After collapse, millions in legal claims likely

The Star Tribune: By Chris Serres and Matt McKinney,

The state's liability is limited by law to $1 million, regardless of how many people were injured.

A larger payout would be possible if the state DOT had an insurance policy, but it doesn't, according to Robert McFarlin, an assistant to the commissioner of the Department of Transportation.

None of the people involved in the bridge's construction or design could be sued successfully, said attorney Robert King, of the Lommen Abdo law firm in Minneapolis. State law generally places a six-year statute of limitations on a lawsuit against contractors, he added. 'You have to figure out what the triggering event was,' said Mark Kulda, spokesman for the Insurance Federation of Minnesota. 'If this was a faulty design or a faulty construction technique, then many of the claims are probably time barred.'

Given those limitations, attorneys likely will focus on the private entities involved in the bridge's maintenance, particularly if state and federal investigators find that private firms bear any of the blame for the collapse.

Didn't take long to start in on the legal issues presented by a major disaster. It rarely does.
Do these comments suggest that the law is too generous in awarding damages, as some would have it?

Court Rules Against F.B.I. in Raid on Lawmaker

New York Times: By David Stout

The agents of the Federal Bureau of Investigation violated the Constitution when they viewed legislative papers in Mr. Jefferson’s Capitol Hill office, the United States Court of Appeals for the District of Columbia Circuit ruled, citing a principle that goes back hundreds of years, to the time of all-powerful English monarchs.

Accordingly, we hold that the congressman is entitled to the return of all legislative materials (originals and copies) that are protected by the Speech or Debate clause seized from Rayburn House Office Building...

The F.B.I. raid on Mr. Jefferson’s office was the first time a federal lawmaker’s office was searched in a criminal investigation. The incident ignited a debate that cut across party lines, with several members of Congress complaining that the executive branch was intruding on their domain.

Today’s ruling seems unlikely to derail the prosecution of Mr. Jefferson, who was indicted on June 4 on 16 felony counts charging that he put his office up for sale in hopes of reaping hundreds of thousands of dollars in bribes from nearly a dozen companies involved in oil, communications, sugar and other businesses, often for projects to be carried out in Africa. ...

The appeals court emphasized that the Speech or Debate Clause, while a formidable shield for lawmakers, is not an absolute one. The shield “does not extend beyond what is necessary to preserve the integrity of the legislative process,” and it “does not prohibit inquiry into illegal conduct simply becomes it has some nexus to legislative functions,” the court said, quoting Supreme Court language from a 1972 ruling.

There is not a lot of litigation concerning the "Speech or Debate Clause". I worked on one such, Davis v. Passman (concerning alleged sex discrimination by a Congressman against a female employee), while a law clerk; the case ultimately found its way to the Supreme Court.

So the question of the day: does the Speech or Debate clause protect The Dick (in his quasi-legislative capacity as President of the Senate) if he keeps illicit cash in his human-sized office (or residence) safes? (Rep. Jefferson apparently kept nearly $100,000 cash cooled in his home freezer--allegedly the proceeds of bribes.)

Freak Amusement Park Accident Severs Girl's Feet

New York Times Blog: By Patrick J. Lyons

Your stomach falls out at the thought of it: a 13-year-old girl is happily enjoying an amusement-park ride one minute, and is grotesquely injured the next.

It happened late Thursday afternoon at a Six Flags park in Kentucky, on one of those tower-drop rides. Something - perhaps a snapped cable, it isn’t clear yet - suddenly whipped across the girl’s shins and severed both her feet.

UPDATE: Bill Clary, a spokesman for the Kentucky Division of Regulation and Inspection, which has oversight over amusement parks, said this afternoon that a frayed cable on the ride snapped and hit the girl’s legs. That agrees with what witnesses have told CNN...

But there’s no denying the public’s morbid fascination with such stories, or the news media’s, especially at a time like the end of June, when school is letting out and jubilant children are pouring into the nation’s theme parks to start the summer off with a bang.

The very essence of an amusement-park ride is imitation danger: getting to enjoy all the adrenaline-pumping thrill of a seemingly life-threatening experience without risking any real harm, testing one’s courage and mettle when the price of falling short won’t be worse than a red face and maybe a lost lunch.

Perhaps that is why this kind of incident tugs at the mind so strongly, in a world where accidents of other sorts claim young lives and limbs every day to scant public notice. When pretend danger proves to be real danger, for us or especially for our children, we feel not only frightened but betrayed.

The amusement industry winces at the attention paid to these accidents, of course, and on a statistical level they have a point - serious injuries and deaths caused by amusement park rides are pretty rare, and the reputable park operators go to considerable trouble and expense to keep them that way.

Still, they happen, and they resonate - to the point that elaborate web sites are devoted to tracking them, like www.rideaccidents.com and an accident page on Theme Park Insider, which also includes a list of safety tips for parkgoers. ...

Amusement park accidents are a fixture of Torts courses, particularly regarding the tort doctrine of "assumption of the risk" (also a feature of much individual tobacco litigation). Interesting aspects of this story include the juxtaposition of perceptions of risk ("imitation danger" and "testing one’s courage and mettle") with statistical evidence of the rarity of serious injuries and the feeling of betrayal when such an accident actually occurs.

I'll leave it at that, since I may want to return to this incident in future teaching (and perhaps exams...) in my Torts classes...

Attention Authors: Be afraid, very afraid.... especially if you write about the Saudis and their support of terrorism

History On Trial: By Deborah E. Lipstadt

Whenever David Irving's libel case against me comes up someone inevitably asks: How could he sue you in the UK? I explain that my book was bought and published by Penguin UK and therefore he could drag me into a UK court.

Turns out that now the reach of UK libel laws has been greatly extended. It's a frightening development. In an earlier post I wrote about Rachel Ehrenfeld and how she was sued for libel by the Saudi Khalid bin Mafouz for writing that he had supported terrorism. ...

Now the Saudis have silenced another book. This one is by J. Millard Burr, a former relief coordinator for Operation Lifeline Sudan, U.S. Agency for International Development, and Robert O. Collins, professor of history at the University of California at Santa Barbara.

They have written a number of books on Darfur and Sudan. Their most recent book, Alms for Jihad was published by Cambridge University Press. [Since their book was published in the UK, their case is closer to mine than Ehrenfeld's.]

The authors explore how, in the words of Michael Rubin, writing in the New York Sun:

The Saudi royal family played a pernicious role, founding and promoting charities to spread militant Sunni Islam, not only as an inoculation against resurgent Shi'ism from revolutionary Iran, but also to radicalize the Muslims in Europe and America.

The British lawyers for Khalid bin Mahfouz and his son Abdulrahman bin Mahfouz wrote Cambridge University Press saying they intended to sue the Press and the authors for defamation against their clients.

Cambridge University Press contacted the authors,and they provided detailed material in support of their claims made in Alms for Jihad.

Nonetheless, Cambridge University Press decided not to contest the argument and next week they will apologize in court.

As Rachel Ehrenfeld has just written to me in an email: "Get a copy of “Alms of Jihad” before it’s banned..." ...

Bin Mahfouz apparently has amassed a number of judgements by default, in other words the case was not tried on its merits. Everyone just caves, pays a fine, and gets out of Dodge as fast as they can.

Cambridge Press had pretty deep pockets but it too folded. If I were a reporter writing about this I would see what connections it has with the Saudis... That would be interesting to know.

And now I return to the main point: Why isn't this pattern of silencing by the Saudis of authors who are critical of them been the topic of an article in the mainstream press?

There are important legal precedences here, especially in the Ehrenfeld case, and a disturbing pattern of silencing of criticism by the Saudis.

After Flawed Executions, States Resort to Secrecy

New York Times: By ADAM LIPTAK

A Missouri doctor who had supervised more than 50 executions by lethal injection testified last year that he sometimes gave condemned inmates smaller doses of a sedative than the state’s protocol called for, explaining that he is dyslexic. “So it’s not unusual for me to make mistakes,” said the doctor, who was referred to in court papers as John Doe I.

The St. Louis Post-Dispatch identified him last July as Dr. Alan R. Doerhoff, revealing that he had been a magnet for malpractice suits arising from his day job as a surgeon and that two hospitals had revoked his privileges. In September, a federal judge barred Dr. Doerhoff from participating “in any manner, at any level, in the State of Missouri’s lethal injection process.”

Naturally, state lawmakers took action to address the issue.

A new law, signed this month by Gov. Matt Blunt, makes it unlawful to reveal “the identity of a current or former member of an execution team,” and it allows executioners to sue anyone who names them. ...

In the wake of several botched executions around the nation, often performed by poorly trained workers, you might think that we would want to know more, not less, about the government employees charged with delivering death on behalf of the state.

But corrections officials say that executioners will face harassment or worse if their identities are revealed, and that it is getting hard to attract medically trained people to administer lethal injections, in part because codes of medical ethics prohibit participation in executions.

The Missouri law addresses that point, too. It bars licensing boards from taking disciplinary actions against doctors or nurses who participate in executions....

In a decision a week ago Sunday, a state court judge in Florida, Carven D. Angel, halted the execution of a death row inmate, saying, “We need to have people with competence and experience” to perform executions.

But, according to lethal injection procedures issued by Florida’s corrections department in May, there is only one job requirement to be an executioner there: you must be “a person 18 years or older who is selected by the warden to initiate the flow of lethal chemicals into the inmate.”

Those credentials struck Judge Angel as a little thin. ...

Tax Report

Tax Report - WSJ.com: By TOM HERMAN

As San Francisco Giants slugger Barry Bonds closes in on Hank Aaron's career home-run record, a thorny question looms: If you're the lucky fan who catches the record-breaking home run ball, what are the tax consequences?" ...

Common sense might suggest the answer is simple: The lucky fan who catches the historic ball shouldn't owe tax until he or she sells it. But relying on common sense to interpret tax laws can often lead to trouble. Asked whether any fan who has ever caught a valuable home-run ball has had to pay tax on it before selling it, an IRS official declines comment....

Yale Law School Prof. Michael Graetz, a former Treasury Department official and co-author of a leading course book on federal income taxation, says that the Bonds issue "would make a great law-school exam question."

Actually, there's way more than one question. Will the Internal Revenue Service require the fan to pay tax immediately, based upon the ball's estimated fair-market value? Or only after the fan sells the ball? Will the fan have to pay tax based on regular federal income-tax rates, which range up to 35%? Or, if the fan waits to sell the ball for more than a year after catching it, would any profit qualify as a long-term capital gain taxed at the maximum rate of 28% on collectibles?

If the prize catch does qualify as a long-term capital gain, what would the fan's cost be for tax purposes? Zero? The price of the ticket? The ticket price plus the value of a new baseball? What if the fan purchased a season ticket? Could he or she consider the cost of the entire season package as the cost basis? Would it make any difference if the person who catches the ball isn't a fan but rather a player standing in the bullpen? Or a groundskeeper?

These are just some of the curveballs that IRS officials don't want to try hitting. ...

"More than innocent-spouse cases, more than small-business owners losing their businesses, more than IRS modernization failures, the prospect of the IRS taxing this hypothetical good-hearted fan unleashed the fury of the American people, not to mention their representatives in Congress," Mr. Rossotti wrote in his memoir, "Many Unhappy Returns."

The IRS quickly reversed itself. Mr. Rossotti issued a statement saying that if a fan caught the ball and gave it back to Mr. McGwire, the fan wouldn't be taxed. "Sometimes pieces of the tax code can be as hard to understand as the infield fly rule," Mr. Rossotti explained. "All I know is that the fan who gives back the home-run ball deserves a round of applause, not a big tax bill." ...

Yale Law Prof. Graetz helped advise the IRS on the Mark McGwire flap in 1998 before Mr. Rossotti issued his statement resolving the issue. In return, the grateful Mr. Rossotti sent Prof. Graetz a baseball signed by Mr. Rossotti, saying: "Thank you for saving us from a strikeout on national TV."

So did Prof. Graetz declare the Rossotti ball on his tax return as income?

No, Prof. Graetz replies with a chuckle, explaining: "I don't think it has a lot of value to anyone but me."

How the legal left can rein in the Roberts Court

Slate Magazine: By Emily Bazelon

Let's say, though, that next term, Roberts is even more successful in wooing Kennedy than he was this term, which seems entirely plausible. What kind of 'unity' would that get us? The answer is in Sunstein's new essay (here's an early version). He argues that 1) today's court has no William Brennan or Thurgood Marshall (Ruth Bader Ginsburg is not that liberal), whereas the 1980 court had no Antonin Scalia or Clarence Thomas; 2) three of the court's supposed 'liberals'—Breyer, David Souter, and John Paul Stevens—are really moderates, akin to the old Stevens-Lewis Powell-Byron White trio; and 3) the trade-off in the center of Harry Blackmun for Anthony Kennedy is a loser for the left, too. Sunstein still believes in restraint (he calls his version of it 'minimalism'). But while he doesn't think the likes of Brennan and Marshall should run the show, he also now says that 'something has gone badly wrong if the Court has a strong right-wing without any real left.' And it's even worse that the court's moderates are being cast as left-wingers, thus belying the court's overall conservative creep.

On Second Thought, Let’s Just Rate All the Lawyers

New York Times:

Legal publications these days are full of lists of supposedly stellar lawyers, which are a nice way to generate advertising and good feelings but perform no particular service. Avvo’s rankings at least take account of lawyers’ shortcomings.

A lawyer for Avvo, Bruce E. H. Johnson, was rated 10, or “superb,” which is a little suspicious. But he was making sense in discussing the suit the other day.

“Most ratings systems are very good at telling us who is super or who is best,” Mr. Johnson said. “But there are very few that tell us where there is a risk of substandard performance.”

“The First Amendment protects statements of opinion and evaluation,” he added. “And ratings are presumptively matters of opinion and judgment.”

Judges Behaving Badly?

The Economist

A $54m lawsuit over a pair of pinstriped trousers that went missing from a Washington, DC, cleaners was thrown out by a judge this week. It had attracted worldwide ridicule. The fact that the case was brought, not by a random loony, but by a former judge has added to the sense that something is wrong not just with America's litigation laws, but with the kind of men and women Americans choose to sit in judgment over them....

“To distrust the judiciary,” said Honoré de Balzac, “marks the beginning of the end of society.” In Britain, judges are one of the most respected groups. But in America they tend to be held in low esteem, particularly at state level. For this many people blame low pay and the fact that judges are elected. In 39 states, some or all judges are elected for fixed terms. Federal judges, usually held in much higher esteem, are appointed on merit for life—as in Britain. ...

In the past, judicial candidates were banned from discussing controversial legal or political issues on the campaign trail. But in 2002 the Supreme Court ruled such bans to be unconstitutional, leading candidates to advertise freely their views on abortion and suchlike. Personal attacks have also become more common. Indeed, Sandra Day O'Connor, a former Supreme Court justice, fears that judicial elections have turned into “political prize-fights, where partisans and special interests seek to install judges who will answer to them instead of the law and the constitution.”

I'm not impressed with this or other efforts to take the "pants suit" as much of a generalizable example of anything...indeed, the performance of the trial judge in this very case was exemplary. Right now I'm mostly discouraged with the more highly paid, appointed and prestigious members of our highest court...

How should the president's lawyers advise a reluctant White House?

Slate Magazine: By Dawn Johnsen

The proper role for presidential lawyers is actually quite clear, although more nuanced than either zealous advocate or neutral arbiter. The Constitution explicitly commands the president to 'take Care that the Laws be faithfully executed,' and it is up to the attorney general and, under his direction, DoJ's Office of Legal Counsel to provide the analytical expertise the president needs to ensure the legality of his administration's actions. Presidential lawyers should operate first and foremost as stewards of the rule of law and our constitutional democracy. Their legal advice must reflect an accurate and principled view of the law, not just plausible, ends-driven rationalizations. And in order to do that with any effectiveness, they must be allowed to tell the president 'no.'

The president unquestionably possesses very broad discretion to hire and replace those who serve at his pleasure, and that leeway is fundamental to his authority to control the executive branch. He has the authority to disagree with his lawyers when he honestly determines that they are wrong, based on a principled, alternative best reading of the law. But the president clearly oversteps permissible bounds—and in the process endangers our constitutional democracy—if he or his vice president retaliates against his lawyers for standing up for the rule of law or proceeds against their advice without a valid legal basis. ...

A group of former DoJ lawyers has provided a good starting point in developing consensus guidelines based on longstanding bipartisan tradition. (Disclosure: I am a co-author.) These guidelines balance the responsibilities of the president's lawyers to him and his policy agenda with their responsibility to the institution of the presidency and the law itself. Among the best practices: Provide the president with "an accurate and honest appraisal of applicable law, even if that advice will constrain the Administration's pursuit of desired policies"; advice should "reflect all legal constraints, including the constitutional authorities of the coordinate branches of the federal government"; and "on the very rare occasion that the executive branch—usually on the advice of OLC—declines fully to follow a federal statutory requirement, it typically should publicly disclose its justification."...

The objective, going forward, is to deter future lapses from presidents of both parties. And that deterrence rests on the quality of the advice obtained from presidential lawyers. If these lawyers are urged to tell the president only half the story, if they are punished for saying that a proposed program would be illegal, and if they are forced to resort to threats of en masse resignations in order to stop unlawful governmental actions, our very constitutional democracy is in peril. If the president creates such a culture of disdain for the rule of law, Congress must step in.

The Growing Field of Animal Law is Attracting Activists and Pragmatists Alike

The Chronicle:

Here at Lewis & Clark College School of Law, students of 'animal law' are learning another way to change social practices that involve animals. They are just as passionate as animal-liberation advocates. And they may become more influential.

Animal law is the study of all laws relating to animals, whether they enable harsh treatment of animals or encourage kind treatment. 'It's a lot like where environmental law was in the 1970s,' says Laura Ireland Moore, founder and executive director of the National Center for Animal Law, based at Lewis & Clark.

Students in the field study animal-related local, state, and federal legislation and case law. Topics include animal cruelty, hunting, animal fighting, and performing animals; the history of animals' legal status; the use of animals in scientific research; free-speech and religious-practice limitations on animal sacrifices; and such federal statutes as the Animal Welfare Act and the Humane Slaughter of Livestock Act.

Critics of the animal-law courses say they risk taking a political stance. Indeed, the conviction that humans should treat animals better motivates almost all the students who enroll in animal-law courses...

But it is arguments like that that prompt blunt criticism from legal educators who are skeptical of the way advocates of animal "rights" are shaping the teaching of animal law. Yes, the human use of animals is an important component of the law, and has been since ancient times, says Richard A. Epstein, a professor law at the University of Chicago. But that does not mean, he says, that "preposterous" and "overinflated" claims about animal emotions and intelligence should guide it now.

"Very few people will take the side of saying, 'Yes, animal protections are appropriate,'" he says, "but 'No, animal rights are not.' That's a very uncomfortable position to be in, because you can always be painted as an ogre."...

In animal-law classes, debates involve questions about which human uses of animals are acceptable. Students generally deplore the use of animals in the testing of cosmetics and household products but are divided about their use in medical research. Attitudes toward food production often vary according to students' dietary practices. ...

Impassioned debates aside, not all experts are sure the field can grow fast enough to provide meaningful work for all of its graduates.

Geordie Duckler, an animal-law attorney in Portland who often helps teach the courses at Lewis & Clark, believes that animal-law students frequently graduate with what he calls "the naïve, unreasonable, and problematic goal of working to 'protect the animals.'"

"There is only so much money that can be spent on promoting fashionable cruelty legislation," he says. "If the idea is to actually make a living, most new practitioners are going to have to swallow hard and get on the unpopular side of a huge number of legal questions on custody, neglect, conveyance, and injury." That, he says, might mean representing universities using animals for research, ranchers breeding horses, or even pet marketers accused of operating "puppy mills."

Animal-law instruction, he believes, should focus on laws as they are written and enforced, not so much on moral arguments.

Ms. Moore and others in the field do not agree. ...

Sounds remarkably similar to the early days of environmental law (also a specialty at Lewis & Clark--they know their brand) and bioethics. if you want to make a living in these fields (after the law schools do their initial staffing up), it helps to check your values at the door. Sadly, such is professional life, at least for most folks. There are, of curse, notable exceptions.

It's not that Richard Epstein "can be painted" as an ogre; Richard Epstein IS an ogre. Bless his evil heart.

Nine other oaths Karl Rove could swear to Congress

Slate Magazine (an oldie but goodie): By Hart Seely

1. Do you solemnly swear to tell the truth, but not necessarily the whole truth, maintaining an overall average of at least 70 percent truth, subject to later verification by an independent panel, so help you God?

2. Do you solemnly swear to tell the truth, but in ways that are carefully cloaked in metaphor and allegory, so they require lengthy interpretation, in a Zen sort of way, so help you Buddha?

3. Do you solemnly swear to tell the truth, unless in your opinion we are not worthy of it, in which case you shout like Jack Nicholson in that movie, 'The truth? You can't handle the truth!' so help us all?

4. Do you solemnly swear to answer all questions in a semitruthful fashion and not claim things that are totally ridiculous, such as that George Bush actually reads a book every week, so that we all don't have to sit here and feel embarrassed by what you're saying, so help you God?

5. Do you solemnly swear to tell the truth, except for when you claim that you can't remember, in which case we promise not to press the issue and later bring forth Tim Russert to testify that you are nothing but a dirty liar?...

And, in memory of Richard Rorty:

6. Do you solemnly swear to tell the truth, the whole truth, and nothing but the truth, with the understanding that—hey, who are we kidding here?—there is no real truth, life is an illusion, and let's all get together later and smoke up a doobie, so help you God?

Precedents Begin to Fall for Roberts Court

New York Times:

“Power, not reason, is the new currency of this court’s decision making,” Justice Marshall declared on the final day of the court’s 1990 term. Two hours later, he announced his own retirement, his words still hanging
in
the
air

It's that time of year: A Supreme Court conversation

Slate Magazine:
from: Dahlia Lithwick
to: Walter Dellinger
Are We All Legal Realists Now?

Dear Walter,

Welcome back to this, the best part of having the best job in the world. Can this possibly be our sixth year doing an end-of-the-Supreme-Court's-term analysis?...

Meanwhile, the Legal Commentariat's search for the One Big Theme for the 2006 term seems to have settled on this: The Roberts court is hopelessly split down purely ideological lines, and earlier promises of minimalism, restraint, and collegiality are pretty much down the toilet. ...So, is it true that the enduring lesson of the 2006 term is that, as Toobin suggests, "When it comes to the incendiary political issues that end up in the Supreme Court, what matters is not the quality of the arguments but the identity of the justices"? Are we all legal realists now?
************************************

Dear Dahlia...
My surprising conclusion ... was that it actually takes only minutes, not weeks, to master the essence of all American constitutional law. So as background to this year's discussion of this term's cases, and for the benefit of those busy readers who would like to be constitutional scholars but have only a few minutes to spare, I am delighted to provide "Professor Dellinger's Unpublished Short Course in Constitutional Law."

Constitutional law: the five-minute crash course [reduced to three to limit my potential liability for copyright infringement]

The basic rule of American constitutionalism is this: Before the government can forbid you from doing anything, it has to provide a reason. "Because we say so" does not count as a reason. To limit ordinary liberties (like selling eyeglasses), most any reason is good enough. To restrict fundamental liberties (like using birth control while having sex), however, the government must have a really important reason. (Getting to decide which liberties are "fundamental" is one of the cooler parts of being a justice.) Under the equal protection clause, even if the government has a plausible reason for putting a burden on you, it also has to explain why it treats other people better. If the justices suspect that the government may simply dislike people like you, they will demand an especially convincing explanation for the different treatment. ...

Establishment of religion is really simple: government prayer, bad; private prayer, good. (The only hard cases come when a citizen uses government property or public funds for religious purposes, and the facts make it difficult to tell whether it's the government or the private citizen actually making the religious choice.) As for speech, you can generally say whatever you want, but not necessarily where, when, or how you want. It's also OK for the government to regulate "expressive conduct," as long as the government is going after the "conduct" part and not the "expressive" part. Also, you have no right to dance naked unless you are a really, really good dancer, in which case it becomes art. As for the First Amendment's so-called "reporter's privilege" to protect confidential sources, you can skip that—it's taught with reverence in journalism schools, but judges never heard of it. ...

Congress has the power to ban anything from crossing a state line for any reason. And Congress can regulate any activity that's economic even if it's wholly within one state. But if it's not economic, and it doesn't cross state lines, then Congress cannot regulate it—unless five justices think the regulation in question is a really, really good one. ...

Finally, one needs to understand judicial restraint, the doctrine that a judge should avoid "legislating from the bench" and should instead strictly apply the text of the Constitution "exactly as written." This approach is very appealing to those who have never read the Constitution. But see, e.g., the 14th Amendment, which requires judges to protect (without any further elaboration) "privileges or immunities of citizenship" and "liberty" and "equal protection"—phrases so open-textured that they make the "apply exactly as written" mandate somewhat unhelpful. ...

The thing is, this really isn't as funny, at least to this law professor, as you might think. After Bush v. Gore, and the resulting Court appointments (elections do matter, at least when the Court lets the votes be counted), it's increasingly hard to pretend (or to try to teach) that there's much more to it than counting (white, male, Roman Catholic) noses--noble though they may be. Shabbat shalom.

Big Law Firms Waive Fees for Women's Legal Needs

From Womensnews

Women's organizations, women's issues and individual women with complex legal problems but few resources receive substantial assistance without a fee from the nation's premiere law firms, according to a Women's eNews survey of the top five firms on American Lawyer's 2006 report card. (Editor's note: Law firms, as private partnerships, are not required to disclose this information publicly. This report is drawn from descriptions provided by the firms' representatives.)

In 2006, thousands of hours of donated services by those five firms were devoted to fighting domestic abuse, supporting reproductive rights, challenging sexual assault, establishing microcredit that aids women's self-sufficiency and other women's projects. ...

The American Lawyer's 2006 pro bono rankings of hours donated per attorney were: No. 1 Covington & Burling with 137.5 annual pro bono hours per lawyer; followed by Debevoise & Plimpton (131.6 hours per lawyer); Wilmer Cutler Pickering Hale and Dorr (119.6 hours per lawyer); Arnold & Porter (111.2 hours per lawyer); and Hogan & Hartson (89.7 hours per lawyer). Women's eNews will follow up this year's pro bono rankings with a similar Pro Bono Feminae survey.

Firms not only compete for pro bono scores, but use pro bono as a way to attract top recruits, seeking out projects that require sophistication and expertise.

Fair use in scholarly publishing

Wiley-VCH, one of the increasingly few cartels left standing in the scholarly publishing business, has threatened a lawsuit against a neuroscientist blogger who reproduced a small clip of a chart from an article about fruit antioxidants, in a blog about the research. See her story:
http://scienceblogs.com/retrospectacle/2007/04/when_fair_use_isnt_fair_1.php

Not only are the corporate lawyers trying to suppress fair use, and thereby suppressing serious discussion of this article, but if they are successful it would suppress publicity for articles in Wiley journals -- a result that authors and editors surely don't want, and the publisher, if it had any sense, wouldn't want -- but it doesn't appear from this episode that Wiley execs have any sense. An example of the stupidity of letting corporate lawyers determine policy.
Shame on Wiley!!

Bob Michaelson
Northwestern University Library, Evanston, Illinois 60208
rmichael@northwestern.edu

Not so clear to me that this is, in fact, an example of letting
corporate lawyers determine policy. Mostly, corporate lawyers give advice; they do not directly determine policy. The decisionmakers are the corporate executives--or should be (spoken as a lawyer, who recognizes lawyers can sometimes be asses)--and responsibility properly rests ultimately with them. (Lawyers are not excused from responsibility, but their role is different, mostly.)

My understanding is that there have been further developments on this story, and that Wiley has granted permission for reproducing the excerpts (blaming lower downs, not higher ups), without necessarily conceding the fair use issue. I'm not following closely enough for detailed comment here, but check further before taking action in response to Michaelson's posting.

Duke: Rueful reflections begin...

Broadsheet - Salon.com:

The case has proved to be a litmus test for individual feelings about rape cases. Some spectators were quick to discount the accusations and call the accuser a lying whore; others automatically offered her support and the benefit of the doubt. Neither camp really knew what went on at the ill-fated party, because it's impossible for anyone other than those present to know for sure.
[This is true, in a technical sense, in the vast majority of disputes. But does there come a time that reasonable outside observers can no longer responsibly avoid making some judgments about the credibility of differing accounts?]
But the 13-month media circus surrounding the Duke case didn't help matters. Many news outlets -- including, in some instances, Broadsheet -- were quick to side with the accuser. On the flip side, there are also ample examples of media coverage firmly in the other camp. Beyond Tucker Carlson's predictable tirade, there was musing about lacrosstitutes and some egregious blame-the-victim coverage.
[And now? Just who are the primary (if not morally guiltless) "victims" here? Is it time to give the "blaming the victim"rhetoric a bit of a rest, and to move toward a more sophisticated assessment of what are often complex and messy circumstances?]
Reasonable arguments about presumed innocence sometimes wandered into less reasonable arguments that certain women are asking for rape, or that accusers should be silenced because they might be lying.
[What would you suggest as the appropriate balance as such cases develop in real time? What criteria would you apply?]

The polarized responses to the case dredge up a peculiar tension regarding rape allegations: It's critical that the accused are presumed innocent, but it's also important that accusers are offered support and the assurance that someone believes them [Is every story worthy of belief?]; that's a key part of post-assault counseling. [Should that always be the highest priority?]These priorities aren't necessarily mutually exclusive -- supporting an accuser isn't the same as convicting an alleged perpetrator, and ultimately we'd like to believe that even in cases of conflicting reports the truth will come out. [That would be nice. The evidence suggests otherwise, especially when the accused lack resources for an effective defense.]

I don't have the answers here; I am struggling like the rest of us. But maybe we can agree on the necessity of moving past the unreflective, knee-jerk responses on both sides. Legal due process does have something to be said for it.

Supreme Court head backs lawmakers' public campign-fund push

From LegalNewsline
by Rob Luke

MADISON -- Wisconsin's Chief Justice told legislators yesterday she supports a proposed law for taxpayers to foot the bill for future state Supreme Court elections.

Chief Justice Shirley Abrahamson, who was first elected to the Wisconsin Supreme Court in 1976, told a state campaign-finance committee she believed public funding could help overcome a misconception that campaign donations sway judicial decisions.
"We should try to ensure that campaign financing does not undermine the public trust and confidence in our judiciary and system of government," she said. ...

Abrahamson warned lawmakers that such laws create "legal and policy challenges" because of Constitutional free speech issues and the difficulty in encouraging judicial candidates to take public funding.
Some questions to ponder (comments welcome):

Can public funding deal with the problem of third party "independent" expenditures?

Should judicial office be elective in the first place?

Would a process of nomination, confirmation, and, perhaps, periodic one-candidate renewal elections (at relatively long intervals) be superior?

Are the best potential candidates (however we define "best") seeking judicial office in this state?

The YouTube Defense: Human Rights Go Viral

(Link broken)
A nice Jurisprudence posting on today's Slate, by a law student and human rights worker at Harvard. An excerpt:

As America's civil rights advocates knew well a half-century ago, lawyers are most successful when their legal arguments are attuned to broader social changes. When the NAACP went to court to end segregation in the South, it coordinated with groups staging sit-ins, knowing that the resulting public unrest would help shape Thurgood Marshall's legal victories in the courtroom. This strategy works because, right or wrong, judges keep an eye on the street. Internal notes from the Supreme Court's deliberations in Brown v. Board of Education suggest the justices spent less time discussing law than chewing over the state of race relations in the South. In fact, as law professor Michael Klarman points out, little relevant constitutional law had changed between Brown's ruling against segregation and Plessy v. Ferguson, the case that helped establish the "separate but equal" school regime. What had changed was the social context.

They teach stuff like that at Harvard? What happened with Scalia--did he miss that class?

Can you imagine...

...being a student who rear-ends a car containing two members of the law school faculty? She has my sympathy. Bills for car damage and medical expenses will follow, to her insurance company. Glad she was insured. Meanwhile, several hours spent trying to get checked out at the clinic. My aching back and neck! (For real, unfortunately--I'm trying to type this on my laptop while lying down with my feet elevated, to stretch my lower back. Very slow going.)

Also a good thing for all concerned that we were wearing our seat belts. Highly recommended, both for self-protection and in case of tort actions.