Archive for March, 2006
Has Scalia Gone Off The Rails?
posted by Dan Filler
The Boston Herald published a photo of Justice Scalia today documenting him flipping off a Herald reporter. (I’ve attached a different photo here. Call it USNewsophobia. The real image, with accompanying story, is only a click away.) This news story broke a couple of days back, and Scalia apparently argued that his gesture – flipping his fingers off his chin – had been misunderstood. The photographer released the photo to show that reporters had gotten the story right the first time.
Am I unusual in thinking that the Justice’s conduct is not only inappropriate but downright weird? I mean, this guy is on the SUPREME COURT. If I can learn to censor myself as part of my southern law prof persona, I have to think that the admittedly volatile Justice Scalia can do likewise. How hard can it be to avoid responding “fuck you” to a reporter? (And would the Senate confirm a similarly qualified candidate who had exhibited this sort of conduct prior to his or her confirmation hearings?)
Perhaps he’s hoping to run for vice-president.
Update. Let me first admit that I had not been following the story – particularly the Justice’s letter to the editor - as closely as I ought to have. I enjoyed the Justice’s originalist explanation a great deal. Do I think he was unaware of the more commonly understood (modern) meaning of the gesture? I’ll reserve judgment. That said, even if he was engaging in a bit of cultural arbitrage – no, particularly if he was – I have to give it up to the Justice.
March 31, 2006 at 1:47 am
Posted in: Supreme Court
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The Times’ “Massive” Libel Exposure?
posted by Dave Hoffman
Mickey Kaus, who tells-others-so often, blogs about the Hatfill v. NYT libel suit [For Mickey's take, go to Wednesday's column and scroll down]:
The Times now faces massive exposure in the Steven Hatfill libel case against columnist Nicholas ‘I Might Have Gotten it Right’ Kristof.
This feels like a massive overstatement to me. I can’t find any good analysis on the ‘net of the Times’ exposure: because it is a federal case, there was no ad damnum. A quick look around suggests that libel verdicts don’t get to be much more than $50 M (at least, those that stand up don’t). Moreover, Virginia (I believe) caps punitives at $350,000. I suppose such a cap would apply in this diversity case if VA law applied (the extent it does instead of NY law is yet to be resolved.) Putting that aside, and assuming a high damage award, the Times’ expected liability has to be discounted by the probability of its losing at trial in a traditionally pro-defendant jurisdiction. Just a guess, but I’d put the resulting probable exposure at less than $10,000,000. (I may be missing many parts to this analysis. Readers are free to chime in).
If I’m nearly right, in light of the corporation’s $250 million 2005 net income, do you think this case is keeping the CFO up at night? I don’t. I tried without luck to find any mention of a Hatfill reserve in the Times’ recent SEC filings. The only discussion of pending litigation contains “no material adverse impact” language, which is surprisingly general. If you want to know the risks that the Times thinks its shareholders should care about, check out this scary page. Bottom line: litigation isn’t the problem, the web is.
March 31, 2006 at 12:41 am
Posted in: Current Events
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A Defining Opinion On Federal Criminal Sentencing
posted by Dan Filler
Doug Berman has pointed out a truly engaging sentencing opinion out of the Northern District of Iowa. The case, U.S. v. Saenz, involved a downward departure from the federal sentencing guidelines for a defendant who provided “substantial assistance” to the government. After Kim Saenz entered a plea of guilty to a drug crime, and in light of her genuinely substantial assistance to prosecutors, Judge Mark Bennett gave the defendant a 68% reduction in sentence. Thus, Ms. Saenz received a term of 20 months for her role in the distribution of marijuana. The Eighth Circuit slapped down Bennett’s ruling, holding that this downward departure from the (no longer binding) federal sentencing guidelines was “unreasonable and excessive.” In particular, the Circuit indicated that a downward departure of 50% for substantial assistance was inherently “extraordinary.” It appears that several of the Judge’s recent sentencing decisions have been remanded on the grounds of excessive leniency.
Judge Bennett’s decision was all about redefinition. He redefined language, people, and even his own role in the production of law. In doing so, he created an opinion worth a few reading.
First, he sought to redefine the word “extraordinary.” Courts routinely define terms and in the case of the Eighth Circuit, they have defined an “extraordinary” departure as one that cuts the guideline sentence in half. This is a legal definition, of course. While this particular definition of extraordinariness may carry the force of law, it does not necessarily have the force of reality. Judge Bennett attacked attempted to undermine this legal holding by showing that a 50% reduction was not extraordinary, in the dictionary sense of the word. Like a good 21st century law prof, Judge Bennett used quantitative empirical data produced by the U.S. Sentencing Commission to show that such a reduction is actually quite ordinary. Thus, he attempted to undermine the Eighth Circuit’s legal claim by subtly shifting the term “extraordinary” out of its special legal use, and into common parlance. Very nice.
Judge Bennett also sought to redefine people. Most importantly, he wanted to reclaim the ability to define himself. He acknowledged that some people might see him as a sentencing softy. “Contrary to the perception that this string of reversals may have engendered, I am not a habitually lenient sentencer.” How to prove his sentencing cojones? First, he used capital punishment as a proxy for toughness. “The two most recent ‘kingpins’ to appear in my court received the death penalty”, he boasted. Then, more on point, he confirmed his willingness to bang a defendant, even when the government thought it unnecessary. “I have not hesitated to depart or vary upward, even sua sponte.” He concluded: “the issue is not, or should not be, whether or not I am an excessively lenient sentencer. I am not. What I am is a very experienced sentencer.”
March 31, 2006 at 12:38 am
Posted in: Criminal Law
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The Big Law School Shuffle and the US News Rankings
posted by Daniel Solove
The US News rankings are officially out (here), although advance copies floating around the blogosphere spoiled the exciting surprises.
As usual, there was some small shuffling here and there. US News sure has designed a great gimmick to captivate the world of legal academia in a near-hypnotic spell. We eagerly watch what is in essence a rather boring snail’s race, where each year, some schools inch up a few paces and some fall a few paces behind. US News gives us just enough shuffling in the race to keep us in suspense, but in reality, this race has the pacing and excitement of a 100-page law review article.
With that said, I confess I’m captivated by this silly race myself, and Paul Caron has a nifty summary of the schools making the biggest shuffles forward and backward in the race. I’m pleased that GW has inched up one notch. Now that the results are out, we’ll all have to wait until next spring to see the snails do their little shuffle again.
Last year at PrawfsBlawg, my co-blogger Kaimi had a very interesting post on the US News rankings:
Everybody loves to bash the US News rankings. Especially Brian Leiter. There is evidence that schools “game the system.” There are absurd results — precipitous drops for University of Washington and University of Kansas. There was even that dark time when the rankings placed NYU above Columbia — sacrilege by any standards, and irrefutable proof of flawed methodology. But even with all of its warts — and they are many — the US News list serves a valuable purpose. It’s cheap, accessible, and easily digestible, and it’s right more often than not. And frankly, it would be pretty ridiculous to expect much more from a $3.50 magazine. With U.S. News, the reader gets exactly what she pays for.
Exactly. We love to gripe about the US News rankings — and with good reason, for the rankings are stupid — but what should we expect from a magazine’s gimmick to sell issues? Actually, I think that the folks at US News are quite brilliant. Why should they invest the time and money to do the rankings properly? They’ve figured out a way to do the rankings cheaply yet with just enough plausibility to have them be widely accepted. They have no particular expertise in legal education, yet their rankings weild tremendous influence over it. They’ve figured out a way to shuffle up the rankings just enough each year so that we keep coming back to find out what’s going on. We gripe and gripe about it in the legal academy, yet what do we do about it? We still play along with US News. Of course, we have to, since so many folks take the rankings seriously. However, what’s to stop us from working on developing alternative ranking systems, as Brain Leiter has done? Or at the very least, why don’t we try to work with US News to get them to improve upon their rankings? Until that time, we’ll continue to be slaves to a magazine.
March 31, 2006 at 12:20 am
Posted in: Law School, Law School (Rankings)
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Relative Deprivation, Location, and Lawdenfreude
posted by Frank Pasquale
As a recent buyer of a “luxury” (read: habitable) condo in a not-so-fashionable precinct of Jersey City, I obsessively read about the “housing bubble.” It’s about as irresistible as kitschy old TV shows. The latest installment is this interesting piece by Dean Baker, arguing for governmental intervention designed to pop the purported bubble “sooner rather than later:”
If mortgage rates were pushed back to more normal levels (e.g., 7 to 8 percent), it would almost certainly lead to a sharp reduction in housing prices. Deliberately destroying trillions of dollars of wealth may seem like perverse policy, but it is important to recognize the context. If there is in fact an unsustainable run-up in housing prices, then the question is not whether prices will fall, but rather when prices will fall. The wealth is not really there. It is an illusion.
Housing economists can have a field day debating the wisdom of this proposition as a policy matter—I defer to their opinions. What piques me is the notion of “illusory wealth.” The housing bubble story reveals something fundamental about “wealth creation” via certain assets that mainstream economic measurement tends to ignore. For the 68% or so of people who own a house, rising real estate prices bring security and well-being. But for the rest, they can cause real anxieties. In many commodities markets, rising prices can induce more suppliers to meet the demand. But in many urban centers, there is little space left next to public transit or desirable amenities. Supply can’t rise to meet demand. So what we really have is a bidding war for prime space. Does this have any implications for law?
March 30, 2006 at 10:33 pm
Posted in: Culture, Current Events, Economic Analysis of Law, Property Law
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Drug Free Zones, Race, And Sentencing Dilution
posted by Dan Filler
A recent report from the Justice Policy Institute, Disparity By Design, reviews the use of “drug free zones”. Almost every state has adopted sentencing enhancements for individuals convicted of selling drugs within a set distance from schools or other drug-sensitive locations. In many jurisdictions, these zones reach a thousand feet (more or less) from the targeted drug-free site. In my home state, Alabama, any drug sale within three miles of any school (including universities) results in a mandatory five year prison term. As the Justice Policy Institute points out, this means that pretty much the entire core of the city of Birmingham is a drug free zone.
Whatever one may think of anti-drug policy, these drug free zones are very problematic. The Justice Policy Institute study points out one key reason: these rules have a substantially disparate racial impact. This disparity occurs because drug free zones have their greatest impact in high density areas, and because minorities – particularly African-Americans – are disproportionately concentrated in such areas. Though I haven’t studied the matter, I suspect that much of the impetus for these zones came from empowered suburban parents desperate to keep the drug menace out of their idyllic suburban school systems. As Joel Best showed in Threatened Children the push for many child protection laws – ranging from Megan’s Laws to these drug provisions – is typically provided by a relatively small coterie of activists who maintain their power and profile by promoting new child-protection legislation. My guess is that these individuals and groups did not set out to produce a law with a disparate racial impact. But just as in the case of Megan’s Laws – which I have shown have disparate race effects – nobody bothered to notice that these laws would almost inevitably lead to race disparities. Given the demographics of drug crimes, this impact simply cannot have been a surprise. (As for those states that make public housing a drug-free zone, matters are more complex. On one hand, the likelihood of disparate race effects is self-evident. On the other, some scholars – like Dan Kahan and Tracey Meares – might argue that the fact that these provisions are endorsed by representatives of minority communities effectively immunizes them from the disparate impact critique.)
There is a second problem with these laws, however. They undermine their very purpose. If the goal of these provisions was to deter drug sales within close proximity of schools, they should have created stronger sentences for crimes committed at the real site of risk. By expanding these zones far beyond schools, drug sellers cease to view schools as protected areas. Instead, as a practical matter, these zones simply increase the general punishment for drug sales. Some people may think this is a fine idea, but these people need to recognize that in doing so, they have diluted any special protection for schools. Not surprisingly, the study showed that these zones did not have a deterrent effect.
Kudos again to the Birmingham News for challenging Alabama’s expansive zones as bad criminal justice policy.
Hat tip: Doug Berman
March 30, 2006 at 1:00 am
Posted in: Criminal Law
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The Most Cited Cases in Administrative Law
posted by David Zaring
Some empirical research is more blog-worthy than essay-worthy. Entering citations into Westlaw’s Allfeds database over lunch may be an example.
Others have observed that Chevron v. NRDC may become the most cited case of any kind by federal courts, displacing Erie v. Thompkins. It has garnered 7909 citations, far ahead of the next most cited case in administrative law, NLRB v. Universal Camera Corp. (substantial evidence), with 4801 citations. Following that, it’s a tight race between Matthews v. Eldridge (due process), with 4293 citations, and Citizens to Preserve Overton Park v. Volpe (hard look), with 4227. The scope-of-judicial-review case that has underperformed is MVMA v. State Farm (arbitrary and capricious), with 2276 citations, less than the sort of quaint Goldberg v. Kelly’s (due process) 2377 citations and the narrow-issue-area Abbott Labs v. Gardner’s (ripeness) 2910 citations. Chevron has also stolen a lot of Vermont Yankee v. NRDC’s (rulemaking) glory – it has 1059 citations. But my not-so-dark-horse candidate for the silver medal in the future is Lujan v. Defenders of Wildlife (standing) with 3775 cites. Not too bad for a case from 1992, and I suspect that the government has installed a shift-F4 macro for the case on every one of its attorneys’ computers.
March 29, 2006 at 1:14 pm
Posted in: Empirical Analysis of Law
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They Don’t Take Dilbert Very Seriously
posted by David Zaring
Sebastian Mallaby has an interesting column on the dominance of American firms in the global marketplace, and Daniel Drezner has an interesting comment thread reacting to it.
March 29, 2006 at 1:10 pm
Posted in: International & Comparative Law
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Where Credit’s Due?
posted by Dave Hoffman
In recent months, in widely varied contexts, bloggers have expended a non-trivial number of words trying to divine a proper citation policy for writing on the ‘net. It’s the kind of activity that ought to set law review articles editors’ hearts-a-flutter, were they not engaged in the project of footnote generation editing and studying. See, e.g., the Domenech controversy (instigation; synthesis; resolution; Malkin’s moral: “the determined moonbat hordes . . . painfully . . . are right.”); the AP-citation brouhaha; the Ribstein-Baude discussion on citation as a norm/quality warranty; and yesterday’s discussions about Prawfs’/OrinKerr’s “need” to credit Xoxohth for their early posting of the ’07 USNews Rankings
Are all of these situations the same? What distinguishes them?
March 29, 2006 at 12:00 pm
Posted in: Blogging
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(International) Lawyer Joke
posted by Dave Hoffman
Duncan Hollis (my colleague, now blogging at Opinio Juris) has the goods. Funny? You be the judge.
March 28, 2006 at 3:46 pm
Posted in: Humor
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A Conspiracy of Paper-Pushers
posted by David Zaring
Perhaps you have wondered why the money that law school professors pull down is only obvious at certain law schools subject to state cognates of the Freedom of Information Act. Antitrust may be the culprit. Pursuant to a consent decree with the United States resolving a case brought under the Sherman Act, the ABA’s school accreditation committee has, among other things, “agreed to refrain from using law school compensation data and from adopting or enforcing any standards that have the purpose or effect of imposing requirements as to the base salary, stipends, fringe benefits or other compensation paid to law school deans, administrators, faculty, librarians or other employees.”
This consent decree sunsets on June 25, after a ten year run during which a number of new law schools entered the market, and salary data got enshrouded in an aura of mystery. Did the consent decree affect legal education, was it a good thing, and what will happen when it expires?
Antitrust ain’t my raison d’etre. I only wonder – and I confess I only wonder this because of a tip from a colleague – if the law reviews, with their concerted action on article length are going to be the next up against the wall. [ed. Uh, the article length thing isn’t commercial and varies from review to review. Oh really? Each of the eleven law reviews that got the ball rolling on article length signed on to a joint statement, each is “committed to rethinking and modifying its policies,” presumably at the behest of the other ten, and each is “actively exploring how to address” article length in concert with one another. So I recommend against loose talk around Thomas Barnett.]
Anyway, I farmed this one out to an expert. I asked Josh Wright, a prominent and businessey professor blogger, what he thought about the sunset of the ABA accreditation decree, in exchange for an offer to cross-post the result. Here’s what he said:
“The consent decree prohibited activity that was plainly anticompetitive: colluding with respect to faculty salaries and other benefits as well as boycotting non-ABA approved schools. Forcing existing law schools to face competition from schools, even those that offer lower salaries and fewer amenities, can only improve legal education. However, my guess is that the expiration of the decree will not tempt further collusion, because any such attempt would be both highly visible and likely to attract antitrust scrutiny.”
But Josh and I would welcome further thoughts.
March 28, 2006 at 3:01 pm
Posted in: Law School
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Outsourcing Our Data
posted by Daniel Solove
A growing data privacy issue is the outsourcing of personal data. Increasingly, US companies are outsourcing data processing to other countries. Although the United States lags much of the world in data protection, our personal information is being sent overseas to many countries that lack the same level of privacy protections as the United States. This can create risks that the data can be misused for identity theft or for fake identification. It could also create national security concerns.
There’s a big outsourcing controversy brewing in Florida, where Governor Jeb Bush made a multimillion dollar deal with a company called Convergys to process personal data, including Social Security Numbers and financial information. Convergys then contracted with another company that then outsourced to India. According to the Tallahassee Democrat:
The Tallahassee Democrat reported Dec. 25 that two former employees of GDXdata Inc. had secretly sued their ex-employer, saying the company improperly sent Florida employee records to companies in India, Barbados and possibly China for some processing steps involving the People First system. People First is Gov. Jeb Bush’s biggest “outsourcing” project – a nine-year, $350 million deal with Convergys – and all employee records are supposed to stay within the country.
Democratic legislators and U.S. Rep. Jim Davis of Tampa, a candidate for governor, called for an investigation of possible identity theft. Unions representing state employees urged DMS to make Convergys buy insurance to protect emloyees against fraudulent use of their personnel information.
Argenziano had scheduled a presentation by DMS Secretary Tom Lewis for her Senate Governmental Oversight and Productivity Committee meeting. But she said Lewis is meeting with top Convergys officials this week and “is not happy about some of the things he’s finding.”
The suit was filed under seal in Leon County Circuit Court, seeking to collect damages on behalf of the state for alleged irregularities in People First records processing. It did not accuse Convergys of any wrongdoing and the employee-services giant said at the time it had dropped GDXdata as a subcontractor for unexplained failure to do work as provided by its contract.
GDXdata said it would vigorously defend the suit. The plaintiffs said the company sought to cut processing costs from 6 cents to a penny per page by sending work overseas.
March 28, 2006 at 12:09 am
Posted in: Privacy, Privacy (ID Theft)
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The Joys of the Nasty Letter
posted by Dave Hoffman
On the topic of ways to make law-folks happy, you should read this brief article about Pittsburgh coroner Dr. Cyril Wecht. Wecht has been indicted on federal public corruption charges, including using employees to further his political ambitions. One such employee allegedly typed out the following letter, in response to a citizen who had criticized Wecht’s political ambitions:
Mr. Sueker:When I am testifying as an expert witness in major cases around the country; appearing on national television and radio shows; lecturing at major universities; writing books; accepting honors and accolades from various organizations; and making a hell of a lot of money, I have found that I am able to enhance and sustain the substantial pleasures and great joy that accompany such endeavors and accomplishments by thinking of insignificant a——- like you.
Sincerely,
Cyril H. Wecht, M.D., J.D.
Hee: the JD tag makes this story doubly-true. Writing nasty letters is one of the anti-social, but undeniable, joys of being a litigator. I can well recall associates in my Firm passing around particularly tough examples of the craft, commenting on them in the way that (I imagine) young Huns gossiped about Tamerlane’s piles of skulls. A little horrified; a little disgusted; a little jealous. Wecht’s letter is a nice example of the genre. Do readers want to share others?
March 27, 2006 at 2:31 pm
Posted in: Law Practice
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We Can All Say We Knew Him When
posted by David Zaring
Todd Kim, my former co-clerk, has just been appointed to be the first ever Solicitor General of the District of Columbia, and he’s part of a notable trend in state SG personnel. Two Jones Day appellate lawyers have left that firm’s schmancy appellate practice to become state SGs, as have a number of other ambitious Washingtonian types eager for Supreme Court arguments. The job offers interesting exit options as well: Greg Coleman left Texas’ post to become a commerical litigator with a Supreme Court practice at Weil Gotshal; Jeffrey Sutton went from being the Ohio SG to being a judge on the Sixth Circuit. So while everyone’s bursting with pride about Todd, we’re all wondering what’s in his future. Will Todd decide to be a judge or a millionaire? It’s something of a catch-22, and so I hope we can all sympathize with him during this no-doubt difficult time.
March 27, 2006 at 2:14 pm
Posted in: Sociology of Law
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Advice to Starting Law Professors: Don’t Give Advice?
posted by Dave Hoffman
Over on Prawfs, Dan Markel instigated a nice thread collecting advice to incoming professors. Something that hasn’t gotten discussed in this recent round of posts (although it has been in the past) is what a law professor should do when a student asks for help with a legal problem. This happens with some frequency to me – as a contracts teacher, I get asked a handful of times a semester to consult on a lease (for the student or a relative) or an employment agreement. I imagine that other professors get different types of questions (the property-suite of subjects is similarly vulnerable; federal courts probably isn’t).
These questions create a difficult problem for junior professors in particular. If you aren’t a member of the state bar, you obviously can not ethically practice law. Most professors have not bought malpractice insurance. Providing advice, even when insured and barred, fundamentally changes the student-teacher relationship, and may get you in a heap of trouble with the administration and students you do not help.
But failing to give students what they want can get you into trouble. And the first (and second and third) time this happens to you, you will be strongly tempted to read the lease, or parse the will, and suggest a course of action. Is there a way to let students down without creating ill-will?
In the comments to this thread, folks should feel free to (a) disclose interesting examples of requests for legal advice and how they handled it; and (b) follow-up on the issues raised when professors actually give advice.
[Topic Suggested By: Temple Law Freedman Teaching Fellow Meredith Miller, who will be joining Touro Law in the fall.]
March 27, 2006 at 9:28 am
Posted in: Law School, Law School (Teaching)
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Georgia v. Randolph and Consent to Search One’s Home
posted by Daniel Solove
Once upon a time, a wolf came to the home of a little pig:
Wolf: “Hello, little pig, let me come in.”
Pig: “No, no! Not by the hair of my chinny chin chin!”
Wolf: “Well, then I’ll huff and I’ll puff and I’ll blow your house in.”
Pig’s Wife: “That won’t be necessary, Wolf, come in, come in.”
But it’s not yet time to rewrite the tale of the Three Little Pigs.
Last week, the Supreme Court decided Georgia v. Randolph, a Fourth Amendment case involving where the police searched a couple’s home. The wife (Janet Randolph) consented to the search; the husband (Scott Randolph) expressly refused consent to the search. The police searched anyway and found evidence of Scott’s drug violations. Can the police search a person’s home when he expressly refuses to consent yet when a co-habitant consents?
The majority of the Supreme Court held that the search violates the Fourth Amendment (Justices Souter, Stevens, Kennedy, Ginsburg, and Breyer). Chief Justice Roberts, along with Justices Scalia and Thomas dissented. Justice Alito did not participate.
What makes this case difficult is that it seemingly fits within several different strands of Fourth Amendment doctrine that are not entirely coherent. In the end, I believe that the majority got it right, but I think that the case presents a very tricky issue given existing Fourth Amendment doctrine.
It is clear that Scott had a reasonable expectation of privacy in his home. The general rule under the Fourth Amendment would be that the police need a warrant to enter and search a person’s home. However, one exception is if a person consents to the search.
But what if two people have control over the area that is to be searched or the things that are to be seized? If Scott weren’t home, Janet’s consent would allow the police to validly search the home. In United States v. Matlock, 415 U.S. 164 (1974), the Supreme Court held that the “consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared.” In Illinois v. Rodriguez, 497 U.S. 177 (1990), the Court held that even if the police wrongly believe that the person consenting to the search has authority over the property, the search is valid so long as the police error was reasonable and in good faith.
This case differs from Matlock in that Scott is present, not absent. And Scott has expressly denied his consent. Whom are the police to listen to — Janet who consents or Scott who doesn’t?
Chief Justice Roberts, in dissent, notes that the Court’s holding “provides protection on a random and happenstance basis, protecting, for example, a co-occupant who happens to be at the front door when the other occupant consents to a search, but not one napping or watching television in the next room.” At first blush, he seems to have a point. The result is odd — if Scott weren’t there to say no, the cops could come in and search. So why should things turn on whether Scott luckily happened to be there when the cops came knocking? The majority opinion finesses the issue but doesn’t really do a good job of explaining a difference.
I believe that there is an important difference, and I explained it in an earlier post. I wrote:
March 26, 2006 at 8:02 pm
Posted in: Criminal Procedure, Privacy (Law Enforcement)
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More On Serendipitous Research
posted by Dan Filler
I’ve been giving more thought to my earlier post describing my alter ego as a stack rat. I noted that one downside to the digitization of libraries is that researchers will have fewer serendipitous moments. When one searches out a book with a given call number, he or she almost inevitably confronts related (or simply interesting) volumes that live nearby. I can think of many times when this process led me to useful books that I’d never heard of before. As more and more research is done online in our offices (or perhaps in our den/guest room – you know, the rooms where Barbies and My Little Ponies inexplicably like to congregate despite instructions to the contrary), we no longer happen upon these accidental wonders.
But things are bound to improve. With digitization comes the potential for new serendipities. It’s all in the hypertext. Think about Lexis and Westlaw. When I research a case, a large portion of an opinion’s references can be found with a click. Most commonly, these links take us to cases and articles. But what if their materials also included weblinks?
Of course, a large portion of scholarship outside of law (particularly articles) is also available digitally through JSTOR, Academic Search Premier, and the like. The problem is that, for now, these materals don’t contain hyperlinks. These PDF documents look nice, but they are digital dead ends. But what if these documents also included hypertext links? And what if all the new digital books did as well?
Imagine the fun! Every time I came upon an interesting citation, I could charge off into a fresh diversion. One curious quote, one odd source, and with a single mouse click – BAM – I am back in the deepest corner of the stacks exploring unexpected treasures. We’re not there yet. We’re actually in an unfortunate middle period. Increasingly we abandon the physical library, doing our research at our computer. Yet this wonderful technology has not advanced quite far enough to provide us with new serendipitous moments. But for those people who dream of the day that they can do all their research without ever moving their sedentary buttocks, buck up! Serendipity awaits.
March 24, 2006 at 12:52 pm
Posted in: Sociology of Law
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Making Law Professors Happy
posted by Dave Hoffman
Michael Livingston (Camden-Rutgers) has a relatively new blog that I just came across. Last month, he offered an interesting set of observations on why law professors, who have objectively wonderful jobs, are often so darn nervous and angsty. Here is a taste:
The answer is provided by the theory: they behave in this manner because they are doomed to compete, without anyone else to share the responsibility, in an activity in which they can never know whether they have succeeded or even what succeeding might mean.
This makes the world I live in look quite grim, and I don’t know that I buy the descriptive claim. Are professors any more unhappy than doctors, accountants, GM workers, or real lawyers? I doubt it – although Livingston’s recent post on affirmative action sheds some light on issues he finds alienating. The payoff from his claim is provocative: he offers a novel defense of the tenure system, based on relieving of the crisis caused by competing against yourself in a world without measures:
Tenure, for example, which would no longer be seen as a form of protectionism for incompetent academics, but a necessary countermeasure to prevent the suffering from becoming still more pronounced.
Ok. But if that is the goal tenure is serving, couldn’t we accomplish it more efficiently by, say, giving professors grades? Does it really matter that such grades will have no connection to objective measures? (We all went to law school, and are used to such things.) As so often happens, I’m reminded of a terrific Simpson’s episode, involving a teacher’s strike. I strongly empathize with Lisa’s response, expressed in a conversation with Marge:
Lisa: Grade me…look at me…evaluate and rank me! Oh, I’m good, good, good, and oh so smart! Grade me![Marge scribbles an A on a piece of paper]
[Lisa walks off, muttering crazily and sighing]
March 24, 2006 at 12:01 am
Posted in: Law School
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Should Professors Ban Laptops in Class?
posted by Daniel Solove
Orin Kerr writes about June Entman, a University of Memphis Law School professor who has decided to ban laptop computers in her class. While certainly of interest to law students and profesors, I’m a bit surprised that the AP thought that this was a national news story. [I should ban something from my classes and make national news, too.]
Anyway, the issue is interesting, and Orin posts an email he received from Professor Entman explaining her rationale for the policy. She observes that when students use laptops, they “focus primarily on transcribing everything said,” and don’t develop good note-taking habits. She also explains that the “wall of vertical screens” prevents her from seeing her students’ faces and that keystroke noise is a distraction.
An interesting discussion has ensued on Orin’s post. I have a comment there, disagreeing with Professor Entman’s policy. I will give students advice on good study and note-taking habits, but in the end, it is for the students to decide for themselves. Students need to learn to make their own choices and to live with the consequences of those choices. I don’t think that turning back the clock and taking students’ laptops away will help them. These are the tools we use today, and I think that it is better to teach students how to more effectively use today’s technology than to take it away. As I concluded in my comment:
There are many things I’d like to force my students to do. I’d like to force them to be prepared, to study diligently throughout the semester, and so on. I tell them all this, but in the end, I leave the choice to them. Otherwise, I begin to feel too much like parent, and I don’t always know what’s best for each student.
Will students be better off without laptops? I doubt it. Most won’t suddenly learn good habits; they’ll just resent the no laptop policy.
To keep the conversation in one place, please comment in Orin’s post (if he’ll allow you to).
March 23, 2006 at 6:50 pm
Posted in: Law School, Law School (Teaching)
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Obit
posted by David Zaring
James O. Freedman was a law professor and dean at Penn, and a president of Iowa and Dartmouth. Those of us with roots in the hinterland remember him as an Iowan of statewide popularity, who – with the assistance of a southern-fried football coach – turned a Big Ten also-ran into a big-time college athletic powerhouse. I always suspected that Freedman was delighted to leave Iowa for someplace with a smaller football stadium. He retired from Dartmouth to Cambridge, Mass.
March 23, 2006 at 3:50 pm
Posted in: Law School
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