9

Fantasy Law School League

Folks have joked about the idea of running a “Fantasy Law School” league (a la a fantasy football league) for some time now. But the recently-posted Leiter rankings, combined with USNews and a wealth of statistics (pseudo and otherwise), indicate that we are entering a brave new era in the evaluation of law school quality and talent. No more fuzzy and impressionistic scouting of talent; bring on the new and more scientific “Moneyball” approach. Herewith, some proposed rules (comments and suggestions welcome):

1. Season: 1 year, starting Sep. 1

2. Maximum 10 law schools per league, 15 law professors per school.

3. Required positions: Dean, Contracts, Property, Torts, Civil Procedure, Criminal Law, Constitutional Law, Corporations, Evidence, Tax, Junior Faculty Member (less than 5 years), Student Body (pick school). Remaining positions are optional, but must be in different subject matters. Subject matter positions are for teaching, and may be completely disconnected from research.

4. Statistics:

(a) donations: $200k = 1 point.

(b) citations: 1 cite in Westlaw’s JLR or SCT = 1 point.

(c) ssrn downloads: 10 downloads = 1 point. (gaming of downloads will result in forfeit).

(d) law review articles: top-10 journal = 10 points. 10-30 journal = 5 points. remaining = 1 point.

(e) books: top-5 academic press = 20 points. casebook, new = 10 points, new edition = 5 points. all others = 1 point.

(f) entering class median LSAT: 170-180 = 10 points, 165-170 = 5 points, 160-165 = 1 point.

(g) entering class median GPA: 3.8-4.0 = 10 points, 3.6-3.8 = 5 points, 3.4-3.6 – 1 point.

(h) blogging: 20 posts = 0 points. 40 posts or more = -1 point.

5. Multiplier: points will be doubled for junior faculty (under 5 years)

6. Draft: date: August 1. random initial order, S-draft (e.g. first round: 1,2,3 … second round: 10,9,8 …).

7. Trades: no limits on number of trades. trades may be vetoed w/in 2 days by vote of 50% of other players.

8. Waivers: players may pick up unclaimed professors at any time, subject to maximum professor limit.

Now if only we could get someone to write a program to track this …

9

Stealth Legislation

capitol-2a.jpgWant to pass a controversial law? Why debate it? Why discuss it? Why hold hearings about it? Just slip it into a massive budget bill that nobody could possibly vote against. And it gets through.

I don’t know if such a technique has a name, but I’d call it something like “stealth legislation.” It is the tactic of attaching a particular legislative measure to a bill that’s sure to pass. This what is happening with the 9th Circuit split. The 9th Circuit is a large unweildy federal court covering the entire West Coast. For years, proposals to split it up have been discussed, but little progress has been made. That’s because California accounts for the lion’s share of the cases, nobody wants to split off California into its own circuit court, and nobody wants to split California in half or into pieces. The problem has been difficult and there’s been a big struggle over resolving it.

But instead of debating the issue, of resolving it through a legitimate legislative process, some in Congress have chosen a different approach:

Their proposal to split the 9th U.S. Circuit Court of Appeals stalled in the U.S. Senate last year. So House Republicans have taken a new approach this year: Attach a split proposal to a provision for new judgeships and tuck it into a $35 billion spending-cut bill.

While the House voted last year to split the 9th Circuit, the Senate blocked a similar bill, with even some Republicans voting against it. So the latest split proposal is structured to sidestep debate in the Senate Judiciary Committee and discussion on the floor, reaching the Senate only in the budget conference committee.

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9

Why Congress Shouldn’t Subpoena Judge Alito’s Clerks.

This morning, I read this Sunstein-influenced NYT article which reads the tea-leaves of Judge Alito’s dissents to better predict his future rulings. The guessing game is pretty risky for many political players. Both sides of the aisle face retribution from their bases if Judge Alito deviates from (their respective views of) his predicted path. Senate Republicans have more at stake: if Judge Alito does not vote to overturn Roe, which seems at least possible given the malleability of Casey, the base would be irritated beyond all measure.

If Senators want more information about a nominee than that found in his or her public record (including financial record!), they’ve a few places to go: (1) the administration (through private and public channels); (2) the Judge (through written and oral Q&A); (3) the Judge’s friends, family and colleagues, and (4) the Judge’s former law clerks.

UTR has already gotten us going on this last track, summarizing the reactions from a few of Judge Alito’s former clerks. But, obviously, these reactions are highly self-selective. Let’s assume that the Senate really wanted to know more from the clerks about Judge Alito’s privately expressed (but legal) views about abortion, gay marriage, the death penalty, securities law, executive detention, etc. Could the Senate subpoena the law clerks and force them to talk?

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5

Jury Finds for Merck: Will its Critics Notice?

The NJ jury hearing the latest Vioxx case found Merck & Co. not liable for the death of Frederick “Mike” Humeston after seven and a half hours of deliberation. The ruling contrasted with an earlier Texas jury’s determination that Merck was liable for the death of Robert Ernst.

Following the Ernst verdict, a hue and cry arose against the jury system, with some claiming, for instance, that “this incident . . . raises serious questions as to the competence of lay jurors to resolve technical issues.” Now that we’ve another anecdote in hand, is it possible that these earlier critics owe the American jury system an apology?

3

Becker and Posner Mull Price Gouging

Over at the Becker-Posner Blog, the resident luminaries have gotten around to discussing the problem of whether and when to punish “price gouging” after natural disasters. Judge Posner makes the expected moves (“sheer ignorance of basic economics”; “[t]he only beneficiaries will be people with low costs of time and nonurgent demand”; “higher prices for gasoline are a source of substantial external benefits”.) However, he does concede that price gouging regulations might be appropriate under two types of circumstances.

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16

Using Lawsuits to Unmask Anonymous Bloggers

anonymity-1a.jpgAn interesting recently-filed lawsuit raises the issue of whether a company can file a lawsuit just to find out the identity of an anonymous blogger in order to fire him.

The case involves an employee of Allegheny Energy Service who posted an anonymous comment to a Yahoo! message board devoted to his company. He made the posting from his home computer. In the post, he attacked the company’s management as well as the company’s diversity program, using a racial slur in the process.

The company filed a “John Doe” lawsuit against the anonymous blogger for a tort claim of “breach of fiduciary duty and breach of duty of loyalty.” The employee was completely unaware that a lawsuit had been filed against him.

Three months after filing the lawsuit, the company filed an emergency motion to prevent “John Doe” from posting more messages. It claimed that Doe’s posting violated the company’s anti-harassment policy. The company obtained a subpoena and served it on Yahoo. Yahoo sent an email to the employee that Yahoo would respond within 15 days unless the employee filed a motion to quash. The employee claimed he never received the email. Yahoo subsequently turned over the employee’s identity to Allegheny Energy. Afterwards, Allegheny Energy filed papers to discountinue its civil action against the employee. The employee was then fired for making the racial slur.

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10

What Next, Google Filmstrips?

I use audio-visual materials pretty extensively in my intellectual property classes, but I never thought to use them for my first-year property class. That is, until this year.

Google Maps and Google Images have made it possible to illustrate property disputes in a way I never could have before. Take, for example, the classic case, Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc., involving two hotels on Miami Beach. The Fontainebleau starts building a 14-storey addition which will cast a shadow over the neighboring Eden Roc’s pool and beach area.

Here’s a picture from Google Maps, showing the shadow (imagine the shadow slowly moving clockwise as the sun crosses the sky, eventually covering the Eden Roc’s pool area):

fontaine3.jpg

On the continuation page, you can also see a picture from a different perspective.

Every year, it seems I rely more and more on some kind of tool created by Google (whether Search, GMail, Images, Maps, whatever). Yet another sign that Google is taking over the world.

UPDATE: I should note that credit for finding the above picture goes to the very tech-savvy Michelle Kanter, BCLS class of ’08.

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3

When Alito Is Unbound: On Mining Judge Alito’s Judicial Record

handcuffs1.jpgAll eyes are now scrutinizing Judge Alito’s judicial record. His opinions are being mined for clues about where he stands on many key issues. The University of Michigan Law Library, for example, has posted an extensive collection of Alito’s opinions. But I’m wondering how much weight we should give an appellate court judge’s prior opinions in assessing what kind of Supreme Court justice her or she will be.

Court of appeals judges often sit in a very constrained position. They are constrained by the findings of fact and the issues raised on appeal at the district court level. They are also constrained by the precedent of their own court as well as that of the Supreme Court.

Following precedent by a higher court (and especially the Supreme Court) is a foremost imperative for appellate court judges. If they don’t, they’ll either be slapped down by the Supreme Court, and they will be viewed as lawless and derelict in the legal community.

But when a judge is transformed to justice, all of a sudden Supreme Court precedent becomes much less sacred. Justices can bend and twist the precedent; they can overrule cases; they can radically alter the direction of the law. What happens when an appellate judge is unshackled in this way?

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2

CJR on Judge Richard Posner

posner1.jpgThis article in the Columbia Journalism Review discusses Judge Richard Posner, with a focus on some of his First Amendment cases. From the article:

Still, for every decision that hints at a rigidity in his thinking, I find an article or opinion that contradicts it. Posner confounds categorization. He’s not a water-carrier, he’s not a true ideologue, he’s not even a pure free-marketeer. He’s trying to convince us all — lawyers, students, his readers, and now journalists — that moral reasoning, idealism, and the entire messy spectrum of human feeling are all imperfect ways of ordering the law. He’s just looking for the mathematical formula to prove it.

Hat tip: Political Theory Daily Review

1

Information Privacy Law (2nd Edition)

casebook2.jpgShameless Self-Promotion Alert: Within the next week or two, the second edition of my casebook, Information Privacy Law (with Marc Rotenberg & Paul Schwartz) will be out in print. This book is a significant revision from the first edition, and it covers most topics in greater depth. Click here for the book’s website (where updates and other information are posted) and here to peruse the table of contents.

For those professors interested in adopting the book for their spring 2006 information privacy law courses, the book’s ISBN is 0735555761. To obtain a free review copy as soon as possible, contact Daniel Eckroad at Aspen Publishers via email or by calling 617-349-2937. If you have any questions about the book or the course, I’d be delighted to answer them.

For those law professor readers who have never taught a course in information privacy law before, I’ve reposted here an earlier post at PrawfsBlawg where I explain why I believe information privacy law is a rewarding course to teach.

For those of you who are interested in the book, but are not law professors, you’ll unfortunately have to shell out a small fortune to buy the book, which you can do here.