I think it’s interesting to see who is giving talks where, and I have occasionally learned about a relevant paper that someone is workshopping (and willing to share) before it is posted on SSRN.

In recent weeks I’ve noticed that a high percentage of the entries on the site seem to be for faculty who are giving talks at their home institutions, and I was wondering whether schools have internal summer workshop programs. While such programs might not be feasible at all schools — for example, when the temperature starts breaking 110 degrees here in Phoenix (which is an extremely pleasant place to live for almost the entire year), many of the [...]]]> A couple times a month, I take a look at the Legal Scholarship Blog.

I think it’s interesting to see who is giving talks where, and I have occasionally learned about a relevant paper that someone is workshopping (and willing to share) before it is posted on SSRN.

In recent weeks I’ve noticed that a high percentage of the entries on the site seem to be for faculty who are giving talks at their home institutions, and I was wondering whether schools have internal summer workshop programs. While such programs might not be feasible at all schools — for example, when the temperature starts breaking 110 degrees here in Phoenix (which is an extremely pleasant place to live for almost the entire year), many of the faculty at ASU head for cooler climates — I’d be interested to hear from people at schools where summer workshops are the norm. Are speakers mainly drawn from inside the faculty? How often do you have workshops? What is attendance like?

On a different note, I wanted to thank Dan and the rest of the CoOp bloggers for inviting me to post here over the last couple of weeks. I’m heading out of internet range for the rest of the month, so this will be my last post.

There were several great moments at the panel, including [...]]]> I am in DC visiting family, and so I decided to attend the Legal Times’ panel “Sizing Up the 2007-2008 Supreme Court Term,” which was held this afternoon at Georgetown Law Center. It was an interesting panel. Tony Mauro moderated, and the speakers included Ted Cruz (who until recently was the solicitor general of Texas and now is at Morgan, Lewis & Bockius), Walter Dellinger (O’Melveny & Duke Law School), Pattie Millett (who recently left the US Solicitor General’s Office to join Tom Goldstein at Akin Gump’s Supreme Court practice), and Malcolm Stewart (a veteran assistant in the US Solicitor General’s Office whose oral argument recordings I’ve used to teach my students about appellate advocacy).

There were several great moments at the panel, including Stewart’s description of “the Two Courts.” The better-known Supreme Court issues 3 or 4 controversial decisions every term, often by a 5-4 margin, and its actions are reported closely by the NY Times and the Washington Post. The other Supreme Court decides more technical questions, such as the interpretation of statutes and federal rules, and its opinions remain largely unknown to the general public though they are in many ways the more important cases for the legal profession. Columnist James J. Kilpatrick once expressed this same concept in the following way —“For every Roe vs. Wade, there are dozens of cases like Unitherm Food Systems Inc. vs. Swift-Eckrich Inc.”

Another highlight of the panel involved an interaction between Dellinger and Cruz. Cruz, who represented several amici in Kennedy v. Louisiana, was discussing the recent news that the majority opinion and the parties’ briefs failed to mention that US military law provides for the death penalty in child rape cases. (A story I blogged about last week.) Dellinger interrupted to observe that the media shouldn’t focus on a failing by the Court or the parties, but rather that Congress passed a bill, which the President signed, and yet no one in the legislature or in the White House seemed to realize that this provision existed. (Dellinger pointed out that the provision was introduced as a floor amendment to a 400+ page appropriations bill.) While the two panelists may have disagreed about whether the Court reached the correct result in Kennedy, they agreed that this obscure military law illustrated the absurdity in the Court’s death penalty consensus jurisprudence. Counting states and laws says little about public consensus when no one seems to know what laws are in place.

I’ve recently written an article that argues, at least in part, for more lenient treatment of veterans and others who have performed good works, so I found this article intriguing. The basic premise of my article is that, if we are going to increase criminal sentences because defendants have committed bad acts in the past (i.e., committed previous crimes), then we should also decrease sentences for those defendants who have committed good deeds. [...]]]> Yesterday, the AP reported on a special criminal court in Buffalo, New York aimed at veterans. The city developed this diversion program, which resembles drug courts that have been implemented in many cities, after realizing that a significant number of criminal cases involved defendants who had previously served in the military.

I’ve recently written an article that argues, at least in part, for more lenient treatment of veterans and others who have performed good works, so I found this article intriguing. The basic premise of my article is that, if we are going to increase criminal sentences because defendants have committed bad acts in the past (i.e., committed previous crimes), then we should also decrease sentences for those defendants who have committed good deeds. The Buffalo program is in keeping with my own intuition that we should cut some slack to those who have served in the armed forces, and who later find themselves in the criminal justice system, so long as their crimes are not particularly numerous or serious. But while I was researching and workshopping the article, I was surprised to learn how many people don’t share this intuition.

Several people who read and commented on my paper questioned whether there is sufficient public support for a punishment system that punishes military veterans less severely. Indeed, when news of Doug Berman’s efforts to obtain a reduced sentence for a convicted veteran reached the Volokh Conspiracy, the comment thread contained a lot of remarks opposing sentencing leniency for vets — in fact a few commenters questioned whether enlisting in the military constitutes a “good deed.”

Perhaps the most telling remark I heard on this issue was from a colleague who asked me what military service tells us about a person’s character. If military service is indicative of good character, and if that good character is the reason for leniency, then how does a veteran’s subsequent criminal act bear on his or her character?

The Buffalo program avoids the character question by segregating veterans from the rest of the criminal court system because of “their unique mental health issues.” As the daughter, granddaughter, niece, and cousin of military veterans, I admit that my own views on this subject may not be entirely free from personal bias. But I find it kind of sad that we find it easy to give veterans a criminal justice break because we think they’re crazy, but not because we think that they’re heroes.

In today’s New York Times, Linda Greenhouse points out what appears to be a factual error in the Kennedy v. Louisiana majority opinion. Justice Kennedy’s majority said that 30 of the 36 states with the death penalty and the federal government do not proscribe the death penalty for child rape. But the Uniform Code of Military Justice was revised by Congress in 2006 to add child rape to the military death penalty. Greenhouse notes that this provision of military law escaped the attention not only of the members of the Court, but also the attention of the ten parties who filed briefs in the case.

In addition to questioning why no one in the federal government brought the UCMJ provision to the attention [...]]]>

In today’s New York Times, Linda Greenhouse points out what appears to be a factual error in the Kennedy v. Louisiana majority opinion. Justice Kennedy’s majority said that 30 of the 36 states with the death penalty and the federal government do not proscribe the death penalty for child rape. But the Uniform Code of Military Justice was revised by Congress in 2006 to add child rape to the military death penalty. Greenhouse notes that this provision of military law escaped the attention not only of the members of the Court, but also the attention of the ten parties who filed briefs in the case.

In addition to questioning why no one in the federal government brought the UCMJ provision to the attention of the Court, Greenhouse explores how the parties’ research failed to uncover the provision. Jeff Fisher’s explanation of how his appellate team found an older provision but not this more modern one reads like an ad for Shepards. And lawyers for the state of Louisiana, the party that would have been helped by the information, are obviously ducking the Times’ calls.

I have long suspected that non-military lawyers and legal commenters essentially ignore U.S. military law. In the wake of the 2004 decision in Blakely v. Washington, for example, there were several articles discussing the feasibility of jury sentencing, but I didn’t see any mention of the fact that sentences at courts-martial are voted on by the military equivalent of a jury. More recently, I have been working on a project about the historical development of the crime of burglary in the United States. None of the law review articles I’ve read for the project mention that, unlike all other U.S. jurisdictions, the UCMJ retains the old common law definitions of burglary and nighttime.

One explanation for the scant attention paid to U.S. military law may be the difficulty associated with research. Title 10 of the U.S. Code is devoted to military law, but many relevant provisions are codified in the Manual for Courts-Martial rather than in the code. And while the Manual is available on Westlaw, I had better success performing my searches using a complete copy of the Manual I found online — in fact, the relevant provision I was looking for didn’t appear in my WL search. So for those of you who are conducting a 50 state survey — whether for the Court or for a law review article — here is a copy of the Manual for Courts-Martial. Of course, some might say that non-military briefs and law review articles need not address military law because it is sui generis. But so are the laws of the various states, to some extent.