U.S. Law Blogs and International Audiences
Over at Opinio Juris, Duncan Hollis has an interesting post about the location of law blog readers, and in particular the size of the international audence for U.S. law blogs. He rightly notes that most U.S. blogs have largely U.S.-based readers, and adds this interesting question:
First, am I safe in assuming that a more diverse geographic readership is a desirable end? I guess the answer is easy for us here at Opinio Juris given our focus on international law and world affairs. But, what about law blogs more generally – can they (or should they) seek a more international audience? I’d be interested to know what others think on this front.
I don’t think that assumption is particularly safe. I think it depends entirely on the blog. Having an international flavor is very hip these days, I realize, but I guess I don’t see why a blog about the U.S. legal system would benefit from international readers more than domestic readers. Of course, more readers are nice, whether they are inside or outside the U.S. But in the case of this blog, at least, I care more about who my readers are than where they are. And given that my blog focuses on the “law, legal academy, and legal profession” in the United States, I’m not sure why I would prefer that my readers be outside the country.
Thanks to Howard for the link.
Snuggly the Security Bear
Via Daniel Solove, I have just learned of this this new cartoon to explain the Terrorist Surveillance Program.
Crooked Timber on Benkler
Crooked Timber is hosting a top-notch blog symposium on Yochai Benkler’s new book, The Wealth of Networks.
Inside Jokes in The Blue Book
Every lawyer and law student knows about The Blue Book, that absurdly complex guide to legal citation forms inflicted on the legal community by the editors of the law reviews at Harvard, Yale, Penn, and Columbia. But how many realize that a number of citations in The Blue Book are inside jokes among the editors?
Here’s one example. On page 128 of the Seventeenth Edition — what law review editors would refer to as THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION 128 (Columbia Law Review Ass’n et al. eds, 17th ed. 2000) — the following citation is offered as an example of a proper citation form for a forthcoming publication:
F. Brandon Baer & James M. Feldman, We’re Low on Vermouth: The Trials and Tribulations of Two Summer Associates, 1 J.L. & OPPRESSION (forthcoming 2001) (Manuscript at 3, on file with authors).
If you happen to have a detailed recollection of the Harvard Law School Drama Society spring parody show from 1996 — which I do, having been a cast member — you’ll get that this is a reference to at least two different jokes in that show, “Raiders of the Lost Hark.” Brandon was the producer of the show and Jamie was the director. (Neither was on law review — nor was I, for that matter — but a bunch of the cast members were.)
So here’s the question: What are the other inside jokes in The Blue Book?
Garcetti v. Ceballos Handed Down
This morning the Supreme Court handed down Garcetti v. Ceballos, a case about public employee speech rights for matters within their official duities. The decision was 5-4, with Justice Kennedy writing for the majority joined by Roberts, Alito, Thomas, and Scalia. Marty is the first out of the gate with substantive comments.
Trivia question for 1st Amendment buffs: Before today, had Justice Kennedy ever written a 5-4 majority opinion in a free speech case that rejected a claim to First Amendment protection?
UPDATE: More on the case from Jack Balkin.
Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk
Marty’s post at SCOTUSblog reminds me that I forgot to post a review of the second of the new books on Supreme Court clerks: Todd C. Peppers, Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk. (For my take on the 1st book, Ward & Weiden’s Sorcerers’ Apprecentices, see here.) A few weeks have passed since I read Peppers’ book, but here are some recollections.
I enjoyed Peppers’ book, and found it a more insightful and interesting account than Ward & Weiden’s. Although the coverage of the two books is similar, Peppers properly sees the role of clerks and their experience as heavily contingent on the Justice who is in charge. To that end, much of Peppers’ book goes Justice-by-Justice through the different Justices’ approach to law clerk hiring and the role clerks served for those individual Justices. Some of the information is incomplete, as much of the information is based on interviews with former clerks, but I thought the Justice-by-Justice approached worked very well on the whole: The reader gets a much better feel for both common and uncommon practices, as well as the personalities of the individual Justices and the role of their clerks. (In keeping with this more human approach, Peppers includes a section containing photographs of law clerks and Justices, mostly taken during their clerkships.)
I also liked the beginning of Peppers’ book: He starts off with a history of the public controversy over the influence of Supreme Court clerks, which begins (ironically) with a 1957 U.S. News essay by then-recent clerk William H. Rehnquist. I thought this background was helpful, as brings the reader up to speed on the basic terms of the debate. It also pushes Peppers to do more than just rehash that debate, something that I thought Ward & Weiden were guilty of doing in the conclusion of their book.
Lawyering at the Enron Trial
The Washington Post has an interesting story here.
Kmiec on Presidential Signing Statements
Today’s Boston Globe has an interesting story on David Addington and Presidential signing statements. I was particularly interested in the views of Doug Kmiec, a Reagan-era head of OLC:
Douglas Kmiec , who as head of the Office of Legal Counsel helped develop the Reagan administration’s strategy of issuing signing statements more frequently, said he disapproves of the “provocative” and sometimes “disingenuous” manner in which the Bush administration is using them.
Kmiec said the Reagan team’s goal was to leave a record of the president’s understanding of new laws only in cases where an important statute was ambiguous. Kmiec rejected the idea of using signing statements to contradict the clear intent of Congress, as Bush has done. Presidents should either tolerate provisions of bills they don’t like, or they should veto the bill, he said.
“Following a model of restraint, [the Reagan-era Office of Legal Counsel] took it seriously that we were to construe statutes to avoid constitutional problems, not to invent them,” said Kmiec, who is now a Pepperdine University law professor.
Link via How Appealing.
Article III Trivia Question
Okay, so this is easy. But there’s no Puzzleblogger here at ok.com, so it will have to do:
What judge clerked for a judge who clerked for a judge that his clerk also clerked for?
For the answer, click on the hidden text here.
Arizona SCT on Online Undercover Investigations
Here’s a decision that is guaranteed to be misinterpreted by the public. From the Arizona Daily Star:
Court limits TV-sex-sting charges
Reporters pretending to be teens on the Internet to lure adults may be great television. But the Arizona Supreme Court ruled Wednesday it isn’t enough to get their targets arrested.In a unanimous decision, the justices concluded people lured to meet with what they think are teen girls can’t be charged if it turns out the person doing the luring is not a minor, but in fact a TV reporter — or any other adult, for that matter. The court concluded charging someone with seeking out a minor for sexual purposes, by definition, requires an actual minor.
The only exception, they said, is if the person doing the luring is a police officer.
But if you read the opinion, there’s a big catch: the Court’s ruling is that such cases have to be charged as an attempted luring of a minor, rather than the substantive offense. So yes, media undercover investigations that persuade adults to try to lure what they think are kids online actually will get the adults arrested and charged — just for the attempt rather than the substantive offense.
Unless the adult is unusually short, of course. Thanks to Frank Salamone for the link.
Sentencing Judge: Sex Offender Too Short for Jail
From the Associated Press:
A judge’s decision to sentence a 5-foot-1 man to probation instead of prison for sexually assaulting a child has angered crime victim advocates who say the punishment sends the wrong message.But supporters of short people say it’s about time someone recognizes the unique challenges they face.
Cheyenne County District Judge Kristine Cecava issued the sentence Tuesday. She told Richard W. Thompson that his crimes deserved a long prison sentence but that he was too small to survive in a state prison.
Kavanaugh, Circuit Judge:
Congratulations to Brett Kavanaugh, who was confirmed by the Senate to the D.C. Circuit this morning by a vote of 57-36.
Bush: Seized Documents to Be Held by SG for 45 Days
President Bush has ordered that the documents seized in Rep. Jefferson’s office should be selead and stored in the custody of the Solicitor General for 45 days. This has no legal effect, but is probably a pretty good idea to signal that folks should cool off for a bit.
Death Penalty Considered More Morally Acceptable Than Divorce, Wearing Fur
Doug Berman has the scoop.
Developments on Kavanaugh, Boyle, Haynes Nominations
Bloomberg reports:
Senators of both parties, preoccupied with other issues, are displaying little appetite for an all-out battle. Democrats, who are reluctant to oppose nominees for purely ideological reasons, won’t try to block White House aide Brett Kavanaugh, 41, who is scheduled to be confirmed to an appeals court judgeship today. Republicans, in turn, probably will put aside two other controversial nominees, Terrence Boyle and William Haynes II.
Jury Convicts Skilling and Lay
CNNMoney has the news here.
Justice Hecht Admonished for Promoting Miers: But Are The Charges Fair?
The Texas Commission in Judicial Conduct has formally admonished Justice Nathan Hecht for his efforts to promote the candidacy of Harriet Miers to the Supreme Court last year. Here are the relevant standards:
1. Canon 2B of the Texas Code of Judicial Conduct states, in pertinent part: “A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others.”
2. Canon 5(2) of the Texas Code of Judicial Conduct states, in pertinent part: “A judge or judicial candidate shall not authorize the public use of his or her name endorsing another candidate for any public office, except that either may indicate support for a political party.”
According to the Commission’s opinion, Justice Hecht violated both Canons:
The Commission concludes from the facts and evidence presented that Justice Hecht allowed his name and title to be used by the press and the White House in support of his close friend, Harriet Miers, a nominee for the office of United States Supreme Court Justice. Such public support by a judicial official elected to the highest court in Texas, in the eyes of the public and the rest of the judiciary, would be construed as an endorsement of Miers’ candidacy, as those terms are commonly used and understood. Because the Commission views Miers’ desire for a lifetime appointment to the United States Supreme Court to be a private interest, the efforts of Justice Hecht in promoting his friend’s candidacy by responding to media inquiries and assisting the White House in its efforts to convince powerful special interest groups to support her candidacy, constituted an improper use of his office and position to promote Miers’ private interest.
I am not a legal ethics expert, and I confess that some of Justice Hecht’s behavior during the Miers nomination left me quite uncomfortable. At the same time, this analysis strikes me as pretty weak. Is it really a breach of these ethics canons for a judge to support someone who was nominated for a position as United States Supreme Court Justice? If you believe someone would be a great Supreme Court Justice, is it really helping that person’s “private interests” to support their candidacy? And is a position as a Supreme Court Justice a “public office” for purposes of the ethics requirement, or does “public office” imply elected office? Again, I’m not a legal ethics expert, but the Commission’s analysis strikes me as pretty weak.
Choosing Opinions for a Casebook
I’m putting the finishing touches on my computer crime casebook — I hope to get it to the publisher in about a week — and I made a last-minute change on the case used to explore the consent exception of the Wiretap Act. I decided to use a case with the best facts and most detailed discussion of the relevant law: Griggs-Ryan v. Smith, 904 F.2d 112 (1st Cir. 1990). But I ran into a problem: the case is fun and colorful but parts of it are maddeningly hard to read.
Griggs-Ryan is an opinion by Judge Selya. Selya opinions are a matter of taste, but they are pretty unique in the Federal Reporter: Either you like how he dresses up his opinions with interesting words, or you find his opinions highly annoying. (For his defense of his writing style, see Howard Bashman’s 20 Questions Interview.) This means that when reading a Selya opinion, you either need a dictionary close by or else you just figure that you won’t understand a few words but can probably get the gist of the opinion from the context of the words you do understand. Most practictioners do the latter, I assume, and law students certainly do.
In any event, I decided to use the Griggs-Ryan case and edit it heavily down to about two pages. The case is a good teaching tool: the facts are fun, the analysis is very interesting, and the the case is a difficult one. At the same time, it was interesting to strip down the case of the excess stuff to see what was left. Here’s an example of stuff I took out from the beginnning of the opinion’s analysis section:
Plaintiff, as if bent on out-heroding Herod, see generally W. Shakespeare, Hamlet, Act III, sc. ii (1601), harangues stridently that brevis disposition of his complaints contravened both the general purposes of Title III and the specific rationale behind the statute’s consent exception. Turning up the volume, however, cannot mask the paucity of content contained in plaintiff’s argumentation.
Although plaintiff repeatedly declaims that wire communications are “protected absolutely from illegal interception,” that rallying cry-like most sloganeering-overstates the proposition. Title III was intended to prohibit all interceptions “except those specifically provided for in the Act.” United States v. Giordano, 416 U.S. 505, 514, 94 S.Ct. 1820, 1826, 40 L.Ed.2d 341 (1974). Congress, in its wisdom, chose to insert a myriad of exceptions and restrictive definitions into Title III, purposely leaving certain wire communications unprotected. See, e.g., 18 U.S.C. § 2511(1) (prohibiting intentional interception and disclosure “[e]xcept as otherwise specifically provided”); see also Camacho v. Autoridad de Telefonos de Puerto Rico, 868 F.2d 482, 489 (1st Cir.1989) (discussing some types of legal interceptions); United States v. Axselle, 604 F.2d 1330, 1334 (10th Cir.1979) (Title III outlaws only “willful” intercepts). Accordingly, there is little to be gained by pejorative declamations; the question is simply whether a particular intercept runs afoul of the statute’s imperatives.
In other words, “Plaintiff argues that the district court wrongly rejected his Title III claim. We disagree because the consent exception permits the surveillance.”
While I’m at it, here’s a question for current law students. Griggs-Ryan is a telephone wiretapping case, and the opinion is filled with telephone jokes. Indeed, the first line of Judge Selya’s opinion is “Reaching out to touch someone, plaintiff-appellant Gerald Griggs-Ryan filed two related civil actions in the United States District Court for the District of Maine.” This is a little joke about the “reach out and touch someone” TV advertising campaign that AT&T used in the 1980s; reaching out and touching someone meant making a phone call, not filing a lawsuit. (For a trip down memory lane, here is one of the 1983 TV advertisements from this campaign; here is the audio of the original commercial from 1979.) I am assuming that a law student today won’t get the joke, and that I should edit this out to avoid confusing readers. Right?
UPDATE: Thanks for the many responses. Most (but not all) students report that they get the joke, so I have put the line back in. I guess I can always take it out for the 2nd edition….
Quote of the Day
“We have a great deal of respect for the Congress as a coequal branch of government.”
– Attorney General Alberto Gonzales. Source: The Associated Press.
Can the FBI Search a Congressional Office?
The FBI recently executed a search warrant at the Congressional office of Rep. William Jefferson. The Associated Press reports that House leaders think the search may be unconstitutional:
The FBI’s weekend search of the House office of a Louisiana Democrat under investigation for bribery may have overstepped constitutional boundaries, House leaders said as the congressman under investigation pledged to stay in office.
House Majority Leader John Boehner of Ohio told reporters Tuesday that the Congress will somehow speak to ‘’this issue of the Justice Department’s invasion of the legislative branch. In what form, I don’t know.'’
‘’I've got to believe at the end of the day it’s going to end up across the street at the Supreme Court,'’ Boehner said.
House Speaker Dennis Hastert said the Justice Department had never before crossed a line that separates Congress from the executive branch by searching a congressional office while investigating a member of Congress.
Given that the FBI obtained a warrant, what would the legal theory be that the search was unconstitutional?
I don’t think the Fourth Amendment provides such an argument. If the government can execute a warrant at a newspaper, or at a lawyer’s office, why not a Congressional office? Of course, Congress could pass a law prohibiting searches of Congressional offices, Cf. The Privacy Protection Act, but they haven’t done so.
A more likely theory would be the Speech and Debate clause, Art. I, 6, cl. 1:
The Senators and Representatives . . . shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
Given that executing a search warrant involves neither an arrest nor questioning, it would seem to me that the Clause isn’t applicable. Further, Gravel v. United States, 408 U.S. 606, 626-27 (1972), seems to suggest that Congress is not generally exempt from criminal process under the Clause:
Article I, 6, cl. 1 . . . does not purport to confer a general exemption upon Members of Congress from liability or process in criminal cases. Quite the contrary is true. While the Speech or Debate Clause recognized speech, voting, and other legislative acts as exempt from liability that might otherwise attach, it does not privilege either Senator or aide to violate an otherwise valid criminal law in preparing for or implementing legislative acts. If [the conduct under investigation] would be a crime under an Act of Congress, it would not be entitled to immunity under the Speech or Debate Clause. It also appears that the grand jury was pursuing this very subject in the normal course of a valid investigation.
At the same time, this is only a snippet, and it’s hard to reach a more definitive conclusion without spending more time looking through the cases. For a good summary of the law, this page at Findlaw is a good start. Are there any Speech and Debate Clause experts out there who would care to comment?