Archives for April 2011

Yevgeny Shrago

The Economist ran a special report last week about the dysfunctional mess that is California’s finances. Along with providing their outsider’s perspective on the out of whack initiative process and legislative supermajority rules that make the Senate filibuster look sane, the Economist considered, with gentle British mockery, the multitude of elected state officials. Californians vote for nine statewide offices, including such politically explosive positions as Insurance Commissioner and the Board of Equalization. With so many elected officials looking to ensure their own reelection, California policy is pulled in a dozen different directions and voters have no idea whom to hold accountable.

This problem isn’t restricted to California, and it isn’t even peculiar to state government. It’s the byproduct of a different era of machine politicians and industry-controlled elections, when progressive reformers sought a way to return power to the people. Today, though, there are just too many offices for non-obsessives to track. Try to name every official you could have voted for in the last 4 years. You probably thought of at least the President and your governor, mayor, senator(s) and congressperson. What about the representative to your state’s lower house? (That’s a trick question for the Nebraskans among you!)  Lieutenant Governor? State Comptroller?  County Legislator?

[Read more…] about Fewer Elections, More Accountability

Michael Stephan

Last Thursday, the Ninth Circuit decided Tobar v. United States, a case dealing with sovereign immunity in the admiralty law context.  At first glance, Tobar appears to be a relatively straightforward decision about whether the United States has waived sovereign immunity from a suit brought by Ecuadorian fishermen who had their boat temporarily seized by the United States Coast Guard.  A close look at Tobar, however, reveals a very interesting question at issue: To what extent should courts investigate an issue or argument sua sponte when the party benefiting from that investigation failed to persuasively raise the issue or argument?  More colloquially: To what extent should courts lawyer for parties? (Yes, I’m using “lawyer” as a verb.)

The facts of Tobar are simple.  The United States Coast Guard stopped an Ecuadorian fishing boat near the Galapagos Islands, having suspected it of smuggling drugs.  The Coast Guard boarded the boat, searched it, and towed it to Ecuador for further investigation.  The Coast Guard eventually concluded that the boat contained no contraband, and no charges were filed.  The crew members then sued the United States for roughly $5 million in damages for “destruction of personal property, loss of their catch, loss of the use of the vessel, and public ridicule,” among other things.

[Read more…] about Sovereign Immunity Case Raises Question of Courts Lawyering for Parties

Smita Ghosh 

“If that’s the kind of New Jersey you want to live in, that’s find by me,” Chris Christie noted threateningly at a Town Hall meeting in Hamilton Township.  Chris Christie wasn’t talking about Snooki’s Jersey Shore, or reported bed bug sightings in Hackensack and Paramus.  In fact, Christie was referring to the state-wide effects of Judge Barry Albin, who has been a frequent target of some of the Governor’s recent barbs.

[Read more…] about Chris Christie Lambasts the State’s Judiciary

Jake Laperruque

Our criminal system has a straightforward structure:  First, the defendant is tried.  Next, a verdict is rendered.  Finally, if found guilty, a sentence is carried out.  However, for Pfc. Bradley Manning, this process has gone in reverse.  For his alleged role as a key Wikileaks source, Manning is being subjected to the Bizarro World Rules of Criminal Procedure, first facing imprisonment then being declared guilty, all before being given a trial.

[Read more…] about The Backwards Prosecution of Bradley Manning

Marshall Thompson

The high-priced firm that Rep. John Boehner hired to defend the Defense of Marriage Act dropped out yesterday amid pressure from its clients. This comes after the Obama Administration decided that the law was constitutionally indefensible and passed the onus on to the House of Representatives to defend it in February. Former Solicitor General Paul Clement, who originally contracted with Rep. Boehner to defend DOMA, has resigned and moved to a different firm to continue representing the House.

I love watching DOMA go down in flames. It’s a discriminatory law that probably can’t survive even rational basis scrutiny.

[Read more…] about The Trouble with DOMA

Jay Willis

Yesterday, the Boston Globe profiled the expanded use of technology in colleges and law schools, writing that institutional eagerness to make the Internet available in classrooms has been replaced with trepidation at what many professors and administrators now feel is a counterproductive distraction; for example, Jonathan Zittrain, a professor at Harvard Law School and co-founder of the Berkman Center for Internet & Society, calls it “demoralizing” to see students shopping for shoes as he lectures.  Law students are familiar with the steps that professors take to fight this trend; many ban the use of laptops in class, while the University of Chicago Law School has gone so far as to entirely cut wi-fi access in its classrooms during instruction time. Research indicates that such policies may have scientific backing; critics like psychologist Clifford Nass and author Nicholas Carr have recently purported to illustrate the negative effects of the Internet and technology on the brain’s ability to concentrate.

[Read more…] about The Wired Law School Classroom: How Much is Too Much?