In June, the Supreme Court offered its’ latest pronouncement on the right of criminal defendants to represent themselves in court. The Court first recognized this constitutional right in 1975 in Faretta v. California, a case that I like to present in my Criminal Procedure course as one of the few instances in which the Supreme Court has given any real weight to the dignitary interests of criminal defendants (which are usually subordinated in criminal procedure to competing objectives, such as judicial economy and reliable fact-finding). I think the Court was right that it is profoundly demeaning for the state to force a lawyer on an unwilling defendant, and then authorize the lawyer to decide how the defendant’s story will be presented to the jury. (I discussed this point at greater length in this essay a few years ago.) Yet, the Court’s post-Faretta decisions have generally worked to diminish the scope of the right to self-representation, and the most recent (Indiana v. Edwards, 128 S.Ct. 2379 (2008)) is no exception. Continue reading “Edwards and Erosion of the Defendant’s Right to Self-Represent”
So says a wonderfully titled post on Prawfsblog by Matt Brodie. The point is that much of our political discourse is given over to charges of hypocrisy. We wrap ourselves into knots to be able to say that those we don’t agree with have been inconsistent. Anyone who even casually follows political blogs has read the hackneyed “pot, meet kettle” so often as to wish to never see or hear it ever again.
Why do we do this? My own view flows from two observations. The first is that our society has altered the former balance between the perceived value of personal authenticity in the sense of following your own lights and the virtue of conforming to a set of standards that originates outside yourself. We have moved toward a greater appreciation of the former. This is not to argue that we have given ourselves over to a radical moral relativism, only that our discourse had shifted in a way that charges of hypocrisy have a particular salience. Continue reading “It’s Hypocrisy All the Way Down”
The techie blogosphere is abuzz with the news that Michigan amended its private investigator licensing laws in May to add “computer forensics” to the list of activities that require a P.I. license in Michigan. This may not sound like big news, but it raises the possibility that MediaSentry, a company that gathers information on peer-to-peer filesharers for use in the RIAA’s lawsuits against online infringers, may be violating the law in several states. Given the general antipathy to the RIAA among the technorati, suddenly a large number of bloggers are interested in the arcane details of P.I. licensing requirements.
But the issues raised by the law go well beyond the RIAA lawsuits, and potentially affect any investigation of online misbehavior. Any lawsuit against an anonymous online individual begins with an attempt to identify that person. Furthermore, the definition of “computer forensics” in the Act is so broad that it includes printing out a web page for use in a lawsuit. Attorneys need to pay attention here too: the Michigan law exempts attorneys, but only if they are “admitted to practice in this state.” And other states have similar laws. So do you need a P.I. license or a bar admission in all 50 states before you can sue that defamatory blog poster?
As a frequent critic of the federal sentencing guidelines (see, e.g., my post from Monday), my readers–yeah, both of them–often assume that I dislike sentencing guidelines in general. To the contrary, I think that sentencing guidelines remain a good idea and have worked quite well in many states (not in Wisconsin, unfortunately, but I will leave that post for another day). The problem with the federal sentencing system is not that it has guidelines, but that it has bad guidelines. Continue reading “Federal Sentencing Guidelines Still Need Fundamental Reform”
Buoyed by a rising tide in California in general and Southern California in particular, U.S. unionization levels rose substantially this year, defying a decades-long trend of decline, according to a report by UCLA’s Institute for Research on Labor and Employment.
“The State of the Unions in 2008: A Profile of Union Membership in Los Angeles, California and the Nation” shows unionization rates nationwide rising half a percentage point over the 2007 level, to 12.6 percent of all U.S. civilian workers in 2008. The rate rose one-tenth of a percentage point between 2006 and 2007. Prior to that, the last time U.S. unionization rates registered an increase was in 1979.
Law deans, faculty, and of course students obsess a great deal over the rankings put out annually by the US News and World Report. Some like the rankings, and some hate them. Some find them important, while others dismiss them. Some propose improvements, while others suggest alternatives. Some join anti-US News letter-writing campaigns or even try to organize anti-US News boycotts (nothwithstanding that a concerted boycott of US News would seem to be an antitrust violation, given that horizontal group boycotts are per se violations of section 1 of the Sherman Act under the Supreme Court’s decisions in NYNEX and Klor’s).
But whatever one might think about the US News’s rankings, there can be no doubt that they evoke strong feelings, as attested to most recently by the many reactions in the legal blogosphere to this story on the rankings in last week’s Wall Street Journal. Because of the high level of interest in them, the rankings are a favorite (and possibly the overall most frequently written on) theme of law faculty blogging. Indeed, it almost seems as though a blogger who has yet to opine on the rankings subject cannot be taken seriously. So, lest I be thought an unserious blogger, here is a suggestion for how the US News’s law school rankings might be improved or replaced that has largely, though not entirely, been overlooked. (After drafting this blog entry I did a Google “preemption check” and noticed that a recent comment on the Moneylaw blog makes a suggestion that is similar to mine, and a somewhat more extended treatment is offered by Andrew Morris and Bill Henderson in a recent paper.)
The basic idea is this: why not use bar exam scores as a way to rank law schools? Continue reading “Bar Exam Scores as a Law School Ranking Metric”
Cross Posted: Indisputably
This summer I read the book Elements of Persuasion by Richard Maxwell and Robert Dickson. I’ll be blogging about other fascinating parts of the book, but today, in honor of Harley Davidson’s 105th anniversary, which was celebrated last weekend (with thousands of Harley riders in town, including up and down the main street in front of the Law School), I want to highlight what the authors called “mirror neuron training.” This means that people build empathy for each other by mirroring and matching physical actions. For successful companies, Maxwell & Dickson argue that close physical contact is associated with successful corporate branding because of this mirror neuron training. So, when we walk into Starbucks, we notice how the physical labor of taking orders, making coffee, and serving it appears to happen seamlessly. This is, according to the book, because of mirror neurons, which take care of the physical movements, allowing the baristas to focus on small talk and smiling at their customers. Continue reading “Persuasion Through Harley Davidson”
My colleague Paul Secunda recently wrote this pointed essay on the Supreme Court’s Ledbetter decision for the Workplace Fairness Blog. Ledbetter made it harder for plaintiffs with Title VII pay discrimination claims to prevail by holding that the statute of limitations runs separately on each of a series of discriminatory pay decisions, even though the cumulative effects of the decisions may continue to be felt for many years thereafter. Paul argues in his essay that Ledbetter is “absurd” inasmuch as it requires some victims of discrimination to file their claims before they have a fair opportunity to discern the discrimination. He urges Congress to pass a pending legislative fix, the Lilly Ledbetter Pay Equity Act, and notes that the issue is one that divides the current Republican and Democratic presidential nominees.
This fall the Wisconsin Supreme Court will revisit the issue of whether to permit citation of unpublished Wisconsin Court of Appeals opinions. The issue is scheduled for hearing on October 14, 2008. The current rule forbids citation of unpublished opinions “as precedent or authority, except to support a claim of claim preclusion, issue preclusion, or the law of the case.” Wis. Stat. § 809.23(3). In January, the Wisconsin Judicial Council filed a petition asking the court to amend the rule to permit citation of unpublished opinions “for [their] persuasive value.” Continue reading “Petition to Permit Citation of Unpublished Decisions of the Wisconsin Court of Appeals”
Kicking off a terrific speaker series at Marquette this semester, Dan Markel of Florida State and PrawfsBlawg fame is with us today to present his paper How Should Punitive Damages Work?. This is the second part of a multi-article series in which Dan is developing a comprehensive reform proposal for punitive damages law. Dan’s basic premise is that punitive damages should be reconceptualized around principles of retributive justice. To the extent that we want punitive damages to do other things (e.g., compensate victims for dignitary harms), Dan urges that we give those forms of damages different labels and treat them in a procedurally distinct manner from retributive damages. Notably, he would give retributive damages awards to the state, not private plaintiffs; plaintiffs would get merely a small finder’s fee ($10,000) and attorneys’ fees. Continue reading “Retributive Damages in a World Without Trials”
My colleagues Nadelle Grossman and Kali Murray have recently prepared this informative podcast regarding the implications for I.P. licensing of the Supreme Court’s recent decision in Quanta Computer, Inc., v. LG Electronics, 128 S.Ct. 2109, 170 L.Ed. 2d 996, 76 USLW 4375 (June 9, 2008). I understand that this will be the first in an occasional series of podcasts on current issues in intellectual property prepared by Marquette’s I.P. professors. This is an exciting new venture, and I look forward to hearing their future productions.
The Ninth Circuit Court of Appeals, sitting en banc, recently decided an interesting religious freedom case. In Navajo Nation v. U.S. Forest Service, American Indians sought to prohibit the federal government from allowing the use of artificial snow for skiing on a portion of a public mountain considered sacred in their religion. Apparently, the government planned to use recycled wastewater, which contains 0.0001% human waste and would, in the view of some of the plaintiffs, desecrate the entire mountain, deprecate their religious ceremonies, and injure their religious sensibilities. This, they argued, would violate the Religious Freedom Restoration Act.
The RFRA, in general, allows plaintiffs to challenge government practices that substantially burden the exercise of religion. If there is a substantial burden, the government must demonstrate that the burden is the least restrictive means to achieve a compelling interest. It was enacted in response to a Supreme Court decision that said, essentially, no such claim could be brought against neutral laws of general applicability under the Constitution’s Free Exercise Clause.
The Ninth Circuit (over three dissents) rejected the challenge. That doesn’t surprise me. Any rule that required accommodation of the plaintiffs’ claim here would likely result in religiously based gridlock on a host of policy questions. The outcome tracks an earlier Free Exercise decision. What interests me is the court’s reasoning. Continue reading “Desecrating a Sacred Mountain”