SBM Blog

The Ultimate Eyewitness

It has been a banner year for eyewitness jurisprudence: the U.S. Supreme Court has granted cert in its first eyewitness case in more than 30 years, and the New Jersey Supreme Court last week issued "sweeping" new rules making it easier for defendants to challenge witness testimony, and now, from Gizmag, comes word of the ultimate eyewitness ...

 

 

 

 

 

 

Rob Spence lost his right eye in an accident when he was 9 years old. Now a film-maker, he's replaced his prosthetic eye with a tiny video camera. Here's his blog.

Image: Rob Spence via Gizmag

What Deregulated Legal Services Look Like in England Now

The Law Store is just one of a number of new approaches to delivering legal services in England in the wake of new legal reforms described in  this story in the Guardian:

There is no doubt that lawyers are feeling threatened by this "consumerisation" of the profession and the introduction of alternative business structures (ABSs) and non-lawyer ownership of law firms – likely to start early next year – will only accelerate this. The LawStore and its ilk could be small beer alongside the likes of Co-operative Legal Services, which has built up a £24m legal business in less than five years and already offers advice over the phone.

Tom Brokaw on Japanese-American Internment

 

A new interpretive learning center about the Japanese-American internment experience opened last week in Park County, Wyoming, at the site of a former World War II internment camp that that held nearly 11,000 Americans of Japanese ancestry between 1942 and 1945. The site was designated a U.S. National Historic Landmark in 2006. Shirley Ann Higuchi, past president of the District of Columbia Bar Association and chair of the Heart Mountain Wyoming Foundation that brought the center to fruition, is a University of Michigan grad.  Higuchi said the purpose of the center is to preserve the historic site and interpret what occurred there for the current and future generations of Americans. Guest speakers at the opening included Norm Mineta, Alan Simpson, Irene Hirano Inouye, and Tom Brokaw. Video: Trib.com

Oh Canada: Example of A Kinder, Gentler Kind of Regulation

Remember the Red Flags rule that the FTC tried to impose on lawyers, failing both in court and ultimately in Congress thanks to the combined opposition of the ABA and state bar associations?  Compare that experience to this.  The Office of the Privacy Commissioner of Canada has released a handbook called PIPEDA and Your Practice — A Privacy Handbook for Lawyers, that it says “describes best practices in managing the collection, use and disclosure of personal information, responding to requests for access to personal information, and the potential application of PIPEDA. The Handbook covers practical privacy issues that arise in the course of managing a law firm and conducting litigation.”

HT: Slaw

Lawyers and Historians: Spot the Similarity

From Historical Amnesias: An Interview with Paul Connerton

We need to distinguish cultural memory from historical reconstruction. Knowledge of all human activities in the past is possible only through knowledge of their traces. It might be the bones buried in Roman fortifications, or a pile of stones that is all that remains of a Norman tower, or a word in a Greek inscription whose use reveals a custom: in all these cases what the historian deals with are traces, that is to say, the marks which some phenomenon has left behind. Simply to apprehend these marks as traces of something is to have gone beyond the stage of making statements about the marks themselves; to consider something as evidence is to make a statement about something else, that is to say about that for which it is taken as evidence.

Historians, in other words, investigate evidence in much the same way as lawyers cross-question witnesses in a court; they extract from that evidence information which it does not explicitly contain or even information which was contrary to the overt assertions contained in it. Historians are able to reject something explicitly told to them in their evidence and to substitute their own interpretation of events in its place. And even if they do accept what a previous statement tells them, they do this not because that statement exists but because that statement is judged to satisfy the historian’s criteria of historical truth. Far from relying on authorities other than themselves, historians are their own authority; their thought is autonomous vis-à-vis their evidence, in the sense that they possess criteria by reference to which that evidence is criticized. Historical reconstruction is therefore not dependent on social memory. It is autonomous with regard to social memory.

HT: MEH

Spot the Issue(s): Mug Shots as Commercial Art

The New York Times brings us the story of a business in Ohio that is turning mug shots from the 1950s into prints, posters, notebooks and tote bags (what, no mugs?).  The mug shots have traveled from a county sheriff's department in California, to a flea market, to an antiques dealer in Nevada, to two enterprising artists in Ohio, who digitally enhanced the images and removed identifying information.

Noting that the legal issues are unclear, the story asks the hard questions:

Should there be privacy protection for the subjects, as well as safeguards to the way public agencies dispose of potentially embarrassing “hard copies” of records, in an age known for using digital technology to recycle found images into art? And, even when it is not the intent, does finding a new use for material like an old mug shot amount to profiting off someone else’s ancient misfortune?

Vintage Mug Shot Poster from Larken Design.

MSU College of Law Age-Discrimination Plaintiff Explains His Bigger Objective

Nicholas Spaeth is a very accomplished guy, he wants to be a tenure-track law professor, and he's suing a lot of law schools, including MSU College of Law, because he thinks he's being discriminated against on the basis of age.  In the National Law Journal (subs. req.), he explains that the issue is bigger than his own quest for a job -- he wants to fundamentally change legal education by increasing the emphasis on practical skills.  And he says to do that law schools need to value -- and hire -- experience and success as a practicing lawyer, and shift decisions on hiring away from faculty:

Although law schools still need to teach fundamentals like constitutional law where scholarly inclined 30-year-olds fresh out of a clerkship can focus their lives, an increasingly imperative need is for skilled and experienced practitioners teaching transaction-based classes. It is difficult to convincingly argue that a teacher who has spent his or her entire career in academe is more qualified to train transactional lawyers than those who have years of experience negotiating, documenting and closing actual business deals. Most long-term faculty members are ill-equipped to do so and likely do not fully appreciate it. They may be good scholars, but as Chief Justice John Roberts Jr. recently observed when commenting on their publications, "what the academy is doing, as far as I can tell, is largely of no use or interest to people who actually practice law." Adam Liptak, "Keep Those Briefs Brief, Literary Justice Advises," N.Y. Times, May 21, 2011, at A12.

7th Circuit Court Refers Attorney to Disciplinary Agency for Inadequate Argumentation

From the opinion in Wroblewska v Holder, decided August 24 (emphasis added and citations omitted):

If there is a good due process challenge to Operation Durango out there, we would not know from the arguments made here. Indeed, the entire argument section of Wroblewska’s opening brief in this court included only about 500 words. The substance of her claim—apart from a conclusory suggestion that the Supreme Court’s decision in INS v. Lopez-Mendoza is distinguishable—is presented in a single paragraph ...
Attorney Baniassadi did not attempt to elaborate on this statement or to respond to any of the government’s counterarguments, because he chose not to file a reply brief.
In addition to the fact that counsel’s argument on behalf of Wroblewska is so cursory, it is also unsatisfactory because, without explanation, it relies on an argument that had been squarely foreclosed in another decision about Operation Durango that we issued one year before Wroblewska’s opening brief was filed. We said in Krasilych that a petitioner who “blithely asserts that ‘Fourth Amendment violations’ in Operation Durango were ‘widespread and egregious’” does not demonstrate a violation of the Fourth Amendment or of any other liberty. Attorney Baniassadi attempts to explain away Krasilych in a footnote, remarking that he filed Wroblewska’s notice of appeal in the agency before we issued our decision in Krasilych. This is a non sequitur, not a ground on which our prior decision can be distinguished. Attorney Baniassadi knew of Krasilych when he filed his brief and he should have confronted it. Instead, he repeated the precise mistake that we criticized in Krasilych: he blithely asserts that Operation Durango was “an egregious violation of due process rights,” but he does not explain why. It would be different if he had acknowledged our earlier decision and indicated that he was preserving a point for further review, but there is no such indication in the brief. The Supreme Court has required a showing of “egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness” before the exclusionary rule will apply in immi- gration proceedings. It makes no difference that Wroblewska’s argument is styled as a due-process argument rather than one based on the Fourth Amendment. Finally, to the extent that the brief suggests that Wroblewska was entrapped, counsel misunderstands entrapment. “Entrapment refers to the use of inducements that cause a normally law- abiding person to commit a crime.” At the time that Wroblewska was caught in the sting she was com- mitting a continuing violation of the immigration laws and had no basis for applying for an adjustment of status. Operation Durango simply brought her to the attention of immigration officials.
For these reasons we must deny Wroblewska’s petition for review. We are disturbed, however, by Attorney Baniassadi’s perfunctory performance. People in Wroblewska’s position face life-changing consequences from their immigration proceedings. Because Attorney Baniassadi’s effort fell far below the minimum standards for competent representation in this court, we are requesting the Clerk of the Court to forward a copy of this opinion to the Illinois Attorney Registration & Disciplinary Commission.
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What If Your Death Row Client Refuses to Allow You to Offer Exculpatory Evidence?

Your client is charged with the first degree murder of a grocer and his son, and the prosecution's key evidence is your client's shotgun wound.  Your client has a plausible explanation for the wound but refuses to let you offer it. The black letter law says this is not a hard call -- you can't do it. You can violate attorney-client privilege to save somebody else's life, but not your own client's. This is true even if it's 1915, your client's name is Joe Hill, and the whole world is watching.  According to this story in the New York Times, a new book about the radical activist Joe Hill to be published this week makes a strong case for Hill's innocence.  Cue Joan Baez.

"Serfs, Jesus, and the Establishment Clause in Advanced Placement History Class"

It is not possible to improve on CUNY law prof Ruthann Robson's post title describing a 9th circuit case, CF v. Capistrano Unified School District (PDF), and so I haven't tried. Full props to the professor.  The case is a First Amendment minefield and well worth a read.  A veteran California high school teacher, Dr. James Corbett, riled a 15-year old student and his parents by lacing his AP European history classes with derogatory comments about religion.  The student recorded the lectures without Corbett's permission, and the court bases its reasoning on the transcript of the recordings while noting that Corbett alleges some of the recordings and transcripts were edited and statements taken out of the context.  Here's a sample, from a lesson about Holy Roman Emperor Joseph II:

[H]ere is Joseph II. He’s trying, for example, to end serfdom. Serfdom in which the peasants, the Ser[f] class, on these estates [were], literally, property. They had no rights to speak of at all. He doesn’t just go that far. I mean, he tries to get them land. He . . . really has the interest of this class of people at heart, and the — the reforms that he makes really are going to make the lives of these peasants massively better. So why do the peasants oppose him? . . . Because he also tried to reform religion, and the peasants love their church.
It’s the same thing here. You know, you go down to Georgia, Alabama, Mississippi, all these states that are as red as they could possibly be, as right-wing Republican as you could possibly be. [But] [w]hen you first present these people with the economic pol- icies of the Democratic party, they are all Demo- crats. Virtually all the social programs they like. . . .
How do you get the peasants to oppose something that is in their best interest? Religion. You have to have something that is irrational to counter that rational approach. No problem. . . . [W]hen you put on your Jesus glasses, you can’t see the truth. Um, Joseph made these reforms with no consultation, with no consent. (Inaudible) in the state.

The 9th circuit opinion leaves the field still a little muddled. Dr. Corbett is granted qualified immunity, but the opinion says that "at some point" a teacher’s comments on religion might cross the line and rise to the level of unconstitutional hostility.  And Prof. Robson raises a rhetorical eyebrow that the court found it worth noting that Dr. Corbett "is a Christian who regularly prays and attends church services."

When the district court opinion came down in 2009, Eugene Volokh had some typically interesting commentary, including this: