May 2, 2011
Supreme Court Action Today
The Supreme Court issued two opinions this morning, one a per curiam opinion concerning jury instructions, and the other a riparian dispute from the original jurisdiction docket. That case is Montana v. Wyoming (No. 137 Org.). Montana, Wyoming, and North Dakota entered into a water-use Compact in 195o regulating how much water each could use from the Yellowstone River. Montana complained that Wyoming breached the compact when it allowed its pre-1950 landowners to switch from flood irrigation to sprinkler irrigation. The difference between the two is that sprinkler irrigation returns less water to the river and to downstream users in Montana. The Special Master concluded that the Compact allowed for more efficient irrigation systems so long as the same acreage was involved. Montana appealed to the Court.
The Court agreed with the Special Master's assessment. It stated that rights to water are perfected in seniority. Wyoming may switch to a more efficient system of irrigation without enlarging its rights to the water even if it is to the detriment of subsequent users. Wyoming can recapture water it lawfully diverts as part of the efficiency. Montana argued as well that the Compact term "beneficial use" fixes the amount of depletion of the water basin is at 1950 levels. Any attempt by Wyoming to go beyond that violates the Compact. The Court rejected this argument noting that the term "beneficial use" has never been defined by net water consumption. Any reading as such would require more specific terms in the Compact to that effect. Justice Thomas delivered the opinion with all justices joining save Justice Scalia who dissented and Justice Kagan who did not participate.
Justice Scalia's dissent refers to citizens of Wyoming as "Wyomans" though he states in a footnote that the correct term is "Wyomingite," with citation to one of the Webster dictionaries. He says the people of Wyoming deserve a better term. Is this an example of naked judicial activism? Just asking.
The second case is Bobby v. Mitts (10-1000). Mitts was convicted of aggravated murder and two counts of attempted murder and sentenced to death. The jury instructions during the penalty phase offered the jury a number of choices. If the 12 jurors found beyond a reasonable doubt the aggravating circumstances in the case outweighed mitigating factors, the recommended sentence is death. If not, one of two life imprisonment sentences would be the choice.
The Sixth Circuit reviewed Mitts' appeal via habeas corpus, and on the basis of the Court's opinion in Beck v. Alabama, 447 U.S. 625 (1980), granted relief. Beck held that the death penalty may not be imposed when the jury was not permitted to consider a verdict of guilt in a lesser included non-capital offense when the evidence supported such a verdict. The concern in Beck was the jury had only two choices, death or acquittal. That unfairly prejudiced the defendant to a conviction where a jury knew there was some guilt and when the alternative to death was freedom. The Court here said the Sixth Circuit misapplied Beck as this choice came in the penalty phase of the trial, and not the guilt phase. The same issue and the same instructions came up in a case from last term, Smith v. Spisak, 558 U.S.___ (2010). Spisak rejected the exact same claim on the exact same instructions, and that case should apply. The Sixth Circuit was, therefore, reversed. [MG]
Council of Foreign Relations on Osama bin Laden (March 10, 1957 – May 2, 2011)
See CFR's Daily News Brief for a survey of press coverage and commentary relating to the death of Osama bin Laden, plus analysis and background information. [JH]
Library Journal Interviews Betsy McKenzie on the Proposed AALL Library Consumer Advocacy Caucus
"Though research libraries have long complained that too few publishers dominate the field and push prices higher and higher, the case is arguably even starker for law libraries and legal publishers. Recently, a group of concerned law librarians and publishers have proposed the formation of a new American Association of Law Libraries (AALL) sub-group to grapple with the issues, calling themselves the Library Consumer Advocacy Caucus (LCAC), writes Josh Hadro on Library Journal. "To get a sense of their concerns and proposed fixes, LJAN recently posed a few questions to Elizabeth M. McKenzie, Director, Moakley Law Library and Professor of Law, Suffolk University Law School, Boston, MA, who spoke about the Caucus's plan as one of its organizers."
Questions asked in the LJ interview:
What prompted you to push for the formation of the Library Consumer Advocacy Caucus?
Can you give a few specific examples of unfair or anti-competitive practices?
How have the voluntary guidelines failed since official FTC oversight lapsed in 2000? Is the LCAC looking to restore that FTC oversight?
How do you think research and law libraries overcome the position they're in with regard to the community they serve—i.e., the fact that they're obligated to acquire materials their researchers need, an arrangement publishers seem to be keenly aware of?
For Betsy's responses see the complete interview at Q&A: Elizabeth McKenzie on Law Library Consumer Advocacy and Legal Publishing. [JH]
Who Ultimately is Master of the Domain? ABA Responds to Senator Boxer's Request for Information About What the ABA Is Doing to Improve Its Oversight of Reported Law School Placement Data
On March 31, 2011, Senator Barbara Boxer (D-CA) called on the ABA to improve its oversight of admissions and post-graduation information reported by law schools across the country. Three snips from the letter.
It is essential that students deciding if and where to attend law school have access to information that is accurate and transparent. The ABA, as the accrediting body charged with oversight of the nation’s law schools, must ensure standards and accountability.
This very serious problem takes on greater significance when viewed in the context of news articles highlighting law schools that allegedly falsify post-graduation and salary information in attempts to increase their position in the annual U.S. News and World Report rankings.
I am requesting that you provide me with a detailed summary of the ABA’s plans to implement reforms to its current procedures to ensure access to accurate and transparent information for prospective law school students.
I want to emphasize that we share your concern: no one could be more focused on the future of our next generation of lawyers than the ABA and the legal profession for whom we speak. An interest in pursuing justice should not leave someone with a life shadowed by overwhelming debt.
|Photo Credit: Cited ATL Post|
Really? See Juggalo Law's ATL post, Law Schools Lie Like A Dog… Or A Rug. A Dog On A Rug
I graduated from Northwestern Law in 2009. It is now 2011, my loans are coming due (real due — not the fake, put ‘em in forebearance, due of yesteryear), and I am currently “employed” doing two things: reviewing documents at an embarrassing hourly wage on projects that start and stop without any sort of consistency, and writing “jokes” about the Microsoft Zune every weekday morning, every other week.
Master of My Domain. I'm thinking Senator Boxer should have asked every law school dean for their school's "detailed summary ... to implement reforms .. to ensure access to accurate and transparent information for prospective law school students." Perhaps it is time for Congressional hearings on who should accredit the legal academy.
Hello Senator Boxer, how about calling all law school deans as individual witnesses? Who will be the first "Kramer?" [JH]
Opening: Reference/Legal History & Rare Books Librarian, George Washington Univ. Law School
The George Washington University Law School Library seeks a reference librarian to specialize in legal history and rare books. Review of applications will begin June 1, 2011, and continue until the position is filled. Additional information about the position, including details on the application procedure is available on the Law Library’s website. Only complete applications will be considered.
The George Washington University is an Equal Opportunity/Affirmative Action employer.
May 1, 2011
Round-Up of Law Practitioner Blogs
California Truck Accident Attorney Blog
Discusses truck accident cases, reports and news in California. Published by Estey & Bomberger, LLP.
Michigan Injury Lawyers Blog
Reports on injury law cases, opinions and news in Michigan. Published by The Reeves Law Group.
Philadelphia Business Lawyer Blog
Analyzes business law news, reports and opinions in Pennsylvania. Published by Danziger, Shapiro & Leavitt, PC.
Maryland Personal Injury Lawyer Blog
Covers injury law cases, reports and news in Maryland. Published by Joseph H. Ostad, PA.
San Diego Divorce Attorneys Blog
Provides opinion on divorce law cases, reports and news in San Diego. Published by the Law Offices of Nancy J. Bickford, APC.