Judiciary

Footnote 17

Bill Gratsch — Wed, 09 Jul 2008 11:48:30 GMT

A blog post from Rick Hasen at Election Law Blog has been making the rounds this week across the blawgosphere and in the legal press. The post, A Warning About Litigant-Funded Research in Supreme Court Cases, highlights a footnote in Justice David Souter's opinion in EXXON SHIPPING CO. ET AL. v. BAKER ET AL.

Mr. Hasen found this footnote below "troubling:"

The Court is aware of a body of literature running parallel to anecdotal reports, examining the predictability of punitive awards by conducting numerous "mock juries," where different "jurors" are confronted with the same hypothetical case. See, e.g., C. Sunstein, R. Hastie, J. Payne, D. Schkade, W. Viscusi, Punitive Damages: How Juries Decide (2002); Schkade, Sunstein, & Kahneman, Deliberating About Dollars: The Severity Shift, 100 Colum. L. Rev. 1139 2000); Hastie, Schkade, & Payne, Juror Judgments in Civil Cases: Effects of Plaintiff's Requests and Plaintiff's Identity in Punitive Damage Awards, 23 Law & Hum. Behav. 445 (1999); Sunstein, Kahneman, & Schkade, Assessing Punitive Damages (with Notes on Cognition and Valuation in Law), 107 Yale L. J. 2071 (1998). Because this research was funded in part by Exxon, we decline to rely on it. [Mr. Hasen's emphasis]

You can read his post to find out why: A Warning About Litigant-Funded Research in Supreme Court Cases

Justice Scalia Speaks

Bill Gratsch — Mon, 28 Apr 2008 10:12:51 GMT

CBS has posted 60 Minutes' Lesley Stahl's interview of United States Supreme Court Justice Antonin Scalia, including some video snippets. See Justice Scalia On The Record.

The Wall Street Journal Law Blog commented on the interview last night in its post Scalia to Stahl: End of Term “Usually a Disappointment” .

Meanwhile, the Blog of the Legal Times, spent some time Delving Into Scalia's New Book.

Technorati Tags: antonin scalia,justice scalia,united states supreme court,u.s. supreme court,lesley stahl

More SCOTUS: Hall Street v. Mattel

Bill Gratsch — Fri, 28 Mar 2008 09:59:20 GMT

In other U.S. Supreme Court news, attorney Todd Smith, writing at Texas Appellate Law Blog, pointed out The Buzz on Hall Street v. Mattel, another important Supreme Court decision a bit lost in all of the screaming Medellin v. Texas headlines. Check his post for a collection of cross links and information specific to Hall Street, which he will be continually updating.

Technorati Tags: hall street v. mattel,united states supreme court,u.s. supreme court

Blawgosphere Covers Medellin v. Texas

Bill Gratsch — Fri, 28 Mar 2008 09:57:22 GMT

As might be the expected, the blawgosphere had lots to say about this week's United States Supreme Court decision Medellin v. Texas.

A sampling of headlines...

VIENNA CONVENTION: More on Medellin

SCOTUS decides Medellin, checks executive power, and limits the reach of the ICJ

Don't Take The Bait

Medellin and the CISG

Texas Win Could Cost American Lives

If none of the above headlines catch you eye, you can always try your own searches of the blawgosphere via Blawg's homepage as well.

Technorati Tags: medellin v. texas,us supreme court,united states supreme court

A Conversation with Justice Ruth Bader Ginsburg

Bill Gratsch — Fri, 19 Oct 2007 13:36:11 GMT

Lily at Owens Rhetoric recently attended a reception sponsored by the North Carolina Bar Association, Capacity Crowds Await Justice Ginsburg, featuring U.S. Supreme Court Justice Ruth Bader Ginsburg and wrote up some of the highlights from the evening in the post “Bush v. Gore Was In A Class Of One” – An Evening with Justice Ginsburg.

During the course of a conversation moderated by Professor Suzanne Reynolds from Wake Forest Law School -- which included time for Q&A with the audience -- the Justice spoke with remarkable frankness about her life at the Court.

Some of the highlighted topics from the post:

-- On the shrinking docket of the Supreme Court (i.e. the Court is consenting to hear fewer and fewer cases each year)

-- On the Supreme Court’s cert pool (i.e. why they choose to hear the cases they do)

-- On Bush v. Gore and the politicizing of the Court: Bush v. Gore was completely unique – in a class of one, as she put it.

-- On Hillary Clinton being the first woman to mount a serious campaign for President: "Brava!"

-- On Justice Scalia: He is one of her closest friends on the Court.

--When asked what is the single biggest threat to the Rule of Law in our country, Justice Ginsburg replied immediately that it is fear

The post expands on most of the above points, so you can click here “Bush v. Gore Was In A Class Of One” – An Evening with Justice Ginsburg to read everything in context.

Debating Tenure for U.S. Supreme Court Justices

Bill Gratsch — Tue, 11 Sep 2007 11:28:06 GMT

In reaction to a recent New York Times article (New Focus on the Effects of Life Tenure) on the subject, the Wall Street Journal Law Blog wonders Should Supreme Court Justices Have Life Tenure?

After outlining a number of the facts that The NYTimes author Linda Greenhouse reports in her article, the WSJ Law Blog's post notes that [m]ost other countries and 49 states (save Rhode Island) don’t grant life tenure to justices on their high courts. Why should the United States?

As the post also notes, this debate remains limited to inside the ivory tower (and law blogs!), but it is an interesting intellectual exercise nonetheless. I found both the article and post worth reading and hope they do spur some further debate across the blawgosphere, no matter which view people take. Links are above.

Circuit Check: Insurance and Copyright Case Updates

Bill Gratsch — Fri, 07 Sep 2007 10:35:32 GMT

Thought I would call out a couple of noteworthy cases discussed in the blawgosphere this week.

David Rossmiller, writing at Insurance Coverage Law Blog, overviews an upcoming appeal involving insurance in the Fifth Circuit in the post Fifth Circuit hears oral arguments in Tuepker v. State Farm Katrina case. Included in the post are links to pertinent materials, including the briefs:

Insurers have been successful in their Katrina appeals to the Fifth Circuit, and given the appellate court's analysis in two big cases -- Leonard v. Nationwide and In Re Katrina Canal Breaches Litigation -- I would flat out drop my red Yellowstone mug of decaf with the white moose silhouette in amazement if the result were any different in State Farm's interlocutory appeal of Tuepker v. State Farm, even though none of the three-judge panel in this case was on the panel for either of the other two cases.

I read the briefs again, and I have a very hard time seeing it go the Tuepkers' way.

You can read Mr. Rossmiller's full post for all the details via the links above.

Meanwhile, over in the Tenth Circuit, Professor Lawrence Lessig highlighted a copyright case in A big victory: Golan v. Gonzales.

The 10th Circuit decided our appeal in Golan v. Gonzales today. In a unanimous vote, the Court held that the "traditional contours of copyright protection" described in Eldred as the trigger for First Amendment review extend beyond the two "traditional First Amendment safeguards" mentioned by the Court in that case. It thus remanded the case to the District Court to evaluate section 514 of the Uruguay Round Agreements Act (“URAA”) under the First Amendment, which removed material from the public domain.

Again, you can read the above snippet in context as well the entire post via the links above.

Clerkship Notification Blog, 2007 - 2008 Edition

Bill Gratsch — Sat, 04 Aug 2007 10:36:25 GMT

Hat tip to Above the Law for mentioning that The Clerkship Notification Blog has started up for the 2007 - 2008 season.

According to the post Judges Behaving Badly: The Clerkship Edition at the WSJ Law Blog , if you are interested in a judicial clerkship, you are best served to get on it early and often. Also, you apparently cannot assume that established guidelines as to hiring timetables and processes will actually be followed.

[There is a] recent survey about the federal clerkship hiring process, part of a forthcoming law review paper written by three academics and Judge Richard Posner of the Seventh Circuit; it updates their 2001 paper on the same topic.

The survey found a frenzied market for federal clerkships, in which judges conduct interviews and make offers before they’re supposed to, based on a mutually agreed-upon schedule. What’s more, the judges are making “exploding” offers that require students to act on offers sometimes within 24 hours. The upshot: The scramble to lock in top talent is leading to possible mismatches between students and judges because students don’t have time to wait for an offer from their first- or second-choice bosses, say the authors. They analogize the purported dysfunction to the system once used for matching up college football teams for post-season bowl games.

Here is a snippet from the working paper, The New Market for Federal Judicial Law Clerks, noted in the WSJ Law Blog post:

This paper analyzes our findings within the prevailing economic framework for studying markets with tendencies toward "early" hiring. Our data make clear that the movement of the clerkship market back to the third year of law school is highly valued by judges, but we also find that a strong majority of the judges responding to our surveys has concluded that nonadherence to the specified start dates is very substantial -- a conclusion we are able to corroborate with specific quantitative data from both judge and student surveys.

For more details, you can visit the posts on the subject via the links above; both included quite a few comments in response, as well, which may provide more information if you are interested.

Privacy: Warshak v. United States of America

Bill Gratsch — Tue, 19 Jun 2007 11:39:02 GMT

One of my favorite things about the blawgosphere is how quickly it tackles, with analysis and commentary, important decisions.

To wit, the blawgosphere is already starting to hum with yesterday's Sixth Circuit's decision in Warshak v. United States of America (link to decision in pdf).

Orin Kerr at The Volokh Conspiracy jumped in last night: A Series of Posts on Warshak v. United States, the E-Mail Privacy Case:

Today's Fourth Amendment decision in Warshak v. United States is astonishing on a number of fronts. If it stands on the books, it will revolutionize the way that Fourth Amendment challenges are brought; it will constitutionalize an area of law long thought to be statutory, invalidating some statutes along the way; and it will create the rather surprising result that Fourth Amendment protections are actually significantly stronger online than in the physical world.

You can be sure lots of other will follow. Stay abreast of the commentary at this predefined search of the blawgosphere, or just check your favorite sources and blawgs. Something tells me there will be lots of coverage.

Current Status of the Detainee Question

Bill Gratsch — Mon, 14 May 2007 10:33:01 GMT

Over the weekend, Lyle Denniston at SCOTUSBlog posted a lengthy two-part primer analyzing the current status of the detainee question as Courts in the United States continue to see the question before them:

No part of the Bush Administration's campaign against terrorism has drawn more sustained challenge -- legally, politically and diplomatically -- than its policy on handling of individuals who are captured and then held in detention for prolonged periods, usually outside the U.S. mainland. Four times, the Supreme Court has reviewed facets of this policy, leading to changes or to entirely new detainee review procedures in the military or in civilian courts. More recently, however, the Court or Chief Justice John G. Roberts, Jr., acting alone, have refused to hear or have rejected new challenges by detainees' lawyers. As a result, the detainees' legal fate in coming months will rest largely (though not exclusively) in the hands of lower courts.

You can read the two posts in their entirety via the links below:

Primer on detainees' status now -- Part I

Primer on detainees' status now -- Part II

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