SBM Blog

This Year In Court Restructuring

The National Center for State Court's Gavel to Gavel blog has a handy post, "Michigan Year in Review: restructuring an entire state’s trial court system," that rounds up all the new laws affecting Michigan state courts enacted by the Michigan legislature in 2012: HB5071, HB5072, HB5073, HB5074, HB5075, HB5093, HB5094, HB5095, HB5101, HB5102, HB5103, HB5104, HB5105, HB5106, HB5107.

'Tis The Season: Embarrassing Law School Exam Mistakes

Above The Law makes it a practice this time of year to post about the bad things law professors do concerning exams, including reusing old exams, recycling practice exam questions, leaking an exam on a list serve, taking multiple choice questions directly from a commercial study guide (okay, that's a Volokh Conspiracy nugget), and, most recently, sending the exam and all the answers instead of the instructions for taking it.

My favorite comment on the subject was in response to the Volokh Conspiracy post on reusing law school questions:

The advantage of teaching taxation is that you can use the same questions every year, but Congress will change the answers for you.

Bloodhounds Get No Respect In Indiana

An Indiana trial court judge in Porter County (think Valparaiso) has denied a motion by prosecutors to use dog-tracking evidence in a high-profile murder trial there, citing Indiana case law nearly a century old to the effect that “bloodhound evidence is inadmissible because it is an unreliable form of evidence.” Prosecutors had hoped to enter testimony that a tracking dog, whose name happens to be Jury, had alerted to the defendant's scent at the site near his home where the body of his former girlfriend was found.

 

From the 1917 case, Ruse vs. State:

When it is considered that the use of bloodhounds, even under the most favorable conditions, is attended with some degree of uncertainty, which may readily lead to the conviction or accusation of innocent persons, and that, at best, evidence as to their conduct in following a supposed trail is properly not of a great probative value, it follows . . . that both reason and instinct condemn such evidence, and courts should be too jealous of the life and liberty of human beings to permit its reception in a criminal case as proof of guilt.

 

The Chesterton Tribune reports that even without the negative case law it was unclear how the prosecution hoped to use the evidence, because the tracked scent was over five months' old and the victim had been transported in a vehicle. 

 

The bloodhound's name is Jury.

 

HT: Indiana Law Blog

Remembering Robert Bork, 1927-2012

 

Robert Bork, whose failed nomination to replace Lewis Powell on the U.S. Supreme Court is widely described as a turning point in the history of the nominations process, died yesterday in Washington, D.C. A former Solicitor General, antitrust scholar, celebrated "originalist," and law school professor (his students included Bill Clinton, Hillary Rodham Clinton, Anita Hill, Robert Reich, Jerry Brown, and John Bolton), Bork was nominated to the U.S. Supreme Court by Ronald Reagan, who turned to Anthony Kennedy when Bork's nomination was blocked in the Senate. C-Span has the entire week of testimony and transcriptions in its video archive.  Above, looking like Robert Redford, then University of Michigan Law School dean Lee Bollinger testifies against Bork's nomination before a Senate Committee presided over by Joe Biden, with hair.

Applications Sought For Eastern District Federal Judgeships

Senators Carl Levin and Debbie Stabenow announced Tuesday that they are seeking applicants to fill vacancies for judgeships on the U.S. District Court for the Eastern District of Michigan. The application process covers two current vacancies as well as any that may occur in 2013 and 2014. The deadline for application is 5 p.m. Friday, January 25, 2013. Applications are on both Sen. Levin’s website and Sen. Stabenow’s website.

Governor's Gun Bill Veto Message

Ladies and Gentlemen:

            Senate Bill 59 makes a number of wise and necessary reforms to Michigan’s weapons laws. The bill provides for an enhanced Concealed Pistol License that would require additional training. It would streamline the Concealed Pistol License process by eliminating county gun boards and vesting issuing authority with the sheriff.

            More important, SB 59 addresses a feature of Michigan law that needs fixing --- Michigan’s open carry law.  The law currently prohibits a concealed pistol license holder from carrying a concealed weapon in a “pistol-free zone,” which includes a school, a day care center, a sports stadium, a bar, a church, a hospital, an entertainment facility, and a college classroom or dormitory.  Ironically, current law does not prevent a concealed pistol license holder from openly carrying a pistol at these places.

            My original hope with Senate Bill 59 was to reach a compromise by prohibiting the open carry of pistols in the above-mentioned pistol-free zones in exchange for lifting the prohibition on the carrying of concealed weapons in those zones---subject to the approval of the public or private property owners.

            The resulting bill only went part way in achieving that goal.  The bill would allow private property owners to prohibit a person from carrying a concealed pistol on their private property.  It permits certain universities and colleges to adopt an ordinance prohibiting the carrying of a concealed pistol.  Unfortunately, the bill did not allow public schools, public day care centers, or public hospitals to prohibit persons from carrying concealed weapons on their premises.  For that reason, I am vetoing Senate Bill 59.

             I believe that it is important that these public institutions have clear legal authority to ban weapons from their premises.  Each is entrusted with the care of a vulnerable population and should have the authority to determine whether its mission would be enhanced by the addition of concealed weapons.

                                                            Sincerely,

 

                                                            Rick Snyder

                                                            Governor

Download Veto. (PDF)

Measure Twice, Cut Once

Thinking clearly in the face of horror is obviously difficult. When an otherwise thoughtful and articulate professional journalist veers this dramatically off course in her debut Newsweek article, it's worth thinking about how such mistakes happen. Here's Megan McArdle's jaw-dropping idea for how to deal with the threats like Sandy Hook:

I'd also like us to encourage people to gang rush shooters, rather than following their instincts to hide; if we drilled it into young people that the correct thing to do is for everyone to instantly run at the guy with the gun, these sorts of mass shootings would be less deadly, because even a guy with a very powerful weapon can be brought down by 8-12 unarmed bodies piling on him at once.  Would it work?  Would people do it?  I have no idea; all I can say is that both these things would be more effective than banning rifles with pistol grips. 

The image alone should warn one off from taking this seriously. McArdle is a libertarian, and it seems to me that one of the most appealing features of libertarianism is its hard-headedness about human nature. Mark this, in my opinion, a total failure on that front.

Where were her editors? Wasn't it their job to say "Great dress, but you might not want to go out on stage wearing those ridiculous shoes?" Or is the point just to attract readers with an outrageously ill-conceived idea?

This blogger mostly flies without a net (editors) and I have a few doozy lack-of-proofreading errors to my discredit as a result, but when I am writing something tricky and consequential I try to follow the adage "measure twice, cut once," editing and re-editing and calling upon others for help. Not a bad practice for any writer, including lawyers.

Blogosphere Gives Instagram's New Terms of Use The Fish Eye

Can't imagine why:

Some or all of the Service may be supported by advertising revenue. To help us deliver interesting paid or sponsored content or promotions, you agree that a business or other entity may pay us to display your username, likeness, photos (along with any associated metadata), and/or actions you take, in connection with paid or sponsored content or promotions, without any compensation to you. If you are under the age of eighteen (18), or under any other applicable age of majority, you represent that at least one of your parents or legal guardians has also agreed to this provision (and the use of your name, likeness, username, and/or photos (along with any associated metadata)) on your behalf. (Emphasis added.)

Among legal blogs, Webtechlaw's "The Facebookification of Instagram's Terms of Use" has an explanation of all the changes, and promises a more detailed review. Its conclusion? "Very odd."

Apparently, this is the week for Instagram to be under the media microscope. The NYT story "Disruptions: Instagram Testimony Doesn’t Add Up" looks at the testimony of Instagram's CEO last August at a hearing of the California Corporations Department to determine if Facebook’s acquisition of the photo sharing service was in the best interest of Instagram's investors, and suggests something is fishy.

Photo: Instagram of London fishmarket.

Fair Compensation For Federal Judges

An otherwise fine AP story in the Detroit News about a lawsuit on federal judicial compensation opens with this subtly snide sentence:

With the nation teetering on an economic "fiscal cliff," federal judges may soon force Congress to dedicate possibly millions of dollars to what some of those same judges must consider a worthy cause: their own salaries.

There are two big problems with the subtext of this opening.  First, it suggests a greedy move by judges. In fact, as the story eventually points out, federal judges have a very legitimate gripe. Their pay is supposed to be adjusted for cost of living but Congress has withheld COLA increases several times while giving other federal employees increases. As a consequence, the effective pay of federal judges, never extravagant, has deteriorated significantly compared to the legal market, and today falls well short of what even many first-year associates in big law firms earn.  Second, and just as importantly, the opening reinforces the dangerous myth that the nation's fiscal crisis can be solved by dribs and drabs, a loophole here, a nip-and-tuck there. The cost of fair compensation for judges is not even a drib -- it's an infinitesimal fraction of a drib (the entire Federal Judiciary budget accounts for less than 0.2% of the U.S. budget).

And don't get me started (again) on compensation for Michigan's judges, who haven't seen any pay increase in over a decade, while benefits have decreased.

Lawyers perenially grouse about judges, and admittedly there will always be a few who don't live up to the high standards that the calling demands, but if we don't stand up for fair compensation for those who preside over our courts, how can we as lawyers justify what we charge for our own professional efforts?

Breaking: Jocelyn Benson Named Interim Dean of Wayne State Law School

Wayne State University has announced the appointment of Jocelyn Benson as interim dean of the Law School effective today. Robert Ackerman did not seek reappointment to a new five-year term, and left the deanship on Nov. 28,  the last day of law classes. He will return to full-time teaching next semester.  John Rothchild, associate dean and associate professor of law, has served as acting dean.

Dean Benson is the associate director of the Damon J. Keith Center for Civil Rights, and founded and is the executive director of the nonpartisan Michigan Center for Election Law and Administration, which hosts projects that support transparency and integrity in elections. Prior to joining Wayne's law faculty, she clerked for Judge Damon J. Keith on the U.S. Court of Appeals. Like Dean Ackerman, she is a graduate of Harvard Law School.