. Recently, news reports revealed that David left his job as an AUSA in Newark. So, as Article III Groupie would certainly ask: What is David up to next? The news accounts are vague about her his future plans, only indicating he’s on his way to Washington, DC. We’ll have to wait for more details at Underneath Their Robes.
Related Posts:
1. Solove, Article III Groupie Disrobed: Thoughts on Blogging and Anonymity
2. Solove, The Mysterious Disappearance of Article III Groupie
December 31, 2005 at 7:16 pm
Posted in: Blogging
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The Funniest Justice
posted by Nate Oman
For all of those law geeks who obsess over Supreme Court trivia, here is a new question: Who is the funniest justice? Well, the data has been carefully analyzed by Professor Jay Wexler in a new article in the Greenbag, and the answer is in. As summarized in a NYT article on the study:
Transcripts of oral arguments at the United States Supreme Court have long featured the notation “[laughter]” after a successful quip from a justice or lawyer. But until October 2004, justices were not identified by name, making it impossible to construct a reliable index of judicial wit.
That has now changed, and Jay D. Wexler, a law professor at Boston University, was quick to exploit the new data to analyze the relative funniness of the justices. His study, which covers the nine-month term that began that October, has just been published in a law journal called The Green Bag.
Justice Scalia was the funniest justice, at 77 “laughing episodes.” On average, he was good for slightly more than one laugh – 1.027, to be precise – per argument.
Justice Stephen G. Breyer was next, at 45 laughs. Justice Ginsburg produced but four laughs. Justice Clarence Thomas, who rarely speaks during arguments, gave rise to no laughter at all.
Of course, it is not clear that Scalia’s victory is evidence of humor and wit on any absolute scale. I found during law school that my sense of what was funny became seriously warped. I started finding even mild judicial humor uproariously funny, and would read sections of opinions to my speech-pathologist wife. For a while she would listen with an indulgent expression on her face, but eventually she gave me the news with the air of a woman telling a child the awful truth about Santa Claus. “Nate,” she said, “I don’t think that legal humor really counts as real humor.”
December 31, 2005 at 7:26 am
Posted in: Humor
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Whistleblowing, Journalist Privilege, and NSA Surveillance
posted by Daniel Solove
The DOJ has launched a probe into the leaking of the NSA surveillance program to the New York Times:
“The leaking of classified information is a serious issue. The fact is that al-Qaida’s playbook is not printed on Page One and when America’s is, it has serious ramifications,” Duffy told reporters in Crawford, Texas, where Bush was spending the holidays.
This probe will raise several important questions in the months to come.
First is the issue of whistleblowing. Somebody leaked classified information about the NSA surveillance program. Should that individual be punished? On the one hand, we don’t want people leaking classified information that could impact national security. On the other hand, the President possibly violated a federal criminal statute. Whether he did or not is something that Congress and the courts must settle, but very few of those defending the legality of the President’s actions believe that it is a very easy clear-cut case. At best for the President, the issue is contestable; at worst, he broke the law. Without the whistleblowing, there would be no way for the Congress or courts to address the issue. Even if it turns out the President lawfully engaged in the surveillance, there’s another issue: Is the President lawfully allowed to keep it secret for as long as he desires? At the very least, should the President be allowed to keep it secret from other branches of government?
December 30, 2005 at 6:08 pm
Posted in: First Amendment, Privacy (National Security)
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More on NSA Surveillance
posted by Daniel Solove
There are some recent blog posts and news stories worth reading about the NSA surveillance scandal.
Orin Kerr at the VC has a new post examining the argument that Article II of the Constitution grants the President the “inherent authority” to conduct warrantless surveillance in violation of the Foreign Intelligence Surveillance Act. He concludes:
I don’t think there is much doubt as to what the Supreme Court would do with the Article II argument. I think you would probably get an 8-1 vote against an expansive reading of Article II powers, and it’s really hard to see where the Administration could get 5 votes for the claim. That’s my ballpark guess, at least.
In particular, Kerr examines nine words in an opinion by the FISA Court of Review, In re Sealed Case, that many cite as support for the Article II argument. Kerr observes:
December 30, 2005 at 2:20 pm
Posted in: Privacy (National Security)
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Finding God in Chess and the Appellate Brief
posted by Nate Oman
When my professional life is going well it consists of reading and writing appellate briefs. Fortunately, this is not nearly as pathetic as it sounds.
At its most basic, an appellate briefs is a written argument presented to a court explaining the claims of your client and how those claims are supported by the law. As such, it represents one of the great triumphs of human civilization. I am serious. Law rests on a basic commitment to resolving the disputes of human life by resort to reason rather than violence. In the days before appellate briefs (or something like them) we resolved disputes through blood feuds, trial by combat, or by throwing women into ponds to see if they floated. Deliciously dry and intricate arguments about precedent, controlling authority, pleading, and statutory construction represent one of the few unequivocal leaps forward in human history. Post-modernism, historical relativism, and skepticism of Whig history all have their place, but at the end of the day, the rule of law is simply a lot better than trial by combat. Generally speaking, the progress of reason is told in Enlightenment terms as a story about the ebb of faith down the shingles of Dover Beach. However, it is possible to see the triumph of reason in the brief in terms of an older vision of reason: The trace of the divine.
December 29, 2005 at 2:43 pm
Posted in: Religion
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A Philadelphia Story
posted by Dave Hoffman
This story from the Philadelphia Inquirer caught my eye. (And gave me an opportunity to steal a picture from Dan’s airline screening playset post.) Janet Lee, a Bryn Mawr student, was on her way home from the holidays. At the Philadelphia Int’l Airport, she was arrested because her checked bags contained condoms full of flour, which the police mistakenly identified in two field tests as cocaine and amphetamines. According to Lee, she and hall-mates had created the bags as stress balls as an exam-time gag. The system held Lee in jail for three weeks on $500,000 bail:
Lee acted tough to protect herself. She did modern-dance moves to keep limber. Inmates saw this and gossiped: “Everyone thought I knew karate because I’m Asian.” She certainly didn’t discourage the stereotype.Inmates saw the high volume of visitors and figured she was important. Again, she did not discourage the notion. She did not tell her cell mates that the visitors were actually volunteers from Catholic churches in Philadelphia who had taken up her cause.
The volunteers helped her hire [a lawyer, and former prosecutor, named David] Oh.
“I believed her story because things just didn’t add up,” Oh said. For one thing, Oh said, the field tests were odd because they detected the presence of not one drug but three.
“People don’t mix drugs like that,” Oh said.
First, Oh contacted Bryn Mawr and confirmed that Lee’s dorm mates had, in fact, made the condoms together during a pre-exam session they call a “hall tea.”
Then, Oh said, he called Assistant District Attorney Charles Ehrlich, who agreed to expedite laboratory tests. Ehrlich also agreed to help seek reduced bail, Oh said. A day after the new test came back and confirmed that the substance was flour, Lee was released.
She flew home first class.
There are a few notable things about this story. The draconian D.A.’s office (all considered) gave Lee a huge break because of her connections – a social capital that most defendants do not have. It is also surprising (and heartening) that Philadelphia Airport is screening luggage well enough to catch this (potential contraband). I also wonder about the remarkably high bail set for a college student who had no prior record that we know about, and the jail authorities apparent decision not to put her into protective custody. On the other hand, I’m not surprised at all at the error with the tests. I wonder if the police department has studied the false positive rate carefully.
Needless to say, Lee has now filed a civil rights claim against the police (and probably a claim against the city for their poor drug-testing training). Given her story, the City should settle. But knowing the City Solicitor’s inflexible litigation strategy, I doubt they will anytime soon.
December 29, 2005 at 11:20 am
Posted in: Criminal Law
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The Gifts You Can No Longer Return
posted by Daniel Solove
In the fun and light documentary, My Date With Drew, an average guy named Brian Herzlinger chronicles his attempt to get a date with Drew Barrymore. The documentary was made on a shoestring budget of just $1100, and Brian cut costs by buying a video camera at Circuit City, using it until the 30-day return window was up, and then returning it to the store for his money back.
But Herzlinger’s documentary may one day be notable not for his quest to meet a celebrity but for capturing what might be a quaint piece of nostalgia — the easy and hassle-free ability to return merchandise.
Returning merchandise has become much harder these days. Those unwanted gifts you received this holiday season might be much more difficult to return. According to a WSJ article (don’t bother clicking the link, as the article can’t be accessed without paying a massive fee):
Retailers are further clamping down on return policies, imposing penalty fees and using sophisticated computer databases to flag serial returners trying to game the system. Some are also adding exceptions and caveats to their return policies — for instance, making it particularly hard to return certain kinds of products, such as electronics.
December 29, 2005 at 1:03 am
Posted in: Contract Law & Beyond, Privacy, Privacy (Consumer Privacy)
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The Case of the Missing Volokh Conspiracy
posted by Daniel Solove
The Volokh Conspiracy has mysteriously disappeared . . . probably something nefarious in response to Orin Kerr’s criticism of the NSA surveillance program. In all seriousness, I’m informed by a Volokh-conspirator that the Volokh Conspiracy will be back up and running soon.
December 29, 2005 at 1:00 am
Posted in: Blogging
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Ribstein Is Back
posted by Dave Hoffman
Larry Ribstein has returned to his roost at Ideoblog, and is posting about the race to bottom regulatory competition in the market for securities regulation. For those of our readers who may be uninterested in that topic, he’s also writing about how to reduce the deadweight loss produced by Christmas (and presumably other seasonally related holidays.)
Larry’s guest bloggers have been provocative and interesting, and it is worth checking out what’s happened at the blog over the last few weeks. Kate Litvak’s post on racism, golf and boating was my personal favorite. I hear that most of those folks will soon be starting a new blog called Truth On The Market, which I’m sure I will enjoy, and disagree with, often.
December 28, 2005 at 11:11 pm
Posted in: Blogging
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Fine Print from the Experts
posted by Nate Oman
Those wacky contracts professors over at the AALS’s contracts section have appended the following bit of boilerplate to their website:
IMPORTANT SMALL PRINT LEGAL DISCLAIMER
This web site is a forum for the exchange of information and points of view. Opinions expressed here are not necessarily those of the Section on Contracts or of the Association of American Law Schools, which when you think about it are really only reified abstractions that have no independent existence and therefore can’t really have any “opinions” about anything at all, so we’re not sure why we have to say this. All statements herein are the sole responsibility of the authors, except for any that are inaccurate, irresponsible, tasteless, or actionable, which are solely the responsibility of student editorial assistants who are working as independent contractors and for whom we will accept absolutely no responsibility whatsoever. There are no warranties, either express or implied, for the use of this site. Nothing on this site should be taken as legal advice, since only an idiot would take free legal advice on an important issue from the casual musings of a law professor instead of paying a practicing lawyer who actually knows the law of the jurisdiction you’re in. Any disputes arising as a result of your use of this site shall be decided by arbitration under the rules of the International Chamber of Commerce in Japan, unless you happen to be somewhere in or near Japan, in which case it shall be decided in Belgium. Your reading of this provision signifies your assent to all its terms.
I will leave the analysis of its legal effect to the academics, although I would be happy to offer an opinion for a reasonable fee…
(Hat tip to Ben Davis for pointing this out.)
December 28, 2005 at 5:40 pm
Posted in: Humor
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AALS Blawg Happy Hour: More Details
posted by Daniel Solove
Here are more details about our happy hour, in conjunction with PrawfsBlawg, during the AALS conference in Washington, DC. It will be held at Cloud, on Wednesday, January 4th at 9:30 PM.
Cloud is at 1 Dupont Circle NW, which is on New Hampshire Avenue just south of Dupont Circle. Click here for directions.
I hope to meet many readers of the blog in person.
December 28, 2005 at 12:52 pm
Posted in: Administrative Announcements
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Adultery and Polygamy
posted by Nate Oman
An article (sorry no link) in this week’s Economist (aka “The Greatest News Magazine in the World”) suggests a link between polygamy and Turkey’s recent efforts to pass a law criminalizing adultery. Back in September, the Turkish parliament debated a proposed law criminalizing adultery. After Kamal Ataturk came to power in the wake of World War I, Turkish law moved in an aggressively secular direction, mainly by importing western-style civil codes. Most strikingly, Turkey essentially adopted the Swiss family law code and among other things criminalized polygamy, which had been allowed under the previous shar’ia-based law. (In theory, under shar’ia a man may have up to four wives provided that he has the means of supporting them and treats all of them equally.) The post-Ataturk laws also criminalized adultery, however this law was struck down by Turkey’s Constitutional Court in 1996 because it treated men and women differently. (As I understand it, the law required proof of a long-term affair in the case of male adultery, but a single act of sexual intercourse was sufficient in a case of female adultery.) The new adultery law was to remedy this infirmity by applying equally to both men and women, but women’s rights groups opposed the law arguing that it would not be applied equally and violated the right to privacy. More importantly, from the point of view of Turkish politics, the law was not popular with the Europeans, who saw it as an attempt to Islamicize Turkish law. Turkey very much wants to become a full member of the EU, so staying in the good graces of the elites in Brussels is very important.
Enter polygamy. Although the Turkish prohibition on polygamy is now about eighty years old, in many areas — particularly in the rural, Kurdish, anti-Turk, south-eastern portion of the country — polygamy is alive and well. More surprisingly, a certain amount of discrete polygamy continues among urban elites, including former ministers in the Turkish cabinet. The Economist suggests that adultery law may have been pushed in part as a way of shoring up the anti-polygamy prohibition. If this is the case, then the Turkish parliament was walking a path previously trod with great enthusiasm by the U.S. Congress.
December 28, 2005 at 10:52 am
Posted in: International & Comparative Law
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The Gorilla Award for 2005
posted by Dave Hoffman
It’s award season. Not a suprise. The end of the year encourages thoughts of reflection and rankings.
I thought it might be fun to institute an award for the corporate news story that won’t make anyone’s list of top events this year: the 2005 Gorilla Award. The award is named for a famous video testing “inattentional blindness.” As professors who teach Enron are fond of relating, experimenters asked students to watch a video of folks playing basketball and to to count the total number of times that the people wearing white pass the basketball, while not counting the passes of folks wearing black.
Go ahead, click on the video and perform the test. Then come back.
December 28, 2005 at 12:10 am
Posted in: Corporate Law
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A Tale of Two Blogospheres: The Red and the Blue
posted by Daniel Solove
I’ve been quite surprised that the vast majority of the larger blogs linking to us at Concurring Opinions have been conservative blogs rather than liberal ones. After all, many (though not all) of us at Concurring Opinions consider ourselves to be liberals. Despite criticisms of the conservative blogosphere as an echo chamber, I’ve been impressed that conservative bloggers are linking to us. Many of us have tried our best to be balanced rather than partisan, and perhaps this is why we’ve received many links from the conservative blogosphere. What continues to strike me as a bit odd, however, is the great disparity in links from the prominent conservative blogs versus the prominent liberal ones.
This phenomenon got me thinking more broadly about the liberal blogosphere versus the conservative blogosphere. With the caveat that this is just my personal impression, I think that the conservative blogosphere is much better integrated in its intellectual and activist dimensions. For example, the conservative political blogosphere seems much more deeply connected to the legal blogosphere, where political bloggers seem to more routinely tap into the expertise of law professors about various legal issues. Indeed, many of the prominent political bloggers in the conservative blogosphere are academics; fewer of the liberals are.
This strikes me as representative of a larger difference between the Left and Right. The Left must better connect its intellectual and activist sides. Indeed, an article about Markos Moulitsas Zuniga, the founder of Daily Kos (one of the largest and most influential liberal political blogs) states:
Moulitsas is just basically uninterested in the intellectual and philosophical debates that lie behind the daily political trench warfare. By his own admission, he just doesn’t care about policy.
December 28, 2005 at 12:01 am
Posted in: Blogging, Politics
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Grading Exams and Other Fun Activities
posted by Dave Hoffman
I started grading exams today. As most Profs. will tell you, grading is the least pleasant aspect of law teaching. Fortunately, at my current rapid pace of 2.5 hours per exam, I will be finished at the latest by mid-March.
On the plus side, I’ve almost finished writing my syllabus for next semester’s new seminar in Law and Economics. In preparing the course, I was reminded again of McCloskey’s fantastic little essay on The Rhetoric of Law and Economics, 86 Mich. L. Rev. 752 (1988). Well worth reading if you have a WL or Hein account.
December 27, 2005 at 7:12 pm
Posted in: Law School, Law School (Teaching)
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How to Be an Industry Lobbyist
posted by Daniel Solove
Chris Hoofnagle has a humorous post about industry lobbyist arguments in the consumer privacy arena:
Ever wanted to be an industry-side lobbyist? You can learn the basics right here on choof.org!
I’ve made the entry to your new career simple with this privacy industry deck of cards. These cards articulate all the arguments you need to make your case, without actually knowing anything. Master these arguments, and you too could be a high-paid lobbyist for almost any tech industry.
December 27, 2005 at 5:32 pm
Posted in: Humor
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Immigration Appeals in the Times
posted by Dave Hoffman
Adam Liptak of the Times caught up today on the blawg-headlining Posner opinion from a few weeks back on immigration appeals. Considering the lead-time, I’m surprised at the weakness of the responses to Posner’s opinion offered by the BIA’s defenders. The bottom line answer to appellate anger: “You guys are falling victim to the fundamental attribution error.”
Jonathan Cohn, a deputy assistant attorney general in the Justice Department, said the quality of the decisions rendered by the immigration courts on the whole was good, noting that the government won more than 90 percent of the cases in the federal appeals, or circuit, courts.“The circuit courts do not see any of the tens of thousands of correctly decided cases that aliens choose not to appeal,” Mr. Cohn said. “They’re only seeing a fraction of the cases, and only a small fraction of those give rise to criticism.”
I think this response is misleading.
First, the article tells us that immigrants appeal 7 to 30 percent of the time. This is the source of Cohn’s intuition that only the “bad cases” for the government end up on appeal. But I can’t imagine that Cohn’s equation of the failure to appeal with being “correctly decided” has much basis in known fact. It might be that Cohn is correct. But I’d assume instead that costs (financial, emotional, and otherwise) prevent appeals, and not being compelled by the force of the government’s arguments.
Second, just because the government wins 90% of the time in the appellate courts doesn’t mean the BIA is right 90% of the time on the merits. Most of those wins depend either on procedure or on the operation of the standard of review, which is why the overall success rate for the government on appeal is exceedingly high. Even this success rate appears to depend on the amount of attention appellate judges pay to BIA procedures. As Posner’s opinion revealed, in the Seventh Circuit in 2005 the government’s win rate was around 60% in BIA cases, as compared to 82% in all other civil cases.
Third, Cohn’s rebuttal is aimed at the wrong target. Almost all judicial review of administrative agency decisionmaking will produce the pyramid structure he describes, where the “worst” cases are the most likely to result in published appellate reversals. But what is striking about the BIA is (1) that it has appeared, to date, undeterred by Circuit Court tongue-lashing; and (2) that the problem is occupying more and more appellate time. That’s why we get statements like this one from Posner’s opinion: “the adjudication of these cases at the administrative level has fallen below the minimum standard of legal justice. Whether this is due to resource constrains or to other circumstances beyond the Board’s and the Immigration Court’s control, we do no know, though we note that the problem is not of recent origin.”
December 26, 2005 at 7:23 pm
Posted in: Civil Rights
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The Role of the Solicitor General
posted by Dave Hoffman
We here at Concurring Opinions occasionally provide an important service for our readers: we analyze uber-left-blog-Dailykos’ views on the legal system so you don’t have to.
Armando of Dailykos, who I have previously criticized here, has a new post up on the role of the Solicitor General’s Office. Armando appears to be taking on Ed Whelan’s short argument in the National Review that Judge Alito’s SG wiretapping memo’s were advocacy pieces on behalf of his administration. But on closer examination, Armando’s argument sweeps quite farther than that.
Armando quotes extensively from David Strauss’ article on the SG’s office, which had questioned the commonly-expressed institutionalist account of its role. He (Armando) appears drawn to the institutionalist view – holding that the SG should be and is somewhat independent of the White House. [Where is he on the Days-Clinton dispute, I wonder?] But, he argues, the executive branch has soiled this role by politicizing the SG [whatever that means] and by appointing more partisan lawyers to the job. [He cites to a book by Rebecca Salokar that I have not read.] Armando does not distinguish between employees of the office and the SG him/herself. He then continues:
Alito was chosen to be in the Reagan Justice Department and the Reagan Solicitor General’s office BECAUSE he believes the things Ed Meese believes. [Ed: How does Armando know this?] So yes, he was acting as an advocate for Reagan Administration legal policies, but he was chosen to advocate for them because he believes in those policies. So looking at the opinions he expressed and positions he advocated for while serving in the Reagan Justice Department and in the Solicitor General’s office is not only fair, it is perhaps the fairest approach we can take. After all, it was in those roles that we likely heard Alito’s true views. While a sitting judge, bound by precedent, Alito’s true views were muted at best, and masked at worst. [This sounds lovely. What does it mean?]
So, to sum up, Armando argues that as early as the 1980s the SG’s office was a mere extension of the White House political directorate, and that SG lawyers writing memoranda supporting administrative positions always personally supported those positions, by virtue of their status as SG employees. While Judges, actually appointed by the President in a nakedly political process, somehow are bound by “precedent”. This is an odd position considering Armando’s previous writing that embraced a cynical type of legal realism. I wonder if readers of this blog with personal experience in the SG’s office would agree with the picture of it drawn by the most popular blog on the planet.
December 26, 2005 at 11:49 am
Posted in: Privacy (National Security)
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Back From Vacation
posted by Dave Hoffman
I’m back from a week’s vacation with family, and ready to rejoin the blogging world. Not entirely coincidentally, Dan will be blogging “more lightly” in the near future as he has vacation and conferences to attend. Whether “more lightly” translates to less than once an hour remains to be determined.
I, and the rest of us here at Co-Op, were happy to see us getting a nod as “Best New Blawg in 2005″ at the BlawgReview. It is true that the award list is long, suggesting my fourth grade baseball league most-improved trophy (no shame in that!), but it was still very exciting to be recognized after only three months in existence. Thanks!
In the coming weeks, apart from a little less Dan, we’ll be joined by several exciting new guests, and hope to provide wall to wall coverage of the Alito/Spying/Patriot Act hearings in Congress. Don’t change that channel.
December 26, 2005 at 11:32 am
Posted in: Administrative Announcements
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AALS Blawg Happy Hour
posted by Daniel Solove
In conjunction with PrawfsBlawg, we invite our readers to a happy hour during the AALS conference in Washington, DC, tentatively scheduled for Wednesday, January 4th at 9:30 PM at a bar probably in the Dupont Circle area. Please RSVP to me if you’re interested. More details soon.
December 26, 2005 at 12:05 am
Posted in: Administrative Announcements
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