Thursday, December 25, 2008

Duquesne Mess Hits National News

It was no surprise this morning to see that this potboiler finally made it into the New York Times. The story, posted on the NYT site yesterday, was on the first page of the Nation section of the print version today. No mention of the rankings by the Times correspondent Sean Hamill.

For a complete recap of the story you should visit Paul Caron's excellent blog at TaxProf Blog. Make sure you follow all the links. Caron's entries on this go back for weeks and detail the focus of the NYT story - the battle over granting tenure to Professor John Rago fought between Dean Guter and the Duquesne President Charles Dougherty. Caron has gathered together many of the relevant links to news reportage.

So. Were the rankings instrumental in the dismissal of Dean Guter? Look for more analysis here at a later date.

Wednesday, December 24, 2008

Bush v. Gore - Has Legs, Will Travel

When Bush v. Gore was decided in 2000 it seemed that it was a decision about one case and one case only. It was to have no precedential value. Things have changed. Check out the December 22nd analysis of Adam Liptak in Sidebar, a regular feature of the New York Times. Liptak says...
"The Supreme Court’s decision in Bush v. Gore, issued eight years ago this month, was widely understood to work like that tape recorder in “Mission: Impossible.” It was meant to produce a president and then self-destruct."
With the fullness of time and the apparently unending creativity of counsel, Bush v. Gore has taken on a life of its own. Now Bush v. Gore is being cited by both parties in the latest election law suit - Coleman v. Ritchie, the Minnesota case that may decide the Al Franken/Norm Coleman election. You can find the documents from that case posted at ElectionLaw@Moritz, here.

This is a fascinating turn of events considering the following statement by the majority of the Supremes when they decided Bush v. Gore -
"Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities."
Bush v. Gore, 531 U.S. 98, 109 (2000).
Two unrelated legal research questions arise from this -
  1. What is a case, anyway? If the court issuing an opinion says that stare decisis does not attach how can we ever consider that case to be precedent? And yet, the courts and counsel clearly do despite the clear restriction by the Supreme Court.
  2. Independent websites and blogs like ElectionLaw@Moritz are proliferating. They may become an essential means of following legally related stories. Since we are in the midst of an election cycle it is easy to set up a feed from a site like this and simply wait for the information to come in. If your server is large enough anything can be posted for examination. Motions, affidavits, memoranda are all there to be downloaded and considered. More grist for the researcher's mill. But, when the history of this election is being written, will the documents still be available? How long will OSU maintain its archive?

Tuesday, December 23, 2008

Lawyer Jailed for Giving Client Candy in Court

Here's the link to the Yahoo news article. Further comment would be superfluous.

Law School Rankings in the News - Again

The US News & World Report law school rankings strike again this time in Pittsburg as the Dean of the Duquesne law school loses his job over, that's right, the rankings.

Or did he? Although the administration cited Duquesne's 4th tier ranking as a reason to fire Dean Guter there was clearly something else going on. You can read all about it here.

Wednesday, December 10, 2008

7th Circuit Meltdown - Moot Court Students Beware!

Oral argument is pinnacle of advocacy. It is often your last chance to influence how your client's case will turn out. You can be creative, audacious, persuasive.

But there are some things you just can't do. Here's a great example of what can happen when you have completely misjudged your case, your audience, yourself... Follow this link to the 7th Circuit oral argument page for the case of U.S. v. Johnson. Then follow the hyperlink "Oral Argument" to the audio file to see just how bad things can get.

This 2005 case has become a classic on how not to do oral argument. After counsel's attempt at oral argument, the case went on to be decided; the full opinion appears at 123 Fed.Appx. 240, 2005 WL 589976. Listen to the audio and then ponder what must surely rank as one of the great legal understatements of all time -

" A recent Supreme Court case makes it irrelevant whether Johnson's consent for the dog sniff was voluntary. See Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 838, 160 L.Ed.2d 842 (2005) (holding that no legitimate privacy interest is implicated by allowing a drug-detection dog to sniff the exterior of a vehicle during a lawful traffic stop). . . . At argument, Johnson could not distinguish his case from Caballes, and neither can we." [Emphasis added.]

Of course, at argument it was not Johnson who was arguing his case - it was his attorney.

Tuesday, December 9, 2008

Emoluments Clause Debate Builds Up Steam

So, I guess that Jeffery Toobin reads this blog (or Daily Kos or something). Is this the new model for news? Stories begin in the blogosphere (that's where we're at right now) and, after a few days, make their way into the mainstream news...

Sorry about the Hyundai ad. Such is the price of viral video.

And, a thankful nod to Caitlin Sochacki for the steer to CNN.

First Job vs. Economic Meltdown

How do you get your first job as a lawyer when the economy is heading into a black hole? Check out this short article from Above the Law.

Above the Law has become an increasingly valuable news source aggregator. Although it often seems to be primarily concerned with the New York City legal scene there are also valuable links to stories with national interest. In the past I usually didn't turn to Above the Law for anything but entertainment value. They have retained that edge but they increasingly post something so good that it deserves everyone's attention.

Friday, November 28, 2008

Linder's Famous Trials

I trust everyone had a great Thanksgiving!

Sincere thanks to the Legal History Blog for the link to Professor Douglas Linder's Famous Trials website. This is an outstanding site that deserves your attention. Right now there are 55 famous trials showcased on this site. I first became aware of this site in 2002 when there were only 32 trials on the site; Linder continues to add trials.

Professor Linder has posted an abstract of his site entries as a Working Paper in SSRN. You can find the abstract about the O. J. Simpson trial here. This a wonderful example of how the dissemination of scholarly legal information has been evolving: from website to abstract to article. If you want to find more of his scholarship just do an author search of SSRN. Linder now has 60 abstracts on SSRN with a commensurate number of downloads.

Wednesday, November 26, 2008

More on the Emoluments Clause Debate

Apparently, several legal commentators have picked up on the Hillary Clinton v. Emoluments Clause issue. There is a discussion in the New Republic here or the Daily Kos here. The Daily Kos has the best and most complete discussion with excerpts from the Constitutional Convention in 1787.

This issue comes up from time to time. When Clinton wanted to appoint then Senator Lloyd Bentsen as Treasury Secretary the reaction of Congress was to pass a special act to allow it. Then president George H.W. Bush signed it into law (on January 19, 1993 no less) thereby allowing the new President Clinton to have Bentsen head Treasury.
(You may remember Bentsen from the vice-presidential debates of 1988. He said "Senator, you're no Jack Kennedy" to Dan Quayle when Quayle tried to compare himself to JFK. Don't believe it? Go here to get the transcript.)

The original Senate bill and a history of the bill can be found by searching the Library of Congress legislative search engine Thomas at, You will need to remember that the 103rd Congress was in session in 1993. Just choose the right Congress, enter the word "emoluments" in the search box and the history of this bill (and what the next Congress needs to do make sure that Hillary can be Secretary of State) becomes clear.

Tuesday, November 25, 2008

Legal Empirical Studies - FOR HIRE

Footnote17. It has a kind of Kafkaesque ring to it. Academics and practicing lawyers alike should beware...

Take a look at Adam Liptak's Sidebar column in today's New York Times here. Liptak details the efforts of Exxon to find an expert (and a study) that would take "a dim view" of punitive damages. Exxon, of course, was in the middle of defending the Exxon Valdez case. Ultimately, the jury's award of punitive damages was reduced by the USSC. Justice Souter, in the now famous (or infamous) footnote 17 said that “Because this research was funded in part by Exxon we decline to rely on it.” Exxon Shipping Co. v. Baker, 128 S.Ct. 2605, 2626 (2008).

How important is footnote 17? As Liptak notes, Cornell actually hosted a conference that included an analysis on the effect of Souter's aside.

Empirical legal researchers have their own publication - The Journal of Empirical Legal Research. Finding footnote 17? That was easy. A simple full text search in a database of USSC cases using the search term "funded in part by Exxon." Unique keywords can bring instant results.

Monday, November 24, 2008

Hillary Clinton and the Emolument Clause

Can Hillary Clinton be appointed Secretary of State? Article I, section 6, clause 2 of the United States Constitution states as follows:

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments [read this as "salary"] whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

So, since Senator Clinton was in office when the salaries of cabinet members were increased (or "encreased" for that matter) can she now hold a cabinet post? The answer may lie at 118 ALR 182 originally published in 1939. Who says those old ALR articles aren't relevant? The answer? Go see for yourself. And does Atkins v. U. S., 556 F.2d 1028 (Ct.Cl.1977) certiorari denied 434 U.S. 1009, have anything to do with it? Even constitutional provisions are annotated.

Stay tuned...