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APSA-Opinio Juris Happy Hour in Philadelphia

Opinio Juris, the international law blog at which three (count 'em!) of my Temple colleagues are currently blogging, is on a roll of late. They're holding a neat "virtual round-table" that coincides with the American Political Science Association (APSA)'s annual meeting. And tomorrow night, from 5:30 through 7:30 at Philadelphia's swanky Continental Midtown , they are hosting a happy hour for APSA members, and other international law junkies. I'll be crashing, and if you are one of our readers and happen to be at the event, be sure to say hello.

Posted by hoffman at 06:16 PM | Comments (0) | TrackBack

The Unconstitutionality of State-Created Bankruptcy-Specific Exemptions

Judge Jeffrey R. Hughes, writing for the U.S. Bankruptcy Court for the Western District of Michigan, has held a Michigan exemption law that applies only in federal bankruptcy proceedings to be unconstitutional. In re Wallace, 2006 WL 2347807 (Bankr. W.D. Mich. Aug. 9, 2006) (to be published). The Bankruptcy Code authorizes states to opt out of the Code’s exemption scheme. As a general matter, then, debtors from opt-out states may only exempt property from their bankruptcy estates pursuant to state-provided exemptions and nonbankruptcy federal exemptions. 11 U.S.C. § 522(b)(2), (3)(A). In this regard, the Bankruptcy Code recognizes and defers to nonbankruptcy entitlements. A state exemption law that applies only in federal bankruptcy proceedings (a “bankruptcy-specific exemption”) raises the issue of whether the recognition of and deference to nonbankruptcy entitlements translates into a congressionally-delegated authority for states to create bankruptcy entitlements. Within the exemption context, the Wallace court has answered “no.” States do not have such authority, thus rendering a state-created bankruptcy-specific exemption unconstitutional.

The court in Wallace referenced a 2000 decision issued by the U.S. Bankruptcy Court for the Northern District of Indiana, In re Cross, 255 B.R. 25 (Bankr. N.D. Ind. 2000), which found that an Indiana bankruptcy-specific exemption regarding entireties property was unconstitutional. Aside from these two decisions, I know of no others that address this issue. This is curious as Delaware, Georgia, Iowa, Kentucky, New York, Ohio, and West Virginia have all enacted bankruptcy-specific exemptions in one form or another—some allowing debtors in bankruptcy to claim more exempt property than they otherwise could outside of bankruptcy and others providing the opposite. I wonder whether courts and/or legislatures in these jurisdictions will take notice of the Wallace decision. Perhaps there are more constitutional challenges or even statutory amendments on the horizon. Stay tuned.

Posted by rafpardo at 04:17 PM | Comments (1) | TrackBack

The Supreme Court Clerkship Meritocracy

Lots of people, including the NYTimes, have noted and commented on the paucity of females among this year's Supreme Court clerkship class. But one particular quote in the Times article stuck out. Linda Greenhouse wrote that Souter "explained that he had hired the top four applicants, who turned out to be men."

Wait a second. The "top four applicants"? Are things really so cut and dried that one can clearly identify the top four applicants? First, it sure seems like most Justices filter out many excellent applicants. Based on the narrow range of schools that provide clerks, it appears that many Justices simply set aside highly qualified applicants based on school alone. I understand that this may be a simple way to limit an otherwise unwieldly pool of candidates. But it surely works to exclude many people - women, minorities, and yes, white men - who would do an equally good job. Many law non-Ivyish law schools have a top grad, an uber-star, who would make a top notch clerk. Alabama has one in the class of 2006 (a female) and I know more are in the pipeline.

But even if one accepts the assumption that four schools - Yale, Chicago, Harvard and Stanford (the schools identified by Brian Leiter as disproportionate feeders) - graduate better potential clerks than weaklings like Alabama, Texas, Temple, Vanderbilt, Emory, and Duke, I still doubt that whatever assessment tools the Justices use really identify the four objectively best candidates. Perhaps if the Justices had some data showing that a Yale Law Journal graduates who graduated summa from Williams is less likely to flame out than a Yale grad who graduated summa from Knox College, I'd buy it. And maybe the person who ingratiates himself to Larry Tribe really does pan out more often than the person who studies and thinks really hard, but never desires to do research assistance - or who does research for Jon Hanson. I just doubt it.

Diversity on the bench matters, if only because lived experience shows that people with different life experiences approach problems differently. (In that sense, Alabama's monochromatic judiciary - 15 white men and 4 white women sit on the state's three appellate courts - guarantees a cramped view of how to solve conflicts.) Diversity among clerks matters as well, partly because clerks sometimes do affect outcomes and partly because clerks form a primary pool for future solicitors, Supreme Court litigators, academics, and other leaders in the law. When Justice Souter and others (and clearly, Souter is relatively good on sex diversity) adopt dubious heuristics for evaluating candidates, their narrow choices have a wide ripple effect.

I'm certain that all nine Justices are focused on hiring good clerks. I simply believe that a pool of equally strong, and more diverse "top four applicants" can be found on the cutting room floor.

Posted by Dan_Filler at 03:45 PM | Comments (12) | TrackBack

Are We Writing Only For Ourselves?

In 1992, Judge Harry Edwards wrote an article in Michigan, The Growing Disjuncture Between Legal Education and the Legal Profession, which was, as the title suggests, an effort to redirect legal scholarship from what Edwards perceived as a too-abstract and theoretical path towards work that would be of more immediate use to h judges and lawyers. I think it fair to say that, while legal scholarship, has since evolved in a variety of directions, one of them has not been more practical scholarship along the lines Judge Edwards urged.

His piece has been much discussed, but also essentially ignored as legal scholarship has moved futher in the direction Edwards decried (I'm speaking too broadly here, I know, since terrific doctrinal scholarship continues to be produced and an increasingly empirical literature might be the most "practical" of anything that appears in the law reviews). But the median journal article, so to speak, at least in the leading law reviews, is one it is hard to imagine a lawyer or court citing, and not much easier to imagine your average policy-maker even understanding.

But this is old news. As I start this academic year, iit occurred to me that not only is legal scholarship no longer written for judges and attorneys but we in the legal academy seem far less interested than in past years in even acquainting future judges, lawers, legislators, and policy makers with our scholarship. Casebooks are increasing ignoring the literature that is the stuff of academic discussions of the topic in question, and, when the scholarship is cited it is typically in tip-of-the-hat fashion.

This might be a kind of left-handed compliment to Edwards, who was also concerned about whether legal education was failing to educate students for actually practicing law: "The law student who merely takes a variety of pure theory courses, and learns that 'practitioners [a]re sell outs,' will be woefully unprepared for legal practice. That student will lack the basic doctrinal skills: the capacity to analyze, interpret and apply cases, statutes, and other legal texts. More generally, the student will not understand how to practice as a professional."

I guess my thesis is that legal education has responded to Edwards by taking his critiques of the educational process seriously, but not by altering in any meaningful way the fundamental goals of legal scholarship. Thus, the disjuncture that Edwards was concerned about to a full-fledged breach. We not only do not write for the bench and bar -- we also do not write for our students.

Some might say that the move towards simpler, less sophisticated casebooks, is due to pressures by publishers, who want shorter, more student-friendly books. But, of course, students don't buy casebooks (well, they do, literally speaking, but they are a captive audience for the professors who "require" them), so it's likely that the publishers are reacting to the market which is, in turn, rejecting (as far as the classroom is concerned) our own work. Casebooks have always been viewed as "the lowest form of scholarship," but current pressures threaten to push them down even further -- to the highest form of study aids.

All of which leads to the title of this piece -- "are we writing only for ourselves?" And, if so, why?

Posted by Charles_Sullivan at 08:56 AM | Comments (7) | TrackBack

Above the Law: Welcome to the Blogosphere

You knew her him as A3G of Underneath Their Robes. He went on to blog at Wonkette, and now David Lat is at the helm of a new blog, Above the Law.

David offers a preview of what's to come:

1. Legal Eagle Wedding Watch. We review the New York Times wedding announcements each week, pick out some couples with lawyers, and score them -- on their résumés, families, balance, and beauty (if pictured). Then we calculate overall scores and declare a winner. FUN! (We've been at this for a few weeks now; click here and scroll down for the Wedding Watch archives.)

2. Lawyerly Lairs. Real estate and shelter porn for the J.D. set. We take you inside the lavish homes and resplendent offices of America's top lawyers and judges. Don't blame us if your keyboard ends up covered in drool. (Previously covered: Greta Van Susteren and John Coale's New York digs.)

3. The Eyes of the Law: Legal Celebrity Sightings. When you called your sister from Starbucks, in a tizzy after seeing Ted Olson, she asked: "What about Mary-Kate and Ashley?" But don't despair; we understand.

4. Advice for the Lawlame. We take the painfully earnest questions submitted to the popular career advice columns at NYLawyer.com -- and offer up responses of our own (examples here and here).

5. Hotties Contests. And lots of 'em. You get to vote on the hottest judges, law professors, and legal journalists -- among many others. (First up: ERISA lawyers. Don't say we didn't warn you -- NSFW!!!)

Posted by Daniel Solove at 09:04 PM | Comments (1) | TrackBack

Is Litigating While Drunk A Crime? I Say Yes

Dave's video link about the drunk criminal defense lawyer has generated some interesting comments. Folks seem to feel that the judge (and presumably the state) have little criminal recourse against a defense attorney who attempts to represent a client (facing life in prison, no less) while intoxicated. I'm not sure I agree.

I think there were several possibilities here. First, the judge could probably have charged him with contempt of court. Under Nevada law (NRS 199.340) criminal contempt consists (among other things) of "disorderly, contemptuous or insolent behavior committed during the sitting of the court, in its immediate view and presence, and directly tending to interrupt its proceedings or to impair the respect due to its authority." Litigating while drunk seems to qualify. And in Nevada, a judge may be able to charge the crime herself - there may be no need for a DA to bring the charges.

The DA would probably be responsible for lodging other charges. The obvious one is public intoxication. I don't know for sure, but I would not assume that the lawyer's failure to blow a .08 in court has any particular signficance under a public intox statute. First off, this numeric standard relates to drunk driving; I doubt that it has any explicit relationsihp to public intoxication. Second, since he'd been in court for two hours before blowing the breathalyzer, it's possible to infer that he was intoxicated under the DUI standard for at least part of the time. (An expert can support that claim.)

Another possibility is DUI. Based on his own admission, he drove a motor vehicle earlier. Based on his breathalyzer, as well as his statements (and an accident where he left before police arrived), there is arguably probable cause to believe he committed DUI. Will the DA win at trial? Will his statements be suppressed? Interesting questions - but not ones that necessarily need an answer at the charging stage.

But I'd like to think about a final charge - some version of an attempted assault. In Nevada, assault consists of "intentionally placing another person in reasonable apprehension of immediate bodily harm." By intentionally attempting to represent a defendant while drunk, might the state argue that he made the defendant fear unjust incarceration, and its related harms? I know this is a stretch. (He would probably argue, for example, that he did not intend to put the defendant at risk.) And I am hesitant about criminalizing lawyer conduct like this for fear that it will deter lawyers from taking serious criminal cases. But it strikes me that the choice to represent people facing life - or worse, death - while drunk is more than a courtroom management problem. It's more than an "appearance of justice" problem.

It's definitely more than an uncomfortable moment for a lawyer. It's a crime.

Posted by Dan_Filler at 05:43 PM | Comments (7) | TrackBack

This Is My Domain, Well Everyone's Really: Google and Full Text Public Domain Books

I remember watching Tarzan as a kid and hearing the declaration "The jungle...this is my domain...and I protect those who come here. For I am Tarzan, lord of the jungle" at the beginning of every episode. Well Google has taken up the public domain cry and in effect has said "This is public domain and we share it with all. For we are Google, lord of information." Google's latest cool offering is in Google books. As Google puts it "Starting today, you can go to Google Book Search and download full copies of out-of-copyright books to read at your own pace. You're free to choose from a diverse collection of public domain titles -- from well-known classics to obscure gems."

The CNET article about the service notes that Google seems to be taking a somewhat conservative approach to the definition of what is in the public domain including screening access based on different country's laws. Indeed Google cautions users to "please confirm the legality of your actions. The rules of public domain differ from country to country, and we can't offer guidance on whether any specific use is allowed. Please don't assume that a book's appearance in Google Book Search means it can be used in any manner anywhere in the world."

My guess is that the disclaimer is a way to combat some publisher who argues Google is liable for contributory infringement. And to me the country access restriction is an interesting way to try and honor differing countries copyright laws without only using the most restrictive definitions, but I wonder whether Google will use that same technology to honor reduced access to this information for political demands. This point was at issue with China already.

Finally some of you may want to check out Paul Heald's (Georgia) abstract and summary for his empirical study of public domain and copyrighted best sellers. The study examines the hypothesis that copyright extension is necessary to ensure that copyright holders would "restore older works and further disseminate them to the public." I heard Paul present the piece at the IPSC conference a few weeks ago and his use of the data to reach his conclusion about whether works are under-exploited is worth a look. I won't tell you the conclusion because that would be a spoiler.

Posted by Deven_Desai at 02:58 PM | Comments (2) | TrackBack

A Lawyer's Bad Morning

It's like watching a slow-motion car wreck.

Posted by hoffman at 09:11 AM | Comments (13) | TrackBack

An Unusual Call to the Law

Law seems to be a profession that produces family dynasties. For example, I clerked for a judge who was the scion of a great Southern legal family that had a duo of distinguished federal appellate judges and a couple of state supreme court justices to its credit. The Oman family, however, is but one generation removed from high country ranching on the western slope of the Rockies. I have, however, unearthed some judicial ancestors through my paternal grandmother.

My great, great grandfather was a man named Justin Call. He was born in Utah in the last half of the 19th century and came of age as the confrontation between the Mormon Church and the federal government reached white-hot intensity. The Mormons had committed themselves to creating a religious (indeed theocratic) commonwealth in Great Basin that was to include communitarian economic experiments, religious direction on political questions, and -- most notoriously -- polygamy. Not surprisingly, an America devoted to ideals of companionate monogamy and economic individualism was not about to let the Mormon viper rear its ugly head on the nation's hearth. The result was a series of ever more punitive laws between the 1860s and the 1880s directed against Mormon polygamists and the Mormon Church as an institution. By 1890, thousands of Mormons had been incarcerated for polygamy and "unlawful cohabitation," the Mormon Church lay in financial ruin with essentially all of its assets confiscated by the federal government, tens of thousands of Mormons had been disenfranchised, and Congress stood poised to pass legislation that would purge all Mormons from the voting rolls. Faced with institutional annihilation and permanent political subjugation for his people, Wilford Woodruff, president of the Mormon Church, issued the so-called "Manifesto," which began the tortuous process of abandoning plural marriage and Mormonism's 19th-century utopian ambitions.

Ironically, the Mormon efforts to resist the federal legal campaign had been hindered by their own anti-legalism. Zion -- the name that Mormons gave to their vision of the godly society -- was to be a place ruled by love and justice, not by the pettifogging technicalities of the common law. Accordingly, Brigham Young and his associates treated Mormons to a good generation or two of sermons denouncing the evils of lawyers and "going to law" against one's brothers and sisters. Hence, when the legal confrontation came, Mormons found themselves without many -- in Young's phrase -- "lawyers of their own to defend them."

By the 1890s, Woodruff had clearly decided that something needed to be done to remedy this situation. At the time, my great, great grandfather was teaching school in a remote settlement in the deserts of southern Utah. On a trip to Salt Lake City, he was contacted and asked to visit the office of the President Woodruff. At the time, it was not uncommon for Mormon men to be "called on missions" to preach the Mormon gospel which would send them to distant countries as missionaries. Justin Call no doubt assumed that his appointment with President Woodruff was to receive such "a call." In their interview, however, Woodruff informed my great, great grandfather that he and the other high elders of the church were concerned about the dearth of Mormon lawyers. Accordingly, they had a call for brother Call. Rather than sending him to preach the gospel, his mission was to go to law school at Cornell and then return to Utah as both Mormon and lawyer.

So Justin Call and his family packed their bags, and after a blessing was pronounced on his head by Woodruff, moved to Ithica to study law. Cornell was probably chosen because as a militantly secular university in a time when higher education was dominated by Protestant institutions, it was less likely to be hostile to exotic religious minorities like a Mormon from Utah. In the fullness of time, Justin Call graduated, returned to Utah, and eventually served as a judge.

And that is how my great, great grandfather was called to the bar.

Posted by oman at 05:08 PM | Comments (1) | TrackBack

Educated Yet Broke

Can you be too poor to file for bankruptcy, yet have the ability to repay your student loans?

When Congress amended the Bankruptcy Code in 2005, it also amended the Judicial Code to provide for the waiver of the mandatory filing fee for bankruptcy. That’s right. Prior to this statutory amendment, if you were so financially strapped that you couldn’t pay the filing fee (then, $150 for Chapters 7 and 13; now, $220 for Chapter 7 and $150 for Chapter 13), you were out of luck: Per the Supreme Court’s 1973 decision in United States v. Kras, 409 U.S. 434, in forma pauperis relief was unavailable in bankruptcy. Lest we prematurely praise Congress for changing this state of affairs, debtors today will get a waiver of the filing fee only under very narrow circumstances. A debtor must have (1) household income less than 150% of the poverty line and (2) and an inability to pay the filing fee in installments (see 28 U.S.C. § 1930(f)(1)).

Now that we have a sense of what Congress deems to be a financially dire situation, at least for purposes of filing for bankruptcy, it strikes me that we might use this measure to gauge a debtor’s inability to repay other types of debts—say, for example, student loans. In an empirical study of the discharge of student loans in bankruptcy, Michelle Lacey (mathematics, Tulane) and I documented that the financial characteristics of the great majority of debtors in our sample evidenced an inability to repay their student loans. One measure we used was the amount of the debtor’s household income in relation to the poverty line established by the U.S. Department of Health and Human Services. We had sufficient information to calculate this figure for 262 discharge determinations. For this group of debtors, half of them had household income less than 200% of the poverty line. It didn’t occur to us to run the numbers using the 150% figure applicable to the fee waiver. In light of the new statutory provision, I’ve set out to look at our data from this perspective. The numbers are sobering, to say the least.

Approximately 35% of the 262 debtors had (1) household income less than 150% of the poverty line and (2) less than $201.93 (in 2003 dollars) in monthly disposable household income—that is, the equivalent of the $220 Chapter 7 filing fee in 2006. Based on these figures, slightly more than a third of the student loan debtors would have been on their way to qualifying for a waiver of the bankruptcy filing fee had they filed for Chapter 7 today. Within this subgroup, however, approximately 42% of the debtors were denied a discharge of their student loans—which, on average, would have taken 2 years and 9 months to repay if the debtor lived expense-free and devoted all household income to this endeavor. It seems horribly unrealistic to expect that such a debtor would have the ability to repay his or her student loan. While the Bankruptcy Code fails to define “undue hardship,” the standard for discharging student loans in bankruptcy, perhaps courts should begin to look at the new fee-waiver provision to inform their application of the standard and to avoid troubling results such as these.

Posted by rafpardo at 02:29 PM | Comments (9) | TrackBack

Easterbrook To Be Elevated to Chief Judge

Just a quick heads up. According to the National Law Journal Chief Judge Joel M. Flaum turns 70 soon and when that happens Judge Frank H. Easterbrook will be elevated to Chief Judge of the 7th U.S. Circuit Court of Appeals. The article notes that the position is mainly administrative and that to accommodate his new duties, Judge Easterbrook will reduce his teaching load to one course rather than two a year.

For those interested the article lists some criticisms of the judge and some praise. In addition the article notes that Judge Easterbrook may "ask district judges of the circuit to occasionally sit on a 7th Circuit panel, giving them a view from the appellate court" which apparently is "a change from a ban on visiting judges set by Posner when he was chief from 1993 to 2000."

Posted by Deven_Desai at 12:42 PM | Comments (0) | TrackBack

Senseless Secrecy

An editorial in yesterday's New York Times criticized the current administration’s attempts to reclassify decades old information, such as the number of missiles and bombers in the United States' arsenal during the Nixon era. The editorial notes that this administration seems to have taken classification to new and frivolous levels, and cites the National Security Archive’s postings on “dubious secrets”, which lists dozens of cases in which the government classified information that no reasonable person would find worthy of secrecy. (My favorite example is the decision by a 1999 CIA reviewer to classify a Ford-era CIA memo discussing plans to sabotage the "annual courier flight of the Government of the North Pole" by its "Prime Minister and Chief Courier S. Claus").

Like the classification process, the executive may also have misused the state secrets privilege. (That's the same privilege that the government is asserting as grounds for dismissal of cases challenging the NSA’s warrantless wiretapping program). That privilege was first formally recognized by the Supreme Court in United States v. Reynolds, where the government asserted the privilege to prevent disclosure of the Air Force’s accident investigation report on the crash of a B-29 aircraft in a tort suit brought by widows of three civilians on board. The government argued that the report contained information about secret Air Force missions, and the Court agreed that the report should be withheld from discovery to protect national security. When the report was finally declassified and publicly disclosed, however, it did not appear to contain any information relevant to national security. (For more details on the Reynolds case, see "Who Will Guard the Guardians? Revisiting the State Secrets Privilege of United States v. Reynolds," published in Federal Contracts Report, vol. 80, no. 11, September 30, 2003)

These examples make me wonder whether government officials who erroneously classify information should be subject to some type of penalty. Not only do these sorts of misclassifications keep information about the workings of the government from the public, they may also jeopardize national security by making judges skeptical of the executive’s judgment and thus less likely to defer in those cases in which secrecy is actually justified.

Posted by Amanda_Frost at 10:21 AM | Comments (1) | TrackBack

Jon Benet Ramsey And The Commodification Of Fear

There's no real shock here. Since John Karr's DNA didn't match the DNA found at the scene of Jon Benet Ramsey's murder, he won't be charged with the offense. But this story shows us the intensity of public curiosity and anxiety that bubbles just beneath the surface. It's almost possible to imagine a near-bankrupt media magnate, desperate to raise advertising revenue, creating a John Karr character simply to milk an existing story for a little more cash. (Smell a movie script here?) The Jon Benet narrative is like a natural resource. It was stored in our memory,virtually inert, until John Karr unleashed the expolosive power of our pent-up curiousity and anxiety. How many other stories are just waiting for re-ignition?

I suppose it seems strange to commodify crime and other horrors, but one thing's for sure: somebody made money off John Karr this past week, and it's not hard to figure out who. The same people who dread, yet will thrive upon, the next terrorist attack. Why wait, though? Pent up anxiety spells pent up revenue. No surprise, then, that outlets like CNN and Fox News routinely try to tap into our latent fears in order to immediately access some of the advertising dollars that would otherwise flow to the 195 other networks on our digital dial.

Since you can't count on the likes of John Karr every day, a good media business will facilitate a more routine release of fear. Fear music, fear voice, fear font. Jon Stewart got that right. (Video link.)

Posted by Dan_Filler at 12:09 AM | Comments (2) | TrackBack

Name And Status Changes On The Federal Bench

Reading a complimentary piece about the tough Judge Kristi DuBose, of the Southern District of Alabama, I recalled that Judge DuBose once visited my juvenile justice class at the University of Alabama. That was way back when, in 1999, during my first year of teaching. And back then, she was Kristi Lee - Senator Jeff Session's chief counsel in Washington. In 2000 she became an Article I federal magistrate judge. And in 2005 she became a full fledged Article III district judge. Can the 11th Circuit be far behind?

I found two aspects of her life story curious. First, she changed her name while on the bench (ableit while she was still an Article I.) This must have been slightly disconcerting to attorneys who presumably then made mistakes in both filings and courtroom argument. But it's also strikes me - and perhaps only me - as a little odd. One of the key aspects of the federal judiciary is that it feels solid and consistent. Although name changes are not substantive, it seems to me that they undermine a certain perception of continuity. Can you imagine if a Supreme Court Justice changed her - or his, for that matter - name? How would we deal with Justice Ginsburg if she divorced and remarried George Clooney. This could really happen! Would we then call her Justice Clooney? The Former Justice Ginsburg? Justice Clooney nee Ginsburg? Pehaps the stakes are lower on the district bench, but what of the circuit courts? All of this leads me to wonder: how many federal judges have sported more than one family name during their terms of service?

Second question. How often do federal judges make the shift from Article I to Article III? If it happens often, you'd think that the study of these creatures would be fertile ground for some empirical research. Does lifetime tenure really matter? If the transition is rare, why is that? Are Article I judges typically non-political creatures? You'd be hard pressed to find better preparatory job experience for an Article III position than a few years as a magistrate judge. If only there was an Article I Groupie around to ask these questions.

Posted by Dan_Filler at 12:00 AM | Comments (6) | TrackBack

Briefing The First Amendment in Kentucky

We’ve previously covered the fight between Mark Nickolas, of the Blue Grass Report, and Kentucky Governor Ernie Fletcher, who recently plea bargained his way out of other trouble. As you may recall, the Governor blocked state employees from reading “blogs” while at work. While the State argued that the ban was intended to increase productivity, many suspected that the ban was actually targeted at Nickolas’ critical coverage of Fletcher’s troubled administration.

Recent developments in the case merit further comment. The complaint, drafted as a joint product of Kentucky counsel Fernandez Friedman Grossman & Kohn and Public Citizen, alleged, in part, that:

33. The state’s ban on blogs is inconsistently applied. In particular, several prominent websites commonly referred to as blogs remained available on state computers . . . including the popular site Drudge Report . . . and a website belonging to . . . Ann Coulter.”

39. [Although the state had claimed that the reason for the anti-blog policy was “[s]everal categories [of website], including entertainment and blogs, showed large state employee usage volume,”] the state continues to allow access to newspapers and magazine sites that are not classified as blogs, even though this category of website is the third most popular category [of site visited by Kentucky employees.]

In Nickolas’ cross-motion for a preliminary injunction, the arguments are fleshed out. The brief makes a two big attacks on Fletcher's ban.

• Viewpoint Discrimination: The state has a “whitelist” that overrides the default anti-blog settings. That whitelist permits, for example, SCOTUSBlog. [No other law blogs that I can see made it onto the approved list. What’s up with that?] The state also has a general policy of not blocking sites that “are purely policy-oriented”, a decision that is made by an administrator on a site-by-site basis
• Content Discrimination: Citing City of Cincinnati v. Discovery Network (the case about newspaper racks) the brief argues that the distinction between blogs and non-blogs “is at least content based”. The distinction is to boot irrational: (1) newspapers often have blog-like characteristics; and (2) the state can not validly distinguish between news-dissemination sites and personal diaries.

I haven’t read the State’s briefs, and as I’ve mentioned numerous times, I’m no expert on First Amendment law. But it seems to me that if the case were cleaner, i.e., there were no viewpoint discrimination problems of the Couter-variety thrown in,* this type of ban would turn on whether accessing internet at work is better seen as a Pickering (employee rights / speech protective) problem or as a Cornelius (NAACP forum / not speech protective) problem. The consequences of viewing the case through a fora-lens were well expressed by Judge Edwards of the D.C. Circuit, writing for the overturned appellate majority in Cornelius below:

Nothing more need be said of this dissenting opinion. The dissent has simply attempted--by advocating an astonishingly narrow construction of the First Amendment and by refusing even to question the Government's assertions of interest in this case--to make the First Amendment a nullity in that part of the public domain that it considers the "nonpublic forum." The Constitution does not envision such pockets of tyranny, and we unqualifiedly repudiate the dissent's attempt to create them. [H/T: Reader CG]

Some more general thoughts.

1. Terrible job at creating a clean litigation record by Kentucky. One might imagine a policy that said something like this: “We’ve studied the issue, and we’ve found that employees visiting blogs (a) spend more time on the internet than employees who just surf for basketball scores and obituaries in the paper; and (b) more often spend time on non-state business. Therefore, we’ll ban blogs." This policy would be also be suspect, but I think that it would withstand a facial challenge. But the actual record, at least that part of it in the plaintiff's brief, seems preclude this defense entirely.

2. I am troubled, as I am whenever I think about these issues, by the force of the argument to the effect that Kentucky could constitutionally cut its T1 line entirely, and that greater power entails a lesser. Playing out that argument in the First Amendment context is always where I lose the thread of the discussion and seek refuge in the more logical waters of corporate law. And (obviously) the Governor’s political intent here is common among sensitive politicians, and we might want to protect state employees (and bloggers) expressive rights in a way we didn’t want to protect the NAACP’s right to solicit for donations, an argument the brief makes to a degree.

3. This is a terrific fact pattern for a con law exam.

FN* Or the more insidious discrimination between our site and SCOTUSBlog.

Posted by hoffman at 11:00 PM | Comments (0) | TrackBack

Reason Number 768 To Ignore Your Spam

Good news on the airline terror front. The Cook County Circuit Court recently bound Mardin Amin over for trial (that is, found probable cause) on a charge of felonious disorderly conduct. The crime? It seems the crafty janitor from Skokie was trying to take his penis pump aboard a flight to Turkey in his carry-on luggage . Fair enough, I suppose, but the story gets weird when the TSA officer intervened. Flummoxed by the nature of this squeezable rubber object (the Sun-Times words, not mine) she demanded he identify the nature and purpose of this technology. "Penis pump", he whispered, embarrassed because his mother was nearby. The ever-vigilant TSA officer heard something else. She testified that Amin had said "a bomb." So Amin was busted (presumably leaving mom holding the pump, either to return home or take with her to Turkey.)

Now I admit I've assumed that Amin was telling the truth at his preliminary hearing. Maybe he really did say that his device was a bomb. And he would have done this, presumably, so that loads of security officers would come running over to admire the bargain he'd obtained through a special email offer. (The story does not mention whether he also acquired a genuine Rolex watch for $20 and received a free iPod in exchange for filling out internet surveys.)

As a legal matter, this is all rather unexceptional. Assuming the TSA officer was telling the truth - that is, assuming she was not some anti-expansionist on a crusade - she may have been right to arrest Amin. And no matter how good Amin's story, the judge was probably right to send the case to trial if there was a dispute over the underlying facts. But what possessed Amin to carry the pump on board? Have we lost that much faith in airline baggage handling??

What a nightmare. And to think there wasn't even any liquid in it.

Hat tip: How Appealing.

Posted by Dan_Filler at 05:43 PM | Comments (0) | TrackBack

Federalism: Coming Soon To A Theater Near You

'Tis the season for law school orientation. First years are brought in for several days of immersion in both "law" and "school". For the first of many times, students are told about the three branches of government, the structure of court systems, and the relationship of states to the federal government. I figure that about 10% of this material will stick. That's fine, however, since these themes surface again and again in most first year courses.

Orientation is also time to talk a little about the law school experience. We expose students to a bit of the Socratic Method, whatever that means in a law school circa 2006. We tell them that everyone makes mistakes in class, and that these errors are an essential part of the pedagogy. We urge students to tend to those ultra-competitive instincts. We remind them to prepare for class and, maybe, to brief cases. Naturally, there's also a bit of the dog and pony show, as various clubs and organizations make their pitch for a few of those precious spare 1L hours.

In many cases, orientation focues on legal ethics. At Drexel this year, we showed students The Smartest Guy In The Room - a documentary about the fall of Enron - and had them ruminate over the meaning of it all.

But does orientation matter? That's a question I've never fully resolved. In two or three or four days, we essentially provide trailers of the law school experience. Federalism Coming Soon To A Theater Near You. Perhaps the biggest value of orientation is exposure to the language of law. People walk away knowing what the legislative branch is. (I know - people used to learn this in high school. And some still do!) But I'm not sure whether students would do any worse if they showed up for class Monday morning, bright and early, completely flummoxed by Pennoyer v. Neff.

Perhaps the ethics piece is the big one. But here again, the cynic in me rises up. Somehow I doubt that the deceitful 1L will behave differently as a result of an hour of ethics "training." Nor can we expect most students to walk out with a clear understanding of what attorneys may or may not do. Indeed, I don't want them to think of these professional rules as any more fixed than the other rules we teach. After all, the duty of zealous advocacy is in tension with many other apsects of legal ethics. And if zealousness is disappearing as an ethical priority, is that a good thing? And what of the view that these rules are merely guild protection, an effective way of resisting state regulation?

Can we do without orientation? I'd love to hear others' views - particularly the perspectives of current law students.

Posted by Dan_Filler at 04:55 PM | Comments (4) | TrackBack

Rate My Judge

Many professors lament the website RateMyProfessors.com, where anonymous students can post evaluations of professors. The comments are not a representative sample for any given class, are quite polarized, and there is little attempt to ensure that those commenting were actually students in a professor's class.

Now, it seems as though judges are not immune. There's a site for lawyers to anonymously rate and comment on federal district court judges -- it's called The Robing Room, and it dubs itself "the place where judges are judged." According to the site's description:

The Robing Room is a site by lawyers for lawyers. Our mission is to provide a forum for evaluating federal district court judges and magistrate-judges. . . .

When you fill out an evaluation questionnaire for a judge, we post your rating scores as well as your comments. The posted average is derived from your answers to the first starred questions in the questionnaire. Questions not answered are not included in the calculation to derive the average.

Some sample comments:

* Will not decide fairly motions, even after years. Communications with the Court are usually unanswered. Asking for the resolution of pending motions may result in the decision going against you. Avoid if possible!

* Dominated by her insecurities. Can be very rude and perfunctory. Seems to take pleasure in trying to embarrass criminal defense attorneys even in front of the jury. A judge to avoid if at all possible.

Hat tip: A3G

Posted by Daniel Solove at 01:43 PM | Comments (2) | TrackBack

Finding Your Inner-UCC

I just finished my first bit of teaching as an academic. The first day of class went really well. I am teaching Commercial Law (Secured Transactions). I started out by talking about contracts in Elizabethan drama -- in particular in A Merchant of Venice and Dr. Faustus -- and why they get treated so badly. We then went on to the central role of contract in a modern society and the problems that it creates. From there we moved on to the idea of security and how it interacts with contract, outlining the the central economic and normative problems that it creates. We finished up by discussing a California case the illustrated the policy and normative arguments. The students seemed very engaged and we had a good discussion going. The second day of class we went through the rules governing the attachment of security interests to personal property. It was a bit of a flop. The students hadn't read the code. We worked through the problems and spent a large amount of time on basic questions and never even got to the difficult interpretive issues or policy questions. Afterwards I was talking to one of my colleagues about the difference between the two days. Why did the first day go so well, while the second day went so badly?

He responded, "The first day is easy. Talking nothing but big picture and policy is about getting students in touch with their inner moral sense. It's not really all that hard. On the second day, you were teaching law. Students don't have an inner Uniform Commercial Code to get in touch with, and getting them to grasp the real UCC is hard. Of course, you could be teaching con law, where there is no law to get in touch with and it is just students' inner moral sense for the whole semester..."

Posted by oman at 10:19 AM | Comments (3) | TrackBack

When Children of Politicians and Judges Blog

A recent article discusses blogs and social network website profiles by children of politicians and judges:

As the leader of the Republican party in the US Senate and a possible presidential candidate, Senator Bill Frist of Tennessee has a reputation for sober rectitude. The same cannot be said of his son Jonathan, a Vanderbilt University student who recently appeared on the internet wearing six cans of beer strapped to his belt.

Nor has Jonathan’s brother Bryan done much to help his father’s attempts to strike a reasonable note about US involvement in Iraq. “I was born an American by God’s amazing grace,” wrote Bryan Frist in an online profile. “Let’s bomb some people.” . . . .

Frist is one of at least half a dozen US politicians — and at least one US Supreme Court judge — whose public images have been dented in recent months by the internet antics of their offspring. Pictures of scantily clad daughters whooping it up have become a staple of internet gossip. . . .

No sooner had Congressman Louie Gohmert, a conservative Republican from Texas, unleashed a tirade against the moral inadequacies of Democrats opposed to the war in Iraq, than someone found internet pictures of his daughter Caroline dancing on a bartop and posing with a man in his underpants.

There was also embarrassment for Justice Samuel Alito, the conservative Supreme Court judge appointed by President George W Bush earlier this year. Alito is opposed to gay marriage, but a Facebook entry by his Georgetown University student daughter Laura declared, apparently tongue in cheek, that her relationship status was “Married to Kate Tice”. . . .

Roll Call, the Washington insiders’ newspaper published on Capitol Hill, recently reported that Jonathan Frist’s Facebook entry declared him a member of the “Jonathan Frist appreciation for ‘Waking Up White People’ Group”. It also mentioned a group where there were “No Jews allowed. Just kidding. No seriously”.

The Washington Post discovered last week that the son of a prominent Wall Street executive had been posting awkward criticisms of his father’s company, the telephone conglomerate AT&T, in a personal blog. . . .

The US media has in the past treated adolescent follies as largely a private matter, but the mushrooming trend towards public self-exposure on the internet is beginning to make life a misery for celebrities with children who blog.

Are children of politicians and judges fair game for media fodder, especially when they have their own blogs and Myspace or Facebook profiles?

Posted by Daniel Solove at 09:56 AM | Comments (2) | TrackBack

Security Choices

In discussing security vs. civil liberties, I've argued that too little questioning of the security side of the balance is going on. The government engages in some elaborate and expensive program in the name of security, and instantly the debate shifts to whether we can deal with the sacrifices in civil liberties. The effectiveness of the security measure is rarely questioned, and the defense of this position is that government security officials have the expertise and shouldn't be second guessed. But security is about choices. And I wonder whether we're making wise ones when it comes to security. I found the following article to be particulary disheartening:

A pipeline shuts down in Alaska. Equipment failures disrupt air travel in Los Angeles. Electricity runs short at a spy agency in Maryland.

None of these recent events resulted from a natural disaster or terrorist attack, but they may as well have, some homeland security experts say. They worry that too little attention is paid to how fast the country's basic operating systems are deteriorating. . . .

The American Society of Civil Engineers last year graded the nation "D" for its overall infrastructure conditions, estimating that it would take $1.6 trillion over five years to fix the problem. . . .

Then an instrument landing system that guides arriving planes onto a runway at Los Angeles International Airport failed for the second time in a week, delaying flights.

Those incidents followed reports that the National Security Agency (NSA), the intelligence world's electronic eavesdropping arm, is consuming so much electricity at its headquarters outside Washington that it is in danger of exceeding its power supply. . . .

The Commission on Public Infrastructure at the Center for Strategic and International Studies, a Washington think tank, said in a recent report that facilities are deteriorating "at an alarming rate."

Infrastructure is part of national security too, but it doesn't seem to be much of a priority right now for the government. A lot of money is being spent on data mining, NSA surveillance, and more. Could this money be better used? I'm not an expert, but I do believe we need a better system for assessing the effectiveness of security measures. Right now, many seem to be undertaken with little accountability. Congress won't second guess. The courts often won't second guess -- even when rights are at stake. But somebody needs to second guess. When it comes to security, an area where we're inclined to act more emotionally than scientifically, how do we create a system that provides adequate scrutiny for our security choices?

Posted by Daniel Solove at 12:01 AM | Comments (8) | TrackBack

Copyright and Bar Exam Questions

A federal district court recently held that PMBR was liable for a copyright violation for using questions from the Multistate Bar Examination in its classes and materials. PMBR, the “Preliminary Multistate Bar Review,” is a bar exam preparation course. The opinion is available here.

The court concluded that many of the questions in PMBR's materials are similar to those on the Multistate Bar Exam. In assessing damages, the court noted that "[s]ince plaintiff lost no hypothetical royalties, I cannot award actual damages in compensation. I can and will, however, factor the uniquely proprietary nature of the infringed questions
into apportionment of defendants’ profits." Accordingly, the court awarded the plaintiffs nearly $12 million, one third of PMBR's gross revenues during the time period of the violations. Moreover, the court held:

Defendants will be enjoined from copying, duplicating, distributing, selling, publishing, reproducing, renting, leasing, offering or otherwise transferring or communicating in any manner, orally or in written, printed, photographic or other form, including any communication in any class or other presentation, any questions obtained directly from any of NCBE’s copyrighted secure tests.

Hat tip: Lawschool.com

Posted by Daniel Solove at 02:07 PM | Comments (6) | TrackBack

Advice For New Law Students, Including My Own Small Suggestion

Seems like everyone is getting in on the advise-the-new-law-student game. The WSJ Law Blog links to (and succinctly summarizes) the wisdom of my old Alabama neighbor, Brannon Denning, Dahlia Lithwik, Vik Amar, Orin Kerr, and Jeremy Blachman.

Not enough for you? Paul Caron links to these, and other, sage insights on surviving law school.

I am also pretty partial to the unfolding advice of Belle Lettre. And Belle is right to recommend Spencer Overton's suggestions over at BlackProf.

Dave Hoffman adds the useful suggestion that students turn off their phones.

May I be so bold as to add one more? Don't get arrested.

I don't know which of these real-life student confessions was worse: getting busted with PCP two weeks before law school or beating up a cop in a drunken haze during winter break. So rephrased into the the language of an office procedure manual, the successful law student makes a conscious effort to either avoid criminal conduct or organize his or her offenses in a reasonably discrete fashion.

Posted by Dan_Filler at 09:42 AM | Comments (2) | TrackBack

Turn Off Your Cellphone or Go To Jail?

Is this legal?

An Indiana state court judge held three spectators in contempt (and restrained them for "more than an hour") after they allegedly refused to admit whose cellphone was ringing. Two spectators later admitted their malfeasance: one was fined $100, the other forced to serve 40 hours of community service. And a third spectator is to serve 40 hours for not telling the judge that he knew whose phone was ringing!

I hope there is more to the story than this. Because if there isn't, this seems like a fairly tough, verging on punitive, remedy, especially for the spectator whose only contempt was not disclosing that he knew that another spectator's phone had rung. Punitive contempt proceedings require more than summary justice.

This should also serve as a reminder to incoming first-year students. Turn your phones off. Professors, who may conceive of the classroom as a mini-courtroom, will certainly become annoyed if a phone rings during class. For what it is worth, my remedy is to call on the owner of a ringing phone, and continue to dialogue with them for the duration of class. My contracts class this fall lasts two hours. I imagine it won't happen twice.

Posted by hoffman at 10:38 PM | Comments (3) | TrackBack

Score that as E 26.1303 or How to Prevent the Study of Evolutionary Biology

The New York Times reports that “Evolutionary biology has vanished from the list of acceptable fields of study for recipients of a federal education grant for low-income college students.”

The Department of Education has claimed the omission is an error. You be the judge. The list is apparently a standard list that normally includes evolutionary biology, “the scientific study of the genetic, developmental, functional, and morphological patterns and processes, and theoretical principles; and the emergence and mutation of organisms over time” as 26.1303.

As Barmak Nassirian, associate executive director of the American Association of Collegiate Registrars and Admissions Officers, noted students must use the code system to declare their majors and the claimed omission error “is ‘odd,’ … because applying the subject codes ‘is a fairly mechanical task. It is not supposed to be the subject of any kind of deliberation.’”

Furthermore as the article notes when one looks at the list there is a clear gap between 26.1302 and 26.1304. You can see the list here. Go to page 7 of the pdf to see the gap in question.

With the number removed, students in the National Smart (Science and Mathematics Access to Retain Talent) Grant program would not be able to receive the $4,000 grants available through the program if they declared evolutionary biology as their major. That means that while the country may want to develop the talent of “third- or fourth-year, low-income students majoring in physical, life or computer sciences; mathematics; technology; engineering; or foreign languages deemed “critical” to national security” evolutionary biology may not be up to snuff.

My guess is we will never know whether the omission was a lame attempt to sneak one by the public or whether someone thought it was a funny thing to remove but failed to revert to the correct version for publication. Still as one person quoted in the article put it: "Removing that one major is not going to make the nation stupid, but if this really was removed, specifically removed, then I see it as part of a pattern to put ideology over knowledge. And, especially in the Department of Education, that should be abhorred."

Posted by Deven_Desai at 05:40 PM | Comments (3) | TrackBack

Finding Jupiter Optimus Maximus

It is not a horribly original point, but Americans expect a great deal from their courts. If we have some nasty and apparently insoluble social problem, we take it to the men in black robes and expect them to give us wonderful oracular solutions to our problems. (Amazingly, despite two centuries of failing to provide wonderful oracular solutions to social problems, we still go to court!) And of course, we surround our courts with this oracular mystique. The judges wear priestly robes. They emerge from within an inner sanctum in which they commune with the ineffable wisdom of the law. The Supreme Court Building is modeled on a Greek temple, not only in its exterior architecture, but also in its inner lay out. An entrant to the building passes through a succession of courts, each grander than the last. Admission to each court is more closely controlled, until finally one is ushered into the soaring court room where the justices emerge from behind the veil. In ancient and less judicially ambitious times, this architectural experience would have marked a symbolic assent into the presence of the gods, where the priests emerged from behind the veil that shrouded the Ark of the Covenant or the statue of Jupiter Optimus Maximus.

Apparently, we Americans learn this reverence (idolatry?) for the law early. A few weeks ago, I took my four-year-old son with me to the law library to pick up some books. As we walked past shelf upon shelf of the federal reports, my son asked me what those big books were. I pulled down a volume to show him, thinking that I would explain to him what a case and an opinion are. No need. He took one look at the double columned agate type on foolscap paper, and said, "Oh. It's the scriptures." I looked down and realized that the reporters do look suspiciously like the family Bible. It would seem that even in our book binding, the law apes the sacred.

Posted by oman at 02:27 PM | Comments (4) | TrackBack

Terrorism and Security Overreactions

Bruce Schneier has a thoughtful and provocative post about how our overreactions to terrorism are exactly what the terrorists want:

The point of terrorism is to cause terror, sometimes to further a political goal and sometimes out of sheer hatred. The people terrorists kill are not the targets; they are collateral damage. And blowing up planes, trains, markets or buses is not the goal; those are just tactics. The real targets of terrorism are the rest of us: the billions of us who are not killed but are terrorized because of the killing. The real point of terrorism is not the act itself, but our reaction to the act.

And we're doing exactly what the terrorists want. . . .

Regardless of the threat, from the would-be bombers' perspective, the explosives and planes were merely tactics. Their goal was to cause terror, and in that they've succeeded.

Imagine for a moment what would have happened if they had blown up 10 planes. There would be canceled flights, chaos at airports, bans on carry-on luggage, world leaders talking tough new security measures, political posturing and all sorts of false alarms as jittery people panicked. To a lesser degree, that's basically what's happening right now.

Our politicians help the terrorists every time they use fear as a campaign tactic. The press helps every time it writes scare stories about the plot and the threat. And if we're terrified, and we share that fear, we help. All of these actions intensify and repeat the terrorists' actions, and increase the effects of their terror. . . .

The surest defense against terrorism is to refuse to be terrorized. Our job is to recognize that terrorism is just one of the risks we face, and not a particularly common one at that. And our job is to fight those politicians who use fear as an excuse to take away our liberties and promote security theater that wastes money and doesn't make us any safer.

I very much agree. As I've argued before, when looking at the big picture, terrorism actually accounts for a very small risk of death or injury. More people die each year of nutritional deficiences than terrorism. The number injured and killed in car accidents each year is over 10 times greater than the toll in 9/11. Likewise for the number who die of the flu each year. Terrorism is certainly a risk, and we should certainly try to prevent it, but we should inflate the risk out of proportion. I've likened it to the shark bite phenomenon -- when very rare events like shark bites occur, they grab the headlines, and people have a dramatically inflated perception of the risk.

Many security measures strike me as a silly waste of money and resources that could be used in ways that will save more lives, be more beneficial for society, and even provide more effective security. Security measures such as the NYC subway searches cost oodles of money and time and tie up personnel that could be used more productively elsewhere.

The difficult question is how, exactly, we can heed Schneier's advice. Terrorism is so effective at grabbing the headlines, and it's hard to convince those in a panic to calm down. And for politicians, it is difficult not to trot out whatever security measures that can be conceived of, regardless of their financial costs, sacrificies in liberties, and even effectiveness so long as they appear to be doing something. I wish I could figure out a structural answer to the problem, but thus far, I have not had much luck.

Posted by Daniel Solove at 02:24 PM | Comments (15) | TrackBack

Form of Internet Access Task Force: FTC Group to Examine Net Neutrality

According to ComputerWorld the FTC has created an Internet Access Task Force to examine whether broadband providers are behaving anti-competitively. Chairwoman Deborah Platt Majoras has framed the issue this way:

I have to say, thus far, proponents of Net neutrality regulation have not come to us to explain where the market is failing or what anticompetitive conduct we should challenge.

First, the quote seems like an invitation for those who support net neutrality to approach the FTC with their arguments. Second, it seems that the question might be put differently so that it asks what anti-competitive behavior we face without net neutrality legislation. The problem may be that proving the undes