Law Librarian Blog

A Corrective to Legal Research Performed Through Traditional Means

"Legal research beyond case law ... offers opportunities for judges and lawmakers to better gauge the real impact of the policies they promote" writes Jeremy Patrick, a Ph.D. candidate at Osgoode Hall Law School, in Beyond Case Reporters: Using Newspapers to Supplement the Legal-Historical Record [SSRN].

Newspapers are an excellent supplement to the narrow range of legal materials found in case reporters. They offer several advantages over traditional legal research: (1) Details about the specific parties and events involved in a legal dispute that, for one reason or another, were not included by the judge writing a particular opinion;17 (2) Information about the social context in which the case took place, including the moral presuppositions held by the actors involved (victim, accuser, judge, jurors, and more); (3) Descriptions of cases never recorded in traditional reporters, allowing the researcher to better gauge the real prevalence of certain types of disputes while also gaining insight into legal decision-making that diverged from mainstream legal doctrine.

Patrick argues that newspapers are a valuable supplement and corrective to legal research performed through traditional means because they provide insights in the history of how legal concepts work in practice. One would hope Patrick will follow up this research with a study of how the legal blogosphere also supplements the legal-historical record.

Hat tip to Legal History Blog by way of Legal Informatics Blog. [JH]

The "Greatest" Law Review Articles Ever Written

And they are:

"The Jurisprudence of Yogi Berra"
39 Coauthors, 46 EMORY L. J. 697 (1997).
Each author demonstrates the legal acumen of a Yogi quote.

"The Common Law Origins of the Infield Fly Rule"
Aside (William S. Stevens), 123 U. PA. L. REV. 1474 (1975).
A classic parody.

"The Top Ten Politically Correct Law Reviews"
Arthur Austin, 1994 UTAH L. REV. 1319 (1994).
An insightful review of the law journal articles that started the current trend.

"My Pizza with Nino"
Alex Kozinski, 12 CARDOZO L. REV. 1583 (1991).
Kozinski at his irrepressible best.

"The Wrong Stuff"
Alex Kozinski, 1992 BYU L. REV. 325 (1992).
Practical tips on how to lose your appeal.

"Lawsuit, Shmawsuit"
Alex Kozinski and Eugene Volokh, 103 YALE L. J. 463 (1993).
(But I thought of it first. See Uelmen, "Plain Yiddish for Lawyers," ABA JOURNAL, June 1985, at p. 78.)

"Legislative and Judicial Dynamism in Arkansas: Poisson v. D'Avril"
Jasper Bogus McClodd and Pepe Le Peu, 22 ARKANSAS L. REV. 724 (1969).
An April Fool's joke by Justice George Rose Smith.

"Fundamental Principles of American Law"
Patrick McFadden, 85 CAL. L. REV. 1749 (1997).
Finally, a source we can cite for the obvious.

"The Bard and the Bench: An Opinion and Brief-Writer's Guide to Shakespeare"
Robert W. Peterson, 39 SANTA CLARA L. REV. 789 (1998).
A Shakespeare quote for every legal occasion.

"A Critique of Judicial Humor"
George Rose Smith, 43 ARKANSAS L. REV. 1 (1990).
The real master at work. Alex, eat your heart out.

Source: The tongue-in-cheek sidebar to The Wit, Wisdom, and Worthlessness of Law Reviews by Gerald F. Uelmen, law prof and former dean at Santa Clara University School of Law. [JH]

What PACER Fee Revenue Finances

"EPA (Electronic Public Access) funds are collected solely via PACER fees, and are expended on a variety of programs. One of these expenditures is the PACER program itself, but many other expenditures are not," writes Steve Schultze, Associate Director of the Princeton's Center for Information Technology Policy in What Does It Cost to Provide Electronic Public Access to Court Records?

Schultze's working paper, Electronic Public Access Fees and the United States Federal Courts’ Budget: An Overview, provides the following details:

By 2009, the list of programs supported by PACER fees was further expanded, and expenditures on the non‐PACER items increased. “In fiscal year 2009, the Judiciary plans to use $106.8 million in EPA collections and prior‐year carryforward to fund public access initiatives including the following:

• Public Access Services and Applications $17.7 million;
• Telecommunications $8.7 million;
• EPA Equipment $1.3 million;
• CM/ECF Development, Operations and Maintenance $33.4 million;
• Courtroom Technology Allotments for Maintenance/Technology Refreshment $25.8 million;
• Electronic Bankruptcy Noticing $9.7 million;
• CM/ECF Allotments to Courts $7.5 million;
• CM/ECF state feasibility study $1.4 million;
• Violent Crime Control Act Notification $1.0 million; and
• Jury Management System Public Web Page $0.2 million.

In his working paper, he observes that "the only items that clearly relate directly to PACER are the $17.7 million and $1.3 million items, less than 18% of the total income from PACER fees." From the abstract of his highly recommend analysis:

This draft working paper examines the role of user fees for public access to records in the budgeting process of the federal courts. It sketches the policy principles that have traditionally motivated open access, describes the administrative process of court budgeting, and traces the path of user fees to their present-day instantiation. There has been considerable confusion about motivation and justification for the courts charge for access to PACER, the web-based system for “Public Access to Court Electronic Records.” Representatives from the Administrative Office of the Courts describe the policy as mandated by Congress and limited to reimbursing the expenses of operating the system. This paper identifies the sources of these claims and places them in the context of the increasing push to make government data freely accessible.

Schultze participated in an a Law.Gov Workshop Tuesday, June 15. The video will be available here shortly. [JH]

And Now for Something Completely Different: On Complicated Relationships or the Working Conditions of Legal Secretaries

Chicago-Kent law prof Felice Batlan's ‘If You Become His Second Wife, You are a Fool’: Shifting Paradigms of the Roles, Perceptions, and Working Conditions of Legal Secretaries in Large Law Firms[SSRN] is based on her 2009 nation-wide survey. From the abstract:

Using such data, along with other primary sources, the article examines how legal secretaries’ roles and work have changed during the past fifty years, why women decide to become legal secretaries, their level of satisfaction, the work/ family conflicts they experience, how the recent financial crisis has affected them, and the complicated relationships that they have with attorneys, especially women attorneys. Moreover, the most significant scholarship on secretaries has depicted the secretary/boss relationship as one of a personal and domestic nature – what we might call the “second-wife” or “office wife syndrome.” Yet what does this mean in a culture in which the very meaning of “wife” is changing and unstable and where legal secretaries now work for a multiple attorneys, including women lawyers.

Hat tip to Workplace Prof Blog. [JH]

The Case of Racial Bias by Judges in Court Rulings

In Race & Gender of Judges Make Enormous Differences in Rulings, Studies Find, Edward A. Adams, reports in the ABA Journal on recent research discussed at an ABA Midyear Meeting program entitled “Diversity on the Bench: Is the ‘Wise Latina’ a Myth?.” Opening, big splash, paragraph:

A judge's race or gender makes for a dramatic difference in the outcome of cases they hear—at least for cases in which race and gender allegedly play a role in the conduct of the parties, according to two recent studies.

According to one of the cited ELS studies, Myth of the Color-Blind Judge: An Empirical Analysis of Racial Harassment Cases, Pittsburgh law prof Pat Chew and Carnegie Mellon business school prof Robert Kelley, Adams offers this summary:

In federal racial harassment cases, one study found that plaintiffs lost just 54 percent of the time when the judge handling the case was an African-American. Yet plaintiffs lost 81 percent of the time when the judge was Hispanic, 79 percent when the judge was white, and 67 percent of the time when the judge was Asian American.

Adams reports that at the program, Chew

"said she found 'the rule of law is intact' in the cases she reviewed. Judges—no matter which side they ruled for—took the same procedural steps to reach their decisions, she said.

But judges of different races took different approaches “on how to interpret the facts of the cases,” she said.

Pressed on whether the rule of law could actually be considered intact when outcomes varied so much depending on the race of the judge, she replied: "It’s always made a difference who the judge was. We’ve long known, for instance, that a judge’s political affiliation makes a difference."

Anything Proven Empirically? On whether Chew and Adams have proven anything empirically in their study is another matter. Unlike Law & Economics, Empirical Legal Studies, while promising, still has a long road ahead before establishing accepted statistical methods and analysis. Publication of these studies in law reviews (Chew and Adams' study can be found at 86 Washington University Law Review 1117 (2009)) instead of peer-reviewed journals isn't helping the situation. Do you think the student editors really understood what they were reading when they decided to publish the article? For that matter, did the audience at the Mid-Winter Meeting program?

Problems with the Chew and Adams Study. About this study David Cohen published the following comment to the ABA story:

Empirical legal research is in its infancy and, I think, should be encouraged.  But no good end is served by publishing sloppy work.  The first study mentioned, by Professors Chew and Kelley should not have been published in its current form.  I highly doubt that it could have been published in a peer reviewed social science journal used to publishing quantitative research.

There are lots of problems with their analysis and how they present it, but the three most important points (if I were reviewing their manuscript) are these:

1. They are looking at judges nested within circuits, and circuits make a difference to how plaintiffs must prove their case. Most discrimination lawyers will agree, I think, that they’d rather be in some circuits than others.  If, for example, we assume that plaintiffs win more often in liberal and urband circuits, and that black judges are disproportionately located in liberal and urban circuits, then even if black judges decide cases for plaintiffs at the same rate as other judges in their circuit, it would still appear that black judges nationally were deciding cases disproportionately for plaintiffs.

Using logit ignores the variance at the circuit level—that is, how much law and practice differences between the circuits affect the outcome of discrimination cases. The authors really need to use a multi-level statistical method. HLM, a popular multi-level software package, can handle logits.

2. The right way of presenting regression results is to run multiple models, starting with your control variables, then adding your variables of interest, and then, if you want, interaction variables. This tells you whether adding your variable of interest actually makes a significant difference to your model. (In technical terms, you can report delta-F and delta-R-squared.)  The authors never do this and there is some reason to think that the judge’s race would not, if analyzed properly, make a significant difference. They seem to be saying that, when analyzed alone, the R-squared (that is, how much of the variance between outcomes is explained by the judge’s race) is very low (0.03). Since, as explained below, this is likely to be too high due to omitted relevant variables, it might be that judges race does not add anything to their explanation of outcomes.

3. When you leave a relevant independent variable out of a regression analysis, the variables you put in appear more significant than they really are, depending upon how much they correlate with the omitted variable. That’s because some of the variance properly attributed to the omitted variable will end up being wrongly attributed to the included variable. So, if we think, for example, that judge’s race and political affiliation are correlated, then leaving out one will make the other appear more significant than it really is. All but one of the analyses the authors present leave out variables that the authors consider relevant (and all ignore which circuit the judge is in, which I consider relevant).

The one analysis that includes all of their relevant variables? Finds that judges race is not significant (p = 0.1). So the best evidence from this study (which is still not actually well-enough done for us to rely on this finding) is that judge’s race is not a significant factor and, at best, makes a very small difference in outcomes. 

(The authors try to argue that p = 0.1 actually means something—but that is an argument that is mostly rejected by the good peer-reviewed social science journals today. 10 years ago, you could sometimes argue that p = 0.1 was “marginally significant.”)

Still, the difference in plaintiff’s success does seem large and there might be something going on here. I’m not saying that judge’s race has no effect, I’m saying that this study doesn’t support any conclusion.  I wish that we could see a properly done multi-level analysis, because the effect might be to explain some of the unexplained variance, which would actually lower the p value of judge’s race, potentially making it significant. On the other hand, if black judges do tend to be disproportionately liberal or disproportionately urban, it could be that race has even less effect than the authors found.

(Emphasis added.)

Ah ... Here's how I will know when ELS is producing reliable results -- when peer-review journals start publishing dry-as-bones ELS research results like Law and Economics articles now do, then ELS will have moved beyond its current infancy stage. [JH]

Privacy Legal Issues in the Public Sector

Adjunct Law Prof Blog editor Mitchell Rubinstein's Privacy Legal Issues in the Public Sector first appeared as a chapter in a book on Workplace Privacy and was part of New York University 58th Annual Conference on Labor in 2005. He has updated the work and it is now available on SSRN. From the abstract:

The article focuses on privacy issues in the public sector. It explains that the right of privacy involves boundary lines, how notions of privacy have changed over time-particularly after September 11th, focuses on the constitutional right of privacy, workplace searches and surveillance, Electronic Communications Privacy Act, surveillance and labor relations issues, Sunshine laws and public employee statutory rights, the right to union representation at investigatory interviews, gay marriages and concludes that many of the boundary lines concerning the right of privacy in the public as well as the private sector can be negotiated by employers and unions.

[JH]

"For Dummies" Version of Properties of the United States Code Citation Network Needed!

Hat tip to  Paul Lomio, Legal Research Plus, for calling attention to Properties of the United States Code Citation Network [SSRN] by Michael James Bommarito II and Daniel Martin Katz. I gave it my best shot during the holidays but my small brain just failed. Hopefully Paul or Robert Richards can give me a "for dummies" explanation. Knowing that LLB readers are much smarter than me, here's the paper's abstract:

The United States Code is a body of documents that collectively comprises the statutory law of the United States. In this short paper, we investigate the properties of the network of citations contained within the Code - most notably its degree distribution. Acknowledging the text contained within each of the Code's section nodes, we adjust our interpretation of the nodes to control for section length. Though we find a number of interesting properties in these degree distributions, we demonstrate that a power law distribution is not an appropriate model for this system.

[JH]

"Blurry-Edged" Social Networks

Privacy, Free Speech, and 'Blurry-Edged' Social Networks [SSRN] by Stanford Law's Lauren Amy Gelman, 50 Boston College Law Review ___ (2009) discusses the technological, social, and legal regimes that have combined to create the tension between the positive benefits for free speech and the negative effects on user privacy in social networks. From the abstract: "This tension has been exacerbated by technologies that permit users to create social networks with “blurry edges” - places where they post information generally intended for a small network of friends and family, but which is left available to the whole world to access [because] the technology that enables these communities .. also creates an illusion of privacy and control that the law fails to recognize." Hat tip to Media Law Prof Blog. [JH]

When and Why State Legislative Ratifications of Constitution Amendments Became Incredibly Difficult

While modern lawyers assume that state ratification of a constitutional amendment is incredibly difficult, IUPUI law prof Gerard N. Magliocca's recently SSRN-posted article, The Child Labor Amendment and the Court-Packing Plan, documents that this interpretation only emerged in 1937 as the deliberate product of Franklin D. Roosevelt's campaign to discredit Article Five in favor of judicial "reform." This very interesting article presents new material on Franklin D. Roosevelt's Supreme Court-packing plan and its relationship to the Child Labor Amendment. From the abstract:

"[When the Child Labor Amendment was passed by Congress in 1924], there was a consensus that state legislatures were little more than a rubber stamp for amendments. Indeed, foes of the CLA sought to block the proposal in Congress by seeking to require ratification by state conventions. Even after the CLA was blocked in the States during the 1920s and 1930s, that did not alter the basic premise that state legislative ratification was generally easy.

President Roosevelt changed all of this in 1937 by making the CLA into the paradigmatic case for Article Five instead of the exception that it actually was. He did this in two steps. First, he gave a high-profile endorsement to the proposal even though he knew that it was not going to be ratified anytime soon. Then he used that failure as a leading argument for Court-packing in his public statements about that proposal. This provoked a unorthodox response in Congress and a deep inquiry into Article Five that ended abruptly when the Supreme Court executed its switch-in-time on March 29, 1937.

By demonstrating that the view of state legislatures as a massive obstacle to constitutional change is largely a self-fulfilling construction, this Article hopes to provoke a new discussion about the merits of using the amendment process.

[JH]

Kudos to Yolanda Jones

Yolanda Jones has been appointed Assistant Director of the Wayne State University Library System’s Arthur Neef Law Library effective January 4, 2010. Most recently, Jones served as the Assistant Director of Electronic and Information Services at Villanova University School of Law Library. Previous to her position at Villanova, Jones worked as a librarian in several academic libraries, including Indiana University, University of Miami and the University of Michigan.See the press release for details.

Jones' Ph.D thesis in information science and technology (Drexel) was featured in Robert Richards' LLB post Legal Information in the Law Clinic earlier this year. "Just the Facts Ma'am?" A Contextual Approach to the Legal Information Use Environment examined academic law school researchers in a legal aid clinic. Student teams were observed in the law clinic as they constructed legal theories and located legal materials. The conceptual framework for Jones' study was Solomon's Discovering Information in Context, which allows for multiple perspectives in gaining a rich, “round” view of information behavior. The thesis puts forth Activity Theory as a possible tool for exploring how people discover information. Highly recommended. [JH]

Can the Rule of Law Exist in Virtual Worlds?

West Virginia law prof Michael Risch's Virtual Rule of Law, 112 West Virginia Law Review 1 (2009) [SSRN] is the first article to consider whether virtual worlds provide a rule of law that sets expectations for virtual business. From the abstract:

The article finds – unsurprisingly – that virtual worlds now lack many of the elements of the rule of law. Which aspects fail is more surprising, however. Provider agreements and computer software, the sources of regulation that are most often criticized as “anti-user,” provide the best theoretical hope for achieving the rule of law, even if they currently fail in practice. On the contrary, widely proposed “reforms,” such as community norms, self-regulation, and importation of real-world law face both theoretical and practical barriers to implementation of the rule of law in virtual worlds.

[JH]

Can IP Law Accomodate Individual Branding?

If our traditional intellectual property system can be explained as being based on individual authors who look to corporate entities to mass produce and distribute their works, then advancement in digital technology means that individual authors can and indeed have taken on these corporate roles for production and distribution of their works and also for copyright and trademark protection of their work. In Individual Branding: How the Rise of Individual Creation and Distribution of Cultural Products Confuses the Intellectual Property System [SSRN], Thomas Jefferson School of Law prof Deven R. Desai argues that the current intellectual property system is not well equipped to address this transformation by providing copyright and trademark protection without upsetting the balance between creators and users.

The article "seeks to map authors’ new interests as a way to show where the intellectual property system can meet these new needs or where it must change. Given the speed with which technology and this type of production evolves," writes Desai, "the law may not best way to manage many of these interests at all." [JH]

Domain Name Theft and Where is the Literature?

Are domain names property?  The answer may help determine if there is a remedy when a domain name is stolen by someone hacking a registrar and stealing it.  Daniel Goncalves is charged in New Jersey with stealing the domain P2P.com from Albert Angel and others.  The case represents the first criminal prosecution for this type of activity.  The more astounding impression of this case is the effort necessary by Angel and others to track down Goncalves.  Police in Florida and New Jersey investigated the case and declined to prosecute.  Angel and his co-owners hired investigators and pursued the case on their own, even having to file FOIA requests to get evidence collected by the two police departments.  Even then it took over two years for New Jersey to decide to go forward with a criminal prosecution.

The case is relatively complicated in the facts of the investigation that led to the charges.  These are amply detailed in Domain Name News.  The short version of the allegations is that Goncalves hacked into Angel's AOL email account, retrieved details of Angel's Godaddy account and transfered the domain to himself under an assumed name and used a fake PayPal transaction to cover the deed.  He then sold the name on eBay to Los Angeles Clippers forward Mark Madsen for $111,000.  Madsen holds the domain still and is a named defendant, along with Godaddy, Goncalves, and others in a civil suit. 

The case represents the tremendous amount of effort necessary to hold domain thieves responsible for their actions.  Domain registrars normally have a safe harbor defense for what appear to be legitimate transactions.  A Godaddy spokesperson is quoted as saying Angel should have been more careful with the registration information.  There are some questions, however, as to Godaddy's prior knowledge of other potentially illegal transactions by Goncalves.  If anything, the case illustrates the lack of definitive law that applies to this situation.  The facts in this case all took place in the United States which made it easier to pursue, if $500,000 and two years worth of time is considered easy.  For some, that kind of effort can be worth more than the overall value of the site.

The lack of legal analysis in framing these cases is shown by searching for articles on LegalTrac.  Only one article shows up for a search on domain name theft, Cyberspace litigation: chasing the information highway bandits. byClyde H. Wilson Jr. and M. Susan Wilson in the October 2000 issue of Trial.  Changing the search to cybersquatting and domain name adds just one article to the list.  Changing the search to domain name hijacking brings up two additional articles that are surveys of recent cases for the years 2004 and 1999 respectively.  Google Scholar doesn't help much, as the same searches bring up more documents related to identity theft and other "unrelated" issues.  What would be obvious searches brings up little direct results.  The established law seems more intent on protecting trademarks in domain names than anything else, leaving theft to be covered by general  tort/conversion case principles. 

Going back to the first question, California treats domain names as property, as noted by a federal court interpreting California law.  This is the sex.com domain case litigated in Kremen v, Cohen, 337 F.3d 1024.  (Note that this case is similar in a civil context to the New Jersey case, with only four references in LegalTrac, none from academic journals).  The California courts are free to rule otherwise as the California Supreme Court declined to advise the federal courts through certified questions.  However, other states have not confronted the situation.  There is a need to develop law, statutory or otherwise, that protects legitimate domain name holders when the value of domain names increases.  There is also an opportunity to develop general scholarship in this field.  As the Goncalves case will illustrate, working the facts towards criminal liability in addition to a tort action should make for some interesting legal analysis. [MG]

Copyright as Information Policy: Balancing Creative Works and Technologies Used to Duplicate and Manipulate Them

When it comes to issues of online infringement, copyright policy protects the incentives copyright has long served to provide authors, and at the same time facilitates the emergence of innovative Internet services and equipment that might be used to duplicate creative work. In Copyright as Information Policy: Google Book Search from a Law and Economics Perspective [SSRN] UCLA law prof Douglas Lichtman uses the Google Book Search litigation as a lens through which to study copyright law’s efforts to serve these two sometimes-competing masters. From the abstract:

The Google case is an ideal lens for this purpose because both the technology implications and the authorship implications are apparent. With respect to the technology, Google tells us that the only way for it to build its Book Search engine is to have copyright law excuse the infringement that is today by design part of the project. With respect to authorship, copyright owners are resisting that result for fear that the infringement here could significantly erode both author control and author profitability over the long run. I myself am optimistic that copyright law can and will balance these valid concerns.

Recommended. [JH]

Balancing DMCA Take-Downs with Put-Backs Based on Fair Use

Looking for Fair Use in the DMCA's Safety Dance, 3 Akron Intellectual Property Journal 119 (2009) [SSRN] by Ira S. Nathenson offers a detailed analysis and argument for a "fair-use friendly" way of reading the DMCA to better protect users of online services. Nathenson calls for copyright owners to "stop and think" before sending take-down notices because removal of fairly used materials may be de facto ex parte seizures of speech. Mistaken views of fair use may qualify as a basis for put-back notices.

From the abstract:

Looking to legislative history as well as the structure of the DMCA, this Article concludes that a copyright owner’s mistake of law - i.e., regarding whether the materials were fairly used or are otherwise non-infringing - must be a proper basis for put-back. Moreover, this Article rejects the suggestion that permitting fair use as a basis for put-back will lead to a tidal wave of meritless counter-notices. Any such concerns are more than adequately addressed by DMCA, which requires users who send counter-notices to expressly identify themselves, submit to jurisdiction, and possibly become targets for expensive copyright litigation.

[JH]

If You Put Something into the Public Domain, Can You Take It Out Later?

One of Cincinnati Law's better young gun law profs, Tim Armstrong, has deposited Shrinking the Commons: Termination of Copyright Licenses and Transfers for the Benefit of the Public in SSRN. The article addresses the possible consequences of one of the worst features of U.S. copyright law, termination-of-transfers as it may apply to open source licensing arrangements, such as the GNU General PublicLicense ("GPL") for software, or the Creative Commons family of licenses for other expressive works.

On his highly recommended blog, INFO/LAW, Armstrong writes

The paper grew out of a seemingly simple question I tried to answer a couple of years ago, namely: if I put something into the public domain, can I take it out again? On the one hand, it seems like the answer would have to be “no” for policy reasons; otherwise, what happens to all the people who might have relied on the public-domain status of the work to create their own derivatives and remixes? But on the other hand, the copyright statute in the U.S. includes some fairly obscure provisions that seem to allow authors to change their minds any time they transfer ownership of their work. Those provisions exist to solve a completely different problem, but if applied literally, they could make it possible for authors to rescind a dedication of their own work to the public domain.  As I discuss in the paper, there might be some constitutional problems with that outcome, and downstream users of a (formerly) public-domain work may be able to raise a number of valid equitable defenses to any claim of copyright infringement.  But as a purely statutory matter (as many others have recognized), it’s hard to find a basis for upholding a permanent, irrevocable dedication of one’s copyright to the public domain.

From the article's abstract:

Although a number of judge-made doctrines may be invoked to restrict termination of a license granted for the benefit of the public, the better course would be for Congress to enact new legislation expressly authorizing authors to make a nonwaiveable, irrevocable dedication of their works, in whole or in part, to the use and benefit of the public - a possibility that the Patent Act expressly recognizes, but the Copyright Act presently does not.

[JH]

Harvard Law Review Speech Code Comment Ignites FIRE-storm

At issue, an April 2009 Harvard Law Review comment which argues that DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008), the most recent and leading federal court of appeals precedent to strike down a campus speech code, was decided incorrectly. Members of FIRE, the Foundation for Individual Rights in Education, take the student author and Harvard Law Review to the woodshed because "the comment takes the shocking position that speech codes on campus are constitutional. Even more surprising than the conclusion, though, is the shoddy analysis supporting it." Quoting Kelly Sarabyn in 'Harvard Law Review' Gets Lazy: Prestigious Journal Publishes Article Ignoring Case Law, Defending Speech Codes. Sarabyn continues, the author and Harvard Law Review editors appear "completely unaware of the larger legal landscape concerning campus speech codes. Amazingly, the analysis does not acknowledge that any case law on speech codes exists, let alone the fact that prior to DeJohn, eight different federal courts struck down speech codes as unconstitutional." Sarabyn offers the following errata for the comment:

Here are the citations for cases the comment's author and editors missed: Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995) (declaring university discriminatory harassment policy facially unconstitutional); College Republicans at San Francisco State University v. Reed, 523 F. Supp. 2d 1005 (N.D. Cal. 2007) (enjoining enforcement of university civility policy); Roberts v. Haragan, 346 F. Supp. 2d 853 (N.D. Tex. 2004) (finding university sexual harassment policy unconstitutionally overbroad); Bair v. Shippensburg University, 280 F. Supp. 2d 357 (M.D. Pa. 2003) (enjoining enforcement of university harassment policy due to overbreadth); Booher v. Board of Regents, 1998 U.S. Dist. LEXIS 11404 (E.D. Ky. Jul. 21, 1998) (finding university sexual harassment policy void for vagueness and overbreadth); The UWM Post, Inc. v. Board of Regents of the University of Wisconsin System, 774 F. Supp. 1163 (E.D. Wis. 1991) (declaring university racial and discriminatory harassment policy facially unconstitutional); Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989) (enjoining enforcement of university discriminatory harassment policy due to unconstitutionality).

In Pushback on Speech Codes?, Alliance Defense Fund Senior Counsel and former FIRE president David French says the comment "could have been ghost-written by Temple's attorneys." William Creeley adds "the real problem with this bogus comment seeing the light of day in a prestigious journal like the Harvard Law Review is that lawyers and scholars arguing on behalf of unconstitutional speech codes now have a piece of purportedly reputable 'scholarship' to point to as some kind of authority for their argument." And that's already happened; French reports that the comment has been cited by Los Angeles City College in a motion asking Judge George King to reconsider his injunction against the College's speech code.

Obviously FIRE is trying to minimize the impact the comment may have by all means possible. For the moment, French has the last word in this firestorm over the comment:

the truth of the matter is that there is simply no credible constitutional argument for speech codes ... that relies on historic free-speech jurisprudence, controlling precedent, or the fundamental nature of the public university. The only real argument is ideological. So the speech code's ideological defenders are left doing just what the students at the Law Review did — try mightily to pound the square peg of workplace harassment concepts into the round hole of the university's marketplace of ideas.

When was the last time you saw a student comment achieve this level of debate or be cited in pleadings so quickly? [JH]

Is There a Biological Basis for Recognizing Property, Fairness, Liberty and Equality Rights?

In A Biological Basis of Rights [SSRN], Edwin S. Fruehwald (Hofstra) advocates rights based on anthropocentric truths--"truths that are true only because of the kinds of minds that we happen to have and the cultural worlds in which our minds developed."  From the abstract:

[A]nthropocentric rights developed to deal with specific adaptive problems in the Environment of Evolutionary Adaptedness. The fundamentals of rights derived from how our brains evolved with the details arising from how a particular culture reacted to how differing geography, ecology, and social conditions affected survival.

The paper examines why cultural differences occur despite the existence of universal human behavioral traits, and considers the selfish gene, a central characteristic of human behavior. Fruehwald argues that there is a biological basis for four kinds of rights – property rights, fairness rights, liberty rights, and equal treatment rights.  Hat tip to Ben Barros (Widener) on PropertyProf Blog.

The Selfish Gene Theory. Richard Dawkins coined the term "selfish gene" as a way of expressing the gene-centred view of evolution in his landmark work, The Selfish Gene (1976). The selfish gene theory holds that evolution is best viewed as acting on genes and that selection at the level of organisms or populations almost never overrides selection based on genes. For the 30th anniversary of the publication of The Selfish Gene, a festschrift was published entitled Richard Dawkins: How a Scientist Changed the Way We Think. See also Dawkin's The Extended Phenotype (1982) and The Blind Watchmaker (1986). See  Wikipedia for details.[JH]

Cleveland's Unpublished Opinions Redux

LLB readers may recall the interview I conducted with David Cleveland (Nova Southeastern) last October about his two now published articles on the history, value, and future of unpublished opinions in the federal courts, Overturning the Last Stone, The Final Step in Returning Precedential Status to All Opinions, 10 J.App.Prac. & Process 61 (2009) and Draining the Morass: Ending the Jurisprudentially Unsound Unpublication System, 92 Marq. L. Rev. 685 (2009). Since then Cleveland has been working on two more articles on the subject of unpublished opinions. They are available on SSRN as Working Papers. I highly recommend both articles to law librarians. Cleveland's growing body of scholarship underscores just how critically important the issue of unpublished opinions is. 

Clear as Mud: How the Uncertain Precedential Status of Unpublished Opinions Muddles Qualified Immunity Determinations examines a specific area of the law in which the denial of unpublished opinions harms the substantive law. The qualified immunity defense allows government officials immunity to civil rights claims unless the right they allegedly violated was "clearly established." The federal circuits vary on whether unpublished opinions may be used to determine clearly established law. This article argues that unpublished opinions are ideal sources for determining what law is clearly established. It proposes a resolution to this problematic circuit split through jurisprudential or rulemaking means. Opinions that are issued as unpublished are by definition clearly established law; opinions that make new law or expand or contract existing law must be published under the federal circuit rules. Denying precedential status to unpublished opinions has relegated these opinions to a second class status, which is unjustified and unconstitutional, but also obfuscates their inherent suitability to demonstrate clearly established law.

The second working paper is called: Local Rules in the Wake of Federal Rule of Appellate Procedure 32.1. It examines the three attributes of federal unpublished opinions: non-published, non-citable, and non-precedential. It analyzes the federal rules on these three issues and finds that, despite attempts to create uniform rules, the federal circuits vary widely in how they decide what to publish, what they permit to be cited, and what precedential value they give these decisions. The most fundamental jurisprudential question: "what is law?" varies throughout the supposedly uniform federal system. The article proposes rule changes to make these rules uniform.

[JH]

Study Says Jurors Discount Coercion in Confessions

There is a recent study that suggests when jurors are confronted with allegations of a coerced confession, they tend to ignore them.  The belief is that coercion only affects the guilty but not the innocent.  The paper is on SSRN.

Here is the abstract:

Jurors Believe Interrogation Tactics are Not Likely to Elicit False Confessions: Will Expert Witness Testimony Inform Them Otherwise?

Iris Blandon-Gitlin, Kathryn Sperry, and Richard A. Leo

Psychology, Crime & Law, 2009 

Situational factors - in the form of interrogation tactics - have been reported to unduly influence innocent suspects to confess. This study assessed jurors’ perceptions of these factors and tested whether expert witness testimony on confessions informs jury decision-making. In Study 1, jurors rated interrogation tactics on their level of coerciveness and likelihood that each would elicit true and false confessions. Most jurors perceived interrogation tactics to be coercive and likely to elicit confessions from guilty, but not from innocent suspects. This result motivated Study 2 in which an actual case involving a disputed confession was used to assess the influence of expert testimony on jurors’ perceptions and evaluations of interrogations and confession evidence. The results revealed an important influence of expert testimony on mock-jurors decisions.

Hat tip to to Marc Ambinder's blog on The Atlantic web site.  [MG]