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The Future of Law Libraries

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Via Brian Leiter, I read this post on a controversy at Tulane’s Law Library. The Law Librarian Blog, after detailing recent staff and policy shifts, wonders whether the University administration is using Katrina as an excuse to do away with an independent academic law library:

So my question is do the actions at Tulane reasonably represent a sub rasa determination by relevant powers to subsume the law library into the operations of the University library, demoting it from an independent entity and transforming it into a subordinated department? The recent spate of firings looks to be designed to preshape the structure of the law library for insertion into the main library’s organization.

If this is true, I wonder whether Tulane would defend itself by arguing that in light of recent developments, there is less of a need for an independent law library than there used to be. Or, more provocatively, “Law Libraries. Huh. What are they good for?”

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The Confirmation Hearings: A Meaningless Ritual

alito2a.jpgThere is a lot of discussion about the lack of meaningful revelations in the Alito confirmation hearings. The Roberts confirmation hearings were also devoid of much meaningful substance as well.

Basically, the nominee must say that he’ll have an open mind, that he will decide cases according to the “rule of law,” that he has respect for precedent, and that he won’t be a “judicial activist.” The nominee must sit calmly while Senators bluster and wait out the storm.

We’re learning next to nothing of importance at these hearings. With the exception of Robert Bork and Clarence Thomas, do the confirmation hearings really reveal much of anything at all?

One possible reason for this state of affairs is that the lessons of the Robert Bork hearing are well-known. Everybody knows not to reveal too much, not to lay out their full hand on the table.

Another reason is that much vetting and discussion occurs before the hearing. With Alito, there were few surprises at the hearing. Most of the discussion occurred beforehand in the media and in the blogosphere. Miers, for example, had a hearing of sorts and was rejected before her official confirmation hearing had even begun.

So perhaps we should stop looking to the hearings for much meaningful substance. Any real substance comes in the media and blogospheric discussions beforehand. The hearings are little more than an empty ritual.

3

Baseball Statistics as Intellectual Property?

baseball1a.jpgFrom the AP:

A company that runs sports fantasy leagues is asking a federal court to decide whether major leaguers’ batting averages and home run counts are historical facts that can be used freely or property that can be sold.

In a lawsuit that could affect the pastime of an estimated 16 million people, CBC Distribution and Marketing wants the judge to stop Major League Baseball from requiring a license to use the statistics.

The company says baseball statistics become historical facts as soon as the game is over, so it shouldn’t have to pay for the right to use them. . . .

Major League Baseball has claimed that intellectual property law makes it illegal for fantasy league operators to “commercially exploit the identities and statistical profiles” of big league players.

The LA Times has a more detailed article. The complaint is here.

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Introducing Guest Blogger Dan Filler

dan-filler2.bmpWe’re delighted that Dan Filler will be guest blogging here over the next few weeks.

Dan is a Professor of Law at the University of Alabama, where he teaches courses in criminal law and directs a capital defense clinic. He received his A.B. from Brown University and his J.D. from NYU. Before entering teaching he clerked for Judge J. Dickson Phillips on the Fourth Circuit, practiced with Debevoise & Plimpton, and served as a public defender with the Defender Association of Philadelphia and the Bronx Defenders. His newest article, The New Rehabilitation, is forthcoming in 91 Iowa L. Rev. __ (2006). His other publications include Silence and the Racial Dimension of Megan’s Law, 89 Iowa L. Rev. 1535 (2004), Terrorism, Panic and Pedophilia, 10 Virginia Journal of Social Policy & the Law 345 (2003), From Law to Content in the New Media Marketplace, 90 Cal. L. Rev. 1739 (2002), and Making the Case for Megan’s Law: A Study in Legislative Rhetoric, 76 Indiana L.J. 315 (2001).

We greatly look forward to Dan’s visit.

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Welcome to the Blogosphere: LawCulture

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An interesting new blog called LawCulture has just been born. According to the blog’s first post:

We are launching a new group blog, with a focus on law, culture, politics and life inside and outside of the legal academy. We’re just gearing up, so you might not hear too much from us over the next week or two, but we’re all excited to be dipping our toes blogosphere.

Bloggers include David Barron (law, Harvard), Jennifer Mnoonkin (law, UCLA), Jessica Silbey (law, Suffolk), Kim Scheppele (public and international affairs, Princeton); Peter Brooks (law, Virginia); and Rosa Brooks (law, Virginia).

Welcome to the blogosphere!

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“You’re only as accurate as your database.”

Over at LawCulture, Jennifer Mnookin relates an interesting instance of being misquoted due to database error. In today’s blog-fed world, this is a serious concern.

At my other blog, Times and Seasons — which is over two years old — we’ve migrated from one software platform to another, not once but twice. Somewhere in the process of the second migration, a few of the old entries had their author designations jumbled. I thought that I had fixed them all, but it turns out that some errors still existed; a few weeks back, I got this e-mail from a sharp-eyed reader:

“I was reading an old post that is attributed to Russell Arben Fox, but all the commenters are addressing you as the author. I’m wondering if there is a data error that has crept into the database.”

I went back and fixed the authorship on that particular post — I wouldn’t want to knowingly saddle Russell with the burden of being tied to my own barely-coherent thoughts, particularly on hot-button topics like why I dislike Dale. That post is now correctly attributed; I haven’t done more, though, although it’s quite possible (probable, even) that other misattributed posts still exist.

Why haven’t I done more? Because I’m not really a computer person (though I pretend to be one); because checking all of the posts would be a lot of work; because real life intervenes, and blogging doesn’t put food on the table.

I still have the old Moveable Type database, though. I tell myself that one of these days — when I have a moment between revising my article (revisions due Tuesday!) and prepping my classes and preparing the budget for my conference and making nice with a friend who I inadvertently offended and playing with my kids and occassionally even catching a movie — I’m going to go back to the old database, compare authorship, and fix any misattributed posts. But right now, that particular project is so far off the front burner, it’s not even in the kitchen.

I can sympathize with Mnookin’s plight — she’s quite correct that one is only as accurate as one’s database. But as the administrator of an almost-certainly imperfect database myself, I can also understand how such errors creep in, and sometimes stay in.

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The Market Tells Us What To Think About Alito’s Hearings

Reading conflicting accounts of the Senate’s hearings on Judge Alito, I thought it might make sense to turn to the InTrade electronic futures market. This graph of the predicted likelihood of Alito’s confirmation is somewhat illuminating:

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The trading history indicates a small run before the hearings began, but once the questioning started, Alito made a dramatic comeback. The last price I saw quoted was 97 (i.e., the traders think he has a 97% likelihood to be confirmed).

But that isn’t particularly surprising. I data mined dug a bit deeper and found two other interesting results.

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1

Sitting by Designation on the Supreme Court

This article from the ABA’s online journal discusses the possibility of designating Circuit Judges for service on the Supreme Court when a recusal raises the possibility of a case being affirmed by an equally divided Court.

My reaction is cautiously negative. To be sure, such a program allows for cases to be decided by the Supreme Court, providing uniformity in the interpretation of a particular portion of federal law. I wonder, however, how often circuit splits are allowed to persist because of recusals. Most times, I would imagine, a Justice recuses himself because of a conflict of interest relating to a particular party. When that same issue is raised in a later case by a different party, there is no recusal and the issue is decided.

I wonder how the Court would treat a 5-4 precedent where one of the 5 was a Circuit Judge sitting by designation. On the one hand, there would be little point in allowing the designation if the cases were not to be accorded horizontal stare decisis. The Supreme Court is not a court for the correction of errors (usually), and the Court does not normally take cases that will have no effect on the development of the law.

On the other hand, however, I would be very uncomfortable treating such a case as binding by the regular nine-Member Court in a case where there was no recusal. Imagine, for example, that in a case interpreting Statute X, Justice O’Connor is recused and the rest of the Court splits 4-4. A designated Circuit Judge breaks the tie and holds that the statutory language means A. In the next case raising the issue, Justice O’Connor does not need to recuse. Why should she be bound to A, if she and four other Justices think the correct interpretation is B?

Such a proposal is not new. It is used, as the article reports, by many state supreme courts, including the New York Court of Appeals, where I clerked. By all accounts that system works well, and I know of no instance where there was any acrimony in choosing the judges who were to sit by designation on that court. Additionally, it was proposed by Justice John Paul Stevens in 1988 for adoption by the U.S. Supreme Court itself. See Artemus Ward, Deciding to Leave: The Politics of Retirement from the United States Supreme Court 255-57 (2003).