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...