Best of the Blogs

Is American law too complex?  PrawfsBlawg featured an interesting exchange on this question last week.  Eric Johnson initiated the exchange with this post, in which he observed:

There is a huge, obvious problem with the law. The bar studiously ignores it. Even the legal academy generally pretends it’s not there. It’s so large as to be beyond overwhelming.

The problem is this: Our system of justice is absurdly complex and time consuming.

. . .

There are three basic aspects to the mess: Endeavoring to understand the law is unduly complex and expensive, determining the facts is unduly complex and expensive, and teeing up the law and the facts for judges and juries is unduly complex and expensive.

In addition to a lively string of comments (including a couple by our own Rick Esenberg), Eric’s comments also prompted a thoughtful responsive post by Paul Horwitz.  

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Trans-formation

A year ago, President Barack Obama issued a proclamation naming June “Lesbian, Gay, Bisexual and Transgendered Pride Month.”  The proclamation effectively incorporated the transgendered community into President Bill Clinton’s 2000 proclamation, which named June “Gay & Lesbian Pride Month.”  In honor of the transgendered community, their legal rights, and the month of June, it seems appropriate to discuss gender identity discrimination and the infamous “trans panic defense.”

The overall struggle that transgender people face is similar to the struggle that gays and lesbians face, but for transgender people, the progressive change for their legal rights seems to be slower.  Currently, in 38 states it is still legal to discriminate based on gender identity.  Comparatively, 30 states have not yet developed laws against sexual orientation discrimination.  Wisconsin was the first state to ban employment discrimination based on sexual orientation, and it did so in 1982.  However, as of yet, it has not created equal legislation regarding gender identity.

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Pickering a Fight with the Wrong Guy

Paul Secunda has a new paper on SSRN that provides the full story of the famous First Amendment case Pickering v. Board of Education.  Paul interviewed the plaintiff, Marvin Pickering (now in his 70s), and collected other historical records in order to supplement the background information supplied in the United States Supreme Court’s decision.  Pickering was fired from his job as a public school teacher in Lockport, Illinois, in 1964 after he wrote a letter to the editor criticizing the Lockport School Board.  Pickering challenged his dismissal all the way to the Supreme Court and eventually won reinstatement.

In addition to recounting Pickering’s colorful life story and the history of the case that made him famous, Paul’s paper also critically appraises the post-Pickering cases that have pared back the First Amendment rights of public employees.  The paper appears as a chapter in the book First Amendment Law Stories.  An abstract appears after the jump. 

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