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Karl Born
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Sapere aude - dare to be wise
Wednesday, November 30, 2005
C-SPAN to Air Same Day Oral Argument in Abortion Case
Posted 1:28 AM by Luke
The WashPost's excellent Campaign for the Supreme Court blog carries this blurb from a C-SPAN press release:
Wednesday's one-hour, Supreme Court oral argument in a noted abortion case will air at approximately 12:15 p.m. ET on C-SPAN, C-SPAN Radio and as soon as the recording is released by the Court.

The Supreme Court agreed earlier this month to the same-day release of audio recordings of oral arguments in two upcoming cases of particular national interest, in response to a request from C-SPAN.

The two cases to be aired on C-SPAN are today's Ayotte v. Planned Parenthood of Northern New England abortion case and a December 6th military recruitment case, Rumsfeld v. Forum for Academic & Institutional Rights.


I realize that the same-day airing of only two cases will not cause earth-shattering effects, but I sincerely hope that this does not mark the beginning of a trend. Lawyers arguing before the justices should only be concerned with one thing: convincing those justices of their case. Likewise, the justices should only be concerned with hearing those lawyers and asking them insightful questions.

This argument is not new: live or same-day airing of oral arguments would politicize the court and would thus be a harmful development. The lawyers and the justices would be tempted to pander to public opinion, even though they are not and should not be beholden to it. The court already has been overly politicized and we see the result: a populace which is dangerously ignorant regarding its function. Too many people see the justices as representatives and the court as a super-legislative body.

We see the result: confirmation hearings that threaten to shut down the Senate and that involve investigations into nominees' video rental records.

So why should we fan the flames by airing oral arguments like this? I say the current level of publicity and transparency is quite sufficient.
Tuesday, November 29, 2005
Just so you know
Posted 8:18 AM by Karl Born
Room 235D, a computer lab, was reserved on November 10 from 10:45-1PM.
Wednesday, November 23, 2005
Padilla indicted... after 3 years in prison
Posted 10:49 AM by Luke
Three years after being detained Jose Padilla, accused of planning a radiological attack (dirty bomb) in America, has finally been indicted. I echo Andrew Sullivan's comments in this post, that while I have no sympathy for terrorists, an American citizen should not be held this long without formal charges.

Whatever happened to the fifth and sixth amendments?

Update: In the original version of this post, I mistakenly stated that Padilla was responsible for bringing a shoe-bomb on an airplane. The current version of the post contains the correction.
Tip to legislators...
Posted 10:18 AM by Luke
...write your statutes specifically enough and you'll avoid nasty "little" philosophical questions such as this: is an unborn baby a "person" under your High-Occupancy Vehicle law?
Wednesday, November 16, 2005
Academic Blogging
Posted 4:04 PM by Joshua Claybourn
I liked the discussion following this post on law professors blogging. As the post made clear, I favor it, but several commenters offered good opposing arguments. Robert S. Boynton has written an interesting piece on the subject in Slate. Here's a quote:
. . . [A]cademic blogging represents the fruition, not a betrayal, of the university's ideals. One might argue that blogging is in fact the very embodiment of what the political philosopher Michael Oakshott once called "The Conversation of Mankind"—an endless, thoroughly democratic dialogue about the best ideas and artifacts of our culture. Drezner's blog, for example, is hardly of the "This is what I did today …" variety. Rather, he usually writes about globalization and political economy—the very subjects on which he publishes in prestigious, peer-reviewed presses and journals. If his prose style in the blog is more engaging than that of the typical academic's, the thinking behind it is no less rigorous or intelligent.
(Via Prof. Orin Kerr, who also offers worthwhile commentary that begins, "in some ways, academic blogging is more challenging than traditional scholarly writing.")
Saturday, November 12, 2005
Anti-white bias at SIU?
Posted 10:49 AM by Joshua Claybourn
According to the Chicago Sun-Times, the government may sue Southern Illinois University (SIU) for discriminating against whites, Asians, males, and anyone else who's not black and female:
"The University has engaged in a pattern or practice of intentional discrimination against whites, non-preferred minorities and males," says a Justice Department letter sent to the university last week and obtained by the Chicago Sun-Times.

The letter demands the university cease the fellowship programs, or the department's civil rights division will sue SIU by Nov. 18.
The article lists three fellowships in question, including one "For underrepresented minority students to initiate graduate study in science, technology, engineering and math." One of the primary laws cited is Title VII of Civil Rights Act. In a 2003 decision, Grutter vs. Bollinger, the Supreme Court said in a 5-4 ruling that race could be included as a factor in determining admissions, but not the sole factor.

Liberal Illinois Senator Barack Obama accuses the Bush administration of trying to divide voters. "One of my concerns has been with all the problems the Bush administration is having, that they’ll start resorting to what they consider to be wedge issues as a way of helping themselves politically." But race-based scholarships aren't divisive? Obama's logic seems backward.

From my brief inspection of two of the fellowships, race appears to be the only factor. The outcome of this DOJ pressure, and any subsequent litigation, will have far-reaching implications on the scholarship culture and, in turn, higher education across the country.
The results are in!
Posted 8:21 AM by Robin Bradford
Congratulations to all those making 2005 Order of the Barristers.
Thursday, November 10, 2005
The Great Debate
Posted 9:50 PM by Joshua Claybourn
If you had a choice, would you chose a regular in-class written exam, or a 24 to 48 hour take home exam? Here's my take.
Tuesday, November 08, 2005
Posted 4:02 PM by Joshua Claybourn
Census of Law Professor Bloggers
Daniel J. Solove at Concurring Opinions has updated his very useful census of law professors who blog. He counts 182 bloggers, an increase of 40% from his June 2005 census. The law schools with the most bloggers are:
Chicago (14)
UCLA (7)
San Diego (7)
GW (5)
George Mason (5)
Stanford (4)
Northwestern (4)
Ohio State (4)
U.C. Davis (4)
Cincinnati (4)
Despite my consistent urging, professors at IU-Indy remain apathetic about academia's future medium. Professor Cooper is the school's only blogging professor.

Update: Prof. Glenn Reynolds writes, "Interestingly, the presence of blogging faculty seems to correlate with higher rankings."
More on Alito
Posted 1:23 PM by Luke
- Interested in Judge Alito's ideological underpinnings? Check out this excellent and thorough NYTimes article which discusses Alito's conservatism and his ideological roots.

- If Judge Alito is confirmed, a majority of the Supreme Court would be Catholic. Justices Scalia, Kennedy, Thomas, and now Roberts are the current Catholic members of the court. This WashPost article looks at the historical developments that led to conservative Catholics' increased participation in constitutional law.

- Finally, Senator Joseph Biden, a potential Democratic presidential nominee, says that Senate Democrats will be unlikely to filibuster Alito's confirmation. On this note, this blogger admit to being mildly surprised.
Thursday, November 03, 2005
Too Many Law Schools
Posted 6:17 PM by Joshua Claybourn
Inside Higher Education reports on the increase in the number of law schools over the past few years.
There is no shortage of jokes about the United States having too many lawyers. If there are any corollaries about law schools, the punch lines are falling on deaf ears at a host of institutions that have plans to open law schools.

Since 2003, at least seven new law schools have opened, and several more are on the way, including three that were announced this month at Drexel and Elon Universities and Mills College. Officials at some of those institutions said the new law schools are not just adding more desks, but will fill particular niches. Student demand suggests that the new schools are welcomed. . . .

John A. Sebert, the consultant on legal education to the American Bar Association, said that new law schools have generally been started by for-profit or religious institutions, or in states that perceive a dearth of lawyers. Liberty University School of Law, which opened in 2004, is one of the young religiously affiliated schools. On the blog of Bruce W. Green, the dean of the Liberty law school, the April 8, 2003 entry points out that the opening of law schools has not kept pace with population growth.

Still, some people, and not just bankers in need of lawyer jokes, wish there were less need to open more law schools.

Robert J. D’Agostino, a professor at the John Marshall Law School, thinks that, while the job market may suggest a need for more lawyers, an unfortunate trend of lawyers and judges effectively “becoming legislators,” he said, is pushing the need for more lawyers.

D’Agostino pointed to high profile class action suits – often against gun and cigarette manufacturers – where lawyers have “attempted to legislate by running companies out of business. It’s expanding tort law to blend into the legislative arena,” he said. “We had to have the vaccine companies threaten to pull out of the country” before the government stepped in, he said, referring to cases in which a small number of people adversely affected by a useful vaccine stood to win massive amounts of money in court.
An issue close-at-hand
Posted 10:53 AM by Luke
The legal question is a relatively new one: should internet sites be able to be forced to surrender subscriber lists and commenting information?

That is precisely the question now before a court in Maryland, a decision on which could influence litigation on this issue in other regions of the nation. From this AP article:
The publisher of a financial newsletter told Maryland's second highest court Wednesday that he should not be forced to disclose his subscriber list and other information sought by an Arizona company seeking those it says made defamatory online comments.

The publisher, Timothy M. Mulligan, told the judges "almost everything we publish could potentially be subpoenaed," putting him in the position of constantly appearing for depositions if his request to quash a subpoena by the Arizona drug company, Matrixx Initiatives, is denied.

The judges, however, appeared to side with Matrixx, repeatedly asking why Mulligan should not appear for the deposition and invoke his right not to reveal his subscribers and sources under Maryland's so-called "Shield Law," which protects the rights of the press.

"My sense is it didn't go well," Mulligan said after the hearing.

"It's not clear yet, but it will probably be in litigation for years because I have no intention of giving up my sources or subscribers."

After the hearing, Matrixx attorney David Tobin said "no one has the right to make defamatory comments. That is not protected speech."
Wednesday, November 02, 2005
Leiter's Law School Rankings
Posted 10:43 AM by Joshua Claybourn
The Law Professor Blog Network has announced the launch of Leiter's Law School Rankings by Brian Leiter, the Joseph D. Jamail Centennial Chair in Law at the University of Texas School of Law, in association with Law Professor Web Services LLC.

Leiter’s Law School Rankings (1) contains two brand new law school quality rankings, and (2) expands and redesigns the rankings material formerly maintained on the University of Texas School of Law web site.

The new 2005 rankings are:
  • Faculty Quality Rankings: Scholarly Impact (Citations), summarized below
  • Student Quality Rankings
Leiter’s Law School Rankings presents law school rankings material in seven categories:
  • Newest Rankings contains the latest 2005 rankings (Faculty Quality Rankings: Scholarly Impact (Citations) and Student Quality Rankings)
  • Faculty Rankings contains rankings of scholarly quality (as measured by reputation, productivity, and impact) and teaching quality, as well as a listing of faculty moves
  • Student Rankings contains rankings of student quality (as measured by LSAT scores and undergraduate GPAs)
  • Job Placement contains rankings of placement of students at elite law firms, a well as listings of where faculty went to law school and Supreme Court clerkships
  • U.S. News Rankings contains discussions of the U.S. News & World Report Law School Rankings and how the rankings on this site differ from U.S. News
  • Archives contains Educational Quality Rankings of U.S. Law Schools from earlier years
  • Links contains links to law review articles on law school rankings (the links are to the articles on SSRN, Hein-on-Line, and Westlaw, in that order of priority)
Tuesday, November 01, 2005
The impending nomination battle
Posted 1:03 PM by Luke
George Will offers his thoughts on the impending senate confirmation battle over Judge Alito. He notes the fact that Alito was unanimously confirmed by a Democrat-controlled Senate to the 3rd Circuit during George Bush, Sr.'s tenure, and ends his column:
This is a debate the President, who needs a victory, should relish. Will it, as Democrats mournfully say, "divide the country? Yes. Debates about serious subjects do that. The real reason those Democrats are mournful is that they correctly suspect they are on the losing side of the divide.
Indeed, the Democrats will be unable to stop Alito's confirmation. However, if they are correct in saying that Alito is antithetical to mainstream America, then the Republicans could take a political hit in '06 and '08.

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