Motion for Permission to Wear A Hat in Court
Having blogged about a motion for a fist fight recently, I feel it’s only fair to point out last week’s ruling on a motion seeking permission to wear a hat in court. David Markus has the amusing details at the Southern District of Florida Blog.
Blogs and the Legal Academy: A Response to Larry Solum
Larry Solum was live-blogging the Bloggership symposium, and had this response to my paper Blogs and the Legal Academy:
Kerr’s thesis that blogs have an inherent problem which stems from the fact that blog posts are viewed in “Reverse Chronological Order” or RCO. That is an important feature of blogs! Kerr argues that this means that Blogs do not lend themselves to mulling and deep reflection on a problem. And Kerr argues that “mulling” is the way that really important legal scholarship gets done.
And I think Kerr is completely wrong–that he has made a fundamental error. One of the most wonderful things about blogs is that they provide an important mechanism for “mulling:” for engaging in extended discussions about important ideas. If you want to see an example of the way that blogs can facilitate “mulling,” and extended discussion of an idea, take a look at this post by Jack Balkin or this post by Eugene Volokh and also this one.
Or take a look at any one of the dozens of serious scholarship blogs! Another problem with Kerr’s point is that RCO does not dominate blogging in quite they way that he thinks. Blogs are archived and full-text searchable–that means that many people get to blogs from Google. And blogs can build their own interfacts: for example, I build a Table of Contents style interface for the blog that serves as a separate archive for the Legal Theory Lexicon.
(color and links from the original)
Larry’s response seems to be making two points: First, blogs provide an important mechanism for mulling, as evidenced by several examples of mulling found on blogs. Second, there is a lot more to blogs than visiting them and just reading the posts at the top.
I don’t think either point is particularly inconsistent with my argument, though, much less evidence that my argument is “completely wrong” and based on a “fundamental error.” Obviously it is possible to mull in a blog post. Mulling is possible in any medium, ranging from IRC to writing on cereal box tops. And law professors are mullers by nature. But my point is about the interaction between technology and social practice: Some technologies tend to encourage different practices, and (for the reasons I point out in the paper) I don’t think blogging is particularly well-suited to the kind of repeated mulling that tends to further lasting legal scholarship. So the fact that Jack Balkin and Eugene Volokh can write a scholarly blog post in a debate with Lary Solum doesn’t say very much. Such debates tend to be rare.
Similarly, I agree with Larry that it is possible to supplement blogs with links that go beyond RCO. It is also true that many legal blogs are accessed by Google. But I’m not sure what this shows. Maybe I’m just missing the boat, but my sense is that most people visit blogs for the timely links. Links to other materials can be featured, but my sense is that they are not used very often at most blogs. And they are never used by those that view blogs using feeds.
The fact that blogs often get a lot of Google traffic also has uncertain significance. On one hand, it opens up a very different question: Blogs as tools for scholarly research by users, instead of blogs as tools for advancing scholarship among the bloggers themselves. But even so, I’m not sure that legal blogs with lots of Google traffic are being used for scholarship very often. For example, Michael Froomkin’s blog Discourse.net has a Zeitgeist page that lists the search terms used to find his blog. Here is a representative set of recent search terms, with search terms used multiple times in larger font:
blog personality quiz · dancing banana · soviet gulag · jessica gabel · flying people · middle district of florida court records dr betty carter · cell phone tapped · chernobyl photographs · what the administration is trying to do is create a new legal regime · command responsibility · best buy dishwasher installation · france child molestation case · windows xp look alike · mary cheney · past wartime torture · phosphorus burning video stream · vew.plus.sex,net
What this suggests, I think, is that the number of people who visit legal blogs via Google who are conducting legal research is actually relatively small. (Or is there a jurisprudence of dancing bananas that I’m missing?) Of course, this doesn’t stop a blogger from writing long involved posts on legal issues. But it suggests that the interested audience for such posts that will arrive there from search engines is probably pretty small. It’s an empirical question, of course, so maybe I’m just guessing at proportions incorrectly. But my sense is that the numbers are low enough that few bloggers are going to mull at length on an issue with the hope that Googling researchers will come across those posts and find them helpful down the road.
Missing Surveillance Post?
A few readers tell me that they’re having problems finding my Thursday post on alleged surveillance at NYU Law School. I’m not sure what software bug is responsible [or, perhaps more likely, where I messed up along the way], but the direct link is here.
UPDATE: If you’re still having trouble, here’s the post with the update (the only comments were links to the materials):
Brian Leiter copies an e-mail sent by NYU Law’s Dean Richard Revesz about government surveillance of student groups at NYU. Does anyone know the details of the alleged surveillance? When I looked into a similar incident a few months ago, it turned out that there was substantially less to the story than there first appeared. (To be clear, I realize that there are a number of news stories claiming that “surveillance” allegedly occurred, but I’m interested in understanding exactly what kind of surveillance occurred, and how we know that it occurred.) I’m not sure if this case is different from the incident I looked into a few months ago, but I think it would be helpful to everyone if we had a better understanding of the facts. If you know the details, please consider leaving a comment or writing me at okerr [at] law.gwu.edu. Thanks.
UPDATE: As best I can tell, the evidence for the charge is this document, which was produced pursuant to a FOIA request. As I read the document, in particular page 11 (the upside down page) through 13 of the .pdf file, someone in the government saw a web posting announcing that an NYU student group was planning a protest of military recruiters. Some person in the government wrote a short memo about the web posting, discussing whether the protest might be violent. The uttlerly clueless author of the memo initially thinks that the name of the group, OUTLAW, might signal that the group is dedicated to breaking the law. The document then notes that further research suggests that it may just be the name of a gay law students group (Out + Law, get it? Sheesh, it’s not that difficult.).
In any event, as I read the document, the “government surveillance” at issue was viewing a posted notice on the web. Am I missing something? I would be particularly interested in evidence that government agents actually visited NYU; as best I can tell, no one is claiming that this occurred.
Law Blog Symposium
For a live video stream of today’s conference on law professor blogging, go here. I’ll be at the conference all day. The papers for today’s conference are here.
Judge Evans to Lawyers for Police: Argument “Too Ridiculous to Merit Comment”
Check out this decision from the Seventh Circuit today involving a lawsuit filed by a man who was wrongly convicted of raping and murdering a little girl, and who served 27 years in prison for it before being exonerated based on DNA evidence. The man sued the City of Chicago and the police for coercing false testimony and hiding that fact. In this appeal, the lawyers for the police tried to argue that the result of the trial 30 years ago was binding on the wrongfully convicted man under collateral estoppel principles, which Judge Evans rightly dismisses as “an absurd argument, for any number of reasons.” The lawyers then tried to argue that the wrongfully convicted man had waived his claim by not bringing it 30 years ago, a claim that Judge Evans describes as ”too ridiculous to merit comment.” Indeed.
Link via Decision of the Day.
The Briefs in Salinas v. United States
On Monday, I blogged about the one-page per curiam summary reversal in Salinas v. United States, and noted that it was a bit hard to guess what happened without reading the briefs. I have obtained copies of the briefs and posted them in .pdf format:
1. Petition for Certiorari
2. Government’s Brief in Opposition
3. Petitioner’s Reply
I have given these materials a quick skim and hope to have some comments up shortly, but for now I wanted to post the briefs so others could mull this over as well. More later, I hope.
Due Process vs. Private Property in Jones v. Flowers
The Supreme Court handed down an interesting case today, Jones v. Flowers. The question in the case was how much effort the state of Arkansas needed to take to notify an absent property owner before selling off the property for failure to pay property taxes, pursuant to the framework of Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 313 (1950).
In a 5-3 decision by the Chief Justice joined by Stevens, Souter, Breyer, and Ginsburg, the Court concluded that mailing two certified letters to the home (returned unclaimed) and publishing a notice in the newspaper wasn’t enough. Justice Thomas dissented, joined by Scalia and Kennedy, concluding that these steps were enough based on prior precedents. Alito didn’t participate.
It’s a narrow dispute on the whole, and a matter of fairly close line-drawing. It’s also one with interesting ideological tensions: to the extent the close line-drawing could be influenced by a Justice’s broader commitments, there were different commitments in play that could help explain the different votes. Still, it was interesting to see the Chief Justice align himself with the left-of-center Justices on a constitutional issue.
No Traffic on the New Jersey Turnpike Near the Article III Exit
Howard points out that everyone was cruising along in the passing lane in the Judiciary Committee today for the four nominees to the United States District Court for the District of New Jersey. And just a few weeks ago, the Senate pressed on the gas to speedily confirm Michael Chagares 98-0 for a Third Circuit spot in New Jersey. Any ideas why New Jersey has been able to get its nominees through so quickly?
An Initial Take on Sorcerers’ Apprentices
I’ve just finished reading one of the two new books on Supreme Court clerks, Sorcerers’ Apprentices: 100 Years of Law Clerks at the United States Supreme Court, by Artemus Ward and David Weiden It’s kind of hard to offer a comprehensive review of the book: Being a recent clerk myself, my perspective is skewed. Plus, for confidentiality reasons I can’t really say where I thought the book was accurate or inaccurate. With those caveats made, here are some general thoughts on the book. I’ll start with two strengths, and then suggest a significant weakness.
I think the most important contributions of the book are the results of the authors’ survey of former clerks. The authors contacted a random sample of 600 of the 1500 former clerks out there, and 28% of the 600 clerks responded to the survey (for a total of 160 responses). The authors don’t identify the clerks, but they do say that “the respondents ranged from a clerk who worked for Justice Harlan Fiske Stone in the 1930s to clerks who served as recently as the late 1990s.” The survey results let the authors assemble some interesting results — nothing earth shattering, but interesting.
Second, the authors assembled some very interesting data about the groups of clerks themselves over time, such as where they went to school, who they clerked for at the appellate level, race/gender, and the like. Again, nothing earth shattering, but still pretty interesting.
One weakness of the book is that some of the information appears to be a bit dated. The information is dated for two reasons. First, my sense based on the book as a whole is that the clerks most likely to complete the survey were those that clerked a while ago. Second, parts of the book rely heavily on the Blackmun and Powell papers, and in particular on the relationship between those two Justices and their clerks.
The fact that some of the information is a bit dated is relevant, I think, because there has been an important shift at the Supreme Court in the last 15 years or so: The size of the Court’s merits docket has been cut in half. The Court used to decide about 150 cases a year on the merits, and in recent years has decided only about 80 or so. I suspect that the smaller docket has altered the role of clerks; in particular, I suspect it has lessened the influence of clerks. When the Court decided 150 cases per year, each Justice might be assigned 16 or 17 majority opinions per year; now that the Court decides only 80 cases, each Justice averages only about 9 majority opinions. This doubles the amount of time that Justices can give to individual merits opinions, and I would guess that this tends to decrease the amount of clerk influence over those opinions. Ward and Weiden seem to miss that dynamic, as their sources are mostly focused on the era when the Court decided 150 cases a year.
Cooking the Books for the U.S. News: Juicy Stories Wanted
I occasionally hear stories of law schools cooking the numbers that they submit to U.S. News in order to improve their rankings. The New York Times had a story on this last year, and bloggers such as Brian Leiter occasionally have touched on the question. But I’m sure there are lots of other examples. If you know of any particularly egregious cases that haven’t been covered elsewhere already, please consider sending me an e-mail with the details (okerr (at) law.gwu.edu) or leaving a comment (anonymous or not) to this post.
Oh, and this isn’t for anything in particular. I’m just interested in getting an idea of some of the techniques schools use.
Fitzpatrick on Judicial Recusals and the First Amendment
Writing in the National Law Journal, my friend (and former Scalia clerk) Brian Fitzpatrick criticizes canons of judicial conduct that instruct federal judges to “avoid public comment on the merits of a pending or impending action,” and to recuse themselves whenever their “impartiality might reasonably be questioned.” He writes:
Those who support the current code of judicial conduct typically worry that judges who speak publicly on pending cases do not have (or at least do not appear to have) an open mind on the issues they speak about. But this is not true. Simply because a judge has preconceived views, does not mean the judge cannot change his or her mind. I recall many instances when Scalia entered a case with certain expectations as to how he would rule, only to change his mind once he read the legal arguments submitted by the parties. In any event, even if some judges are close minded, they are no less close minded when they keep their views privately to themselves.
I think it’s interesting to pair the current flap over Scalia and judicial recusals with the recent debate over whether Supreme Court nominees should disclose their likely positions on issues that they may vote on if confirmed. Perhaps a difference exists between an actual case that is pending before the Court and a hypothetical case that will very likely appear during a Justice’s tenure on the Supreme Court. But it seems to me that we need a consistent answer for both scenarios: Either we should be very concerned about a Justice expressing his or her likely views about a legal issue before the case is decided, or else we shouldn’t be very concerned.
Whren + Gates + Caballes = Lots of Stopping and Searching Power
Decision of the Day points out a very interesting Eighth Circuit traffic stop decision today, United States v. Rodriguez-Lopez. I think the decision is probably right under current U.S. Supreme Court law, with the caveat that the issue should be probable cause to believe a traffic violation occurred under Whren rather than “objectively reasonable belief” that such a violation occurred.
An Unusual Case of Pure Error Correction at the Supreme Court
The Supeme Court issued a one-page per curiam opinion today in Salinas v. United States. The Salinas opinion is a rare species at the Supreme Court: A reversal solely for the purpose of error correction from the Court’s in forma pauperis (IFP) docket that reverses an unpublished decision.
Salinas was convicted of bank robbery and was given a 3-level enhancement at sentencing for being a “career offender” under 4B1.1. A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
Salinas had three past convictions of note: Two prior bank robberies and one count of narcotics possession. Before the Fifth Circuit, Salinas argued (among other things) that the two prior bank robberies were related, and thus couldn’t be considered as “two prior felony convictions” for the purpose of applying the enhancement. Trial counsel for Salinas didn’t raise the issue at trial, so the Fifth Circuit applied plain error review.
In an unpublished per curiam opinion, a panel of Judges Davis, Jones, and Garza rejected the claim that plain error existed. The problem, the panel reasoned, was that Salinas couldn’t show that any possible error had prejudiced him:
In addition to the two robberies counted separately, Salinas also pleaded guilty to felony possession of a controlled substance at the age of nineteen. Thus, it is irrelevant whether his robberies are related. Salinas’ substantial rights were not affected because the alleged error had no impact on his sentence. Accordingly, Salinas cannot show plain error.
But the Fifth Circuit’s analysis was wrong: mere possession cannot be a controlled substance offense under the Sentencing Guidelines. Thus the Fifth Circuit should have addressed the question of whether the robberies were related.
As a general rule, the chances that the Supreme Court will step in for a case like this are extremely low. Even if the lower court erred, the error did not raise an important question, and the lower court’s decision has no precedential value. The lower court decision was unpublished; the issue was plain error; the outcome of the appeal may not hinge on this issue; and the stakes for the petitioner were relatively low in the grand scheme of things. The Supreme Court has limited resources, and usually lets this sort of error pass uncorrected. Nonetheless, the Supreme Court reversed, pointing out the error and sending the case back to the Fifth Circuit.
Does Salinas signal a new interest from the Roberts Court in correcting errors by lower courts via brief per curiam opinions? I’m not sure, but it’s possible. Of course, it’s hard to tell without reading the briefs, which don’t appear to be available online. (The SG’s website does not post briefs filed in IFP cases like Salinas.) The Supreme Court’s opinion notes that the SG’s brief acknowledges the error, which presumably helped fuel the momentum to vacate the judgment and send the case back to the Fifth Circuit.
Judge McConnell on “The Booker Mess”
Judge Michael McConnell has written a terrific and short law review article on the aftermath of the Supreme Court’s decision on the Sentencing Guidelines, United States v. Booker. You can get the article here in .pdf format: The Booker Mess, 83 Denv. U. L. Rev. 665 (2006). From the introduction:
In this Foreword, I will address three questions, one empirical, one doctrinal, and one normative:
(1) What has been the effect of Booker on sentencing? In this, I will focus particularly on the Tenth Circuit.
(2) Are the Booker decisions coherent as a matter of constitutional doctrine?
(3) Has Booker improved the sentencing process as a practical matter?
From the conclusion:
I am inclined to think that a modest increase in the discretion of district judges, exercised judiciously, could enhance justice. In this sense, I welcome the Booker result, even though I cannot endorse its reasoning. But it was more important to take a serious look at the statutes governing sentencing. This is a matter for Congress. I fear that Booker, by putting forward an extravagant claim of constitutional principles coupled with an anemic and self-contradictory remedy, may have set back the cause of reform, to relatively little purpose.
Would Alexander Bickel Have Been A Blogger?
I’ve long admired the legal scholarship of Alexander Bickel, and recently purchased a memorial pamphlet published by Yale Law School in 1975 after Bickel’s death in 1974 at the young age of 49. The back of the pamphlet has a complete bibliography of Bickel’s work, and I was interested in the mix of his law review articles, books, and shorter works.
Bickel wrote about 25 articles in law reviews over the course of his career, ranging from short contributions to full-length articles. He also wrote seven books, two of which were published after he passed away. In contrast, he wrote about 150 magazine articles, mostly in The New Republic. It’s an interesting mix: In a typical year, Bickel might have written one article, part of a book, and ten magazine articles. Although it’s hard to compare law review and magazine publications in terms of the numbers, I think it’s fair to say that short pieces for a large public audience were an important part of his work.
Interesting 1A Case for OT07?
Eugene Volokh was blogging today about the Ninth Circuit’s decision in Harper v. Poway Unified School District. Reinhardt’s majority opinion is here; Kozinski’s dissent is here. This case has the feel of a grant to me, at least if the Ninth Circuit doesn’t rehear it en banc. Either way, I suspect today’s opinions won’t be the final word.
A Question for Judges and Law Clerks (Both Current and Former)
Judges often complain that the legal scholarship appearing in mainstream law reviews just isn’t helpful to them. It’s too theoretical, too esoteric, and simply doesn’t try to engage seriously with the problems facing courts. I think these criticisms are quite valid as a descriptive matter: Most legal scholars and law professors don’t think that judges are the primary audience for their scholarship. Whether this is good or bad is a difficult question, but as a descriptive matter I think it’s pretty clearly true.
So here’s the question: If you’re a legal scholar who wants to help the courts work through difficult problems, what topics should you write about? It’s one thing to say that scholars should be “practical,” but this isn’t necessarily helpful; it’s hard for outsiders to know what kinds of problems judges need help figuring out. More specific advice would be really helpful. I imagine judges and law clerks (both current and recent) are best suited to answer this question, as they’re the ones who have had to work on cases in which they might have used some scholarly assistance.
Let me start with an example. I think it would be very helpful if con law scholars wrote more about the difference between as-applied and facial constitutional challenges. As a general matter, facial challenges are challenges to the statute as a whole; as-applied challenges are challenges to the application of the statute in a specific set of circumstances. The difference between the two is crucial in practice: facial challenges are all or nothing, and as-applied challeneges are fact-specific. But the framework for determining when courts should review constitutional challenges using an as-applied challenge or a facial challenge is quite hard to figure out: at times it seems like the cases are results in search of a theory. Surprisingly, though, there is remarkably little written about this topic. Richard Fallon has written the best article so far, but it’s very preliminary and leaves open a lot of questions. I think scholars could really help the courts by writing on this.
What are some other examples? Anonymous contributions are fine, of course.
Judge Posner: Bill Eskridge is a Felon
It’s true! Check out United States v. William Eskridge, released today. (Okay, so it’s not this Bill Eskridge, but I thought it made for a funny headline.) Thanks to Decision of the Day for the link.
Reargument in Hudson v. Michigan
SCOTUSblog reports that the Supreme Court has ordered reargument of Hudson v. Michigan, a case I blogged about here. Presumably this is good news for Michigan.
Oral Argument in Clark v. Arizona
Today the Supreme Court heard argument in Clark v. Arizona. Clark is a fascinating case about whether the constitution regulates the availablilty of diminished capacity defenses in criminal law. (Here is a good summary of the case.) The Supreme Court has mostly stayed away from substantive criminal law in the past, leaving that field up to legislatures. Will the Court change direction? Here is Linda Greenhouse’s coverage of the oral argument; here is Lyle Denniston’s report.