Justice Souter Retiring

President Obama will have an opportunity to appoint an associate justice to the Supreme Court of the United States. As NPR reports, "Justice David Souter is planning to retire at the end of the Court's current term . . . [but] will remain on the bench until a successor has been chosen and confirmed, which may or may not be accomplished before the Court reconvenes in October."

We will keep you updated as this story develops.

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UPDATE (5-4 @ 7:49 PM)

Politico confirms that it is likely that the White House will announce Justice Souter's replacement within the week.

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UPDATE (5-5 @ 8:49 PM)

Apparently, Justice Souter's replacement will not be nominated within the week.

Finally Finals

The other day, Fred pointed out that finals were coming and invited our readers to share their finals rituals with the Blackbook Legal community.

My fourth round of law school finals kicks off tomorrow, and I feel as overwhelmed and terrified as I did for my first attempt two years ago. Even though I have unique study methods that I'm comfortable with, I always have this sense of impending doom leading up to exams. I'm beginning to think it's an anxious law school reality that we all go through.

On the other hand, a lot of my peers seem really calm and collected. So maybe it's just me. Either way, I hope I don't wind up in an exam room with the guy (or girl) who doesn't shower. That would totally screw my day up...which, I guess, is the point?

All Things Chicago!

Mr. T gets called for duty, but doesn't make it to the panel.

The U.S. Marshal from this post was found guilty.

Cops that beat up bar patrons found not guilty.

U.Chi Grad Fudges Transcript, Faces Disbarment

A lurid tale of sex, drugs, and law (well, not so much sex and/or drugs). According to the Chicago Tribune, a former SA at, well, SA, falsified his transcripts in order to qualify for a summer position. Said associate has since hung up his legal gloves and is pursuing an MBA at UIllinois (probably studying how to become Bernie Madoff).

I think the most interesting part of this tale is not the counterfeiting and hoodwinking; rather, what does this say about legal recruiting, the quality of work at law firms, and the relative importance of grades and law schools as proxies for intelligence? I mean, here was a student who was terrible at law school; however, nowhere is it stated that the associate was fired for failing to perform satisfactorily.

Fascinatingly Terrifying...

Google's Swine Flu Tracking Map.

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UPDATE (4-28 @ 8:05 AM):
Here is a law-specific article posted by a commenter about the Swine Flu and Quarantine Laws

Finals Draw Nigh...

Well, BBL-ers-- It's getting to that time of the year where Finals hangs over our heads like the sword on the thinnest string (as if I would have to remind such a studious group of scholars!) This is an open thread; I welcome each of you to participate in answering the following questions.

(1) What are your Finals superstitions (if any)? For example, do you have a lucky pair of socks, or shirt, or favorite McDonalds super-combo ($1 McChicken, I'm looking at you!)

(2) What is your biggest pet peeve leading up to finals? What about during finals?

(3) What advice would you give to 1Ls who may not know how to play the 'game' yet?

I look forward to all of your responses!

Failure to BCC Shows Who Has B's, C's and C's...

Well, not quite...but basically. As a first-year tipster from Brooklyn Law School (which doesn't mind if you transfer) writes:

Phi Delta Phi at Brooklyn extends a membership invitation to all first years with a 3.2 gpa or higher. In sending out the invitation, the org cc'd all of the students that were being invited. Basically everyone with a 3.2 or over (~ top 40%) knows who got a 3.2 or higher but the students that have lower than a 3.2 don't know who's on the list. Talk about disclosure.

Oops. Perhaps the school should create an honor society for the bottom 60% of the class, and send out another non-BCC'd e-mail? This way everyone knows exactly what their status is relative to their peers--parity basically compels it! Plus, why limit prestigious honors to the top 40%? That's so...law school.

No Cameras, Please

Apparently there are more interesting things going on at the Supreme Court besides the magic of dishwashing machines.  The Wall Street Journal reports that, upon appearing before a House Appropriations subcommittee on Thursday, "Supreme Court justices Clarence Thomas and Stephen Breyer said that [the] justices remain undecided on whether to allow television broadcasts of court proceedings, despite debate over the issue."

According to Justice Thomas, the justices have "discussed it and discussed it and discussed it," but have failed to reach consensus. Justice Breyer voiced concerns with broadcasting oral arguments because doing so "could detract from people's understanding of the court's functioning [as oral arguments constitute roughly only 2% of any given case]."

But, some members of Congress feel differently:

Rep. John Culberson, R-Texas, a member of the panel, told the justices he favored adding television coverage of the court, pointing to broadcasts of the U.S. House and Senate. "It's a very simple matter to broadcast live on the Internet," Culberson said. "There's no logical distinction between the audience in the room and the audience in the country out there."

Hopefully we'll get an answer someday.

Oh, I'm 'Stimulated,' all right...

Broken Hearts

Law.com reports an interesting story about the potential "legal cost" of breaking someone's heart:

[Kris Shubert] sued former boyfriend Kurt Wiksten [for more than $ 1 million] in Palm Beach Circuit Court, claiming her decision to quit her job, sell her home and move to Texas to be with him was based on lies and left her with a personal financial mess.

Shubert claims that her boyfriend had a "duty to . . . disclose any negative aspects of his past [including tax liens and a bench warrant for failing to appear on a drunken driving charge] before she enter[ed] into a personal relationship with him."

Ouch. Make sure to disclose all (potentially) material elements of your past before getting into a serious relationship.

Alma Mater Love...

From ATL:
Loyola 3L has meltdown and accuses law professor of bait & switch.

Perhaps the administration would like to answer my previous concern as well... I move to join my dissatisfaction with unnamed Loyola 3L's.

Law School Is For Everyone?

I think the headline to this piece was missing the following line: "Who Likes Being 150k in Debt."

I have nothing more (at least non-profanity laced) to say.

Meet the Neighbors...Law Firm Edition

Neighbor complains that law firm works too hard, too late, with too much light.

The Effect of the FOIA on College Athletics

During the NCAA tournament last month, Yahoo Sports exposed alleged recruiting violations at the University of Connecticut. The
Yahoo investigation relied heavily on phone records obtained through a Freedom of Information Act (FOIA) request. UConn, being a public university, is required by the FOIA to make records available to any person based simply on a request which reasonably describes the record.

The FOIA benefits our democracy by providing essential transparency in our administrative state. And, clearly, the FOIA is not to blame for the alleged recruiting violations at UConn. If the basketball team committed the acts alleged in the report, then they deserve any sanction handed down.

But, what effect will the FOIA have on the future of college athletics? Adrian Wojnarowski and Dan Wetzel, the Yahoo Sports writers, made it rather clear that they plan on exposing the “agent-as-recruiter” problem in college basketball. If this “agent-as-recruiter” problem is as pervasive as Yahoo claims, it may end up being the second-coming of Major League Baseball’s steroid scandal.

Needless to say, private universities (e.g., Duke, Syracuse, et al.) are not susceptible to FOIA requests. Consequently, I can’t help but wonder whether the FOIA will ultimately provide private universities with a recruiting edge. If these recruiting violations are as widespread as suggested, should private universities really be insulated from investigations? As one site commented: “Easy, low hanging fruit at these public universities.” This may be true.

What do you think? Are public universities disproportionately burdened by the FOIA? If so, does it warrant a response by the NCAA?

Supreme Court Limits "SIVA" Doctrine

The Supreme Court today in Arizona v. Gant, 556 U.S. ____ (2009), limited its holding in New York v. Belton, 453 U.S. 454 (1981), which held in part that officers--in effectuating a valid arrest--may search the passenger compartment of a vehicle in which the suspect was a recent occupant. In Gant, a suspect was arrested for driving with a suspended license, handcuffed, and placed in the back of a squad car before officers "discovered cocaine in the pocket of his jacket on the backseat [of his car]." See Gant, 556 U.S. at 1-2. The Court, via Justice Stevens, held that Belton (if not overruled) no longer "authorize[s] a vehicle search incident to a recent occupant's arrest after the arrestee has been secured and cannot access the interior of the vehicle." Id. at 3-4.

Although the opinion was criticized for a blatant departure from stare decisis, see id. (Alito, J., dissenting) (arguing that, although stare decisis is not an "'inexorable command' . . . constitutional precedent should be followed unless there is a 'special justification' for its abandonment."), Justice Stevens noted in dictum that "[b]lind adherence to [a misreading of Belton] would authorize myriad unconstitutional searches."

For a copy of the opinion, click here. Further, Professor Kerr at Volokh has posted an interesting take on this story as well.

Court to Hear School Stripping Case Today

Back in March, Josh reported that the Supreme Court would be hearing the Safford United School District v. Redding case regarding the constitutionality of school strip searches, and offered his opinion that "the Court should hold the strip search to be unconstitutional."

The Court is hearing the case today, and Professor Kerr at Volokh has weighed in on the matter, predicting "that the Supreme Court will agree with the Ninth Circuit that the strip searches . . . are unconstitutional."

We'll continue tracking the story, and will alert you to any new developments. In the interim, we recommend you check out the briefs (linked at Volokh) and invite you to share your thoughts on how the Court will rule.

Barney Frank, Members of Congress Causing Global Warming

Today is the first-ever hybridization of FAD and Random Musings.

Here's an interesting syllogism for the best readers in the world (i.e. you).

(1) Out of London: Fat people are causing global warming.
(2) Out of Washington: Congressman Frank, representing the general health of Congress complains about his weight-gain.
(3) Therefore, if we got rid of the Congressional Fatties, global warming would either decelerate or be completely reversed?

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UPDATE (9:24AM): A commenter wonders if the British portion of the syllogism is legit. Here's the press release from the health institute behind "the insight."

Alleged Craigslist Killer Captured

From AP News, via Yahoo News: Suspected Craiglist Killer (and Boston U. Med Student!) apprehended, in custody.

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UPDATE (1:14 AM) A commenter wanted to know what BU's med school ranking was. It was ranked 43rd in research and N/A for Primary Care and since the denominator of your fraction (students) decreased while the numerator (non-murderers) stayed the same, I would have to say that the ratio has increased. From what and to what, I don't know...

Congratulations to The Blackbook's Top Law Prof!

The Blackbook's first annual Top Law Prof. Competition ended last night. Our final five contenders were:

1. Peter Smith (GWU)
2. Aaron Twerski (Brooklyn)
3. Richard Epstein (Chicago/NYU)
4. Catherine Struve (Penn)
5. Tobias Wolff (Penn)

I am pleased to announce that the winner, by a narrow (but decisive) margin, is Peter Smith from GWU. Collectively, we received just under 500 total votes from our readers in the two voting rounds of the Competition. Professor Smith received about 60% of these votes. I spoke with some readers who voted for Professor Smith, and asked them to explain their vote; their answers are reproduced below, unedited. The comments speak for themselves, and demonstrate how revered Professor Smith truly is:

"Peter Smith is, by far, the best professor I've had in law school. A feat accomplished not by ingratiating himself with the students through corny jokes or a "dazzling" presentation style - but by demonstrating, in a warm and human manner, the sheer force of intellect required to parse legal issues. He was both extremely demanding and extremely giving - of his time, his insight, and his support. I consider myself lucky to have had him as a professor."

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"Peter Smith is without a doubt the best professor I have ever had. Not only is he absolutely brilliant, but he has a way of capturing the class's attention like I have never experienced before. There are many professors who can make criminal law or constitutional law interesting, but Professor Smith is one of those rare breeds that somehow transforms an otherwise boring civil procedure class into an all-time favorite. He is what every law school professor should aspire to be."

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"There were times when Prof. Smith's class would end, and I would sit staring at my notes wondering a) how he managed to untangle an extremely difficult doctrine in such a digestible fashion, and b) how the class had flown by so quickly. That was the mystery of Prof Smith - he is neither flashy nor funny, not overly friendly or mean; but he manages to make time fly by forcing you to learn in ways you had never previously done. Even being on call is a unique experience, as he manages to be both terrifying and friendly at the same time - magically able to extract the answer he is looking for no matter what response the student gives. Smith is the quintessential law school professor, who would be able to explain the most complex legal topics to anyone willing to pay even half-attention."

Congratulations, again, to Peter Smith of The George Washington University Law School! The honor is well-deserved, and speaks directly to the skill that is--in my opinion, anyway--the most important asset a law professor can have.

Ninth Circuit Incorporates Second Amendment

If you've been too busy obsessing (or lamenting) over the "results" of the new US News Rankings, you probably missed the biggest news to hit the legal world today: a Ninth Circuit panel issued its decision in Nordyke v. King, incorporating the Second Amendment against the states via the Fourteenth Amendment.

As Volokh Conspiracy notes:

The panel avoids the late 19th-century cases United States v. Cruikshank (1876) and Presser v. Illinois (1886) by reading them as simply foreclosing the direct application of the Second Amendment to the states, or the application of the Second Amendment to the states via the Privileges or Immunities Clause. The panel instead follows the Supreme Court's "selective incorporation" cases under the Due Process Clause, and concludes that the right to bear arms "ranks as fundamental, meaning 'necessary to an Anglo-American regime of ordered liberty.'

We encourage everyone to check out Volokh's coverage; they've already discussed an array of interesting issues including Judge Gould's concurring opinion, and the future of Second Amendment incorporation. As to the latter, Professor Volokh predicts:

[T]he Supreme Court would prefer to consider the incorporation question in a case that involves more common facts, and that doesn't raise the additional legal question of whether nunchakus qualify as "arms" for Second Amendment purposes. . . .[o]n the other hand, there is indeed a split on the incorporation question now, and the Court could certainly agree to consider only that aspect of the case, and remand to the Second Circuit [in Maloney v. Cuomo, sub nom. Maloney v. Rice] for more consideration of the splitless and underexplored question of which non-firearms qualify as "arms." This will push into the background the exotic nunchakus, and will instead allow the Court to focus on the common and important question of whether the Second Amendment applies, via the Fourteenth, to state and local governments.

It will be interesting to track this story's development.

Random Musing #2: USNWR Rankings and The Case of The Ineffective Administration and Broken Wings...

And we're back: Today's Random Musing involves my bewilderment at the steep plunge in my school's ranking. When I signed up for this gig, Ol' LUC was sitting at 70. There was some talk at admitted students day that we were primed for climbing, if not nationally, then at least regionally. Two years later, and we're down 21 spots. Three letters, two commas and one question mark sum up my dismay: W, T, F?

BBLers, I look to you for advice-- what's a 2L who's on the verge of attending a TTT to do? What advice should I/We give my administration? What can be done?

[Ed. Note: I realize that some of the snobbier people in the world consider anything outside the T14 or T25 as "TTT." Notwithstanding that ATL commenters-esque definition, my concern is more with falling off the second page...]

U.S. News Rankings Leaked (UPDATE)

We have received some e-mails notifying us of a new lead regarding the controversial copy of the supposedly leaked 2010 U.S. News Law School Rankings, providing color photographs of the allegedly new rankings.

Although U.S. News declined to comment when contacted by Above The Law, the rankings appear to be legitimate dispelling our prior belief that the leaked rankings were a hoax.

This interesting development is sure to prompt tons of controversy. We hope, however, that prospective students will heed Craig's sage advice that all rankings--whether "real" or "fake"--be taken with a grain of salt.

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UPDATE (Apr. 20, 12:35 PM): Here are links to scans from the magazine: 1-55; 56-100.

U.S. News Rankings Leaked?

Due to an overwhelming amount of e-mails, we want to clarify to the Blackbook Legal faithful that we are aware that the 2010 U.S. News Law School Rankings have purportedly been leaked--both on the Critical Badger and the Top Law Schools Message Board. There is a reason, however, that we have not posted them. After much investigation, it is our initial (preliminary) opinion that they are not accurate.

Every year at about this time someone always seems to leak an "official-looking" copy of the rankings. These copies are easy to fake even if it does take some effort to make them. Forgive us for being skeptical, but before we post anything, we want to be 100% sure that what we post is legitimate.

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UPDATE (Apr. 19, 8:56 PM): Apparently it is easier than we thought to manufacture "fake" scanned copies of the rankings. A reader sent this copy to us, which paints a different picture than the original leaked rankings, and further supports our point that we should take all of these leaks with a grain of salt.

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UPDATE (Apr. 20, 12:00 PM): An update to this developing story has been posted here

Last Call: The Blackbook's Top Law Prof. Competition (Rd. 3)

As you know, Round 3 of The Blackbook's Top Law Prof. Competition is currently underway! The race is currently very closely knotted up, and the polls close tomorrow at 9:00 PM.

Right now, the standings are as follows:

1. Peter Smith (GWU)
2. Aaron Twerski (Brooklyn)
3. Richard Epstein (Chicago/NYU)
4. Catherine Struve (Penn)
5. Tobias Wolff (Penn)

Only one will be crowned The Blackbook's Top Law Prof., so be sure to vote before 9:00 tomorrow!

Judge Orders George W. Bush to Testify

According to the Dallas Morning News, "Judge Martin Hoffman has ordered that former President George W. Bush be deposed in a long-running lawsuit against Southern Methodist University over land acquisition related to the Bush Presidential Library." The testimony will concern "whether SMU officials told him about plans" relating to the land over which his library is to be built "before the university bought the land."

President Bush's lawyers contend that the effort to obtain his testimony is a "publicity stunt," as "it is rare for a sitting or former president to be compelled to answer questions under oath."

Don't Look Now, But You Might Be Canadian!

From the WSJ: Don't be so hasty to blame Canada; according to them, you might be one of them!

The Pirate Bay Four Convicted of Copyright Violations

News out of Sweden: The founders of The Pirate Bay have been found guilty of Copyright violations by the Swedish court and have been sentenced to one year in prison and ordered to pay a $2.5 million fine.

I have to admit that I've only followed this case from a distance, but I find it very interesting. I'm not a copyright-guy at all, but it seems as though the copyright laws are SO far behind the times that they no longer serve their initial purpose-- providing property rights protection in order to encourage development of creative endeavors. Now, the copyright laws only function seems to be to insulate the music industry from any form of cost-competition.

Tell us, BBL-uminati: where do you see the role of copyright (particularly for software and music) in the 21st century?

Crushed By The Golden Arches-- I'm (No Longer) Lovin' It

This sounds like it could be a Torts hypo for you Prosser-esque scholars out there.

UC - Irvine is the Most Selective Law School in the Country

Or, so they say. The school reported yesterday that it "accepted 110 of 2,741 applicants to fill its 68 first-year positions, for an acceptance rate of 4%. By comparison, Yale Law School at 7%, and Stanford Law School at 9%, are the only other law schools with single-digit acceptance rates." Wait, what is UC - Irvine Law again? Oh yeah. It is the law school started last year by (now Dean) Erwin Chemerinsky, the same guy who wrote the comprehensive treatise I used for Constitutional Law during 1L.

While still patiently waiting for its ABA accreditation, the school is off to a fantastic start with respect to its numerical student performance data as well: "The incoming class will have a median grade point average of 3.65 and a median LSAT score of 167."

"We are extremely pleased to have fielded such a high-caliber inaugural class," noted Dean Chemerinsky. High-caliber it is indeed. But how did they accomplish such a miraculous feat? Dean Chemerinsky attributes the success:

to the strength and support of the University of California, Irvine, to the high quality of the founding faculty, and to the three-year, full-tuition scholarship offered to each member of the first-year class. (emphasis added)

The scholarships were ostensibly the driving factor for these impressive numbers--particularly given the current economic climate. But the other factors cannot be ignored, and what Dean Chemerinsky and his staff have done is remarkable. This is fantastic news for UC-I Law, its students and its top faculty. Look out UCLA, UC-B (Boalt?), UC-D, and UC-H--there's a new (UC) law school on the block.

Penn Prof. Sues for "Sham" Publication

Professor David Rudovsky of the University of Pennsylvania Law School, a Round 2 Competitor in The Blackbook's Top Law Prof. Competition, has sued West for publishing a "poorly researched 'sham' pocket part" to a Pennsylvania criminal law treatise he, with Professor Leonard Sosnov of Widener Law School, had written. According to the ABA Journal:

The professors, David Rudovsky of the University of Pennsylvania and Leonard Sosnov of Widener Law School, are seeking an injunction that requires West to notify subscribers that the professors did not write the December 2008 update . . . . Unhappy customers also should be given the option of a refund, the professors say.

Given the relief requested, I wonder why it matters whether the supplementary pocket was "poorly researched" though that does add insult to injury. If nothing else, this litigation is a reminder that students are not the only ones who feel violated by greedy publishing companies.

The Government Should Avoid Practicing Unprotected Witnessing...

Today's FAD is based upon an ongoing trial visited by Yours Truly earlier today.

For those keeping track at home, U.S. Atty Patrick Fitzgerald (who is like a modern day Wyatt Earp) and his office recently concluded the Family Secrets case resulting in the destruction of one of Chicago's Mafia Families (called The Outfit). Well, during the prosecution of that case, it was learned that an officer in the Witness Protection Program was feeding the Mob information about a former mobster-turned cooperating informant. Fitzgerald's office is now prosecuting the Marshal who acted as the alleged leak. Suffice to say, this case is a really big deal. I'll keep you posted as to the end result.

Subscribe to The Blackbook!

We've received several requests for information on how to subscribe to The Blackbook Legal Blog. You can subscribe by clicking this link, which is also at the bottom of the main page.

Additionally, you can always view our content via The Blackbook Legal Blog's ABA Journal Page which tracks our RSS Feed. Happy viewing!

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UPDATE (Apr.15, 11:50 PM): I'm bumping this old post up to let our readers know we're on Twitter. We joined a while ago, actually, but just recently figured out how to use it. Sort of. Anyway, you can now check out our Twitter feeds from time-to-time!

Secession?

This article was just too good to let slip through the cracks.

I look forward to any (and all) commentary.

Are We The People They Warned Us About?

Today's rendition of FAD is brought to you by the Milwaukee Journal-Sentinel. This article discusses the coming generational shift from the Boomers and Gen-Xers to the kids who were raised on GI Joe, Teenage Mutant Ninja Turtles, Mighty Morphin' Power Rangers (whatever it is that girls watched from 1980 through 1995 [Care Bears?]), and, most importantly, THE INTERNET!!

Tell us, BBL-uminati: Is the generational shift a potential paradigm shift (away from bigger government) like Prof. Burkee argues, or is it just another example of the recurring cycle of youth being optimistic and then becoming more jaded with age?

Beating Law School Finals: An Unconventional Study Tip

Finals season is here, and law students everywhere are far too immersed in their studies to be reading blogs...right? Okay, maybe not. But everyone is looking for an edge, especially 1Ls, and I guess I can't blame them. After all, eat or be eaten is the law school way.

So I'll feed the finals frenzy by offering some unconventional study advice: after preparing via the conventional means (e.g. outlining, practice exams, etc.) try creating your own exam. Have a friend in your class do the same thing. After you've both made your exams, swap them and take them. Then discuss. It's a very simple protocol, really, and it works rather well. Here's an example a classmate created in preparing for a criminal procedure examination last fall:

Police receive various reports regarding possible public sex strings (ala Larry Craig) operating in various rest areas within the 120 mile stretch between Wilimington, Delaware and Baltimore, Maryland. In response, they randomly choose 2 such rest areas at which to conduct visual surveillance. In order to do this, agents install "mini-cameras" without sound capacity in each men's room and in each lobby.

At approximately 10:30PM on the third night of surveillance, 3 agents notice two black males (A and B) exchanging some type of material in the bathroom. Upon walking out, the agents stop the individuals, conduct a pat down search, and find a wad of $100 dollar bills in A's pocket, but nothing in B's pocket.

Police then ask what the money is for. A responds that he is merely receiving payment for a paper route. However, agents notice that while questioning A, B begins to look nervous. A says, "can we please go?" One agent responds, "yes, if you let us search your vehicle." B quickly says, "yes." But, A refuses. The vehicle is registered to one, C, A's father.

Officers conduct a broad search of the car, find 10 grams of marijuana, and arrest both A and B. Without giving Miranda warnings, police ask, "did you leave anything in the bathroom?" B responds, "yes, we left a gram of marijuana in the stall under the toilet paper dispenser for [another individual] to pick up." Officers find the gram, and seize it.

Prior to trial A and B both move to suppress many pieces of evidence obtained by the officers on this night. What result?

Why does this work? Because creating a remotely decent law school exam is exceptionally difficult, and requires a comprehensive understanding of the material--especially how it all fits together. Thus, this approach will--as I'm sure Usha Rodrigues at The Conglomerate would agree--give students a "newfound respect" for what law professors do.

And it's not just mimicking law professors for its own sake; by exchanging your efforts with a classmate, you often realize that there are issues in your own fact patterns that you did not even consider. Professors, I'm told, have this happen to them too. Seeing how others perceive your fact patterns is illuminating, and expands your understanding of the material immensely.

In short, I highly recommend the method.

Sterile Man Has Daughter With Wife (Using Stored Sperm From His Teen Years!)

A truly awesome story.

Random Musing #1

In the hopes of delivering on my promise of being a Gnawsome randomist thinker, I am unveiling a new section of BBL. It is called 'Random Musing' and will contain some random thoughts that pop into my head from time to time. I post them for your review and criticism.

(1) Is it me, or does the concept of 'carbon off-sets'/Cap & Trade seem nothing more than a revisit of the medieval Catholic concept of Indulgence? For those who are too lazy to click the link, an Indulgence is when a person pays the church X dollars for the absolution of certain sins. More serious sins, of course, cost more than 'venial' sins.

Dirty Dishes at SCOTUS?

Not while Clarence Thomas remains on the bench! After all, as Justice Thomas recently declared: “I’m one of those people that still thinks the dishwasher is a miracle. What a device! And I have to admit that because I think that way, I like to load it. I like to look in and see how that dishes were magically cleaned.”

You tell them, Justice Thomas! I guess the only lingering question is whether Justice Thomas needs to recuse himself when Maytag brings its claim to Court? (Yes, I'm kidding).

[Ed. Note: Thanks to Dani Weiner for passing along the link.]

Praising Pirates

Peter Leeson, an economics professor at the University of Chicago and George Mason University, wrote this article on NPR concurrent with the volume of work he has completed in the past year on pirate contributions to principles of governance, liberty and equality. He notes:

Pirates are getting a bad rep. Every month we hear more news of the Somali pirates' depredations, most recently involving an attack on an American crew. To be sure, these pirates deserve our condemnation. They're thugs and the world would be better without them. But we shouldn't let our condemnation of modern pirates spill over, unchecked, onto their more colorful, and socially contributory, early 18th-century forefathers.

Professor Leeson illuminates the structural characteristics of 18th century pirate regimes and the fascinating principles of self-governance embodied in their political philosophies, such as the "constitutions [they] established . . . [to govern] their roguish commonwealths," their embrace of "racial tolerance well before their legitimate counterparts," and their development of an early system of "social insurance . . . [enabling crews to compensate] maimed pirate[s]."

In these and many other ways, "[p]irates . . . implemented" essential tenants of liberty within system of self-governance "more than half a century before [James] Madison put pen to paper."

On a personal note, I strongly urge everyone to check out this page along with Professor Leeson's other work. He taught my capstone economics course when I was an undergrad, and his insights and views on economics and law were very thoughtful. I hope that you will find them interesting.

For the entire article, click here.

The Blackbook's Top Law Prof. Competition (Rd. 3)

The third and final round of the first annual Blackbook Top Law Prof. Competition is here! Round 2 was remarkably close. We received well over 200 votes, and the top five were separated by just a few votes. In fact, only two votes separated the eighth ranked competitor from the fifth ranked...

But, of course, only five professors move on to Round 3; and those five are:

1) Peter Smith (GWU)
2) Aaron Twerski (Brooklyn)
3) Richard Epstein (NYU/UChicago)
4) Catherine Struve (Penn)
5) Tobias Wolff (Penn)

Good luck to all! We'll announce the winner in a week's time.

The Captain Was Saved

From the AP: Captive Captain Rescued

Yer Outta Here! Baseball & The Law

George Will wrote an interesting column Thursday, describing the umpire crew's position as the judiciary branch of the diamond. Reading the article (which has prompted me to add the partially reviewed book to my Amazon list) reminded me of the world-famous student article "The Common Law Origins of the Infield Fly Rule." [UPenn RAISE UP!]

Here's my question for you, BBL Illuminati: if law was a sport, what sport would it be, and why?

Remember to Vote for Your Favorite Professor!

As Nima explained earlier, Round 2 of The Blackbook's Top Law Prof. Competition will close on Sunday. We have received about 200 votes so far (which is a lot given there are only twelve schools represented), and--as it stands--your top five would be as follows:

1) Peter Smith (GWU)
2) Aaron Twerski (Brooklyn)
3) Catherine Struve (Penn)
4) Gregory Maggs (GWU)
5) Tobias Wolff (Penn)

Please remember to put your vote in before Sunday!

A Bill "Too Gross to Talk About"

Earlier this week, the state of Oregon passed a bill that one newspaper referred to as “too gross to talk about.” What could be so gross? Before I divulge any explicit details, I recommend that those who are easily repulsed turn away now.

The proposed law makes it a second-degree sexual abuse to propel “a dangerous substance at another person.” Hmm. It appears that the legislature’s intent was to outlaw bukkake, a practice apparently popularized in Japanese pornography. We’ll spare you an explanation of what this practice entails, but the link provided will take you to a Wikipedia page that explains the "ritual."

The passing of this law stemmed from a very serious and traumatizing non-consensual incident that occurred last June. Although the new law criminalizes such non-consensual acts, it also embraces the consensual practice of this sexual conduct. Although I agree that the conduct is repulsive, is the criminalizing of sexual activity between consenting adults in the privacy of their own homes necessary? Is it even constitutional?

In Lawrence v. Texas, the Court explained that decisions by consenting adults “concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment.” 539 U.S. 558, 578 (2003) (quoting Bowers v. Hardwick 478 U.S. 186, 216 (2003) (Stevens, J, dissenting)). Although the practice Oregon's statute proscribes is clearly much different than that the Court held could not be restricted in Lawrence, it seems to me that the same constitutional rights are implicated. And "morality" would not overcome the scrutiny the Lawrence Court utilized.

So here's what I'm wondering: can the state of Oregon legally criminalize private sexual activity between consenting adults (notwithstanding the fact this law may be pointlessly stupid)? We would love to hear your opinion.

For more on this story, please visit boingboing.

[Ed. Note: The illustration was found here after a google search for Lawrence v. Texas]

Here Come The Judge(s)!

Via Politico: Federal judges go Judge Dredd on DOJ.

I've always been told that the lawyers in the DOJ & U.S. Attorney's offices around the nation are the creme de la creme. Many of them come from the "finest schools" and have impeccable credentials. So, Illuminati, why do you think people who are otherwise brilliant fail to exercise common sense and/or play fairly?

Law School Supplements (The 2L and 3L Edition)

Due to popular demand, here is our second law school supplement post (the 2L and 3L edition). The majority of the e-mails we received asked about helpful supplements for a variety of law school courses not covered in our prior post and, due to our commitment to interactivity, we now recommend a supplement for each request. After all, addiction to supplements is, as Craig noted, a "pretty good vice to have" and one that ensures that you "never have insufficient resources to figure out confusing legal doctrine."

I have taken some of the following courses myself, but there are a few I have yet to conquer. In that vein, I have been in touch with students who have completed these courses in order to get their best recommendations. Here goes:

Federal Courts: Without exception, Federal Jurisdiction (Introduction to Law Series) by Erwin Chemerinsky has unequivocally been the most ubiquitous supplement recommendation I have received from most students who have taken this course. However, I have yet to take Federal Courts, so I cannot speak on its merits from my own experience.

Antitrust Law: I have taken antitrust, but will have to admit that buying a good, comprehensive supplement for it is quite tricky--principally because the law is not very concrete. Thus, my recommendation splits two ways. First, if you just want a quick summary of the current case law and a brief explanation of underlying, basic economic principles embodied in the law, try the Antitrust Law and Economics Nutshell by Ernest Gellhorn, et al. If you have a little more time to explore the nuances of prominent cases, check out the Hornbook on the Law of Antitrust by Lawrence Sullivan and Warren Grimes.

Conflict of Laws: I have searched the internet for recommendations on a supplement for this class, but there does not seem to be a dominantly suggested one. The one supplement that seems to get consistent praise is Conflict of Laws (Introduction to Law Series) by Lea Brilmayer.

Administrative Law: Examples and Explanations by William Funk and Richard Seamon--hands down.

Remedies: I am told the Examples and Explanations by Richard Hasen is the best supplement for Remedies. The Remedies Nutshell by William Tabb and Elaine Shoben is also very helpful.

Immigration Law: Depending on your teacher, some supplements can certainly be better than others. There is not, however, a great selection in the aggregate. I found the Immigration Law and Procedure Nutshell by David Weissbrodt and Laura Danielson extremely helpful, but it focused more on the constitutional aspects of immigration law than on the nuances of the Immigration and Nationality Act and its application. That said, I cannot imagine a supplement going into too much detail about a statute as complicated and as long as the INA.

Criminal Procedure: I, like Craig, love Joshua Dressler's work in the criminal law arena in general. I used his and Alan Michaels' Understanding Criminal Procedure (Investigation) as a supplement, and read it front to back. It was very helpful.

Corporations: Everyone's favorite course, no? I have heard mixed reviews on a number of (potentially helpful?) supplements. First, Corporations (Introduction to Law Series) by James Cox and Thomas Hazen has been adamantly praised by some, but criticized by others for oversimplifying the Delaware General Corporation law--but this may be moot if your teacher does not emphasize it too much. I have also heard that Examples and Explanations by Alan Palmiter is a fantastic reference.

Securities Regulation: A lot of people with whom I have spoken love the Examples and Explanations by Alan Palmiter, but some suggested that the examples are too short.

Federal Income Tax: The Examples and Explanations by Joseph Bankman, et al. has been given resounding praise from those I know who have taken the course.

Evidence: There are numerous fantastic supplements for this course. Among the many suggestions I received are Understanding Evidence by Paul Giannelli and McCormick on Evidence (Hornbook Series) by George Dix, et al. For practice, Siegal's Evidence: Essay and Multiple Choice Questions and Answers was highly recommended.

I hope these recommendations were moderately helpful. If nothing else, they should at least provide for a decent starting point when you begin preparing for exams. The tip line is always open for more requests and, in the words of Craig Reiser, 'happy shopping!'

So, You Were Saying My Idea BigLaw Associates Could Start At 95k Was Absurd??

In light of this article from Law.com, I thought I'd bump one of BBL's first (and finest, IMO) contentious postings: BigLaw Compensation. Have at it BBL visitors-- could BigLaw compensation realistically go to 100k for First Year associates?

Don't Worry Sammy, I Struggle To Drive 55 As Well...

From Cracked.com: The 5 Laws That Don't Work.

I get confused when people equate illegality with effective implementation. Whenever something 'bad' (i.e. undesirable) happens, there seems to be a rush to try and ban the object or the action giving rise to the undesirable behavior. A perfect contemporary case in point is the rush (led in part by FoxNews, of course) to promote Salvia awareness (i.e. drive to ban the substance).

We're all lawyers/law students/citizens concerned with effective and just administration of law here. If anyone knows the strengths and weaknesses of the legal system it should be us, right? So, what do you think Illuminati: Should we continue trying to ban items resulting in undesirable behavior? What are our alternatives?

Presidential Review of Afghanistan Martial Sex Law

Afghanistan President Hamid Karzai decided yesterday to review a law applicable to "[the country's] Shiite Muslim minority that the United Nations says legalizes marital rape." Astonishingly, "the law, which applies to . . .  19 percent of the country’s 33 million people who are Shiite, says a husband can have sex with his wife every four days unless she is ill." In addition, the law "forbids a woman from working or being educated without her husband’s permission, limits women’s property rights and bars them from leaving home without spousal approval, according to the UN."

Bloomberg reports that Karzai has the staunch approval of the Obama Administration in taking this action.

Are Law Schools Overreacting to the Annual Exodus of Students? (UPDATE)

Yesterday, I asked whether law schools were overreacting to the difficulties posed by increased transfer admissions. In particular, I reported a tipster's account of the administrative response to the transfer process undertaken by Brooklyn Law School; an account which was, as noted, corroborated by other former Brooklyn Law School students who had transferred after their first year.

Although I encouraged readers to not single out Brooklyn Law School, the story predictably generated much controversy and--in some cases--anger. I promised to provide an update in the event I was contacted by the school's administration and am pleased to do so now, having received the following e-mail communication from Associate Dean Beryl Jones-Woodin:

1) You report that we actively seek to encourage students who are considering transferring to remain at Brooklyn Law School. This is accurate. We are proud of the education we provide our students and are enthusiastic about the students we have admitted. We want to encourage them to remain as members of our community.

2) We do not prevent students who are thinking of transferring from using the services of our Career Center. They are barred from using these services only after they transfer.

3) Students who have been selected for a journal or for the Moot Court Honor Society do not lose their positions until they have notified us that they will definitely be transferring to another school.

4) We do discourage faculty members from writing clerkship letters of recommendations for students who have transferred to other schools because we believe that our faculty members’ primary responsibilities are to our students who are seeking the same positions. Students who are attending other law schools can secure recommendations from their professors at their new schools. Faculty members may nevertheless write letters if they wish.

We are grateful for Dean Jones-Woodin's response; her willingness to address our story and set the record straight speaks very well for the school.

Given the array of sources who indicated that Brooklyn had a categorical rule against allowing former transfer students to use Brooklyn faculty as references for clerkship applications, I followed up to inquire as to whether the recommendation policy she described in her message had recently been changed. I have yet to hear back, and will update this posting when I do. Regardless, I am sure this policy will be very welcome news to former Brooklyn transfers who are currently contemplating applying for a clerkship next fall; "discourag[ing] faculty members from writing clerkship letters" is a lot better than "prohibiting" them from doing so.

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UPDATE (Apr. 7, 6:00 PM): Dean Jones-Woodin has confirmed that it has "always been [Brooklyn's] policy to discourage, but ultimately allow, faculty members to write in support of clerkship candidates who transfer."

Vermont Adopts Gay Marriage Through Legislature

Breaking news: Vermont is the first state in the Union to adopt gay marriage through legislative enactment.

So, Jeff... is this ok?

UPDATE at 12:01 ET: Here's the link to the Vermont Constitution and it's Amendment process.

Here's my step-by-step reading of it:
(1) 2/3 Senate must propose it
(2) 50.1% of the House must accept it
(3) Both houses of the subsequently elected legislature must then accept it by 50.1% or greater
(4) Then 50.1% or more of the voters must accept it.

It looks like the Iowa amendment process from last week.

UPDATE at 2:00 ET: And DC, too.

AP Doesn't Want US To Say Much More Than...

This.

I've yet to take Antitrust, so I would like to hear the opinions of our learned audience about whether what the AP is trying to do violates some Antitrust provisions. What do you say, Illuminati: Could the AP be barred from taking such concerted action? Is the news business a 'form of trade' that should not be 'restrained?'

[Ed. Note: The illustration was found here after a Google search of "picture of newsie." I can just see it now: 'Extra! Extra! Bleed All About It!']

Over 30? Rejected!

I found this article on DNA India, discussing a rule passed by the Bar Council of India (BCI) on September 18, 2008, which limits the ability of anyone "above 30 years of age . . . [to] join [a] post graduate three-year [legal educational program in India]."

The resolution is being challenged by Shabnam Mulani, a 39-year-old "police constable who wants to better her understanding of the law as [she hopes] it will aid in her job." The article notes:

Mulani's hopes of studying law this year were thwarted by the BCI resolution as she had exceeded the age limit. In her petition, Mulani states the age bar deprives her and others like her of their fundamental right, and scuttles their intellectual and educational growth . . . [and her counsel has c]alled the decision "ridiculous, vague, arbitrary, senseless, and absolutely unjust besides being unconstitutional."

Aside from its (apparent) discriminatory underpinnings, one has to question the economic rationale for such a rule given the news of increased legal outsourcing to India.

Are Law Schools Overreacting to the Annual Exodus of Students?

With spring semester drawing to a rapid close, law students across the country are contemplating transferring. There are plenty of reasons to transfer, and it is an option many students consider. The increased popularity of transferring has brought with it a corresponding increase in incoming transfer classes, along with vigorous efforts to successfully integrate incoming transfers into the existing law school class.

But it has also brought about some less-than-welcoming reactions from schools unwilling to lose their students to the transfer process. A few weeks ago, Above the Law reported that Loyola (L.A.) Law School was barring potential transfers from participating in the school's on campus interview program. We've heard rumblings of similar tactics being used at other schools--the apparent goal being to convince students to stay put. As a tipster who transferred from Brooklyn Law School tells it, for example, the "efforts" began shortly after requesting a transcript even though the school was never expressly apprised of any transfer plans:

They told me . . . they would mail all my OCI firms saying that I would not be interviewing there any more and wouldn't tell them where I transferred. They also threatened me with the writing competition and my moot court saying that they may not be able to hold a spot for me as long as I'm transferring.

The (threatened) adverse consequences extended far beyond the short-term, however. According to our tipster, Brooklyn Law School's administration used an additional ploy that they have since made good on:

They specifically told me they will not let any professor give me a letter of recommendation for clerkships, [pursuant to] school policy [and] used this as a threat to get me not to transfer.

Our tipster's story has been confirmed by other former Brooklyn Law School students. I attempted to contact Brooklyn Law School to inquire as to whether the policy our tipster described remains in effect, and will update this posting later in the day should I hear back.

While I cannot fault schools for calculatedly choosing to devote school resources to students who continue to be paying customers, I have to wonder whether such tactics are truly necessary. Are law schools overreacting to the problems posed by increased transfer admissions?

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UPDATE (Apr. 7, 4:30 PM): I have posted an update to this story here.

The Blackbook's Top Law Prof. Competition (Rd. 2)

The first annual Blackbook Top Law Prof. Competition is underway and it's time to vote for your favorite law school professor. We chose a list of 18 professors from various nominations that our readers listed in our original posting and sent to us via e-mail. Professors who received 3 or more nominations are the ones who were chosen to be in this final poll which is located on the side panel.

Voting for this round will end in seven days. From the results compiled during that period, we will further narrow the field to the top 5 professors, who will compete in a separate poll the following week. From there, we will choose a winner.

Note again that this poll is not intended to be scientific; it's just for fun.

Happy Voting.

Are Multiple Choice Exams an Appropriate Method of Legal Examination?

In the wake of the delayed law school grades drama, we’ve been confronted with many-a-proposal that would hasten the process. The problem is real, and at least one school has gone so far as to adopt an otherwise unthinkable approach: fining "tardy" professors. But, as Craig notes, fining professors is pretty extreme…and it doesn’t seem like that (potential) solution has caught on.

So where do we go from here? A commenter proposed one obvious answer: multiple choice exams. I had planned to broach the subject of whether multiple choice exams were appropriate as a means of evaluating legal knowledge, and with this recent focus on delayed grades, I figured what better time than now?

An increased use of multiple choice exams would undoubtedly speed up the grading process. Moreover, grading written exams is difficult on other levels for professors. Frankly, I have to sympathize with law school professors who are forced to read our vomit of (often incorrect) legal analysis. It must be time consuming, monotonous, and irritating. So, it seems that multiple choice exams present a win-win option: law students can receive grades in a matter of days (at least in theory) and law professors can avoid what must be a painful grading process.

However, in my opinion, multiple choice exams are a highly inappropriate method of legal examination. The benefit of receiving grades quickly does not, by any means, counter the inherent weaknesses of multiple choice exams. A law school final should test how well you identify issues and apply legal concepts. The ultimate conclusion is insignificant compared to the analysis that the student provides. Further, breaking down a legal issue into a multiple choice question assumes that there is only one correct answer when, in fact, this is rarely the case. And, don’t even get me started on the “A&B” “A&C”, or “All of the above” answers. It’s pure trickery.

I have had professors who swear that a student’s performance on multiple choice questions directly correlates with performance on essay questions. Some even go so far as to say that multiple choice exams are a better indicator of a student’s knowledge of the subject matter because essay exams merely amount to a speed typing competition. Others, however, have vigorously stated that multiple choice exams are better suited for the waste basket than the law school classroom. I agree with the latter bunch.

But the multi-state bar exam is multiple choice, so maybe my critiques are overstated. What is clear is that there are problems to be fixed. In the words of my colleague in a different context, "what innovative solutions can we come up with?"

Iowa Supreme Court Unanimously Rules in Favor of Same-Sex Marriage

According to the Des Moines Register, Iowa's Supreme Court has unanimously ruled that Iowa's equal protection clause requires the state to recognize same-sex marriages. The Iowa Court, in a sixty-nine page opinion, started by recognizing the role of the court in reviewing same-sex marriage cases; a topic we've had ample occasion to discuss around these parts.

As they noted at the outset: "[w]e approach the resolution of this case with a keen and respectful understanding of our Iowa Constitution and the vital roles of the three branches of government, as well as the role of the people." Varnum v. Brian, No. 07-1499, slip op. at 12 (Iowa Apr. 3, 2009). After noting that the constitutional question of whether a prohibition on same-sex marriage violates Iowa's equal protection clause provided a justification for adjudicating the case, the Court proceeded to address the merits of the equal protection argument.

The Court explained that, under Iowa law, the equal protection standard of review for this case hinged on four factors: (1) the history of discrimination against gay and lesbian people, id. at 37, (2) sexual orientation and the ability to contribute to society, id. at 39, (3) immutability of sexual orientation, id. at 41 and (4) the political powerlessness of lesbian and gay people. Id. at 45. Based on the factors, the Court held that Iowa gay marriage bans should be analyzed "under a heightened level of scrutiny under the Iowa Constitution." Id. at 49.

Proceeding under the auspice of intermediate scrutiny, the Court turned to strike down Iowa's marriage statute holding the statutory classification preventing gay marriage was not "substantially related to an important governmental objective." Id. at 50. In particular, the Court rejected the "governmental objectives" proferred by the government including " support for the 'traditional' institution of marriage, the optimal procreation and rearing of children, and financial considerations." Id.

I find the decision interesting for a number of reasons. First, I'm surprised the Court bothered to devote as much ink as it did to the "role of the Court" issue. As far as I can tell, there's really no separation of powers issue in this case, nor could there be. I think the focus on it shows how concerned courts are with the public reaction to these cases. Second, I think it's noteworthy that the Court declined to apply strict scrutiny, and opted to strike the marriage statute at issue down under intermediate scrutiny. Doing so, as I see it, sends a more powerful statement (much like the unanimous decision) which is important in the face of such adament opposition. It's unsurprising that other Courts have used similar tactics in the past. In Romer v. Evans, 517 U.S. 620 (1996), for example, the Court struck down a discriminatory state amendment reflecting an animus to homosexuals under the low-level rational basis test. See id. at 632 (holding that the amendment "lacks a rational relationship to legitimate state interests.").

So what's next for gay marriage? If the past is any indication, there will probably be more restrictive statutes, and public opposition. But this is a welcome victory for the movement that will be persuasive precedent in other state courts.

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UPDATE (1:05 PM): A lot has been said since the Iowa Court handed down its ruling, and there's been some interesting commentary here and elsewhere. We wanted to take the opportunity to point our readers to some other ongoing discussions:

Above the Law- Iowa Supreme Court Strikes Down Gay Marriage Ban

LawDork 2.0- Iowa Law: What's Next?

Volokh Conspiracy- Iowa Supreme Court Same-Sex Marriage Decision

We'll continue to post any other articles we think you'd find interesting.

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UPDATE (2:55 PM): Building upon earlier predictions that Iowa will seek to "overturn" its Supreme Court's decision via constitutional amendment, I'm posting this article from Volokh Conspiracy which confirms that the process for amending Iowa's constitution would take a while to implement.