More below the fold…

The Basic Issue:

The central question raised by Munaf is [...]]]> As Lyle noted on Tuesday over at SCOTUSblog, the first Iraqi detention case has made its way to the Supreme Court, with the filing of the cert. petition in Munaf v. Geren. Given that the hypertechnical issues raised in the cases might make it somewhat difficult to appreciate the full scope of what is at stake, I thought I’d add my own two cents on why Munaf is such an important case, both with respect to clarifying the D.C. Circuit’s messy case law, and with respect to (finally) dealing with the Supreme Court’s 1948 decision in Hirota v. MacArthur, either by limiting it to its narrower holding, or by doing away with it altogether.

More below the fold…

The Basic Issue:

The central question raised by Munaf is under what circumstances, if any, the federal courts may exercise jurisdiction over habeas petitions brought by individuals detained by the Multinational Force-Iraq (”MNF-I”). Critical to understanding the complexity of this question is understanding the two central variables:

1. Is the detainee a U.S. citizen or a non-citizen?

2. Is the detainee being held pursuant to a conviction by the Central Criminal Court for Iraq (”CCC-I”) or not?

The Cases:

Thus far, U.S. courts have considered three of the four possibilities raised by the above two variables.

The Omar case (Omar v. Harvey) involves a U.S. citizen held by the MNF-I, but _not_ convicted by the CCC-I. Indeed, Omar sought a preliminary injunction _barring_ his transfer to the CCC-I, which the district court granted in February 2006, and which the D.C. Circuit affirmed earlier this year (before denying the government’s petition for rehearing en banc).

The Munaf case (Munaf v. Geren) involves a U.S. citizen held by the MNF-I _pursuant to_ a conviction by the CCC-I. Munaf’s habeas petition was dismissed by the district court last summer on jurisdictional grounds, and the D.C. Circuit affirmed the dismissal (although divided as to whether the affirmance was on jurisdictional or merits grounds) in April of this year. The cert. petition filed earlier this week (and thoroughly described by Lyle) seeks review of _that_ decision.

There have also been a handful of cases brought by _non-citizens_ held by the MNF-I pursuant to a conviction by the CCC-I. Most prominent among them is the last-minute stay application filed by Saddam Hussein, which the D.C. district court dismissed on jurisdictional grounds last December. Other cases, including, most recently, Ramadan v. Bush, have met with a similar fate.

Finally, to my knowledge, there has not yet been a case brought in U.S. court by a non-citizen detained by the MNF-I, but not pursuant to a CCC-I conviction. Or if there has been, I am unaware, as yet, of any rulings in such a case.

Distinguishing Among the Cases–What About Hirota?:

In all of the cases described above, the government has argued that federal jurisdiction is precluded by the Supreme Court’s 1948 decision in Hirota v. MacArthur. As many readers know, I have an article hot off the presses (see 95 Geo. L.J. 1497 (2007); not yet on Westlaw) about Hirota and its relevance to the pending cases. To spare you the punishment of reading it, let me suggest three questions that make clear why Hirota’s application to these cases presents such a doctrinal morass:

1. Did Hirota turn on the absence of _all_ federal jurisdiction, or just the Supreme Court’s constitutional “appellate” jurisdiction?

Although Munaf has argued, rather forcefully, that Hirota concerned only the narrow question of the Supreme Court’s jurisdiction to entertain an “original” habeas petition, and not the availbility more broadly of _all_ federal jurisdiction, the D.C. Circuit subsequently held, in a 1949 decision called Flick v. Johnson, 174 F.2d 983 (D.C. Cir. 1949) [not available online], that Hirota also applied in the lower courts. Judge Tatel seized upon this point in Omar, noting (correctly, I think) that Flick, so long as it remains on the books, compels the answer to this question even if Hirota itself does not. [Note: The per curiam opinion in Hirota, as I explain in my article, reflected Justice Black's apparent insistence that it not explicitly rest on _either_ jurisdictional defect, which makes this that much thornier.]

2. Did Hirota turn on the citizenship (or lack thereof) of the petitioners?

The second argument advanced in Omar and Munaf for distinguishing Hirota is that Hirota was a non-citizen, and the federal courts _must_ have jurisdiction over such petitions where citizens are concerned. While this argument is obviously a compelling one as a policy matter, it’s a lot more dubious as a matter of constitutional law, for reasons I try to suggest in my article (and which Judge Lamberth explains more succinctly in the district court decision in Munaf, and Judge Brown hints at in footnote 1 of her dissent in Omar). Whether Hirota concerns limits on the Supreme Court’s constitutional appellate jurisdiction, or on Article III more generally, it is dubious to read a citizenship-based distinction into the limits on federal question jurisdiction contemplated by the Constitution. Indeed, Justice Douglas, in his post hoc concurrence in Hirota, seemed to agree that whatever rule the obtuse per curiam in Hirota stood for, it was one that would apply equally to citizens and non-citizens alike. [Note: This result is exactly why I think Hirota must be overruled, but I'll come back to that shortly.]

3. Does Hirota only preclude jurisdiction over “collateral” (or “post-conviction”) habeas petitions?

This last question, although the “smallest” as a constitutional matter, is the most significant in the current cases, for it is the _only_ basis for distinguishing Omar (in which the D.C. Circuit upheld jurisdiction) and Munaf (in which it rejected jurisdiction). The problem, as I explain in the article, is that the suit in Hirota wasn’t, in fact, a “collateral” challenge to Hirota’s conviction by the Tokyo war crimes tribunal (indeed, it is important to remember that Hirota was decided _before_ Brown v. Allen, which first threw open the door to federal consideration of collateral habeas petitions).

Precedents from the Civil War already established that federal courts only had jurisdiction to inquire into the jurisdiction of military tribunals, and so Hirota could have relied on those cases if it was rejecting jurisdiction on the ground that the lawsuit sought post-conviction collateral relief. But in reality, Hirota’s petition challenged the jurisdiction of the IMTFE, and the constitutionality of General MacArthur’s participation therein. Hirota may have had no case on the merits, but the Court’s dismissal for want of jurisdiction suggests that Hirota applies even to “jurisdictional” habeas petitions, and that it therefore does not distinguish between whether the petitioner is seeking post-conviction relief or not.

To whatever extent the above analysis makes sense, it should suggest that the D.C. Circuit’s decisions in Omar and Munaf are completely irreconcilable, and that Hirota, read together with Flick, _does_ preclude jurisdiction over the petitions in both (indeed–all) cases. To me, that’s a compelling argument for overruling Hirota, or at least Flick, but even to those who might disagree (and, to be clear, I don’t mean to suggest that the petitioners in these cases will prevail on the merits; only that the courts should _reach_ the merits), it strikes me as a compelling argument for the Supreme Court to grant certiorari and clean up this mess.

1) This is, perhaps surprisingly, not a surprise. Given the panel, and given how the oral argument went, I’m surprised only that the court didn’t strike down the MCA…

2) The jurisdictional holding is sui generis, and almost completely unhelpful to the Guantanamo cases. Everything turns on the fact that al-Marri was “awaiting” a CSRT, and so nothing in the court’s analysis seems to apply to cases where petitioners have had a CSRT, thus triggering section 7 of the MCA.

2) The holding on the merits is perhaps the most important decision in any [...]]]> Admittedly, this is after a very quick read, but here are my three big reactions to the Fourth Circuit’s decision today in al-Marri (on which, unsurprisingly, Lyle and Marty beat me to the punch):

1) This is, perhaps surprisingly, not a surprise. Given the panel, and given how the oral argument went, I’m surprised only that the court didn’t strike down the MCA…

2) The jurisdictional holding is sui generis, and almost completely unhelpful to the Guantanamo cases. Everything turns on the fact that al-Marri was “awaiting” a CSRT, and so nothing in the court’s analysis seems to apply to cases where petitioners have had a CSRT, thus triggering section 7 of the MCA.

2) The holding on the merits is perhaps the most important decision in any war on terrorism case to date, or at least on par with the Supreme Court’s decisions in Hamdi and Hamdan.

Let me try to explain why:

As the story goes, the Supreme Court in June 2004 decided in Hamdi that the government had the authority to detain U.S. citizens captured “on the battlefield” in Afghanistan, but did not reach the question in Padilla whether the government also had the authority to detain U.S. citizens captured stateside.

After remand, the Fourth Circuit answered that question in the affirmative, but then the government mooted Padilla’s cert. petition by indicting him in Miami.

Al-Marri, from the get-go, has raised an important variation of the Padilla question: Does the AUMF authorize the detention of non-citizens detained within the United States, who were lawfully present at the time of their detention? Except for the citizenship, it’s the precise issue that the Court ducked in 2004, and that the government mooted in late 2005 (with the Supreme Court’s eventual sanction).

It shouldn’t take too much to see why this is a bigger and more important question than the “Hamdi” / battlefield question. Yes, there may be fewer cases of “stateside” detentions than overseas (Iraq/Bagram/Guantanamo), but it’s the stateside detentions that have always been the litmus tests for the true scope of the government’s authority as part and parcel of the war on terrorism. Moreover, whereas the Second Circuit’s December 2003 decision rejecting the government’s authority to hold Padilla relied upon the Non-Detention Act, which only applies to citizens, the Fourth Circuit’s decision today relies upon a much deeper view of the constitutional protections enjoyed by all citizens and non-citizens legally within the United States.

So what happens next?

There are two possibilities: The government seeks rehearing en banc, or the government goes straight to the Supreme Court. In the former context, it will be interesting to see if the government attempts to argue that al-Marri is irreconcilable with the since-mooted Padilla decision, and, separately, if they challenge the MCA holding in addition to the court’s decision on the merits.

Either way, and no matter where one comes down on the questions presented, a momentous and important day in the ever-ongoing post-9/11 legal world…

In short, the court unanimously held that the MCA doesn’t apply to al-Marri (avoiding the constitutional elephant in the room), and ruled 2-1 in al-Marri’s favor on the merits.

And now, it’s on. (More analysis once I read the 86 pages).

And as I take a break from my celebratory revelry (and, more saliently, start working on my syllabi for my fall classes), I once again return to a question I’ve struggled with each of the four semesters that I’ve taught: Besides the final examination, how (if at all) should students be evaluated?

I’m one of those who gives a whole lot of graded work besides the final exam. For example, each of the previous times I’ve taught Federal Courts, I’ve given a take-home midterm. I also gave a separate writing assignment one of the two times, but not the second. When I’ve taught Civil Procedure to 1Ls, I’ve given [...]]]> It’s that wonderful, relaxing, peaceful, happy, copacetic time of year again — my grades are in.

And as I take a break from my celebratory revelry (and, more saliently, start working on my syllabi for my fall classes), I once again return to a question I’ve struggled with each of the four semesters that I’ve taught: Besides the final examination, how (if at all) should students be evaluated?

I’m one of those who gives a whole lot of graded work besides the final exam. For example, each of the previous times I’ve taught Federal Courts, I’ve given a take-home midterm. I also gave a separate writing assignment one of the two times, but not the second. When I’ve taught Civil Procedure to 1Ls, I’ve given two mid-semester graded assignments. And this semester, in my Constitutional Law class, I had every student write two response papers — for two different classes. Thus far, my final exam has never been worth more than 60% of the students’ grades, and usually it’s closer to 50%.

There’s an obvious downside to me of these additional assignments: More work writing and grading them. Sometimes, much more. But aside from that, I always find myself wondering at the end of the semester just how much students appreciate other opportunities to be evaluated, as opposed to a make-or-break, all-or-nothing final exam.

To me, this question is actually two very separate questions: First, do the mid-semester assignments actually facilitate the students’ assimilation of the material, and perhaps allow them to bring together the discrete topics earlier than in the rush right before the final? Put another way, do in-semester assignments make a substantive difference?

Second is the psychological question. Students usually say they appreciate not having everything ride on the final, but do they mean it? It’s additional time out of their schedule when the assignments are due, and, per the first question, probably requires organization of materials to a greater degree than a regular class meeting does. At the same time, students who are not good exam takers usually seem to appreciate the chance to have at least some of their grade based upon written and prepared work…

Ultimately, if it’s really a wash insofar as the students are concerned, then it seems to me that it’s not worth it. On the flip side, if it’s clearly better for the students to do it the way I’ve been doing it, then the extra time spent grading strikes me as well worth it. The problem is that I am in a singularly bad position to tell which is more accurate. My instinct is that it makes sense to have additional graded work in first-year classes, and in upper-level classes where there is simply a ton of material (i.e. Federal Courts, in which my final is not cumulative), but perhaps not in other upper-level classes (like the National Security Law course I’m teaching this fall).

Where do you come down?

First, Watters. I’ve blogged extensively about the issue and the decision before (see, e.g., here, here, and here), but the short of it is that the Office of the [...]]]> Even in a quieter Term, the Supreme Court’s 5-3 decision in Watters v. Wachovia Bank, N.A. would hardly go down as one of the more significant, noteworthy, or even interesting rulings handed down, and that will certainly prove to be the case as the present Term races toward its (increasingly controversial) end. That’s not to say, though, that Watters won’t turn out to have a substantial impact on federal and state commercial regulation in a large class of cases, and we have a First Circuit decision from yesterday as proof of that. [Hat tip to How Appealing.]

First, Watters. I’ve blogged extensively about the issue and the decision before (see, e.g., here, here, and here), but the short of it is that the Office of the Comptroller of the Currency is entitled to preempt state consumer regulation of “national banking activities” even when those activities are conducted by entities other than “national” banks. In Watters itself, the issue was whether the OCC could preempt state regulation of national banks’ operating subsidiaries, and the Court affirmed decisions of the Second, Fourth, Sixth, and Ninth Circuits, all answering that question in the affirmative (although, as I noted at the time, the Court adopted the Ninth Circuit’s Chevron-free analysis, rather than the Chevron-laden views of the other three circuits).

The problem is that by focusing on the activity rather than the actor, the Court endorsed a broad understanding of the OCC’s preemptive authority, and one that could possibly extend to oust state regulation of all kinds of commercial actors, none of whom are actually “national banks,” and none of whom are therefore expressly protected by federal statute. Justice Stevens, in his eloquent dissent, raised the specter of such a possibility, and the First Circuit, yesterday, proved Justice Stevens prophetic. More about the decision below the fold…

At issue in the First Circuit case, SPGGC, LLC v. Ayotte, was whether the OCC could preempt New Hampshire’s regulation of gift cards sold by the operator of New Hampshire’s three largest malls, given that the cards were “issued” by Bank of America, a “national” bank under the National Bank Act. Specifically, New Hampshire, via a consumer protection statute, sought to prohibit the sale of such gift cards when the cards contained both an expiration date and less-than-obvious administrative fees that would ultimately reduce the face value of the card. Thus, put another way, the case raises the question whether the OCC can preempt state regulation of third parties when the third parties are selling gift cards issued by national banks.

Writing for a unanimous panel, Judge Torruella held that the New Hampshire statute was preempted by an OCC regulation. In the opinion’s critical passage, the court, understandably, relied upon Watters:

Because the National Bank Act confers on national banks the power to issue stored value gift cards like those at issue here and to market and sell them through third party agents, we consider whether the New Hampshire CPA frustrates the exercise of that power. The New Hampshire CPA prohibits the sale of a giftcard with a value of less than $100 that carries an expiration date or administrative fees. Ayotte argues that this regulation does not conflict with the National Bank Act or OCC regulations because it regulates only Simon, a company that is not a bank. Ayotte notes that no enforcement action was brought against USB. But this analysis is too formalistic: the question here is not whom the New Hampshire statute regulates, but rather, against what activity it regulates. See Watters v. Wachovia Bank, N.A., No. 05-1342, slip op. at 13, 550 U.S. __ (Apr. 17, 2007) (”We have never held that the preemptive reach of the [National Bank Act] extends only to a national bank itself. Rather, in analyzing whether state law hampers the federally permitted activities of a national bank, we have focused on the exercise of a national bank’s powers . . . .” (emphasis in original)).

In other words, it is irrelevant whether the entity being regulated by the state is a national bank or isn’t; it matters only whether it is conducting “national banking activities.”

This may sound entirely reasonable, save one small problem: There is no support in the National Bank Act for such an activity-specific view of preemption. Quite to the contrary, the Act repeatedly relies upon the special and unique nature of national banks as justifying the preemption of state law. And so, whether the state law or the federal preemption is the wiser policy, there is absolutely zero evidence of congressional intent (which used to matter) supporting preemption of regulation such as that attempted by New Hampshire in this case.

Justice Stevens put it best at the end of his dissent in Watters:

Almost invariably the finding of preemption has been based on this Court’s interpretation of statutory language or of regulations plainly authorized by Congress. Never before have we endorsed administrative action whose sole purpose was to preempt state law rather than to implement a statutory command.

Just over one month later, we begin to reap the consequences.

Missing from nearly all of the accounts that I’ve read, though, is any discussion on the law of quarantine, an essential aspect of national security law, and yet one that has been largely neglected in the aftermath of 9/11. The seminal case, of course, is Jacobson v. Massachusetts, in which Justice Holmes held that the state’s compelling interest in protecting the public health outweighed an individual’s Fourteenth Amendment-based liberty interest. But Jacobson is over a century [...]]]> The news has, understandably, been saturated the last two days with the story of the U.S. citizen infected with a drug-resistant form of TB who has been quarantined by the federal government, the first time in over four decades that the feds have invoked such an important and exceptional authority.

Missing from nearly all of the accounts that I’ve read, though, is any discussion on the law of quarantine, an essential aspect of national security law, and yet one that has been largely neglected in the aftermath of 9/11. The seminal case, of course, is Jacobson v. Massachusetts, in which Justice Holmes held that the state’s compelling interest in protecting the public health outweighed an individual’s Fourteenth Amendment-based liberty interest. But Jacobson is over a century old, and there are lots of subsequent developments that suggest that Holmes’s open-ended reasoning may not be quite so limitless today.

All of this raises the question of why we seem indifferent to the legal implications. Don’t get me wrong — I’m not suggesting that the government lacks the authority to quarantine individuals infected with TB. 42 U.S.C. 264 seems to expressly provide to the contrary. But on the theory that every case is precedent (except Bush v. Gore, anyway), shouldn’t this case provoke at least some discussion of the current legal authorities vis-a-vis quarantine, and the constitutional issues that invocation of such a sweeping power to detain naturally raise?

I explain in somewhat more detail in the essay, which I (shamelessly) encourage you to check out — it’s a quick read, too. But I wanted to blog about it here to see if folks think there’s any possible connection. As Congress and the Supreme Court have narrowed the [...]]]> I’ve just posted to SSRN the near-final version of a short essay I wrote for “CONNtemplations,” the soon-to-debut online companion to the Connecticut Law Review, titled “The Law Reviews vs. the Courts: Two Views from the Ivory Tower.” The essay advances the (perhaps somewhat counterintuitive) claim that part of the reason why federal judges have found law reviews increasingly unhelpful is because their own discretion, both procedurally and substantively, has been substantially cabined in recent years…

I explain in somewhat more detail in the essay, which I (shamelessly) encourage you to check out — it’s a quick read, too. But I wanted to blog about it here to see if folks think there’s any possible connection. As Congress and the Supreme Court have narrowed the scope of review in all kinds of cases, as courts have relied that much more frequently on harmless error and the like, etc., is there something to be said for _that_ trend having an impact on the utility vel non of legal scholarship? Or, are we just, as Second Circuit Chief Judge Jacobs recently suggested, hopelessly out of touch?

Anyway, while I was away, two of the AALS sections to which I belong — the Section on National Security Law and the Section on New Law Professors — issued interesting paper calls for the 2008 AALS Annual Meeting. By way of disclosure, I’m on the reviewing committee for the New Law Professors. The National Security Law section call is available here; the New Law Professors’ call is reprinted beneath the [...]]]> First, my apologies for the two-week hiatus, something bad enough for a regular blogger, but perhaps inexcusable from a guest (as Stephanie would say on Full House, “how rude!”). As I noted over at Prawfs, I blame a combination of packing, grading, and moving (three of my least favorite activities), but, c’est la vie.

Anyway, while I was away, two of the AALS sections to which I belong — the Section on National Security Law and the Section on New Law Professors — issued interesting paper calls for the 2008 AALS Annual Meeting. By way of disclosure, I’m on the reviewing committee for the New Law Professors. The National Security Law section call is available here; the New Law Professors’ call is reprinted beneath the fold. Of course, I’m happy to answer questions about the topics.

It separately begs the question, though, of the role of paper calls in the annual meting… to me, it’s a great way to add fresh (or at least unpredictable) insights to an issue where the temptation may be to go with the “experts,” but I wonder if others have a different view.

More below the fold…

AALS Section on New Law Professors:

The Section on New Law Professors is sponsoring a Call for Papers. The authors of the selected papers will present their work as part of the section program at the Annual Meeting. The topic is “New Law Faculty as Catalysts for Change,” which is intended to add the perspectives of new law professors to the overall theme of this year’s conference, “Reassessing Our Roles in Light of Change.” We invite all “new” law professors (as defined below) to submit a paper on a topic with a connection to our theme. A Review Committee comprised of Section Officers and Executive Board members will select up to five of the submitted papers for inclusion on the program.

Deadline: To be considered in the competition, please send an electronic version to Professor Jennifer Kreder at krederj1@nku.edu no later than August 17, 2007. Please also send one hard copy of the manuscript postmarked no later than August 17, 2007 to: Professor Jennifer Kreder, NKU, Chase College of Law, Nunn Hall, Highland Heights, KY 41099.

Anonymity: The manuscript should be accompanied by a cover letter with the author’s name and contact information. The manuscript itself, including title page and footnotes, must not contain any references that identify the author or the author’s school.

Form and Length: The manuscript must be typed, double-spaced, on 8 1/2” by 11” paper in 12-point (or larger) type with ample (at least 1”) margins on all sides. Footnotes should be 10-point or larger. There is a 75-page limit.

Eligibility: Faculty members of AALS member and fee-paid schools who have been full-time law teachers for five years or fewer as of July 1, 2007 are eligible. (For these purposes, one is considered a full-time faculty member while officially “on-leave” from the law school.) Papers are not eligible for consideration if they will have been published before the annual meeting (papers accepted for publication prior to the meeting are eligible).

Statement of Compliance: Please include in the cover letter a statement verifying: 1) the author holds a faculty appointment at a member or fee-paid school; 2) the author has been engaged in full-time teaching for five years or fewer as of July 1, 2007; 3) all information identifying the author or author’s school has been removed from the manuscript; and 4) the paper has not been previously published and is not committed for publication prior to January 2008. The author must also agree to notify the section if and as soon as s/he learns that the submitted paper will be published before the date of the meeting.

Today is also a slightly more dubious anniversary. Five years ago today, May 8, 2002, Jose Padilla was arrested at Chicago’s O’Hare Airport on a material witness warrant issued by the U.S. District Court for the Southern District of New York. In June 2002, Padilla was transferred to military custody, where he was detained as an “enemy combatant” until January 2006, at which time he was transferred to civilian authorities here in Miami pending trial on criminal charges.

Five years after his initial arrest, Padilla’s criminal trial appears finally destined to actually take place, [...]]]> May 8 already has several claims to fame throughout history, including, perhaps most significantly, V-E Day — May 8, 1945, on which German forces unconditionally surrendered, ending World War II in Europe.

Today is also a slightly more dubious anniversary. Five years ago today, May 8, 2002, Jose Padilla was arrested at Chicago’s O’Hare Airport on a material witness warrant issued by the U.S. District Court for the Southern District of New York. In June 2002, Padilla was transferred to military custody, where he was detained as an “enemy combatant” until January 2006, at which time he was transferred to civilian authorities here in Miami pending trial on criminal charges.

Five years after his initial arrest, Padilla’s criminal trial appears finally destined to actually take place, with jury selection concluding today and opening arguments scheduled to begin next Monday, May 14. The beginning of Padilla’s criminal trial and the coincident anniversary leave me to wonder just how significant this trial actually will be, the ultimate result notwithstanding. I’m not nearly the criminal law or procedure expert that many of our readers are, and so won’t deign to speak with any authority as to the merits or the likely result here. Rather, there are two points that I think bear mentioning, even if together they may be somewhat irreconcilable.

1. It’s remarkable, in its own right, that the trial is actually happening–that Padilla got what, in effect, he had sought from the get-go, i.e., a meaningful day in court.

2. It’s a troubling reflection upon the law “after 9/11″ that it’s taken five years to get to this point, without any final and determinative resolution of the merits of Padilla’s military detention, and with the almost summary rejection of the argument that such a delay violates Padilla’s right to a speedy trial. If Padilla is ultimately convicted, one could see this case as setting a dangerous precedent for the future, where the government can hold terrorism suspects in military custody up until the point that a court is set to rule on the merits of such detention, and then moot such a decision by indicting the individual in a civilian criminal court. [It is this reality against which Justice Kennedy was arguably inveighing in his opinion respecting the denial of certiorari in Padilla last January.]

Ultimately, I’m not sure these points are in as much tension as they might seem to be. The system is working the way it’s supposed to; it just took the better part of five years to get there, and much will turn on the extent to which this case becomes precedent over the next five years.

Until then, happy anniversary.

My initial reaction is that this rubs me totally the wrong way. Wholly [...]]]> There’s a fairly disturbing (at least to me) book proposal making its way around the e-mail universe, disturbing not because of the subject (the current debate over habeas and the war on terrorism), but because of the occupation of the authors/editors — two current D.C. Circuit law clerks. Indeed, the proposal itself harps on this fact, suggesting that the two clerks “are uniquely suited to moderate this debate,” having “spent a year in the legal trenches, as it were; each serving as law clerks on the Court of Appeals for the District of Columbia Circuit during a year that saw several landmark detention decisions likely to end up before the Supreme Court.”

My initial reaction is that this rubs me totally the wrong way. Wholly separate from the prospect of law clerks speaking to reporters about their jobs after their clerkships are over is clerks using their position as a ground for a book deal. If I remember right, the relevant provision of the Code of Conduct for Judicial Employees is Canon 3D, which provides:

A judicial employee should avoid making public comment on the merits of a pending or impending action and should require similar restraint by personnel subject to the judicial employee’s direction and control. . . . A judicial employee should never disclose any confidential information received in the course of official duties except as required in the performance of such duties, nor should a judicial employee employ such information for personal gain. A former judicial employee should observe the same restrictions on disclosure of confidential information that apply to a current judicial employee, except as modified by the appointing authority.

So I guess there are three questions here: First, is using your current position as a law clerk to promote a book deal in effect (if not actually) employing “confidential information received in the course of official duties . . . for personal gain”? Second, even if not, aren’t we opening a can of worms if clerks start using their position to hawk book deals? Third, although we’ll probably have no sense of the answer, does their judge know, and if not, shouldn’t s/he?

UPDATE: I should be clear, as some have noted in the comments, that the proposal is for a volume of essays from multiple contributors, and that the clerks do not appear to be planning to write anything themselves. There also does not appear to be an actual book deal; the e-mail referenced in the post is effectively gauging interest for possible contributors. I’m not sure that changes the issue, but wanted to clarify the original content.

Anyway, I thought I’d start with a practical question: Whether, and to what extent, folks think that is a good idea to put current-events-based questions on a final exam? Borrowing (shamelessly) from my soon-to-be-former colleague Michael Froomkin, my con law final exam included a Morrison v. Olson-based question about the Office of the Special Counsel (for details on the issue, see Michael’s posts here and especially here).

Leaving aside the merits [...]]]> Greetings, everyone, and thanks to Dan, Dave, and the rest of the Concur-ers for the invite to spend some time guesting over here (and for the warm introduction). I guess, if nothing else, my guest stint will provide some anecdotal data about just how many blog-readers read both Concurring Opinions and PrawfsBlawg, my permanent home…

Anyway, I thought I’d start with a practical question: Whether, and to what extent, folks think that is a good idea to put current-events-based questions on a final exam? Borrowing (shamelessly) from my soon-to-be-former colleague Michael Froomkin, my con law final exam included a Morrison v. Olson-based question about the Office of the Special Counsel (for details on the issue, see Michael’s posts here and especially here).

Leaving aside the merits of this particular question, it strikes me that we as profs have a temptation to write current events-based questions, both because reading the news triggers our own intellectual curiosity, and because it’s a way to keep the substance “fresh” from year-to-year. But are there reasons not to? I consider a couple below the fold:

Reason Not To #1: Sometimes, it’s too obvious. Students read the same newspapers we do (I hope, anyway), and, if they’re paying attention, find the same things interesting. And so, to whatever extent students would be left to guess as to a fictitious fact pattern, here, they can think through the answer beforehand. Moreover, even if only one or two students might prepare for it out of a class of 110, that’s almost more unfair, for it skews the exam toward those more on top of current events.

Reason Not To #2: Sometimes, it’s harder to grade. The example I used this semester might help; as Michael notes, it’s a very close call, at least under extant doctrine, whether there might be a Morrison problem with the Special Counsel statute. If the fact pattern is more deliberately engineered, it might allow students to come to a more definitive answer…

I’m sure there are others, too. There are also fairly obvious reasons, I think, why using current events can be a good idea… First, it helps tie ideas that are somewhat abstract to real-life current events. Second, it helps generate ideas in the first place. Third, in some cases, it may even help us better understand the issues to read a whole bunch of student papers with different answers.

But ultimately, I think I’m on the fence. What do others think?