Friday, January 23, 2009

Compilation of Presidential Documents To Change

No longer will we have a weekly compilation of Presidential Documents. Apparently, GPO has decided to have both a weekly and daily compilation in one format. Here is the new page. So, what's the first document for the new administration? The inaugural speech right here in PDF. Thanks to Karl Gruben, Director of the Law Library at St. Thomas University.

Thursday, January 22, 2009

Kansas v. Ventris Oral Argument Transcripts

As promised, here they are on the USSC site. I notice that the argument didn't begin until 11:15 am. I wonder if the delay was because Chief Justice Roberts was re-administering the oath of office to President Obama...

"Oaf of Office" for Obama

After a previous post here it should come as no surprise that Obama, wearing his hat as constitutional scholar, decided that he should re-take the oath of office. The NYTimes reports the re-take here. And for some more commentary about it make sure you read the Oaf of Office op-ed by Steven Pinker that also appeared in this morning's NYT.

Pinker must be fairly confident that he will never have to appear before the USSC...

Wednesday, January 21, 2009

That Pesky Inaugural Oath

Let the conspiracy theories begin! Here's a link to a post of interest on Wonkette (N.B. - Bad Language Alert!). Here's a more reasoned commentary from Lyle Denniston, reporter for the SCOTUS blog.

And, where can the actual oath be found? It is at the end of Article II, Section 1. You can find it here on the Cornell LII site. Section 1 reads -
Before he enter on the execution of his office, he shall take the following oath or affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."
A careful review of one YouTube video of the many posted will show you that it was Chief Justice Roberts, not President Obama, that made the mistake.

Kansas v. Ventris Arguments Today

Last semester's Section 10 LP class (Dubois) might be interested in knowing that the oral arguments in the case of Kansas v. Ventris will be held this morning at 11:00 am. Here is the link to the post on the SCOTUS Blog. A link to the transcripts will appear here as soon as they are available.

Inaugural Oath - "So Help Me God"

The DC District Court did not enjoin the use of the phrase "So Help Me God" when Barack Obama took the oath of office yesterday. Here's the Washington Post story from last Friday. But these stories about legal events are often unsatisfying. What was the actual language of the order; on what grounds did Judge Walton decide the case?

Current Federal District Court filings are generally available through PACER. Documents are filed electronically with the Court using the federal ECM (Electronic Case Management) system. You have to register and set up an account to download documents via PACER.

But, is posting the docket sheets and documents from noteworthy filings, i.e., cases like Newdow v. Roberts. And, here’s the docket sheet for that case. Just scroll to the bottom to find the link to Judge Walton’s order (document #42) denying Newdow’s request for an injunction.

This is not a perfect system. The order, while posted on PACER on Friday, January 16th, did not make it onto the Justicia site until Tuesday, January 20th. Still, Justicia is performing a real public service by making these materials available. And, you can set up an RSS feed to their site so you can check on the progress of the case.

For researchers, check out documents #12 and #13. These memorandums do a pretty good job of setting out the state of the law concerning preliminary injunctions.

Friday, January 16, 2009

Native American Legal Update Blog

Started in October 2008, the Native American Legal Update is an exciting addition to the legal blogosphere. It is a high quality blog with plenty of analysis produced by Foster Pepper. Here is their post about the news that the Mashantucket Tribe and the UAW were going to negotiate their new labor contract within the framework of tribal law. Two comments -

1. Although Foster Pepper is generally considered a Northwest firm they obviously have a handle on what is happening nationally. Anyone thinking about practicing in Connecticut or the Northeast should consider tracking of this blog as one way to follow Indian Law developments in general.

2. This appears to be the new model of disseminating legal information to niche information groups. Not only does Foster Pepper provide a service by keeping track of this important area of the law, they are effectively marketing their services. The blog is taking the place of the newsletter. And, if it is produced by a firm that is growing their market share so much the better.

SCOTUS Blog and Wiki for Moot Court

One of the best and most current sources of appellate information are SCOTUS Blog and SCOTUS Wiki. The blog is great for keeping you up to date - an RSS feed is available or you can use your iGoogle feed application. The wiki links to the original documents filed in the case. The two are joined at the hip: the blog generally links to the wiki page where the documents are maintained.

Here's an example to consider. This last semester one of the LP sections had an assignment that involved an issue about impeachment evidence that was illegally obtained that will (hopefully) be resolved when the USSC hears the case of Kansas v. Ventris. Not only was the progress of the case through the USSC tracked by blog posts, all of the relevant documents were posted on the wiki. The briefs and petition for certiorari are a gold mine of research information.

Thursday, January 15, 2009

Federal Clerks - By School

Yet another way to consider the quality of a school is to see how many graduates are employed as clerks in the Federal Circuit Courts. Here's a chart that has some potential for determining just that. Two problems -

1. The chart only references the number of placements by the top 31 schools (why 31?) as ranked by US News & World Report. Considering the methodological problems associated with the USN&WR rankings the basis of the chart becomes immediately suspect. Still, there is some value in seeing how the rankings play out.

2. Who is "Law Clerk Addict" and how has this chart been compiled? There are some answers in a previous post.

Regardless, this approach to determining the effectiveness of a law school (how many students get jobs as law clerks in the Circuit Courts) has real possibilities. Take a look at the archives to see a real wealth of information.

Wednesday, January 14, 2009

Ackerman - Impeach Jay Bybee

Bybee (now a 9th Circuit Court of Appeals Judge) and John Yoo (now a tenured professor at UC Berkeley) are responsible for the torture memos. Bruce Ackerman, whose office is only about 40 miles from UConn, takes Bybee to task in this op-ed piece posted on Slate. Here's the best part...
"While John Yoo did most of the staff work for Bybee, Yoo was barely 35 years old—and his memos showed it. They not only took extreme positions; they were legally incompetent, failing to consider many of the most obvious counterarguments. Bybee was 49. He was the grown-up, the seasoned jurist."

Monday, January 12, 2009

USSC Clerks - By School

Another of Brian Leiter's end-of-the-year charts. This time its for Supreme Court Clerkship Placement by law school, 2000 - 2008.

Just one more way to rank law schools that doesn't depend on US News & World Report.

Citation Software for Moot Court

You should try using Cite Genie to help you with the citations on your brief. It provides automatic Bluebook citations. You may have heard that Cite Genie was limited to Westlaw use only. Not so. It now works on Lexis too. It does not, however, work with Safari on Mac or with Internet Explorer. You must be using Westlaw or Lexis in Firefox for this to work. Regardless, this is a wonderful tool: it is so simple to use that for most purposes it outperforms the Westlaw and Lexis products.

Saturday, January 10, 2009

Who Would Obama Appoint to the USSC?

Here is a short discussion between Steve Inskeep and Nina Totenburg from NPR about the kind of person President Obama might appoint to the USSC. They play a short clip of Obama reading an excerpt from his book. Two comments -

1. When you listen to the broadcast you will see how "fair" they are trying to be when describing Scalia's brand of originalism. NPR must still be concerned about its funding. The stretch to cover both sides is almost painful.

2. Members of the legal profession will probably be annoyed by how superficial this kind of report is. The appointment of a USSC justice will be an important part of the Obama legacy. But this report is just as shallow as anything we might see on the evening news.

Massachusetts Video Files: A Moot Court Resource

Many states are now offering audio and in some states video files of oral arguments. For example, if you have a moot court problem that involves Massachusetts law you might want to check out the Suffolk Law School oral argument page. There are no live broadcasts scheduled until February 2nd so you will need to look in the archives to find a video file. These are high quality video files with good audio.

Although the Massachusetts arguments are a good learning tool under any circumstances, you might be able to find an argument potentially relevant to your own moot court problem by checking the Supreme Judicial Court's site for a relevant case, noting the docket number and then finding the argument for that case in the archive.

Tech note - You will need Windows Media Player but the Massachusetts application supports the Mac version.

Friday, January 9, 2009

Petition for Mandamus Denied! Burris Still Wins!

As predicted in an earlier post, Roland Burris filed a Petition for Writ of Mandamus before the Illinois Supreme Court. Today, the Illinois Supreme Court issued its opinion denying the writ. But Burris still won his case.

Why? A Writ of Mandamus can only issue where the petitioner (Burris) has no other remedy. The Court ruled that under Illinois law the registration of the appointment was all that was required for it to become official. The Illinois Secretary of State , Jesse White, was not required to actually issue a certified copy for the appointment to be valid: the registration was the operative official act. Thus, the Court could rule that no mandamus was necessary and still allow Burris to win.

Wednesday, January 7, 2009

New Secondary Sources for Moot Court

By now you all know about the importance of secondary sources when researching. But there are some secondary sources that are not covered in the standard 1L research curriculum. If you have a state based research issue you might be interested in looking at a specific state based secondary source. Two come to mind -

1. See if you are working on a problem where the state has its own legal encyclopedia. Not every state has its own encyclopedia but it is worth checking out. Take a look at California Jurisprudence (CalJur) or New York Jurisprudence 2d (NYJur2d). There are other states like Florida and Ohio that have their own encyclopedias.

2. One of the best state specific resources is the state "practice series." For example, we have a great practice series for Connecticut available in print and online. Massachusetts has a practice series available online. A state practice series is not always comprehensive but, like ALR, if it covers your topic, you are very close to finding exactly what you want. Both are available on Westlaw.

Caveat - Watch Out! The Connecticut Practice Series is not the Connecticut Practice Book. The Practice Book contains the official rules of procedure (and more) for the state. The Practice Series is a practice guide to Connecticut law written by practitioners, judges, and professors.

Seating Burris

Yesterday Illinois Senator Designee Roland Burris was not allowed to take his seat in the United States Senate. Nancy Erickson, the secretary of the Senate would not accept his appointment letter because it was not in compliance with Rule II of the Senate. That rule requires the appointment letter to be signed by both the governor and the Illinois Secretary of State. The Illinois Secretary of State, Jesse White, refuses to sign because of the ongoing investigation of Governor Blagojevich. A review of these events is set out quite nicely in this morning's New York Times here.

Although it seems clear that a deal might be in the offing and Burris will be allowed to take his seat, his lawyers indicate that one of their options is to head back to Illinois. What is their remedy in the Illinois courts?

The fact is, this scenario has a historical ring to it. How do you force a clerk or government official or even a judge to issue a certificate of election, or appointment, or whatever, i.e., how do you force someone to perform a ministerial act? Check out Marbury v. Madison. The remedy is as old as the Judiciary Act of 1789 (and older) - you petition the court for a Writ of Mandamus to force the issuance of the certificate.

With Senator Diane Feinstein on his side, it seems unlikely that Burris will have to go so far. But the remedy is there for him to use.

Tuesday, January 6, 2009

Transcripts of Oral Arguments for Moot Court

Take a look at the post of December 10th. The 7th Circuit is posting audio files of oral arguments (as are some other Circuit Courts).

If you want a transcript of an oral argument you might want to try the United States Supreme Court website page that links to transcripts of recent arguments before the USSC. These are now available within a day or two of the argument.

Consider this - attorneys appearing before the USSC prepare those arguments carefully. These transcripts are a record of some of the finest appellate advocacy available anywhere.

Blagojevich's Power to Appoint

Curious about Rod Blagojevich and his power to appoint Roland Burris to the United States Senate? Here's the current language from the Illinois Compiled Statutes -

§ 25-8. When a vacancy shall occur in the office of United States Senator from this state, the Governor shall make temporary appointment to fill such vacancy until the next election of representatives in Congress, at which time such vacancy shall be filled by election, and the senator so elected shall take office as soon thereafter as he shall receive his certificate of election. 10 ILCS 5/25-8.

This has been the law in Illinois since 1943. If you are researching this on Westlaw there is a yellow flag indicating pending legislation. As you might expect the Illinois Legislature is in the process of amending the law. Here is one of two proposals currently pending before the Legislature...
Sec. 25-8. When a vacancy shall occur in the office of United States Senator from this state, the Governor shall make temporary appointment to fill such vacancy until the next election of representatives in Congress; except that the Governor shall not make such a temporary appointment if the Governor has been arrested, charged, or indicted for a felony offense and the Governor has not been acquitted, the charge has not been dropped or dismissed, or, in the case of an arrest, there has been no charge or indictment within 30 days after the arrest. The , at which time such vacancy shall be filled by election at the next consolidated or general election. The , and the senator so elected pursuant to this Section shall take office as soon thereafter as he shall receive his certificate of election. 2007 IL H.B. 6730 (NS)

It's not law yet. Regardless, it certainly will not help to resolve the current situation. The other proposal reads as follows -
Sec. 25-8. When a vacancy shall occur in the office of United States Senator from this state, the vacancy shall be filled, the Governor shall make temporary appointment to fill such vacancy until the next election of representatives in Congress, by a person selected jointly by the Governor, Lieutenant Governor, Attorney General, Secretary of State, State Comptroller, and State Treasurer, assembled at the call of the Governor. At the next election of representatives in Congress, the vacancy at which time such vacancy shall be filled by election, and the senator so elected shall take office as soon thereafter as he shall receive his certificate of election. 2007 IL H.B. 6732 (NS)
Tracking changes to state statutes has become significantly easier on both Westlaw and Lexis in recent years. Always follow up if you see an indication of pending legislation. The change about to be made may resolve your problem for you...

Monday, January 5, 2009

NPR Report on Justice Department Murals

Today's NPR Morning Edition broadcast featured a story on the Depression Era murals at the Department of Justice. The broadcast with supporting text and a photo gallery of the murals are on the NPR website here.

Saturday, January 3, 2009

Circuit Splits for Moot Court Students

Instructors preparing a moot court assignment often look for a relevant, current legal issue about which there are two or more legitimate points of view. And where better to look than the United States Circuit Courts of Appeal? One of the reasons why the United States Supreme Court might take a case for review is because of a division of opinion between the Circuit Courts, i.e., a "split" in the Circuits.

If you are faced with what appears to be a federal issue you might want to spend a few minutes looking over the Split Circuits Blog maintained by Associate Professor A. Benjamin Spencer of Washington and Lee University School of Law. Professor Spencer summarizes the split and points to the relevant case law that identifies it. Searchable by keyword...

Friday, January 2, 2009

Law School Bubble?

Check out this post on the PrawfsBlawg by Michael Cahill. Will the economic downturn result in a "deflation" of what might be termed a law school "bubble?" Will the veritable plethora of lower tier schools be reduced by economic reality or will the cyclical nature of law school applications sustain the market?

Thanks to a post from Brian Leiter on his fine Law School Reports blog here.

Deep Web Research for 2009

Each year Marcus Zillman, director of the Virtual Private Library, posts an exhaustive research guide of links to "deep web" research resources. You can find it here on LLRX.

No web search engine, whether it be Google, Yahoo, or whatever, can crawl everything on the web. The "deep web," a/k/a the "invisible web" or "hidden web," represents those resources that no bot, algorithm, spider, or any other kind of artificial intelligence can find. Zillman estimates that there are about 20 billion web pages that traditional search engines can find; he also estimates that there are about 1 trillion web pages that cannot be found.

If you feel like you're missing something when you're searching the web - you are.

Thursday, January 1, 2009

Mason #11 in Recent SSRN Tax Article Downloads

Ruth Mason, UConn Law School Associate Professor of Law, joins the ranks of the SSRN download elites. She is now ranked #11 for the year in "recent downloads." You can access the annual statistics on Paul Caron's TaxProf Blog site here.

As Caron points out in his 2006 article, Ranking Law Schools: Using SSRN to Measure Scholarly Performance, there is more than one way to skin a cat (in this case to measure faculty impact). His article is available on SSRN (of course) here. Note that Caron's article has been downloaded 1262 times.

Many would agree with Bill Henderson's blog post (cited by Caron) available here. Although there are grounds for dispute and discussion (see the comments after Henderson's post), SSRN rankings do seem to be a valid method of looking at scholarly output and may be more relevant than the US News & World Report rankings.

Blogs and SSRN downloads are part of a bigger picture about the way in which law schools and legal scholarship are changing. Two quick points -

  1. The USN&WR rankings are based primarily on the reputation of the school and, by extension, the faculty. Having a faculty member in the SSRN top 25 tax article downloads certainly enhances the scholarly reputation of any school.
  2. There is no citation to the actual law review or journal that published Caron's article. Why bother? The new model is not print, it is electronic. Even after the publication in print occurs there is no need to refer to its somewhat archaic print citation. If you are interested in the article, go to where you can get it in seconds - the repository.