SBM Blog

Law Prof Says Handwritten Blue Books Exams Better Written Than Exams Done on Laptops

Now this is counterintuitive -- a professor who prefers handwritten exams.  They may be harder to read but Duke Law Prof. Eric Gerding at The Conglomerate says it's a quality thing:

I've found (in a non-statistical study) that blue book exams are not only more concise, but generally evidence clearer and more cogent thought.  (Should any of my students from this past semester read this, don't take this as a commentary on your performance.  I am only starting my grading later this afternoon).  Unable to cut and paste with two keystrokes and a mouse click, blue book writers seem to take a lot more care in crafting their sentences and paragraphs.  The big shift towards lap top usage may have a large downside not only for class participation, but for the quality of legal writing and analysis.

And, he says, same goes for academic writing.  So, I guess, the question becomes -- ballpoints or fountain pens?

Governor Will Not Fill COA Vacancies, Will Support Bill to Reduce Judgeships

Governor Snyder's press secretary has confirmed that the Governor will not fill the two current vacancies in the Court of Appeals, and will support legislation to eliminate the seats.  "This decision to not fill these two posts reflects the governor's desire to match and align the number of judgeships with a significantly reduced caseload at the court." she said. The Governor's decision is consistent with the position of the Chief Justice, who has also called for judgeship reductions, based on attrition.  The State Court Administrative Office will be issuing its report on judicial needs in August.  According to a story in the Detroit News, the chief of staff and general counsel for the Supreme Court, Matthew Schneider, praised the Governor for taking a courageous and unprecedented step.  "Governor Snyder has taken a bold step to do what is good public policy," he said.

Bush Watchdog Special Counsel Gets Prison Sentence

The Special Prosecutor who called in Geeks on Call to wipe his government computer clean after he came under investigation for retaliating against his own employees and closing whistle-blower cases without investigation is going to jail.  Despite the concurrence of both the prosecutor and defense counsel that the appropriate sentence for former Special Counsel Scott Bloch is probation, U.S. Magistrate Judge Deborah Robinson today sentenced him to one month's imprisonment.  Bloch's sentencing was rescheduled nine times as the lawyers tried to convince the judge that probation was appropriate.  Bloch is appealing and is also suing the government for violating his privacy by to the Wall Street Journal that Bloch had arranged for the computer scrub. The New York Times has a detailed story.

The Michigan House Did WHAT?

There was a moment of surprise and incredulity Tuesday when one of Lansing's two major insider news services emailed a flash news update to subscribers headlined "House Committee Approves Revised Collective Bargaining Bill." The update went on to report that the bill restricted the collective bargaining power of public employee unions and was passed while hundreds protested in the Capitol.

20 minutes later a second email arrived -- the flash update was intended for Ohio subscribers regarding action in the Ohio House of Representatives, and was sent in error to Michigan subscribers.

Carry on, everyone.

Help Explaining Michigan Courts to Clients and Lay Friends

The Michigan Supreme Court has a terrific guide called The Journalist's Handbook on Michigan Courts.  Here's the PDF.

Eloquent Nostalgia for the (Hand)written Word

You won't find much better than this: The Font of the Hand.  (Tip: The text of this article advances by clicking the righthand "+" sign.)

HT: Slaw

When Your Brief Says One Thing, and the Website of the Cause You're Defending Says Another

Sounds like a sticky hypothetical, but something along those lines happened Monday in oral argument before the U.S. Supreme Court.  The case was a challenge to Arizona's law that provides additional campaign funding to a candidate who accepts public funding whenever an independent group spends more than a certain amount campaigning against the candidate, or, the candidate's opponent refuses public funding and spends more than a trigger amount on the campaign.  If the law was enacted to "level the playing" field for candidates who aren't rich or don't attract large amounts of third party expenditures, then it almost certainly runs afoul of the First Amendment based on prior case law.  If the law was enacted as an anti-corruption measure then it's on much sounder ground.  And so it was that this interesting exchange occurred during yesterday's argument:

Chief Justice Roberts:  Counsel, do you agree that under our precedents, leveling the playing field for candidates is not a legitimate State purpose?

Mr. Jay: We do, Mr. Chief Justice.  That -- that, of course, is not what's a work here.

Chief Justice Roberts: Well, I checked the Citizens' Clean Elections Commission website this morning, and it says that this act was passed to, quote, "level the playing field" when it comes to running for office. Why isn't that clear evidence that it's unconstitutional?

The beleaguered Mr. Jay gave what is likely the best (and only) answer possible under the circumstances:

Mr. Jay:  Well, Mr. Chief Justice, whatever the Citizens Clean Elections Commission says on its web site I think isn't dispositive of what the voters of Arizona had in mind when they passed this initiative.  The Court -- this Court has recognized since Buckley that public financing serves a valid anticorruption purpose, and it does so because it eliminate the influence of private contributions on the candidates who take public financing...

Most post-mortems of the oral argument predicted that the Court will hold against the public finance law, with the same majority that decided Citizens United.

Here's the transcript of the oral argument.

If Not Miranda, Then What?

Last week the Wall Street Journal reported that the Obama Administration has okayed new FBI rules that allow investigators to hold some domestic-terror suspects longer than others without a Miranda warning, which the story describes as a significant expansion to the public safety exception to Miranda.  NYU Law prof Rick Pildes at Balkinization asks: if there is a legitimate intelligence-gathering need, should Miranda be modified in this way?:

Here's one way to test intuitions about this: suppose we could be confident that the interrogations would be lawfully conducted (ie, no unlawfully coercive techniques). There are clever institutional structures one can imagine to help ensure that: the interrogations could be videotaped, or a neutral third-party observer (say, a retired federal judge or others) could observe the interrogation from behind a one-way window. For those troubled by the new FBI policies, would there be any objection in these circumstances? In other words, if we can find ways to preserve the values and functions Miranda seeks to realize, while also reducing the tension between criminal law enforcement and intelligence gathering functions, is there some remaining powerful reason to resist these new FBI policies?

 

If you want to beat up prisoners, you'll just have to keep on doing it the way you do now: illegally and with no rational justification. Because, say, you like it.

In the meantime, there's no need to square the rights of the accused with the needs of The City. That's a false choice. If you're beating up prisoners, please don't tell us it was to save the City. The facts are otherwise.

So I'd say this whole question misses the mark. There's no issue of law here, how to make it legal and such. There's no issue of public safety here. We pretend there is, for discussion or because it sounds exciting or because some of us sincerely but mistakenly believe it; there isn't.

This is not about law. We can have any law we want. We can have law that gives law enforcement an incentive to mistreat, torture, railroad, and extort the accused. Lots of places do. If that's how we want to be.

Getting to Know the New State Court Administrator

Here's a good start -- Chad Schmucker reflects on nearly 20 years of years of service as he prepares for new job, from the Jackson Citizen Patriot.  If the assessment of his colleagues is correct, Schmucker and the job are a great fit:

Called logical, even-tempered and reasonable, Schmucker, 56, will excel in his new position as state court administrator, overseeing management of the state’s 246 trial courts, his colleagues said. He has a knack for numbers, operates efficiently and cooperatively, and is adept at finding technological solutions, they said.

“He will be in all his glory, fixing problems,” said Joe Hankis, Schmucker’s court officer for about 10 years and coordinator of Schmucker’s recovery court, an intensive program for felony offenders struggling with drug and alcohol addictions.

Breaking: Chief Justice Says Don't Fill Court of Appeals Vacancies; Governor Listening

MIRS news is reporting that Chief Justice Robert Young has urged Governor Snyder not to fill the two vacancies on the Court of Appeals, as a first step on the road to trimming the court down to 24 judges and achieving substantial savings in the judiciary budget.  The Governor's office posted the vacancies March 4 on the State Bar of Michigan website, but his press secretary, Sara Wurfel, said that Snyder is holding a "variety of meetings with officials to seek input" on both the judicial "need and structure of the court."

Caseloads have been declining at the Court of Appeals for many years, and in 2009 the State Court Administrative Office's Judicial Resource Recommendations called for a reduction of four judges.  As have his predecessors, the Chief Justice says that judgeships should be eliminated at the point at which there is a vacancy -- when a sitting judge dies or retires, rather than at the end of a term.  Such a process is viewed as reducing the politics of reducing the number of judgeships, and as leading to a more predictable and orderly outcome.  The Judicial Crossroads Task Force Report, which supports the concept of reducing judgeships through attrition based on a respected and objective formula, says that given the state's mandatory retirement at age 70 requirement and an aging bench of Gen X and baby boomer judges, sticking with the attrition principle will not be an obstacle to making needed reductions throughout the court system.

Meanwhile, attorney Richard McLellan raised an issue pointed out by former Chief Judge William Whitbeck -- that Art. 6, Sec. 8 of the Michigan constitution refers to increases in the Court of Appeals but not decreases:  "The number of judges comprising the court of appeals may be increased, and the district from which they are elected may be changed by law."  This raises the question of whether the constitution was intended to ban a decrease in judgeships regardless of need.  Editorial comment: It would be ironic indeed if Michigan's constitutional article on the judicial branch, whose provisions put flesh on principles of separation of powers, was found to prevent principled and cost-savings changes in the numbers of judges recommended by Chief Justice himself.