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March 1, 2003

Saturday briefs
The Department of Homeland Security officially came into existence Saturday, absorbing some twenty federal agencies that had formerly been run in other Government departments. Read the DHS press release. With the re-organization come websites for the new Bureau of Citizenship and Immigration Services, the Bureau of Immigration and Customs Enforcement, and the Bureau of Customs and Border Protection.

Also Saturday, more than 170 nations at the World Health Organization agreed to a draft tobacco treaty that would restrict tobacco advertising and labeling and take strong action on smuggling and second-hand smoke. The US has expressed reservations about the agreement and may not sign it. Read the WHO press release and learn more about the Framework Convention for Tobacco Control, which will be presented for formal adoption at the May meeting of the World Health Assembly.

UNMOVIC Chairman Dr. Hans Blix has filed a new written report with the UN Security Council on weapons inspections and Iraq's compliance with Security Council Resolution 1441. Read the full text of Dr. Blix's report as posted on the US State Department website.

New on law professors' weblogs Saturday: Lawrence Solum of Loyola Law School Los Angeles reports from the Spectrum Policy Conference at Stanford Law School. Jack Balkin of Yale Law School shares his thoughts on pledging allegiance and cloning and fair weather federalism. David Wagner of Regent University School of Law also reflects on yesterday's Ninth Circuit Pledge of Allegiance ruling.

3/1/2003 10:35:31 PM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

March 1 - This day at law
On March 1, 1875, the Civil Rights Act of 1875 became law. It declared:
all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude.
In 1883, in the Civil Rights Cases, the US Supreme Court ruled the 1875 Act unconstitutional and unauthorized by either the 13th or 14th Amendments. Congress passed no more civil rights legislation until 1957.

3/1/2003 11:30:19 AM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

February 28, 2003

Ashcroft, Hatch reactions to denial of rehearing in Pledge of Allegiance case
Attorney General John Ashcroft and Senate Judiciary Committee Orrin Hatch both issued statements Friday reacting to the decision of the US Ninth Circuit Court of Appeals noted earlier today on JURIST not to rehear en banc a case in which the court had held that school recitation of the Pledge of Allegiance offended the Establishment Clause.

The Attorney General fell just short of announcing that his Department would take the issue of the Pledge's constitutionality all the way to the Supreme Court:
For centuries our nation has referenced God as we have expressed our patriotism and national identity in our Declaration of Independence, Constitution, national anthem, on our coins, and in the Gettysburg Address. The Supreme Court of the United States opens each session by saying, 'God save this honorable Court.' The Justice Department will spare no effort to preserve the rights of all our citizens to pledge allegiance to the American flag. We will defend the ability of Americans to declare their patriotism through the time-honored tradition of voluntarily reciting the Pledge.
Senator Hatch set his comments in the context of his immediate legal and political concerns as Judiciary Committee Chairman and principal Senate sponsor of DC Circuit Court of Appeals nominee Miguel Estrada:
This case further places the Ninth Circuit out of the main stream of both American law and culture. It clearly demonstrates why the Supreme Court overturns this Circuit’s opinions more frequently than any other Circuit. This decision creates a split among the Circuits as the 7th Circuit has appropriately ruled previously that the pledge does not violate the Constitution. I expect the Supreme Court will review this case....

Clearly, this court’s outrageous decision demonstrates the importance of nominating and confirming qualified and learned judges who understand the role of the law and will not legislate from the bench. President Bush has done his job and has nominated fine judges. I once again call upon the Senate to confirm the President Bush’s highly qualified nominees, and to end their unconstitutional attempts to deny the Senate’s right to give its consent.
Read Senator Hatch's full press release.

2/28/2003 08:20:15 PM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

Law school briefs - late edition
The South Texas College of Law announced Friday afternoon that James J. Alfini of Northern Illinois University College of Law will be its ninth President and Dean, succeeding incumbent Frank T. Read. Read the STCL press release.

At Duke Law School February 26, athiest and Pledge of Allegiance plaintiff Michael Newdow spoke to law students about his US Ninth Circuit Court of Appeals case impugning the Pledge under the Establishment Clause for containing the words "under God" (an en banc rehearing of that case was rejected today). "The government tells people there is no reason to give credence to an atheist in our society," Newdow said. The Duke Chronicle reports.

2/28/2003 05:49:31 PM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

Military tribunal crimes list
The Pentagon Friday released a draft instruction listing and defining violations of the laws of war and other offenses which it considers triable by military commission. The offense categories include terrorism, hijacking, "employing poisons and analagous weapons," using protected persons or property as shields, rape and spying. The instruction also includes detailed definitions of command responsibility. Read the DoD press release, review the Military Commission Instruction[PDF], and peruse a transcript of a Department of Defense background briefing by two unnamed officials from the DoD Office of General Counsel. The Department of Defense invites public comment on the draft instruction: comments should be faxed to the Office of General Counsel at (703) 614-4432.
2/28/2003 03:50:40 PM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

War crimes tribunal releases defendant detained by mistake
The International Criminal Tribunal for the Former Yugoslavia ordered the immediate release Friday of a Kosovo Albanian indicted and detained for war crimes in the murder and torture of Serb and Albanian civilians. Defense lawyers argued successfully that Agim Murtezi, 46, was "not the person referred to in the indictment" and should be returned to Kosovo. Read the ICTY press release.
2/28/2003 03:35:28 PM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

To rehear or not to rehear? That's the question in 9th Circuit Pledge waiver...
A split US Ninth Circuit Court of Appeals ruled Friday that it would not grant an en banc rehearing of the case in which a three-judge panel had originally held, in June 2002, that a 1954 federal Act adding the words "under God" to the Pledge of Allegiance, and a California school district's practice of teacher-led recitation of the Pledge with the added words included, violated the Establishment Clause.

Apart from the merits (subtly altered now, as dissenting judge O'Scannlain and Howard Bashman point out that today's amended version of the June 2002 judgment issued with the order against rehearing sidesteps the technical question of the constitutionality of the 1954 legislation), the ruling is interesting because of sharp divisions apparent between various 9th Circuit judges as to the appropriate circumstances in which to grant an en banc rehearing. Several members of the Court - who notably did not carry the day - expressed the view that the importance of the case and even the highly-critical public and political reaction to it were relevant standards. Circuit Judge Stephen Reinhardt, who had been one of the two judges overturning the Pledge in the original appeals ruling, disagreed strongly in a powerful and trenchant disquisition worth quoting at length:
To rehear a case en banc simply on the basis that it involves an important issue would undermine the three-judge panel system and create an impractical and crushing burden on what otherwise should be, as Rule 35(a) suggests, an exceptional occurrence. See FED. R. APP. P. 35(a) (“An en banc hearing or rehearing is not favored . . . .”). According to statistics kept by the Clerk of the court, in 2002 this court decided 5,190 cases on the merits, more than 98% of which were finally decided by three-judge panels. These decisions are not measures of “rough justice,” later to be refined by the en banc court. Unless they decide issues of exceptional importance erroneously, create a direct intra-circuit split, or unless the interests of justice require that the decision be corrected, the opinions of three-judge panels should constitute the final action of this court....

Moreover, Article III judges are by constitutional design insulated from the political pressures governing members of the other two branches of government. We are given life tenure and a secured salary so that, in our unique capacity to “say what the law is,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803), we may decide constitutional issues without regard to popular vote, political consequence, or the prospect of future career advancement. Most federal judges do not question the wisdom of this approach. When the federal judiciary is so firmly separated by constitutional structure from the direct influence of politics, we must not undermine that structure by allowing political pressures, polls, or “focus groups” to influence our opinions, even indirectly.

This is not to say that federal judges should be completely sequestered from the attitudes of the nation we serve, even though our service is accomplished not through channeling popular sentiment but through strict adherence to established constitutional principles. The Constitution contemplates occasions when we must be responsive to long-term societal trends — when determining, for example, that which is “cruel and unusual,” see Hudson v. McMillian, 503 U.S. 1, 9 (1992), whether in the execution of the mentally retarded, see Atkins v. Virginia, 536 U.S. 304, ___, 122 S. Ct. 2242, 2247 (2002), or the execution of juvenile offenders, see In re Stanford, 123 S.Ct. 472, 474 (2002) (Stevens, J., dissenting from the denial of an application for an original writ of habeas corpus). This broader long-term social conscience, however, is a matter far different from responding to particular immediate political pressures. We may not — we must not — allow public sentiment or outcry to guide our decisions. It is particularly important that we understand the nature of our obligations and the strength of our constitutional principles in times of national crisis; it is then that our freedoms and our liberties are in the greatest peril. Any suggestion, whenever or wherever made, that federal judges should be encouraged by the approval of the majority or deterred by popular disfavor is fundamentally inconsistent with the Constitution and must be firmly rejected.
Read the full Judgment in Newdow v. US Congress.

2/28/2003 02:04:21 PM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

Securities class action reform
In a CATO Institute study released Friday, University of Michigan Law School professor Adam Pritchard considers whether Congress should repeal securities class action reform. From the Executive Summary: "The Private Securities Litigation Reform Act of 1995 was designed to curtail class action lawsuits by the plaintiffs' bar. In particular, the high-technology industry, accountants, and investment bankers thought that they had been unjustly victimized by class action lawsuits based on little more than declines in a company's stock price. The plaintiffs' bar and its allies in Congress have [now] called for a repeal or modification of the PSLRA. This paper evaluates the operation of class action lawsuits before and after the act." Read the full policy analysis[PDF].
2/28/2003 01:11:21 PM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

More law school briefs
Barry University School of Law in Orlando has named a new Dean - Joseph Richard Hurt, currently dean of the Florida Coastal School of Law. Hunt takes over from incumbent Stanley Talcott on July 1. Barry University has more about Hurt and his appointment.

Friday's Emory Wheel reports that in a speech to students at Emory University School of Law, Georgia State Supreme Court Justice Robert Benham invited his audience to choose between lawyering in the spirits of Machiavelli or Cicero.

CUNY School of Law this week adopted a tougher admissions policy in the wake of half the law school's graduating class failing the 2001 New York State bar exam. Incoming students will now have to have higher GPAs, and the school will allow in fewer students with LSATs less than 145 on a 180 scale. The Astoria Times has details.

University of Arizona College of Law and the Arizona State College of Law are confronting the prospect of severe tuition hikes as a state legislative committee recommends cutting over $500,000 of state funding from both law schools. The Arizona Business Gazette reports.

2/28/2003 12:33:15 PM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

Blix statement on Iraq's destruction of missiles
UNMOVIC chief weapons inspector Hans Blix said Friday that Iraq's agreement to destroy its Al Samoud 2 missiles was a "very significant piece of real disarmament" in conformity with its obligations under UN Security Council Resolution 1441. Watch his statement to reporters at the UN this morning. Blix reports to the UN Security Council Saturday.
2/28/2003 11:31:56 AM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

Law prof blog-watch
Lawrence Solum of Loyola Law School Los Angeles is reporting live Friday from the Digital Rights Management conference at UC Berkeley School of Law - he'll be heading to Stanford Law School for the Spectrum Policy conference tomorrow. At the University of North Carolina School of Law, Eric Muller says that volunteer American human shields who go to Iraq may be committing treason. And over at UCLA School of Law, Eugene Volokh considers the case for repealing the Seventeenth Amendment to the US Constitution, requiring Senators to be elected by direct popular vote instead of by state legislatures.
2/28/2003 11:09:36 AM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

Tax reform based on Judeo-Christian ethics
Susan Hamill of the University of Alabama School of Law has been making quite a splash recently in the wake of an Alabama Law Review article proposing reform of the tax system based on the principles of Judeo-Christian ethics[PDF]. On February 25 she spoke at the University of Cincinnati School of Law, which has just posted streaming video of her presentation.
2/28/2003 10:09:32 AM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

Canadian Governor General assails legal profession "built by men for men"
In a blunt speech in Toronto delivered Thursday after receiving an honorary degree from the Law Society of Upper Canada, the body that regulates lawyers in the Canadian province of Ontario, Canadian Governor General Adrienne Clarkson (the official representative of the Queen in Canada) said that the legal profession needed to address problems of inequality within its ranks and do a better job of reflecting society by increasing the number of women and minorities. Read her speech.
2/28/2003 09:57:41 AM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

Is Marbury over-hyped?
At the end of a week that marked the 200th anniversary of the famous case regarded as the fountainhead of judicial review, John Harrison of the University of Virginia School of Law thinks so. Read his column in Friday's Legal Times.
2/28/2003 09:41:46 AM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

Law school briefs
The Oneida Indian nation's recent $3 million gift to establish a Professorship in Indian Law at Harvard Law School is causing dissension among tribe members who say they weren't consulted. Friday's Harvard Crimson has more.

It's old news to many "law blawgers", but also at HLS: Dave Winer of Scripting News fame has taken up a new fellowship at the Berkman Center for Internet and Society. His mission: to harness the power of weblogs to enhance communication and education at Harvard and beyond. Check out Weblogs at Harvard and see for yourself. Again, the Crimson has more.

Speaking at Catholic University School of Law on February 26, SEC Commissioner Roel Compos said that in the wake of the Enron, MCI and WorldCom scandals, the time has come for the Securities and Exchange Commission to rewrite the rules of the corporate boardroom. CUA School of Law has this report on his speech.

On February 26 Catholic Law also hosted a panel discussion of racial profiling led by Montgomery County Police Chief Charles Moose who spearheaded the investigation of the DC sniper shootings last fall. “When we look at racial profiling traffic data and search data, the one consistent thing is that the police don’t have high rates of success when making search decisions based upon the race of the driver,” Moose said. Read more.

Florida State University College of Law is celebrating the American Bar Association's approval of it's first graduate-level law program - an LL.M. for foreign lawyers. Read the FSU press release.

2/28/2003 09:13:30 AM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

New scholarship - rule of law, legal ethics
New and interesting papers on SSRN Friday include:

The Rule of Law for Everyone?
by Brian Tamantha of St. John's University School of Law
From the Abstract: "The rule of law is the most prominent legitimating slogan of government in the world today, espoused my many leaders (and dissidents) in countries around the world, Western and Non-Western. However, there is no agreement on what it means, and there has been little success in establishing it where it does not already exist. This article considers these issues from a historical perspective, by distinguishing a pre-liberal version of the rule of law from a liberal version of the rule of law. This distinction is then applied to clarify some of the basic issues surrounding the application and implementation of the rule of law."

Legal Ethics from the Lawyer's Point of View
by Daniel Markovits of Yale Law School
From the Abstract: "This article develops a philosophical distinction between third- and first-personal ethical ideals and applies this distinction to some of the central ethical problems facing lawyers. The article contends that the dominant argument in legal ethics, the adversary system defense, considers legal ethics exclusively from the third-personal point of view of the lawyer's duties to others and consequently neglects important first-personal ethical questions that arise from the point of view of the lawyer herself. The article concludes that even a successful development of the adversary system defense therefore leaves essential features of the ethical experience of lawyers unaddressed, and it presents an unconventional interpretation of ideas involving the ethics of role that recasts these ideas as filling in the ethical gaps that the adversary system defense leaves open."

2/28/2003 08:29:55 AM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

February 28 - This day at law
On February 28, 1877, the US Congress ratified the Manypenny Agreement with the Lakota Sioux, under which the United States took control of 900,000 acres of the Black Hills. Read the ratification act, which includes the terms of the Agreement. The Lakota argue to this day that the Agreement is illegal, was obtained by coercion associated with starvation, and that the Black Hills should be returned to them.
2/28/2003 06:29:29 AM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

February 27, 2003

House bill on human cloning
By a vote of 241-155 Thursday the US House of Representatives passed a bill to prohibit human cloning. Review The Human Cloning Prohibition Act of 2003[HR 534], the detailed House Committee Report on the bill, and read a floor statement supporting the legislation by House Judiciary Committee Chairman James Sensenbrenner. The Senate has similar legislation under consideration.
2/27/2003 10:07:34 PM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

New caselaw - securities fraud, "two strikes" for sex offenders
Securities and Exchange Commission v. Berger[PDF] (February 27, US 2nd Circuit Court of Appeals). The Court upheld a $20 million securities fraud judgment against a fugitive former hedge fund manager who skipped his criminal sentencing in 2002, saying that the trial court had jurisdiction over the fund governed by the laws of the British Virgin islands: "[W]hile operating entirely from New York, Berger executed a massive fraud upon hundreds of investors involving transactions on United States exchanges. Accordingly, the District Court properly determined that it had subject matter jurisdiction...".

Wisconsin v. Radke (February 26, Wisconsin Supreme Court). The Court upheld the constitutionality of a Wisconsin "two strikes" law requiring automatic life sentences for persons convicted twice of sexually assaulting children: "The issue in this case is whether there is a rational basis to justify mandating the penalty of life imprisonment without the possibility of parole under the circumstances of a second conviction of a child sexual assault when the penalty is life imprisonment with the possibility of parole under the circumstances of a second conviction of a Class A homicide offense.... The "two strikes" law focuses on crimes of sexual conduct that victimize children committed by people who have already been convicted of a similar crime. It represents a legislative determination that offenders convicted under these particular circumstances pose a unique threat to society and must therefore face the maximum penalty allowable under Wisconsin law. The "three strikes" law, in contrast, encompasses a wider swath of criminal conduct. It expresses a legislative determination that offenders who commit two of these crimes do not pose the same type of unique threat as persistent repeaters under the "two strikes" law. The legislature has determined that there is something especially troublesome about the threat posed by a repeat child sex offender that does not arise when a person is convicted of a child sex offense after a prior conviction for a different serious felony that does not involve sexual conduct targeting a minor."

2/27/2003 09:48:40 PM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

Senate Judiciary Committee approves three judicial nominees
The Senate Judiciary Committee Thursday approved the nominations of Deborah Cook, John Roberts and Jay Bybee as new US Court of Appeals judges in a rancorous session during which Committee Chairman Senator Orrin Hatch overrode Committee rules to get a vote on Cook and Roberts over the objection of Democrats who wished to hold those two nominations in Committee. Read the opening statement of Ranking Democrat Senator Patrick Leahy. No statement or release on today's Committee vote is as yet available from Senator Hatch's office.
2/27/2003 08:47:34 PM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

Law prof blog-watch - filibusters, faculty workshops
Rick Hasen, Loyola Law School Los Angeles, takes columnist George Will to task for misunderstanding the Constitution and the filibuster. And Lawrence Solum, also of Loyola, gives his valuable regular run-down of who's-presenting-what Thursday in faculty workshops at law schools across the country. Note to Lawrence: don't forget Erik Luna of the University of Utah College of Law, presenting Punishment Theory, Holism, and the Procedural Conception of Restorative Justice [PDF] right here at the University of Pittsburgh School of Law!
2/27/2003 01:09:03 PM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

Ashcroft/Ridge announcement lowering terror alert status
Attorney General John Ashcroft and Homeland Security Secretary Tom Ridge issued a joint statement Thursday annoucing a reduction in the US terror alert level (officially, the Homeland Security Advisory System) from High/Orange to Elevated/Yellow: "The decision to raise the threat level on February 7 was based on specific intelligence, corroborated by multiple intelligence sources, received and analyzed by the full intelligence community at the time. Today's decision to lower the threat level was based on a careful review of how this specific intelligence has evolved and progressed over the past three weeks, as well as counter-terrorism actions we have taken to address specific aspects of the threat situation. Among the factors we considered was the passing of the time period in or around the end of the Hajj, a Muslim religious period ending mid-February 2003." Read the full joint statement from the Department of Justice.
2/27/2003 12:36:07 PM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

US judge to head Hague war crimes tribunal
The International Criminal Tribunal for the Former Yugoslavia elected a new President Thursday. Judge Theodor Meron (USA) was selected to succeed Judge Claude Jorda (France). Judge Meron, initially elected to the ICTY by the UN General Assembly in 2001, received his legal education at the Universities of Jerusalem, Harvard (where he received his doctorate), and Cambridge. Since 1977, he has been a Professor of International Law and, since 1994, the holder of the Charles L. Denison Chair at New York University Law School. Judge Meron will take office as ICTY President on March 11. Read the full ICTY press release, and visit Judge Meron's faculty profile page at NYU Law School.
2/27/2003 12:27:15 PM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

More new scholarship - copyright norms, execution methods
More new and interesting papers posted on SSRN today:

Electrifying Copyright Norms And Making Cyberspace More Like A Book
by Ann Bartow of the University of South Carolina School of Law
From the Abstract: "Authors, content distributors and users all make decisions within a familiar longstanding copyright framework, within which lots of small scale unauthorized copying occurs, but content creation and distribution is still adequately incentivized. Nevertheless, "what is" in terms of real space copyright use norms is not making the transition to cyberspace, and will not, absent legislative intervention. Instead, copyright owners are using the attributes of digitalization to realize their own normative view of "what ought to be," absolute control over copyrighted works that are embodied in electronic formats....[T]his Article explains how society will suffer if analog copyright use norms are not electrified and "what is" becomes dramatically altered in the digital domain: Individuals will lose traditional levels of access to informational works and be deprived of familiar ways and means of using copyrighted works. In consequence, their respect for copyrights is likely to erode as the distributive goals of the copyright system are correspondingly unfulfilled."

Estimates of the Deterrent Effect of Alternative Execution Methods in the United States: 1978-2000
by Paul Zimmerman of the Federal Communications Commission
From the Abstract: "Using a panel of state-level data over the years 1978-2000, this paper examines whether the method by which death penalty states conduct their executions affects the per-capita incidence of murder in a differential manner. Several measures of the subjective probability of being executed are developed taking into account the timing of individual executions..... The empirical estimates suggest that the deterrent effect of capital punishment is driven primarily by executions conducted by electrocution. None of the other four methods of execution are found to have a statistically significant impact on the per-capita incidence of murder."

2/27/2003 11:06:47 AM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

Valenti on film
Motion Picture Association of America President Jack Valenti's Frey Lecture on Intellectual Property - "Comments on the Moral Imperative" - delivered at Duke Law School Monday is now available from Duke Law in streaming video.
2/27/2003 10:59:55 AM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

Racial profiling report
The Leadership Conference on Civil Rights Education Fund has released a new report on racial profiling in the United States.

From the Executive Summary: "Before September 11, polls showed that Americans of all races and ethnicities believed racial profiling to be both widespread and unacceptable.... On September 11, this consensus evaporated. The 19 men who hijacked airplanes to carry out the horrific attacks on the World Trade Center and the Pentagon were Arabs from Muslim countries. The federal government immediately focused massive investigative resources and law enforcement attention on Arabs, Arab Americans, Muslims, and those perceived to be Arab or Muslim, such as Sikhs and other South Asians. Many of the practices employed in the name of fighting terrorism - from the singling out of young Arab or Muslim men in the United States for questioning and detention to the selective application of the immigration laws to nationals of Arab or Muslim countries - amount to racial profiling. But despite public hostility to street-level racial profiling, anti-terror profiling has flourished. At the same time, there is new evidence that "traditional" racial profiling remains prevalent after September 11. The persistence of both forms of racial profiling makes clear the need to revive the pre-September 11 consensus that the practice of profiling is always wrong and should be prohibited."

Read the full text of Wrong Then, Wrong Now: Racial Profiling Before and After September 11, 2001.

2/27/2003 10:34:03 AM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

War crimes tribunal sentences former Bosnian Serb President
The International Criminal Tribunal for the Former Yugoslavia Thursday sentenced former Bosnian Serb President Bijlana Plavsic to 11 years years in prison for what it described as "a crime of the utmost gravity, involving a campaign of ethnic separation which resulted in the death of thousands and the expulsion of thousands more in circumstances of great brutality." Read the summary of the sentencing judgment delivered by Presiding Judge Richard May. The full judgment of the Tribunal is also available.
2/27/2003 10:23:41 AM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

Mr. Rogers' legal legacy
Children's TV icon Fred Rogers died Thursday here in Pittsburgh at the age of 74. More details on and in the Pittsburgh Post-Gazette. Many lawyers and law students recall Mr. Rogers from their youth, but only a few may remember the significant legal role he played nineteen years ago in persuading the US Supreme Court to protect new home videotaping technology from a copyright infringement lawsuit launched against Sony, its progenitor, by various film studios and production companies.

Delivering the Court majority Opinion in Sony v. University City Studios 464 U.S. 417 (1984), Justice Stevens wrote: "Fred Rogers [is] president of the corporation that produces and owns the copyright on Mister Rogers' Neighborhood. The program is carried by more public television stations than any other program. Its audience numbers over 3,000,000 families a day. He testified [at trial] that he had absolutely no objection to home taping for noncommercial use and expressed the opinion that it is a real service to families to be able to record children's programs and to show them at appropriate times. If there are millions of owners of VTR's [video tape recorders] who make copies of televised sports events, religious broadcasts, and educational programs such as Mister Rogers' Neighborhood, and if the proprietors of those programs welcome the practice, the business of supplying the equipment that makes such copying feasible should not be stifled simply because the equipment is used by some individuals to make unauthorized reproductions of respondents' works."

We rest his case.

2/27/2003 10:01:19 AM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

New issue - University of Southern California Law Review
The latest issue of the University of Southern California Law Review is now available online. Articles include:

Private Justice
by Pamela Bucy of the University of Alabama School of Law.
From the paper: "This Article addresses the tool of private justice. "Private justice" occurs when private persons initiate lawsuits to detect, prove, and deter public harms. No matter how talented or dedicated our public law enforcement personnel may be nor how many resources our society commits to regulatory efforts, a public regulatory system will always lack the one resource that is indispensable to effective detection and deterrence of complex economic wrongdoing: inside information. For the purposes herein, inside information is defined as significantly helpful information about economic wrongdoing produced by someone who has experience, insight, or contacts to, the industry or perpetrator involved. Private justice can supply the resource of inside information. Because of the necessary and nonsubstitutable nature of this resource, private justice is not just one option for addressing economic banditry in a global, computerized world; it is the best option."

Lurking in the Shadow: The Unseen Hand of Doctrine in Dispute Resolution
by Ray Madoff of Boston College Law School.
From the paper: "In this Article, I argue that there is a connection between substantive doctrinal law and the acceptance of alternative dispute resolution. In particular, I argue that the widespread adoption of mediation in divorce disputes would not have been possible without the changes in the substantive legal rules governing divorce brought about by the no-fault revolution. This transformation effectively changed the core story about divorce from one about guilt and innocence to one that minimized the importance of fault and instead created a complex forward-looking inquiry. This new regime effectively discouraged parties from seeking judicial resolution of their disputes and encouraged them to resolve their disputes through negotiation or mediation. The rules governing divorce stand in sharp contrast to the rules governing will contests. Largely unchanged in the United States over the last 200 years, wills law involves a backward-looking inquiry that focuses on testator intent and provides moral condemnation under a winner-take-all system, effectively encouraging parties to seek judicial resolution of their disputes."

See also a student Note: Walker v. Cheney: Politics, Posturing, and Executive Privilege.

2/27/2003 08:43:04 AM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

New scholarship - global legal culture, new business organizations
New and interesting papers on SSRN Thursday include:

Envisioning A Global Legal Culture
by Charles Koch of William and Mary School of Law.
From the Abstract: "This paper envisions a global legal culture. This global legal culture will interact with the national legal cultures and will fundamentally change legal practice, even ostensibly local legal practice. Thus, there is a practical imperative in contemplating this evolving legal culture for all lawyers and legal scholars. US lawyers and US legal scholars face a special urgency because we are so far behind others in recognizing the practical importance of understanding the world's legal cultures. This paper hopes to initiate reflections on the blending of legal cultures in the world arena."

Form and Function in Business Organizations
by Richard Booth of the University of Maryland School of Law
From the Abstract: "In this piece, I argue that the recent proliferation of forms of business organizations in addition to the traditional partnership and corporation may have arisen from the implicit recognition that various organizations may serve needs of business people in different types of businesses, and that traditional theory of the firm explanations are too narrowly focused on market failure explanations for firm formation."

2/27/2003 08:27:30 AM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

February 27 - This day at law
On February 27, 1951, the 22nd Amendment to the United States Constitution was ratified, prohibiting a President from being elected to more than two terms in office. Watch Terms Limits and American Government , a CATO Institute Policy Forum recorded on the 50th anniversary of the 22nd Amendment in 2001.
2/27/2003 06:30:34 AM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

February 26, 2003

DOJ seizes, "hacks" copyright piracy website
The US Department of Justice announced Wednesday that, pursuant to a plea agreement with a defendant convicted of conspiring to import, market and sell circumvention devices known as modification (or "mod") chips in violation of the Digital Millennium Copyright Act, it had seized his website which had formerly carried news on new pirated releases by illegal software piracy groups. Read the DOJ press release, and visit, which now carries information about the case against the defendant, general information about copyright infringement and the criminal prosecution of individuals engaged in online piracy, and links to the website of the Department of Justice's Computer Crime and Intellectual Property Section,
2/26/2003 09:41:17 PM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

New caselaw - right of access to defendant's dossier for financial aid
In re: Boston Herald (February 25, US 1st Circuit Court of Appeals). A panel of the Court ruled 2-1 that there is no right of access under either the First Amendment or the common law to documents submitted by a criminal defendant to show financial eligibility for government funding for a portion of his attorneys' fees and legal expenses under the Criminal Justice Act (CJA), 18 U.S.C. § 3006A (2000): "No federal court of appeals, to our knowledge, has considered whether there is a right of access to the narrow category of documents at issue here.... A constitutionally-based right of access to otherwise private personal financial data of one's own and one's family imposes a high price on the exercise of one's constitutional right to obtain counsel if in financial need. Our system of justice cherishes "the principle that defendants are not to be avoidably discriminated against because of their indigency." Holden v. United States, 393 F.2d 276, 278 (1st Cir. 1968). But a strict disclosure requirement could well discourage eligible defendants from availing themselves of their right to counsel by forcing them to choose between privacy and CJA assistance -- a choice that other defendants do not face."
2/26/2003 09:29:54 PM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

Indictments re: illegal fund transfers to Iraq, visa fraud
Attorney General John Ashcroft Wednesday announced indictments against four individuals who had illegally tranferred to Iraq funds solicited in the name of the Help The Needy organization contrary to the International Emergency Economic Powers Act. The Attorney General said "As President Bush leads an international coalition to end Saddam Hussein's tyranny and support for terror, the Justice Department will see that individuals within our borders cannot undermine these efforts." A second indictment was announced against a University of Idaho graduate student and citizen of Saudi Arabia, who was being charged with fraudulently obtaining student visas and making false statements on visa applications and related paperwork. The second indictment also alleged that he had maintained websites that had promoted terrorism through suicide bombings and using airplanes as weapons. Read the DOJ press release; review the Iraq fund transfer indictment and the student visa and terrorist website indictment[PDF] (both from FindLaw).
2/26/2003 09:20:35 PM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

Narrowly-defeated bill would have let judges carry concealed handguns
After passing the Arkansas Senate by 26-3, a bill that would have allowed federal judges, US bankruptcy judges and magistrate judges in the Eastern and Western Districts of Arkansas to carry concealed handguns providing they had taken a handgun safety training course failed narrowly in the Arkansas House Wednesday by a vote of 42-47. Read the bill[PDF].
2/26/2003 09:03:58 PM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

Title IX report on equal opportunity in college athletics
The US Secretary of Education's Commission on Opportunity in Athletics issued its Final Report on Title IX Wednesday. Read a statement by Education Secretary Rod Paige and the full text of the report, entitled Open to All: Title IX at 30.
2/26/2003 08:28:22 PM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

University fires Palestinian professor accused of supporting terrorists
The President of the University of South Florida announced Wednesday that the University had fired Sami Al-Arian, a USF Professor of Computer Science who was recently indicted[PDF] on charges of supporting terrorists. Read the official statement by USF President July Genshaft, a memo to the USF community, and the actual letter of termination[PDF]. The United Faculty of Florida, the faculty union that had defended Al-Arian in his ongoing contract dispute with USF, is providing updates on his case.
2/26/2003 05:25:05 PM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

Unsealed Moussaoui pleadings
In handwritten pleadings unsealed Wednesday by US District Judge Leonie Brinkema and available here in scanned photos, suspected terrorist Zacarias Moussaoui expressed a wish to torture Attorney General John Ashcroft[PDF] and asked for a larger cell to inspect discovery documents[PDF].
2/26/2003 05:18:36 PM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

Reactions to Supreme Court abortion protest ruling
Statements and press releases reacting to Wednesday's Supreme Court ruling in Scheidler v. NOW (denying that abortion clinic protests are a form of extortion or racketeering) are now available from Operation Rescue, the National Organization of Women, Planned Parenthood, the Center for Reproductive Rights, the National Abortion Federation and Concerned Women for America.
2/26/2003 04:30:00 PM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

Law prof blog-watch - Moussaoui, class actions, human shields, law reviews
Today Eric Muller of the University North Carolina Law School is thinking about the apparently-forgotten prosecution of suspected terrorist Zacarias Moussaoui. Lawrence Solum of Loyola Law School Los Angeles reflects on procedural fairness and class actions in light of Dow Chemical v. Stephenson, the Agent Orange class action case argued today before the US Supreme Court. Tung Yin of the University of Iowa College of Law wonders whether Iraqi co-operation with volunteer human shields would violate international law. Meanwhile, Eugene Volokh at UCLA School of Law has published some of the responses he received to a query about electronic submissions to law reviews.
2/26/2003 03:48:22 PM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

State tobacco laws survey
The American Lung Association Wednesday released its 2002 survey of State Legislated Actions on Tobacco Issues (SLATI), detailing new state laws on smokefree air, youth access, tobacco taxes and public health spending. The survey is available online.
2/26/2003 03:01:46 PM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

INS not deporting undetained illegals coming from terror states
A Department of Justice report issued Wednesday concludes that the US Immigration and Naturalization Service is "ineffective" at removing illegal aliens coming from states designated as sponsoring terrorist activity - including Iraq, Libya, North Korea and Sudan - who have been ordered removed from the US but who had not been formally detained. Of a 2001 sample of 470 such nondetained aliens subject to deportation orders, the INS removed only 6%. Review the full report[PDF].
2/26/2003 12:45:25 PM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

New scholarship - law and economics
New and interesting papers available on SSRN Wednesday include:

Economic Analysis of the General Structure of the Law
by Stephen Shavell of Harvard Law School.
This is a chapter from Shavell's forthcoming book Foundations of Economic Analysis of Law (Harvard University Press, 2003). From the Abstract: "In this chapter, I consider basic features of the legal system, including whether the law directly constrains behavior or channels it by the threat of sanctions, and whether the law is brought into play by private legal action or involves public enforcement. I investigate the conditions under which one or another structure of law will be socially desirable, and I then discuss tort, contract, criminal law, and several other areas of law in the light of the analysis of the optimal structure of the law."

2/26/2003 10:59:52 AM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

Breaking news - US Supreme Court ruling on abortion protests
Breaking news from DC Supreme Court litigators Goldstein & Howe: "Today the Court handed down the opinion in Scheidler v. NOW, No. 01-1118, reversing the Seventh Circuit opinion below [which had favored NOW]. The majority opinion was written by Chief Justice Rehnquist." The Medill School of Journalism at Northwestern University provides background on Scheidler, which had pitted anti-abortion groups against NOW in a legal battle over whether abortion clinic protests constitute racketeering and extortion. Opinion and details to follow.

UPDATE: The full text of Scheidler is now available from the Legal Information Institute at Cornell Law School. Chief Justice Rehnquist wrote the Opinion, with a Concurrence by Justice Ginsburg and a Dissent by Justice Stevens. Goldstein & Howe provide a summary.

From Justice Steven's dissent: "The term 'extortion' as defined in the Hobbs Act refers to 'the obtaining of property from another.' 18 U.S. C. §1951(b)(2). The Court's murky opinion seems to hold that this phrase covers nothing more than the acquisition of tangible property. No other federal court has ever construed this statute so narrowly. For decades federal judges have uniformly given the term 'property' an expansive construction that encompasses the intangible right to exercise exclusive control over the lawful use of business assets. The right to serve customers or to solicit new business is thus a protected property right. The use of violence or threats of violence to persuade the owner of a business to surrender control of such an intangible right is an appropriation of control embraced by the term 'obtaining.' That is the commonsense reading of the statute that other federal judges have consistently and wisely embraced in numerous cases that the Court does not discuss or even cite. Recognizing this settled definition of property, as I believe one must, the conclusion that petitioners obtained this property from respondents is amply supported by the evidence in the record."

2/26/2003 10:51:21 AM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

Law school briefs
The Death Penalty Clinic at UC Berkeley School of Law is being credited with filing two amicus briefs that helped Thomas Miller-El, a black Texas death row inmate, convince the US Supreme Court Tuesday that his claim of racial bias in the jury selection for his murder trial was due a hearing. Boalt Hall has the briefs and more.

At Stanford Law School Tuesday, four black federal and state judges discussed the politicization of the judiciary. The Stanford Daily reports.

Jack Valenti, President of the Motion Picture Association of America, denouced online file-swapping Monday in delivering the Meredith and Kip Frey Lecture in Intellectual Property at Duke Law School. The Duke Chronicle has more. Duke Law recorded the event and JURIST expects to have online video available Thursday.

The Ohio General Assembly will soon be voting on the 14th Amendment after a group of law students led by University of Cincinnati Law School professor Jack Chin discovered that the state, generally counted as one of the thirty that had ratified the Amendment when it took effect in 1868, had in fact rescinded its ratification again before the Amendment was proclaimed. The University of Cincinnati News Record has more.

2/26/2003 09:09:11 AM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

Today's US Supreme Court docket
The US Supreme Court hears arguments Wednesday in Roell v. Withrow (consent to assignment of jurisdiction - read backgrounders and predictions from DC appellate litigators Goldstein & Howe and Sam Heldman) and Dow Chemical Co. v. Stevenson (Agent Orange liability - more from Goldstein & Howe and Sam Heldman). On Dow Chemical, see also Agent Orange Heads to the Supreme Court, a JURIST Forum column by Jay Tidmarsh of Notre Dame Law School, who served as lead counsel for the United States in the Agent Orange litigation between 1987 and 1989.
2/26/2003 06:45:40 AM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

February 26 - This day at law
On February 26, 1924, Adolf Hitler and several others were put on trial for treason in Munich in connection with an attempted putsch. Learn more about the Munich (or "Beer Hall") Putsch and the subsequent trial of Hitler and his associates.
2/26/2003 06:30:19 AM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

February 25, 2003

Human rights and the International Criminal Court
The Federalist Society has posted a new study on The Human Rights Record of the States Parties to the Rome Statute of the International Criminal Court. From the Introduction: "Of the 87 states parties to the Rome Statute, a clear majority (45) have been implicated in the very worst human rights abuses involving the legal system, including extra-judicial killings, torture, and/or police misconduct resulting in death or severe bodily injury. A full third (29) have been implicated in extra-judicial killings and/or torture.... The legal culture of prosecutors and judges from states where human rights remains a slogan, and the judicial system is a tool of repression rather than a bulwark of democracy, suggests that the ICC may not actually prove to be the 'most important new institution for enforcing human rights in fifty years.'"
2/25/2003 09:09:40 PM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

Law professors' salaries
The Society of American Law Teachers (SALT) has posted its survey of law professors' salaries for the 2002-03 academic year. The survey covers 100 participating law schools across the US; 87 schools did not participate.
2/25/2003 08:22:47 PM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

New caselaw - prisons, Equal Protection; bilingual education, Proposition 227
John v. California[PDF] (February 25, US 9th Circuit Court of Appeals). A panel of the Court ruled that a prison reception center housing policy which used race as one factor in assigning a new inmate's initial cell mate for 60 days did not violate the Equal Protection Clause: "Although there may be many ways in which to achieve the state’s objective in reducing racial violence in the CDC [California Department of Corrections}, the path chosen by the State of California is reasonably related to the administrators’ concern for racial violence and thus must be upheld. If this policy were implemented beyond the prison walls, undoubtedly, we would strike it down as unconstitutional. The prison system, however, is inherently different and we must defer our judgment to that of the prison administrators until presented evidence demonstrating the unreasonableness of the administrators’ policy."

Valeria v. One Nation/One CA[PDF] (February 25, US 9th Circuit Court of Appeals). The Court refused to rehear this case involving Proposition 227 en banc on grounds that the Proposition on its face did not violate the Equal Protection Clause of the 14th Amendment. Judges Pegerson and Paez dissented, insisting that "Proposition 227’s reallocation of political power with respect to an issue with a racial focus violates the Constitution.... The initiative, passed by California voters in 1998, effectively eliminated bilingual instruction in California public schools. Now part of the California Education Code, Proposition 227 restructures the political process by shifting authority over bilingual education from local educational agencies to the state. Before the passage of Proposition 227, public school students and their parents could effect change at the local level. Now they must launch a successful statewide ballot initiative to bring about any meaningful modification in bilingual education policy. By affecting only those interested in bilingual education, this political restructuring violates the “political structure” equal protection doctrine...".

2/25/2003 08:09:51 PM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

Law prof blog-watch
Lawrence Solum of Loyola Law School Los Angeles reflects on what he terms "a very dangerous trend" in public discourse towards opposing judicial nominees on the basis of political ideology. Rick Hasen, also of Loyola Law School, disagrees, saying that political ideology does have a place in debates over judicial candidates. David Wagner of Regent University School of Law speculates - firmly tongue-in-cheek - on the cause of Supreme Court Justice Antonin Scalia's recent right shoulder injury.
2/25/2003 05:18:52 PM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

New scholarship - takings; code and free speech
SSRN is busy today. Two more new and interesting papers just posted online:

Takings, Regulations, and Natural Property Rights
by Eric Claeys of Saint Louis University School of Law.
From the Abstract: "According to most legal history and takings scholarship, the whole notion of a "regulatory taking" was a contradiction in terms until Justice Oliver Wendell Holmes invented it in the 1922 Supreme Court decision Pennsylvania Coal v. Mahon. This Article calls that view into question. The Article reexamines a line of constitutional eminent-domain decisions decided in the state courts over the nineteenth century. These decisions are often read to suggest that property "regulations" could never trigger takings protections unless they physically invaded owners' land. In fact, however, they drew on Founding Era ideas about the regulation of natural property rights to generate a body of what modern lawyers would call a body of "regulatory-takings" law."

From Social Friction to Social Meaning: What Expressive Uses of Code Tell Us About Free Speech
by David McGowan of the University of Minnesota Law School.
From the Abstract: "This article relates social friction to First Amendment theory and doctrine. The article defines social friction as the cost of engaging in one expressive behavior rather than another, and of moving among different types of behavior. Social friction separates social contexts and practices from one another. By separating them, it partly defines and stabilizes them, so courts may use them to relate expressive conduct to free speech values. Social friction is therefore integral to social meaning, and thus to free speech analysis. Cases involving the Internet distribution of software code exemplify the importance of social friction to free speech analysis.... Using cases such as United States v. Elcom, Ltd. and Universal City Studios, Inc., v. Corley, the article suggests ways in which courts may distinguish uses of code that implicate free speech values from those that do not. It suggests that incitement doctrine be adapted to deal with cases in which free speech interests are at stake."

2/25/2003 04:49:13 PM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

Dellinger on judicial nominations
Duke Law School professor and former US Solicitor General Walter Dellinger says the process of selecting federal judges is poisoned by politics and needs reform. Read his op-ed, originally printed in Tuesday's Washington Post.
2/25/2003 02:58:03 PM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

FISA implementation failures and oversight bill
A bipartisan group of Senators - Patrick Leahy (D-Vt.), Charles Grassley (R-Iowa) and Arlen Specter (R-Penn.) - released a report Tuesday detailing problems in the FBI's implemention of the Foreign Intelligence Surveillance Act, and at the same time introduced a "sunshine" bill to enhance congressional oversight and public reporting of the FBI's domestic surveillance efforts. Read the full report on FISA implementation failures, the press release highlighting key conclusions, and the Domestic Surveillance Oversight Act of 2003, the proposed FISA oversight bill.

UPDATE: The US Department of Justice has dismissed the Senators' report as "old news" and says that it "unfairly criticizes the Department of Justice for an alleged lack of responsiveness to Judiciary Committee oversight requests." Read the DOJ press release.

2/25/2003 02:43:32 PM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

Qwest corporate fraud indictment
Attorney General John Ashcroft announced Tuesday that a federal grand jury in Denver had returned a 12-count indictment charging four former executives of Qwest Communications with corporate accounting fraud. Read a transcript of the Attorney General's announcement, the DOJ press release and the official indictment. The US Securities & Exchange Commission also filed civil fraud charges Tuesday against eight current and former officers and employees of Qwest Communications International Inc., alleging they inflated the company's revenues by approximately $144 million in 2000 and 2001 in order to meet earnings projections and revenue expectations. Read the SEC press release and complaint.
2/25/2003 01:26:55 PM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

Doe v. Bush plaintiffs' attorney discusses war powers on JURIST
Margaret Burnham of Northeastern University School of Law, co-author of the plaintiffs' brief in the Doe v. Bush[PDF] war powers suit now on expedited appeal to the First Circuit following its dismissal yesterday in US District Court, says that for the first time in litigation the US Government is expounding a radically expansive version of executive war powers - that the President can unilaterally launch a premeditated, preemptive all-out war, whenever, in his sole judgment, he deems it necessary to defend the country's national security interests. Read her op-ed column in JURIST's Forum series.
2/25/2003 01:11:30 PM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

New scholarship - law on the use of force
A timely paper just up on SSRN:

Law and Fear, Fear of Law: Iraq, and Beyond
by Mark Drumbl of Washington and Lee University School of Law.
From the Abstract: "This Paper examines the shifts in the law regarding the use of force - the jus ad bellum - that have emerged in the wake of the September 11, 2001 terrorist attacks. These shifts import a significant elasticity - in time, space, and place - into the legal understanding of self-defense. In particular, this Paper argues that self-defense is emerging as the primary basis for legalizing violence to protect peace and security - even violence that may not seem much like self-defense."

2/25/2003 11:22:18 AM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

Breaking news - US Supreme Court rulings on Social Security, jury selection
Breaking news from DC Supreme Court litigators Goldstein & Howe: "the Court reversed in the Keffler[sic] case 9-0 (per Souter) and the Miller-El case 8-1 (per Kennedy, Thomas dissenting)." Opinions and more details to follow.

UPDATE: The Opinion in Washington State Department of Social and Health Services v. Keffeler is now online; Goldstein & Howe provide a summary. See also the Opinion in Miller-El v. Cockrell, again with a summary from Goldstein & Howe.

2/25/2003 10:29:11 AM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

Law school briefs
A committee led by Harvard Law School professor Charles Ogletree filed a lawsuit Monday to recover damages for the victims of the 1921 Tulsa Race Riot and their descendants. The Harvard Crimson has more.

The University of Tennessee College of Law announced Monday that its 2003 graduation speaker will be criminal defense attorney Johnnie Cochran.

2/25/2003 09:18:13 AM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

New scholarship - community; cameras; congressional procedure
New and interesting papers on SSRN Tuesday include:

Restorative Justice and the Dangers of Community
by Robert Weisberg of Stanford Law School
From the Abstract: "Restorative justice needs something to restore, and one key thing it is very often said to restore is, in some formulation or other, "community." But "community" is a very dangerous concept because it sometimes means very little, or nothing very coherent, and sometimes means so many things as to become useless in legal or social discourse, and because sometimes the sunny harmonious sound of the very word "community" often masks conflict and indeed discriminatory exclusion, or at least arbitrary political arrangements (as in "the international community"). This paper explores the various uses of the "community trope," from "community" as an ideal to "sense of community" as a social goal, to "the community" as a supposedly identifiable social entity to "the [group name] community" as the designation for a certain social, racial, ethnic, or other associations. It argues that greater self-criticism in the use of these tropes is essential to a thoughtful programs in the area of restorative justice."

Public Privacy: Camera Surveillance of Public Places and the Right to Anonymity
by Christopher Slobogin of the University of Florida, Levin College of Law
From the Abstract: "Government-sponsored camera surveillance of public streets and other public places is pervasive in the United Kingdom and is increasingly popular in American urban centers, especially in the wake of 9/11. Yet legal regulation of this surveillance is virtually non-existent, in part because the Supreme Court has signalled that we have no reasonable expectation of privacy in public places. This article, written for a symposium on the intersection of the Fourth Amendment and technology, contests that stance, at the same time it questions whether the traditional, "probable-cause-forever" view of Fourth Amendment protections makes sense in this technological age."

The Constitutional Law of Congressional Procedure
by Adrian Vermeule of the University of Chicago Law School.
From the Abstract: "The federal constitution contains a set of rules that I will describe as the constitutional law of congressional procedure. These are rules that regulate the internal decisionmaking procedures of Congress; absent specific constitutional provision, they would be subject to the authority of each House to "determine the Rules of its Proceedings." ...The constitutional law of congressional procedure has rarely been analyzed as an integrated body of rules, largely because of historical quirks in the relevant sectors of political science and constitutional law. The article's project is to examine this body of rules as a unified topic that is central to the constitutional design of legislative power."

2/25/2003 08:33:55 AM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

Today's US Supreme Court docket
The US Supreme Court hears arguments Tuesday in Massaro v. US (ineffective assistance of counsel, habeas corpus - read backgrounders and predictions from DC appellate litigators Goldstein & Howe and Sam Heldman) and Clackamas Gastroenterology v. Wells (employers, Americans with Disabilities Act - more from Goldstein & Howe and Sam Heldman).
2/25/2003 06:45:49 AM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

February 25 - This day at law
On February 25, 1913, the 16th Amendment, creating the Income Tax, was ratified. Read more from FindLaw on the history and purpose of the 16th Amendment.
2/25/2003 06:30:47 AM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

February 24, 2003

New caselaw - war powers, education of disabled children, missile defense
Doe v. Bush[PDF] (February 24, US District Court for the District of Massachusetts). US District Judge Joseph Tauro dismissed a suit brought by Democratic members of Congress, US military personnel and members of their families seeking to enjoin the President from launching a military invasion of Iraq on the grounds that Congress has neither declared war nor taken any action that would give the President the power to wage such a war: "[A] federal court may judge the war policies of the political branches only when the actions taken by Congress and those taken by the Executive manifest clear, resolute conflict.... Case law makes clear that Congress does not have the exclusive right to determine whether or not the United States will engage in war. Congressional ratification for the continuation of undeclared war activity may be found even though there has not been a formal declaration of approval. The manner and form of ratification is up to Congress, and the courts have no power to second guess the wisdom or form of such approval. The fact that Congress and the President may appear to be at odds from day to day concerning the conduct of military affairs does not necessarily add up to resolute conflict between the political branches."

McLaughlin v. Holt Public Schools Board of Education (February 24, US 6th Circuit Court of Appeals). The Court reversed a District Court decision overturning an administrative ruling that a disabled child be enrolled in an educational program some distance from her home that school officials believed would be better able to meet her needs as opposed to a school closer to her home, which is what her parents preferred. Under the Individuals with Disabilities Education Act, "states and school districts should be afforded some discretion in determining what type of [educational] program is appropriate based on the individual needs of a disabled child."

Also of interest: Schwartz v. TRW and Boeing (February 24, US District Court for the Central District of California). Judge Ronald Lew dismissed a suit filed under the False Claims act alleging that the defendants had falsified ballistic missile test data and misled the US government about the missile defense system they were building. UCLA law student (and former journalist and Army officer) Phil Carter was in the courtroom and posts this report.

2/24/2003 09:14:26 PM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

Senate passes Protect Act on child pornography
By a vote of 84-0 Monday the Senate passed the Protect Act, a child pornography bill designed to help authorities track down pedophiles on the Internet while avoiding free-speech concerns that prompted the US Supreme Court to strike down a similar law last April in Ashcroft v. Free Speech Coalition. Read the Senate Judiciary Committee report on the legislation, and review a statement by Senate Judiciary Committee Ranking Member Senator Patrick Leahy, who supported its passage. The bill now awaits action by the House.

UPDATE: Senate Judiciary Committee Chairman Senator Orrin Hatch has issued a press release and a copy of his floor statement on the bill.

2/24/2003 08:40:04 PM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

And speaking of Marbury...
On the 200th anniversary of Marbury v. Madison, it's appropriate to note that the University of Illinois College of Law has posted streaming video of In Defense of Judicial Review: The Perils of Popular Constitutionalism , a lecture delivered February 17 by Erwin Chemerinsky of the University of Southern California Law School.
2/24/2003 05:16:58 PM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

Hatch on music copyright law and policy
Senate Judiciary Committee Chairman Senator Orrin Hatch delivered the Recording Academy's Entertainment Law Luncheon address in New York City on Friday. The full text of his speech is now available online.
2/24/2003 04:26:21 PM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

New US-UK draft resolution on Iraq
Reuters has posted the new US-UK draft resolution on Iraq that is being circulated today at the UN Security Council. The French and German governments are circulating a separate Memorandum.

UPDATE: White House National Security Advisor Condeleezza Rice gave a press briefing late Monday explaining the US-UK resolution. Read the press conference transcript.

2/24/2003 03:29:27 PM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

ABA judicial ratings
The American Bar Association's Standing Committee on the Federal Judiciary has released an updated list of judicial nominee ratings[PDF] for the 108th Congress. Miguel Estrada (previously rated for the 107th Congress) remains "WQ" - "Well Qualified."
2/24/2003 01:59:18 PM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

Law school briefs
Yale Law School hosted the ninth annual Rebellious Lawyering Conference over the weekend. The Yale Daily News has this report.... The Columbia Law School branch of the Federalist Society sponsored a talk Saturday by Senate Judiciary Committee Chairman Senator Orrin Hatch in which he discussed the Miguel Estrada nomination and ideology in the court system. Read more in the Columbia Daily Spectator.... Lani Guinier of Harvard Law School spoke on race and law Friday at the University of Washington School of Law. The UW Daily reports....
2/24/2003 12:49:58 PM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

Supreme Court cert. grants
The US Supreme Court granted certiorari in four cases Monday morning - breaking news and more details from DC Supreme Court litigators Goldstein & Howe. The full Supreme Court Order List for Monday is now online.
2/24/2003 10:23:38 AM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

Online conference on online dispute resolution
The annual ADR Cyberweek all-online conference on online dispute resolution starts Monday, hosted by the Center for Information Technology and Dispute Resolution in the Department of Legal Studies, University of U. Mass. Amherst. Registration and participation in Cyberweek is free.
2/24/2003 10:07:11 AM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

War crimes tribunal confirms detention of Serb nationalist leader
The International Criminal Tribunal for the Former Yugoslavia confirmed Monday that Serb nationalist leader Vojislav Seselj had entered detention at The Hague pending trial for crimes against humanity and violations of the laws or customs of war. Read the ICTY press release and the full indictment against Vojislav Seselj.
2/24/2003 09:35:22 AM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

New legal scholarship
The latest issue of the New York University Law Review is now available online. It includes a commentary on the Supreme Court and the death penalty by Carol Steiker of Harvard Law School and courts and the protection of liberty by Rebecca Brown of Vanderbilt University Law School. SSRN has posted the Introduction to Democracy by Decree: What Happens When Courts Run Government, the new book by Ross Sandler and David Schoenbrod of New York Law School.
2/24/2003 09:02:42 AM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

Today's US Supreme Court docket
The US Supreme Court hears arguments Monday in PacifiCare Health Systems, Inc. v. Book (arbitration, punitive damages, RICO - read backgrounders from DC appellate litigators Goldstein & Howe and Sam Heldman) and California Franchise Tax Board v. Hyatt (sovereign immunity, tax collection - more from Goldstein & Howe and Sam Heldman).
2/24/2003 06:45:17 AM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

February 24 - This day at law
Two hundred years ago today, on February 24, 1803, Chief Justice John Marshall of the US Supreme Court ruled in Marbury v. Madison that any act of Congress that conflicts with the Constitution is null and void, thereby establishing the doctrine of judicial review. Watch an explanatory video featuring Professor Joel Grossman, a constitutional scholar in the Johns Hopkins University Political Science Department. Learn more about Marbury v. Madison from the James Madison Center at Virginia's James Madison University.
2/24/2003 06:30:20 AM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

February 23, 2003

Sunday briefs
FOX News has posted the transcript of its Sunday morning interview with White House Counsel Alberto Gonzales on the Miguel Estrada judicial nomination and Democratic filibuster.... CUNY School of Law Dean Kristin Booth Glen Sunday fired back at a New York Post editorial from last week that had alleged that the School's recent commitment to raising the first-time bar passage rate of its students was a desperate measure needed to save itself from floundering.... Former CIA General Counsel Elizabeth Rindskopf Parker, now Dean of McGeorge School of Law in Sacramento, and John Norton Moore of the Center for National Security Law at the University of Virginia School of Law were among the national security experts speaking Friday and Saturday at a symposium on legal dimensions of counterterrorism hosted by McGeorge School of Law. The San Francisco Chronicle reports....
2/23/2003 07:44:24 PM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

February 23 - This day at law
W.E.B. DuBois, founder of the National Association for the Advancement of Colored People (NAACP), was born on February 23, 1868. Review the W.E.B. DuBois Papers at the University of Massachusetts, Amherst, and released FBI files on DuBois kept because of his affiliation with "communist front groups."
2/23/2003 09:58:27 AM by Bernard Hibbitts | link | latest Paper Chase | back to JURIST

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