SBM Blog

Are New Law School Grads "Prosecutor-Ready"?

A buzz-phrase of the ongoing debate about the effectiveness and future of U.S. legal education is  "practice-ready" graduates. John Steele at Legal Ethics Forum reminds us of Justice Ginsburg's dissent in Connick v. Thompson, the case that held that a district attorney's office is not liable under Section 1983 for failing to train its prosecutors based on a single Brady violation. Ginsburg criticized the majority for assuming that law students learn all they need to know about criminal procedure and the Brady doctrine to be constitutionally-compliant prosecutors. Steele flags "Prosecutorial Training Wheels: Ginsburg's Connick v. Thompson Dissent and the Training Imperative," a study by Northwestern law grad (and Hope College alum) Timothy Fry, who finds that only a quarter of schools make criminal procedure a graduation requirement and that most criminal procedure textbooks provide only cursory treatment of the Brady doctrine.

Work-Life Balance: Tribute To An Influential Michigan Native

If lawn maintenance is chewing up your non-billable hour free time, you might be interested in this New York Times obituary for Grand Rapids native and University of Michigan graduateJames Van Sweden, a landscape architect who pioneered a revolt against manicured lawns.

Beware Of Calling Your Opponent's Argument "Ridiculous"

From Bennett, et al. v. State Farm Mutual Auto. Ins., released last week by the 6th Circuit Court of Appeals:

KETHLEDGE, Circuit Judge. There are good reasons not to call an opponent’s argument “ridiculous,” which is what State Farm calls Barbara Bennett’s principal argument here. The reasons include civility; the near-certainty that overstatement will only push the reader away (especially when, as here, the hyperbole begins on page one of the brief); and that, even where the record supports an extreme modifier, “the better practice is usually to lay out the facts and let the court reach its own conclusions.” Big Dipper Entm’t, L.L.C. v. City of Warren, 641 F.3d 715, 719 (6th Cir. 2011). But here the biggest reason is more simple: the argument that State Farm derides as ridiculous is instead correct.

HT: Indiana Law Blog

What Is ACLU's Most Creative Legal Argument?

ACLU MIchigan's "right to read" lawsuit against Hamtramck Public Schools was described by WSJ Law Blog as "a groundbreaking action with national implications." Now, Slate's Dahlia Lithwick describes the case of Lakisha Briggs, a 34-year-old single mom in subsidized rental housing in Norristown, Pa. Briggs was repeatedly brutalized by her boyfriend, and had called 911 on a number of occasions. A Norristown city ordinance says that a tenant who makes three or more 911 calls within four months can be evicted, and the landlord's rental license suspended. Sometime after passing the limit on 911 calls, Briggs was attacked again. Just before she passed out she begged a neighbor not to call 911. The neighbor called anyway and may have saved Briggs' life. But Brigg's landlord was served  notice that if Briggs and her 3-year-old weren’t evicted he’d lose his rental license. Lithwick writes:

Last April the Women’s Rights Project of the American Civil Liberties Union and Briggs’ lawyer sued the borough of Norristown on behalf of Briggs, arguing that its disorderly behavior ordinance—and hundreds of similar laws around the country—unconstitutionally punish protected First Amendment speech, fall most heavily of victims of domestic violence, and recast those victims as a public nuisance. Last week a federal judge in Pennsylvania ruled that the "complex and novel" question of whether towns can evict tenants who call 911 too often can go to trial. The Briggs suit is being watched by civil rights advocates around the country.

Dust Off Your Contract Clause Expertise

Bone up for those cocktail party conversations about the Detroit bankruptcy by remembering everything you learned in law school about the Contract Clause of the U.S. Constitution. In a long piece at the Reason Foundation, Sasha Volokh explains why:

The future of pension reform ... depends heavily on this constitutional issue. On the one hand, it seems right that a state shouldn’t be able to violate its contracts whenever they seem too expensive, even if the contracts were ill-advised to begin with, and even if this will cost the taxpayers. After all, the state can’t take private property without paying for it (obviously, at taxpayers’ expense); why should it be able to “take” a contract right for free? If public employment is really so expensive, perhaps state officials will learn next time not to make promises that are too generous. On the other hand, in most states, a great many pension-related promises aren’t contractual, especially ones that only relate to future periods of work. This seems to give states substantial leeway in crafting pension-reform bills that will withstand constitutional scrutiny.

The future of pension reform thus depends heavily on this constitutional issue. On the one hand, it seems right that a state shouldn’t be able to violate its contracts whenever they seem too expensive, even if the contracts were ill-advised to begin with, and even if this will cost the taxpayers. After all, the state can’t take private property without paying for it (obviously, at taxpayers’ expense); why should it be able to “take” a contract right for free? If public employment is really so expensive, perhaps state officials will learn next time not to make promises that are too generous. On the other hand, in most states, a great many pension-related promises aren’t contractual, especially ones that only relate to future periods of work. This seems to give states substantial leeway in crafting pension-reform bills that will withstand constitutional scrutiny. - See more at: http://reason.org/news/show/pensions-contract-clause#sthash.Lr5tfWPJ.dpuf

The future of pension reform thus depends heavily on this constitutional issue. On the one hand, it seems right that a state shouldn’t be able to violate its contracts whenever they seem too expensive, even if the contracts were ill-advised to begin with, and even if this will cost the taxpayers. After all, the state can’t take private property without paying for it (obviously, at taxpayers’ expense); why should it be able to “take” a contract right for free? If public employment is really so expensive, perhaps state officials will learn next time not to make promises that are too generous. On the other hand, in most states, a great many pension-related promises aren’t contractual, especially ones that only relate to future periods of work. This seems to give states substantial leeway in crafting pension-reform bills that will withstand constitutional scrutiny. - See more at: http://reason.org/news/show/pensions-contract-clause#sthash.Lr5tfWPJ.dpuf

Anonymity, Free Speech, And Wikipedia Profiles

This story from the ABA Journal reads like a pitch for a TV drama in development: "DC lawyer pursues suit to unmask authors who changed her Wikipedia page." Susan Burke, a personal injury lawyer whose work has involved suing the American military or military contractors, including Blackwater, and representing former detainees of Abu Ghraib prison in a suit against interrogators and translators, is suing to find out the names of the two pseudonymous editors who inserted false information into her Wikipedia profile.  National Law Journal (sub. req.) also has a story.

 

What Information Should The Public Have For Free, And How Easy Should It Be To Get It?

A website operated by an open-records advocate is being sued for copyright and trademark infringement for posting safety and technical standards developed by nonprofit groups. The standards, posted in their entirety, were incorporated by reference in federal regulations. The lawsuit against Public.Resource.org claims that the standards are costly to develop, and the cost is underwritten by sales of the content.  Public Resource says that the standards lost their copyright protection when they were incorporated by reference into government regulation.

Analyze and discuss.

HT: Geeks and a Law Blog

Islamic Headdress In Court

Three years ago Michigan earned national attention for two cases on Islamic head gear.  One case centered on the decision of a Wayne County circuit judge who required a woman to remove her hijab, a headscarf which covers the hair but not the face, to conform to a "no hats" policy.  His decision was appealed to federal court, which upheld the decision on the grounds that the judge apparently did not understand the religious nature of the hijab and likely would have permitted its removal if he had.  Here's the order (PDF). The other case involved a Hamtramck district judge who would not allow the plaintiff to testify unless she removed her niqab, which covers the whole face except the eyes. (Pictured) After an administrative public hearing that included testimony from the woman (wearing the niqab), the Michigan State Supreme Court issued an order giving judges "reasonable control" over what litigants can wear in court.

This month the legal spotlight on Islamic headdress in court has turned to England.  A London criminal court judge has ruled that a defendant who wears a niqaab must remove it when giving  evidence but may wear it at other times during trial. When she is  not wearing it only the judge, jury and counsel will be able to see her face and courtroom artists will not be permitted to sketch her veil. The court's order distinguished between criminal courts and other court proceedings.  Finding a "pressing need for a court to provide a clear statement of law for trial judges who have to deal with cases in which a woman wearing the niqaab attends Court as a defendant, the judge explained:

I accept that there are different considerations in these instances.   For example, the public has a strong interest in encouraging women who may be the victims of crime from coming forward, without the  fear  that  the court  process  may  compromise their  religious beliefs and practices.  On the other hand, the rights of the defendant in any resulting criminal proceedings must also be protected. So there is a potential for a challenging conflict of competing public interests.  A defendant may, of course, be a witness; but this does not define her role in the proceedings.  As a defendant, she plays the central role throughout proceedings, and unlike a witness, she is brought before the court under compulsion and does not appear as a matter of choice.

The judge also comments on the awkward context of his decisonmaking:

I am a male judge dealing with an issue which mainly affects female Muslim defendants, and does so in an intimate way; though I make clear at the outset that everything I say in this judgment is intended to apply to defendants of either gender and to those of any religious faith, or none, in analogous situations.  I am conscious also of the place of the Crown Court in the hierarchy of legal authority, and I express the hope that Parliament or a higher court will review this question sooner rather than later and provide a definitive statement of the law to trial judges.

HT: Slaw

In Memoriam: Francile Anderson

Francile Anderson, widow of Oakland County circuit judge Robert Anderson and an indefatigable champion of access to justice and civic education, died September 22 at the age of 86. She is survived by four children, Sally Quick, Sue Anderson, Robert Anderson Jr., and Russell Anderson.

Family visitation is from 2-8 p.m. Wednesday Sept. 25 at Sparks-Griffin Funderal Home at 46 Williams Street in Pontiac. The funeral service is at 11 a.m. Thursday, Sept. 26 at Community Presbyterian Church, 4301 Monroe St., in Waterford. 

Censure For Faking Illness To Avoid Court

WSJ Law Blog's post, "Attorney Accused of Faking Illness on Day of Oral Argument" recounts the case of an Illinois criminal defense lawyer who called in sick when he found himself unprepared for court and got caught. The story reminds us of the classic "Rumpole of the Bailey and the Last Resort," highly recommended viewing for all trial attorneys. However often one is tempted to pull a Rumpole, the ethical rules proscribe such fakery.