Friday, January 23, 2009
Thursday, January 22, 2009
Pinker must be fairly confident that he will never have to appear before the USSC...
Wednesday, January 21, 2009
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.
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?
But, Justicia.com 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
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.
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
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
"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
Saturday, January 10, 2009
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.
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
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
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.
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
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.
§ 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. TheIt's not law yet. Regardless, it certainly will not help to resolve the current situation. The other proposal reads as follows -
, at which time suchvacancy shall be filled by election at the next consolidated or general election. The , and thesenator soelected pursuant to this Section shall take office as soon thereafter as he shall receive his certificate of election. 2007 IL H.B. 6730 (NS)
Sec. 25-8. When a vacancy shall occur in the office of United States Senator from this state, the vacancy shall be filled,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...
the Governor shall make temporary appointment to fill such vacancyuntil 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 vacancyshall 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)
Monday, January 5, 2009
Saturday, January 3, 2009
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
Thanks to a post from Brian Leiter on his fine Law School Reports blog here.
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
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 -
- 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.
- 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.