December 8, 2007
It Was 27 Years Ago Today, A Baby Boomer's Flashback
For my generation, many of us remember the days our heroes were shot. There were so many: JFK, MLK, RFK, and John Lennon [Wikipedia | Official Website] who was shot and killed on December 8, 1980. Over time we've learned that our heroes were just as flawed as the rest of us but we still cherish the memories of their lives and have flashbacks of the days they died. Below are some clips of news reports covering Lennon's death and the trailer to David Leaf and John Scheinfeld's documentary, The U.S. vs. John Lennon (2006) [DVD on Amazon | Official Website] which was released in the UK on this day last year. Though The U.S. vs. John Lennon is hardly impartial, it includes some interesting archival footage and a famously hard-hitting interview conducted by anti-war reporter Gloria Emerson.
Looking back, Nixon compares so favorably to Bush that we now have to go all the way back to Andrew Jackson to find a longer trail of tears.
Hat tip to Melissa Wilson who is too young to remember the 60s. [JH]
A Sampling of News Accounts
Some containing factual inaccuracies but that's not the point.
BBC news report from New York City by reporter Peter Hobday on December 9, 1980.
Another (earlier, I think) BBC News report
Some segments from ABC's NightLine and ABC's Good Morning America the night of and morning after
Trailer for The U.S. vs. John Lennon
December 7, 2007
More on Holiday Party Etiquette
... She didn’t mention whether the U of Maryland School of Law “sets the tone with with a series of pre-party memos” in advance of holiday social gatherings but I’m thinking this would be a terrific innovation here at the University of South Carolina, where in addition to informal gatherings both our clinicians and our law librarians host separate holiday soirees right on the premises and well, you know how clinicians and law librarians are - “check relevant insurance policies for possible coverage” indeed. Here are some things I’d add to the Bryan Cave admonitions:
1. No picking the french fried onions off the top of the green bean casserole.
2. No asking faculty members who cuss, “Would you kiss your Mama with that mouth?” We might have a perfectly good reason for deploying the eff word.
3. No use of electronic equipment capable of producing YouTube videos if there is going to be karaoke, dancing or competitive eating.
Good times. [JJ]
Carnegie Report Implementation Concerns
Earlier this year, the Carnegie Foundation for the Advancement of Teaching published Educating Lawyers. Drawing upon extensive field work at 16 law schools, the book is a carefully researched critique of U.S. legal education. Although I agree with many of the assessments made in the book (now commonly referred to as the Carnegie Report), it pains me to write that I worry about its long-term impact. In the context of legal education, good--or even brilliant--ideas are not enough to effect change.
Rather, major systemic change requires, at a minimum:
- A careful assessment of the institutional incentives that have created and perpetuate the current system;
- Creative strategies for breaking down or subverting those institutional forces in a way that produces a greater good.
Unfortunately, the Carnegie Report touches on #1 only briefly; and #2 is entirely absence. I am hoping that the Carnegie Center working group, which is being formed to help execute the study, can address these issues. To that end, I am writing this post. [Disclosure: via my law school, I am a member of the working group.]
More at ELS. Check it out. [JJ]
Friday Fun: Pacman in the Library
Nearly fell off my chair laughing when I saw this one! [JH]
Workplace Do's and Don't's During the Holiday Season
Two things you shouldn't do at holiday staff parties (based on personal experience):
- Don't show your gallbladder surgery scars at the dinner table, even if asked.
- Don't order every available bottle of Dom Pérignon the restaurant has when the library director is picking up the tab.
Two things employers shouldn't give to the workforce as holiday presents (based on being a recipient):
- A crisp new $5 bill in a cash gift envelope, the sort you received from your grandparents when you were 10.
- A really large candy container containing a really small handful of M&M's.
The State of State Disclosure
"State governments are improving their transparency practices, but many are still not taking full advantage of the Internet to inform the public. Online disclosure of corporate tax breaks and other economic development subsidies lags far behind reporting on procurement contracts and lobbying activities. These are the main findings of a report entitled The State of State Disclosure released today by the Corporate Research Project of Good Jobs First. The full text of the report as well as an appendix on each state (plus the District of Columbia) can be found on the Good Jobs First Web site at www.goodjobsfirst.org."
“The Internet makes possible an unprecedented level of government transparency and public participation.” said Good Jobs First Executive Director Greg LeRoy, “But many states have been slow to adopt vigorous online disclosure, especially with respect to economic development subsidies. Twenty-seven states and the District of Columbia still provide no systematic online subsidy disclosure."
Will the Post 9/11 World be a Post-Tort World?
Will the Post 9/11 World be a Post-Tort World? by George W. Conk, Adjunct Professor, Fordham Law School, Elected Member, American Law Institute and Member, ALI Consultative Group on the Restatement of Torts, appears at 112 Penn St. L. Review (2007) [Westlaw]. In the world of Post 9/11 legal scholarship, most articles are not focusing specifically on private law, like this one does. The article discusses the Air Transportation Safety and System Stabilization Act (ATSSSA) by reviewing the strengths and weaknesses of the tort claims of those who were injured and died on 9/11. The article proceeds with the WTC respiratory injury occupational disease tort claims, their necessity, and justice and concludes with a call for defense and revitalization of tort law. [JH]
From the eloquent opening paragraphs:
The short answer to the title question is: NO. Yet, tort law will continue to be eroded by attrition, by lopping off remedies--especially by limiting damages and expanding immunities--unless we are able to grab hold of the public's conscience and consciousness to bring home the point that liability in tort is not some form of punishment, erratically inflicted.
Rather tort law is a highly elaborated body of thought. It asks what constitutes socially unreasonable conduct and, by reasoned judgment, allocates liability, and assigns responsibility. Tort shares that public function with many institutions. But tort law is unique in that it is essentially private law. The parties are not the public, nor strangers to the controversy, but rather are the actors and victims themselves. As the system has evolved two key elements should be observed: tort law measures the conduct of all parties, allocating responsibility among them, and it gages conduct in context. What is socially required is determined, as we learn in the first semester of law school, by what constitutes reasonable care under the particular circumstances.
9/11 did not change everything. It affirmed much. The upsurge of public sympathy, the admiration for those who reported for duty as rescuers and lost their lives underlined the principle that individual recognition of the call of duty is the foundation of society. Underlying the law of torts is the principle of respect for the interests of others as equal to one's own...
We look today at how that cloudless September day's terrible losses have played out in legal responses to 9/11. Tort and compensation issues immediately rose to prominence. The early stages of the story are familiar. Shock and an outpouring of public sympathy and a desire to help those who suffered in the catastrophe brought a huge wave of charitable giving. Eleven days after the catastrophe came the first legislative response--the Air Transportation Safety and System Stabilization Act, (ATSSSA), which was quickly amended to add Title IV which creates the September 11th Victim Compensation Fund of 2001. The Act created the Victims Compensation Fund for those who died or were injured that day at the disaster sites in New York, the Pentagon, and Pennsylvania and it brought liability protections for those whose breaches of duty may have enabled the crimes that stunned the nation and the world.
Online Handbook on IP Management in Health and Argiculture Innovation
Intellectual Property Management in Health and Agriculture Innovation: A Handbook of Best Practices is a 2,000 page online handbook featuring tools, strategies and case studies encompassing innovation in health and agriculture to meet the needs of populations in developing countries.
Prepared by and for policy-makers, leaders of public sector research establishments, technology transfer professionals, licensing executives, and scientists, this online resource offers up-to-date information and strategies for utilizing the power of both intellectual property and the public domain. Emphasis is placed on advancing innovation in health and agriculture, though many of the principles outlined here are broadly applicable across technology fields.
Eschewing ideological debates and general proclamations, the authors always keep their eye on the practical side of IP management. The site is based on a comprehensive Handbook and Executive Guide that provide substantive discussions and analysis of the opportunities awaiting anyone in the field who wants to put intellectual property to work.
FBI Strategic Plan, 2004-2009
From the report: "The FBI Strategic Plan 2004-2009 serves as a high-level road map for the next five years, with strategic goals and objectives that address the mission of the FBI and fulfill the imperatives of the President, the Attorney General, and the Director of Central Intelligence (DCI). This document updates our earlier strategic plan (FBI Strategic Plan 1998-2003) and reflects profound and far-reaching changes to our investigative priorities and business practices since 9/11. The FBI’s efforts to remake and reengineer itself continue and this plan serves as a primary guide to the new realities of the war on terrorism."
December 6, 2007
Staying on Top of Recent Gitmo Developments
Oral arguments before the US Supreme Court in Boumediene v. Bush and Al Odah v. United States and the disclosure of two standard operating procedures manuals used at Guantanamo's Camp Delta have kept Law Librarian Blog editors pretty busy lately. Here's a compilation of our recent posts:
Habeas Corpus Litigation & Analysis:
- Boumediene v. Bush - Oral Argument and Transcript (by Julie Jones)
- Primer for Boumediene v. Bush (by Ron Jones)
- Georgetown Law Webcast on Boumediene v. Bush and Al Odah v. United States (by Joe Hodnicki)
- Guantanamo is Here: The Military Commissions Act and Noncitizen Vulnerability (by Joe Hodnicki)
Camp Delta SOP Manuals, Texts & Analysis:
- Guantanamo Bay Manual leaked to Wiki (by Julie Jones)
- Second Gitmo SOP Manual Published By Wikileaks (by Joe Hodnicki)
Second Gitmo SOP Manual Published By Wikileaks
Following on the heels of the recent publication of the 2003 edition of the Standard Operating Procedures Manual for Guantanamo's Camp Delta [our coverage here] Wikileaks has now published online the 2004 SOP Manual. You can start with the examination of the 2004 SOP Manual by Wikileaks journalists and leading Habeas Corpus lawyers from the Center for Constitutional Rights. That page provides links to both manuals.
"The document appears to be a valid 2004 Camp Delta SOP," said Rick Haupt, Commander, United States Navy Director of Public Affairs, Joint Task Force (JTF), Guantanamo Bay.
"While the document is 'Unclassified,' it is designated 'For Official Use Only' and for many reasons (to include the safety and security of U.S. service members) was not intended for mass distribution," added Haupt.
"JTF Guantanamo policy is clear - we treat all detainees humanely. The JTF operates safe, humane and professional detention operations for unlawful enemy combatants. These enemy combatants are dangerous men and are providing valuable information in preventing further terrorist attacks around the world," said Haupt.
Immigration: Terrorist Grounds for Exclusion and Removal of Aliens
"This report opens with an overview of the grounds for inadmissibility and summarizes key legislation enacted in recent years. The section on current law explains the legal definitions of “terrorist activity,” “engage in terrorist activity,” and “terrorist organization,” and describes the terrorism-related grounds for inadmissibility and removal."
Guns for Gangs: Profile Of A Rogue Gun Dealer: D'Andrea's Gun Case
Frank D'Andrea is about to go to Federal prison after a 20-year career of selling hundreds of guns to Connecticut gangsters and gun traffickers. In Guns for Gangs: Profile Of A Rogue Gun Dealer: D'Andrea's Gun Case (pdf), a Brady Center report written by Daniel R. Vice and Doug Pennington with assistance from Jonathan Lowy, is the only one to pull together news reports and court records to tell the whole story about this awful gun store and the damage it helped create in a city like Bridgeport. D'Andrea's was one of the 1.2% of licensed dealers who, according to ATF, account for 57% of crime guns in America.
From the Report:
Frank D’Andrea owned D’Andrea’s Gun Case in Stratford, Connecticut and was a “frequent critic of stronger gun-control laws.” 1 No wonder. According to government documents, for two decades he ran the gun shop of choice for gangsters and drug traffickers, routinely supplying “firearms, ammunition and bullet proof vests” to “notoriously violent felons.” At the same time, he worked along side the gun lobby to weaken laws regulating gun dealers and to allow the sale of military-style assault weapons, providing a direct benefit to his bottom line and to criminals seeking to use firearms sold by his shop. Despite gun sales averaging less than three a day, a federal indictment charged that his shop was “the source of the second largest number of guns recovered in connection with crimes in the State of Connecticut.”
During federal audits and inspections from 1998 to 2005, D’Andrea was cited for hundreds of gun law violations, including illegal assault weapon sales, “off the book” sales, and even sales to buyers who stated they were prohibited from buying guns.4 Federal agents found 15 “off the book” firearms – without any legally-required records – hidden in a back room of the store, “behind a set of large, heavy duty safes.”5 Federal prosecutors later described D’Andrea’s conduct over the years as “an outrage,” citing his “repeated and blatant disregard of federal firearms laws and regulations”:
D’Andrea’s store was … a convenient, one-stop shopping place for violent and prolific narcotics traffickers, convicted felons and other prohibited persons, who either openly sought firearms themselves or obtained them through the open and obvious use of third party intermediaries known as “straw purchasers.”
Professional Reading: Actors and Law-Making in International Environmental Law
Washington and Lee University law professor Mark A. Drumbl's Actors and Law-Making in International Environmental Law is now availabe from SSRN. This article will be published in Research Handbook of International Environmental Law, Ong & Fitzmaurice, eds., Edward Elgar Publishing (2008). Here's the abstract:
A strikingly diverse number of actors create international environmental law through strikingly diverse processes of law-making. The dynamism of actors and law-making in international environmental law contributes to similar developments in international law generally. Traditionally, the number of actors with international legal personality - in other words, those actors who actually could make international law - is limited. States were primary among this group, followed by international organizations. In recent years, however, considerable international environmental law effectively has been generated by non-governmental organizations, networked communities of experts, and administrative secretariats of treaty organizations. Major international conferences of states serve important social constructivist functions in setting norms and building consensus. The expansion in the number of actors that, whether de jure or de facto, make international environmental law has diversified the sources of international environmental law, thereby enriching the process by which it is made. Sources of international law include treaties, custom, general principles of law, and - in a subsidiary sense - judicial decisions and the writings of eminent publicists. However, much of international environmental law is informally generated by “soft law” - namely that which is “not yet or not only law” - in particular when it comes to setting norms and defining agendas for formal law-making processes. International environmental law has seen a particularly dynamic element of soft law-making and, in this vein, has been an important trendsetter for the expanding content of international law generally. This article explores in greater depth the following two questions: (1) Who makes international environmental law? and (2) What are the sources of international environmental law?
Two New Online Law Student Run Publications
Details of Law X.0 [JH]
FBI's Forensic Test Full of Holes
"Hundreds of defendants sitting in prisons nationwide have been convicted with the help of an FBI forensic tool that was discarded more than two years ago. But the FBI lab has yet to take steps to alert the affected defendants or courts, even as the window for appealing convictions is closing, a joint investigation by The Washington Post and "60 Minutes" has found.
The science, known as comparative bullet-lead analysis, was first used after President John F. Kennedy's assassination in 1963. The technique used chemistry to link crime-scene bullets to ones possessed by suspects on the theory that each batch of lead had a unique elemental makeup.
In 2004, however, the nation's most prestigious scientific body concluded that variations in the manufacturing process rendered the FBI's testimony about the science "unreliable and potentially misleading." Specifically, the National Academy of Sciences said that decades of FBI statements to jurors linking a particular bullet to those found in a suspect's gun or cartridge box were so overstated that such testimony should be considered "misleading under federal rules of evidence."
A year later, the bureau abandoned the analysis."
See also: FBI Laboratory to Increase Outreach in Bullet Lead Cases. FBI
Cruel and Unusual: Sentencing 13- and 14-Year-Old Children to Die in Prison
"In the United States, dozens of 13- and 14-year-old children have been sentenced to life imprisonment with no possibility of parole after being prosecuted as adults. While the United States Supreme Court recently declared in Roper v. Simmons that death by execution is unconstitutional for juveniles, young children continue to be sentenced to imprisonment until death with very little scrutiny or review. A study by the Equal Justice Initiative (EJI) has documented 73 cases where children 13 and 14 years of age have been condemned to death in prison. Almost all of these kids currently lack legal representation and in most of these cases the propriety and constitutionality of their extreme sentences have never been reviewed.
EJI has launched a litigation campaign to challenge death in prison sentences imposed on young children. This report is intended to illuminate this cruel and unusual punishment inflicted on children, particularly for those who have been without legal help for so long that the procedural obstacles to winning relief in court will be formidable. Increased public awareness, coupled with informed activity by advocacy groups, will be necessary to reform policies that reflect a lack of perspective and hope for young children."
December 5, 2007
Boumediene v. Bush - Oral Argument and Transcript
The transcript of today’s argument is now available from the Supreme Court.
New Empirical Legal Studies Db
Not officially launched, but now live is the fabulous Empirical Legal Studies Bibliography. A joint product of UCLA and Cornell law schools (with much of the indexing and literature review to create the database done by librarians at those two schools, namely Matt Morrison, Jill Fukunaga, and June Kim), users can search for ELS articles by author, title, subject, or year. For those of us who have grappled with requests for ELS articles in a particular subject, we know how difficult these projects can be. This new product is much needed and provides an important service in this expanding area of legal scholarship.
Background and more information about the project:
This database grew out of a conversation between Ted Eisenberg and Joe Doherty at the 2006 AALS meeting. The plan was to create an annual bibliography for publication in JELS; in the process it evolved into this online database. The project was made possible by the support of Dean Mike Schill of UCLA Law, and by the hard work of Matt Morrison of the Cornell Law Library, Jill Fukunaga and June Kim of the UCLA Law Library, and many research assistants. Please contact Joe Doherty (firstname.lastname@example.org) to report errors, omissions and suggestions, and to express your interest in helping us extend the database back to 2000.
Testing for Net Neutrality
Law.com reports on the Electronic Frontier Foundation's new software that can tell you whether your internet browsing issues are due to intentional ISP interference. More info on EFF's Test Your ISP project here.
The San Francisco-based digital rights group Electronic Frontier Foundation hopes the program, released Wednesday, will help uncover "data discrimination" -- efforts by Internet providers to disrupt some uses of their services -- in addition to the cases reported separately by EFF, The Associated Press and other sources.
"People have all sorts of problems, and they don't know whether to attribute that to some sort of misconfiguration, or deliberate behavior by the ISP," said Seth Schoen, a staff technologist with EFF.
The new software compares lists of data packets sent and received by two different computers and looks for discrepancies between what one sent and the other actually received. Previously, the process had to be done manually.
Schoen compared the software to a spelling checker.