CRS Report - HR 1586 Bill of Attainder?

Followers of this blog may recall a brief discussion about whether any of the seven bills pending in the House designed to tax bonuses for private companies that have taken bailout money, if signed into law, could become an ex post facto law. The issue of whether the bill could be considered a "Bill of Attainder," also improper under the Constitution, was left for another day.

Now, the Congressional Research Service has issued a report that deals with many of the potential challenges to HR 1586 and S.651 if they became law. Blog maestro Paul Caron posts his analysis here and the CRS Report itself here.

After rejecting claims that the bills could be a denial of 5th Amendment due process rights, equal protection rights, or the takings clause, the Report deals summarily with the possibility that either bill could result in an ex post facto law. More interesting is the discussion that begins on p. 8 of the Report about the provision against a Bill of Attainder. Depending on how Congess acts from this point forward it appears that either bill could result in a Bill of Attainder. Interestingly, p. 16 of the Report deals with the issue of legislative history. How Congress decides what they will do and how they go about doing it may be a clear indication of whether the resulting law will be affirmed or if it could be struck down as unconstitutional.

Yoo Is In The News Again

Tenured Professor John Yoo of Boalt Hall in Berkeley, California, is being investigated by a Spanish judge on allegations of providing the legal framework necessary to support the torture of inmates at Guantanamo. Read the NYTimes story here.

Before you decide that such a case is inconsequential consider the prosecution of Chuckie Taylor, the Liberian dictator's son, by US prosecutors in Miami for acts of torture committed in Liberia. Taylor was convicted and sentenced to prison for 97 years.

Will conviction in a foreign court (which, of course, has yet to happen) affect Yoo's tenure? We may find out. How hot will it have to get at Berkeley before he leaves? That could be why he's teaching at Chapman (a 3rd tier school) as a visiting professor this year. For a thorough discussion of academic freedom and John Yoo, see Brian Leiter's post here.

Connecticut Supreme Court Briefs Now Online

Take a look at the Connecticut Supreme Court Briefs Online blog. Subject to some restrictions (read all about it on the main blog page) the briefs for pending cases will appear on this blog. Briefs will be archived. There will be access to a backfile including "historic" briefs. This could become the Connecticut version of the SCOTUS Blog.

Hat tip to Mark Dubois a tireless advocate for truth, justice, and the American Way.

Leiter on the Demise of Westlaw and Lexis

Oh my!

Richard Leiter, in an apparent response to a comment to his post of March 11th, has more fully explained his reasoning (to Anonymous) about why Westlaw and Lexis are going broke. His reasoning, set out in full here, cannot be faulted. WL and LN, in fact, seem to have forgotten all about the Golden Rule of legal research: It's the Secondary Sources, Dummy. As we move closer to free, full digital access to all government publications (state, local, federal) of all kinds (cases, statutes, regulations) the only remaining market will be in secondary sources. We will need a way to tie all that free and low cost digital information together. Leiter is right. The future is now. If they aren't already Westlaw and Lexis will soon be Zombie Publishers.

Leiter Posts Results on Top 20 Law Journals

Remember the previous post about this survey? Hmmm. The results may surprise you. Or not. See Leiter's posting here. You might want to consider this list when deciding where to submit your next article. Or not.

Is AIG Bonus Tax An Ex Post Facto Law?

As you can see from Thomas, several bills and regulations that propose to tax the AIG (or other) bonuses are working their way through Congress. Just put HR 1527, HR 1586, or HR 1598 in the search box to check out the progress of the bills. HR 1586 is the Rangel bill that passed the House today 328 - 93 as reported in a story in the NYTimes

But, if such a bill were enacted, would it be an ex post facto law? Such a law is prohibited by the United States Constitution - see Article I, Section 9, paragraph 3 which provides that - "No bill of attainder or ex post facto law shall be passed." What is an ex post facto law anyway? Can a law be retrospective without being ex post facto?

By way of a partial answer, take a look at Statler v. U.S. Savings & Trust Co. of Conemaugh, 192 A. 250 (Penn. 1937). A statute can be retrospective in nature and not be an ex post facto law where the statute in question does not impose a criminal penalty.

The court in Quinteros v. Hernandez, 419 F. Supp. 2d 1209 (C.D. Calif. 2006) may have summed up the overall state of the law best -

"Article I of the United States Constitution provides that neither Congress nor any state shall pass an ex post facto law. U.S. Const. Art. I, § 9, cl. 3; Art. I, § 10, cl. 1. “Although the Latin phrase ‘ex post facto’ literally encompasses any law passed ‘after the fact,’ it has long been recognized ... that the constitutional prohibition on ex post facto laws applies only to penal statutes which disadvantage the offender affected by them.” Collins v. Youngblood, 497 U.S. 37, 41, 110 S.Ct. 2715, 2718, 111 L.Ed.2d 30 (1990). The ex post facto clause is “aimed at laws that ‘retroactively alter the definition of crimes or increase the punishment for criminal acts.’ ” California Dep't of Corr. v. Morales, 514 U.S. 499, 504, 115 S.Ct. 1597, 1601, 131 L.Ed.2d 588 (1995) (citations omitted). Thus, an ex post facto law “punishes as a crime an act previously committed, which was innocent when done[,] which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed....” Collins, 497 U.S. at 42, 110 S.Ct. at 2719 (quoting Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S.Ct. 68, 68-69, 70 L.Ed. 216 (1925)); Stogner v. California, 539 U.S. 607, 612, 123 S.Ct. 2446, 2450, 156 L.Ed.2d 544 (2003).

Do the bills pending in Congress impose criminal liability? No, only a new tax liability. Thus, the ex post facto clause does not pertain.

Library Cats

Hmmm. Here's documentation of the proliferation of "library cats" around the US. So. Will there be an increase in the number of "law library cats?" Or, is that just too specialized?

Hat tip to Andrea Joseph (a cat person and librarian).

Legal Job Losses To Hit Mainstream Media?

Those of you who follow the blog Above the Law will know that many recent posts have covered the loss of jobs in the legal market. This is especially true of job uncertainty for recent graduates. See this post for an example. Until now it would be fair to say that these employment problems have not been the focus of nationwide attention. That may be changing. Consider this recent post on Planet Money, the NPR blog and podcast. Planet Money is only one step away from "real" NPR reportage. And we can all agree that NPR is mainstream.

What 1Ls Should Learn in Legal Research Class

Both the Law Librarian Blog and the Cleveland-Marshall Law Library Blog report on Nancy Johnson's new article that appears on SSRN. Johnson's article makes great reading for teachers and librarians because it confirms and validates much of what we already know. It's also a good read for 1Ls (and other law students) because it tells you just how much farther you need to go to start to become competent researchers.

Westlaw and Lexis Losing Money?

Well. Check out Richard Leiter's blog entry here. If stock price is any indication of profit he may be right...

Yet Another Leiter Poll - Highest Quality Journals

Here's the link to yet another poll from Brian Leiter. This time he is interested in determining the highest quality law journals. Considering how the poll is being taken maybe we should start wondering about the validity of the results. As he points out himself,

...is there really any legal academic who thinks the quality of articles in, say, the Harvard Law Review is really higher than the quality of articles in Journal of Legal Studies or Oxford Journal of Legal Studies or almost any of the faculty-edited journals?

Online Legal Language Training By Cambridge, BU

As announced in this press release, Cambridge University Press, Boston University and TransLegal have launched online English language training course for the international legal community. The training is called the Program for Legal English Academic Development, i.e., PLEAD. Catchy or what? Check out the slick promotional video that includes a plummy English voice-over in the video below. The actual course is located on the TransLegal site.

The New Look In Presidential Signing Statements

President Obama has issued a memo limiting the use of presidential signing statements by the government. See the NYTimes for a complete story. The memo itself makes good reading. In regard to existing Bush signing statements, it says -

... executive branch departments and agencies are directed to seek the advice of the Attorney General before relying on signing statements issued prior to the date of this memorandum as the basis for disregarding, or otherwise refusing to comply with, any provision of a statute.

Thus, every signing statement issued by Bush that calls for an agency to ignore or disregard the provisions of any law is now subject to scrutiny.

Consider the report issued in 2007 by the GAO about the practical effect of the Bush signing statements. The broad strokes of this detailed report (in the form of a 43 page letter to Senator Byrd and Representative Conyers) is that on occasion, agencies have declined to enforce laws in compliance with the terms of Bush's signing statements.

New Open Congress Wiki Now Available

This new wiki from Open Congress might actually become a useful resource. For now, check out the link to members of Congress who Twitter. Do you think that John McCain and Chris Dodd do their own twittering?

Which Law Schools Are Overrated?

Brian Leiter has been taking a vote to determine which law schools in the US News "Top 25" are the most overrated. You should check it out on his blog right here. The link to the electronic voting booth is near the bottom of the page.

This is your big chance to help reposition the undeserving.

Law Librarians Support Free Access to PACER

Readers of this blog may recall a post made in mid-February about PACER and the public's right to free access to federal court filings. The American Association of Law Libraries has also made its position clear in support of that idea. See their blog post about the follow up by Connecticut Senator Joe Lieberman to the E-Government Act of 2002. The AALL position is spelled out more fully on p. 3 of the Statement to the Obama-Biden Transition Team: Public Policy Position of the American Association of Law Libraries available in PDF here.

Yoo and Others in Trouble?

Readers of this blog may recall a post regarding Ackerman's call for the impeachment of Jay Bybee, John Yoo's boss. A Sunday NYTimes article recounts the problems that some of the Bush Administration's legal team are experiencing. Alberto Gonzales and David Addington still can't find work. Yoo went back to his tenured position at UC Berkeley and Bybee was appointed to the 9th Circuit before some of these issues were raised (who says the 9th Circuit is hopelessly liberal?).

What's next? There is a pending investigation about whether Yoo and Bybee violated ethical rules. You can read about it here. Could they be disciplined? Stay tuned...