Kurt X. Metzmeier's blog

Lawyers Defend Constitution, Independent Judiciary

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Link to New York Times

The crisis in Pakistan throws into stark relief the importance of the bench and bar in protecting the rule of law in a representative democracy. When voices (including a U.S. senator) attacked the U.S. federal courts for upholding legal precedent in the Terry Schiavo case--even hinting that the violence against judges was justified--national, state and local bar associations rightly condemned these attacks and rallied around the principle of an independent judiciary. However the lines formed by the American bench and bar did not have to face lines of riot police. In Pakistan, lawyers are in the streets, almost alone, to defend that nation's supreme court from measures designed to subvert the Pakistani constitution and neutralize the judiciary. (Their surest allies are the Pakistani press, another institution whose freedom is vital to a democratic state, but, like lawyers, are regularly villified in quieter times).

Now it would be easy to say, like Gen. Musharrif, that Pakistan is under seige by extremists who have no love of democracy and that this measure, in the long run, will allow democracy to return stronger. However, the lawyers of Pakistan know that adherence to the rule of law is not a luxury to be put away in times of crisis but in fact is the basis of a stable society. The Pakistan lawyers are to be commended and their example kept in mind as we in the U.S. continue to grapple with the issues of preserving our essential rights as we fight a long struggle against terrorism.

For extensive coverage of the Pakistan bar protests, see JURIST's Pakistan aggregator.

An Education Horror Story, Literally...

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At this time of year it is impossible to turn the channel without a reminder of Bram Stoker's most famous character, Dracula. However, Mr. Stoker's taste for eerie tales did not end with with that classic. Two years after his death in 1912, Stoker's wife published a collection of his gothic short stories entitled Dracula's Guest.

One of the stories, "The Judge's House," concerned a mathmatics student studying for exams in a house haunted by the spectre of a cruel and vengeful judge embodied in a bell rope fashioned from the very hangman's noose that the old jurist had so often set in fatal motion. While it would have been more satifying (to me) if it had been a student reading for the bar, it nevertheless is a "ripping good yarn."

Georgia Supreme Court Releases Genarlow Wilson on Grounds Sentence Was "Cruel and Unusual"

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From the Georgia judiciary website:

"Atlanta, October 26, 2007 -- The Supreme Court of Georgia today ordered that Genarlow Wilson be released from prison. In a split 4-to-3 decision, the state’s highest court has upheld a Monroe County judge’s finding that Wilson’s 10-year-prison sentence constitutes “cruel and unusual punishment” under the Georgia and U.S. Constitutions. Wilson was convicted in 2005 of aggravated child molestation for engaging in consensual oral sex with a 15-year-old girl when he was 17. Under the law at the time, the crime was punishable by a mandatory minimum of 10 years in prison with no chance of parole, followed by registration as a sex offender. The law was amended July 1, 2006 making conduct such as Wilson’s a misdemeanor punishable by no more than a year in prison and no sex offender registration. But the legislature did not make the law retroactive, and the change did not apply to Wilson."

Viacom's Answer to YouTube (And Doesn't Involve a Copyright Lawsuit)

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Viacom, owner of cable's Comedy Central channel, took a lot of flak from netizens when it forced Google to pull videos from its popular Daily Show with Jon Stewart from YouTube. Yesterday, it debuted its creative answer: a website with every episode of the show from its inception in 1999. The website, sponsored by Hyundai, is free, requires no log-in, and (like YouTube) allows fans to embed clips into their email, web pages, blogs, as well Myspace and Facebook pages.

This represents a surprisingly sensible approach to an intellectual property challenge. Viacom controls the usage of its property, while giving users much of the usability of YouTube with higher quality footage. And they pick up a little change (Hyundai's mini-ads) that wasn't realistically available through silly per-use schemes. Let's hope they extend the principle to other programs (like the Colbert Report)...

As an example, here's Jon's practical method of predicting how the Supreme Court will rule in a case:

 

The Contract That Made Ellen Cry

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Not being a daytime TV watcher, I would not have normally seen the footage of Ellen Degeneres' tearful story of how a Pasadena animal shelter had taken back a dog she had given the children of a co-worker. That is, I wouldn't have except NBC chose to include it in last night's Nightly News with Brian Williams. Besides being confused as how this fit in with the ominous story that preceded it concerning a mutual defense pact between Iran and Russia, I also wondered about what kind of contract would allow the Mutts and Moms animal adoption agency to do this? Luckily Access Hollywood--a legal resource almost as reliable as YouTube--has posted the contract between Ellen and the animal rescue/adoption agency.

In a conversation around the coffee pot before either of us had seen the actual instrument, Professor David Ensign, who teaches copyright, surmised that the contract was likely more of a license than an agreement to transfer property, analogizing it to a shinkwrap license for software. On reading it, I think he was quite right, although it is an odd document and was certainly not copied from West's Legal Forms.

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Senate Hearings on Mukasey Nomination.

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Hearings by the Senate Judiciary Committee on the nomination of Michael B. Mukasey to be attorney general of the United States begin today at 10.00. They will be televised on C-SPAN 3 and simulcast on the C-SPAN website. The Washington Post legal analyst Andrew Cohen previews the testimony in today's Bench Conference column.  Mukasey's responses to the Senate Judiciary Committee's standard questionare for nominess can be found here, but there were few surprises (Mukasey's career on the bench is well-known).

Parsing Senate Ethics

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Like "military intelligence," "Senate ethics" is a phrase in search of a joke. The recent decision of Sen. Larry Craig (R-ID) to remain in the Senate despite a recent decision of a Minnesota judge upholding his misdemeanor guilty plea (see the Hennepin court's website for the ruling), now appears to have shifted the controversy over his arrest in an airport restroom to the Senate Ethics Committee. Why? The short answer is that the embarrassed Republican leadership has referred the case to the ethics committee, the only Senate committee with equal representation from the majority and minority parties. (The Democratic majority, which sees more hypocrisy than high crime in the matter, appears to be giving the Senate majority enough rope to perhaps hang itself).

The long answer has to do with the Constitutional powers of the Congress to discipline its members and how they have evolved over the years. At first blush, the case hardly looks like a ethics matter--indeed the Senate Ethics Code <http://ethics.senate.gov> has great detail on financial disclosure, gifts, travel reimbursements, honoraria, outside employment, conflicting interests, post employment restrictions, campaign activities, and mass mailings but nothing on misdemeanor disorderly conduct. However, the Senate has long taken the view that its power to discipline is more expansive than the ethics code, and that it is only limited by Article I, Section 5 of the U.S. Constitution states in part that: "Each House may determine the Rules of its proceedings, punish its Members for disorderly behavior, and, with the concurrence of two thirds, expel a Member."

In proposing a permanent standing committee on ethics in the Senate, Senator John Sherman Cooper (R-KY) noted that the new Select Committee on Ethics was intended ‘‘to be free to investigate anything which, in its judgment, seemed worthy, deserving, and requiring investigation’’ 34 and ‘‘would not be limited to alleged violations of Senate rules, but it would take into account all improper conduct of any kind whatsoever.’’ 34 110 Cong. Rec. 16,933, (1964) cited in Senate Ethics Manual, Select Committee on Ethics, United States Senate, 108th Congress, 1st Session (2003 Edition) (Supersedes All Prior Editions) 13.

Just as Sen. Cooper drew on the example of the Senate's censure of Sen. Joe McCarthy (R-MN) in fashioning the committee's broad powers, the Craig matter may strike an important precedent, no matter how trivial the case looks now. If the Senate ethics committee is used merely as a political tool for forcing out members who embarrass their party, it seriously diminishes its role as a quasi-juridical and nonpartisan body that seeks to restore the public's faith in Congress as an institution. Especially when its message is that heterosexual sexual misdemeanors (like Sen. David Vitter's (R-LA) self-admitted use of prostitutes) are acceptable, but homosexual sexual misdemeanors are not...

 

The U.S. Supreme Court Loves Kentucky!

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Though no Kentuckian has warmed its benches since Fred Vinson died suddenly in 1953, the U.S. Supreme Court apparently loves Kentucky litigants, most recently inviting first David Friedman's and then Teddy Gordon's clients up to Washington to chat about courthouse decorations and the Louisville public schools. Next year, some Frankfort attorneys will be making the trip, this time to defend the Kentucky death penalty and, in an unrelated case, its Kentucky retirement plan. (Contrary to belief, Eddyville's Kentucky State Penitentiary is not part of the retirement system).

In Baze v. Rees, 07-5439, the Court will decide whether the risk of pain and suffering inherent in execution by lethal drugs makes the method unconstitutional under the 8th Amendment's prohibition against cruel and unusual punishment. The justices will also examine whether Kentucky pension plan engages in age discrimination when it uses age as part of its formulae (Kentucky Retirement v. EEOC, 06-1037).

Details on the cases, including the cert briefs, can be found on SCOTUSBlog.

Freakonomics of Bar Passage Rates

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The New York Times' Freakonomics blog has an interesting post today about an upcoming study of first-time-taker bar exam results. In an upcoming Journal of Legal Education article, St Louis University professors Douglas Rush and Hisako Matsuo test the theory that students with lower GPA scores will be helped to pass the bar by a heavy diet of bar courses. Their data suggested no significant relationship exists between passage rates and law school courseload for lower and higher GPA quartile students. Generally, students in the upper two GPA quartiles passed at high rates while students in the lowest quartile passed at significantly lower rates, without regard to the number of bar courses they had taken. (Interestingly, there did seem to be some benefit to such a coursework plan for third quartile students, but there is little analysis of why that might be the case).

The article is a welcome addition of metrics to this debate, although somewhat unsatisifying in its narrow scope and analysis. You want to say "yes, but what if...," but the the "what if" data isn't there. The authors note that "more research is warranted."

Attorney General Michael Mukasey

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The Wall Street Journal Law Blog has an interesting post about former federal judge, Michael Mukasey, who President Bush will name today as his nominee as U.S. attorney general. First, his name is pronounced Mew-KAY-Zee. Always good to get that kind inside info, especially since President Bush will likely call him Moo-KAZ-Zee, or just "Mookie." Also amusing is an anecdote about the judge's opinion of the USA PATRIOT Act--specifically, the act's name, not the act itself:

I think one would have to concede that the USA Patriot Act has an awkward, even Orwellian, name, which is one of those Washington acronyms derived by calling the law “Uniting and Strengthening America by Providing Appropriate Tools Required to Interrupt and Obstruct Terrorism.” You get the impression they started with the acronym first, and then offered a $50 savings bond to whoever could come up with a name to fit. Without offering my view on any case or controversy, current or future, I think that that awkward name may very well be the worst thing about the statute.

Senate Majority Leader Harry Reid seemed favorable to the selection and promised that confirmation hearings would be arranged soon.