Brandeis also gets his share of the spotlight in the Dissenters issue of the Journal of Supreme Court History in Jonathan Lurie's article "Chief Justice Taft and Dissents: Down With the Brandeis Briefs!" The article is a preview of Lurie's upcoming biography of Taft and is basically a panegyric to Taft's days as Chief Justice. The article details Taft's efforts to foster unanimity on opinions and the reactions of the other justices--particularly Brandeis-- to those efforts. My favorite part of the article is the picture of Taft and six other justices looking at a model of the new Supreme Court building. The building was Taft's idea and Brandeis was vehemently opposed to it--in fact he never set foot in the office that was created for him. His disgust for the building is pretty evident from the look on his face in the picture.

Brandeis and Taft had a complicated relationship. Political foes (to put it mildly) while Taft was president, they were able to put aside their differences once they were both on the court and they even reached the point where they enjoyed each others' company. Still they often didn't see eye to eye and would often get frustrated with each other. Lurie cites some quotes by Taft on Brandeis but I wish he had included one of my favorite Brandeis quotes on Taft. In the 20's Felix Frankfurter wrote down some notes from private conversations he had with Brandeis. Those notes were later edited by Melvin Urofsky and published in the 1985 volume of the Supreme Court Review. Here's what Brandeis had to say there about Taft:

"It's astonishing he should have been such a horribly bad President, for he has considerable executive ability. The fact, probably, is that he cared about law all the time and nothing else. He has an excellent memory, makes quick decisions on questions of administration that arise and if a large output were the chief desideratum, he would be very good. He is a first-rate second-rate mind."

The latest issue of the Journal of Supreme Court History (vol. 32, issue 2) is devoted to dissents and dissenters so naturally they have an article on John Marshall Harlan. Linda Przybyszewski wrote an article titled "The Dissents of John Marshall Harlan I," although it primarily about his dissents in Plessey v. Ferguson and the Civil Rights Cases. She provides an intersting answer to the often asked question of how a former slave holder came to be such an advocate for civil rights. Then there are other opinions that do not seem so enlightened these days...

The Mississippi Supreme Court in DuPont v. Strong, 2007 Miss. LEXIS 574 (Miss. 2007), was reviewing the appeal of a $15 million award against DuPont. The Court found a series of evidence errors, reversed and remanded. The dissent is the interesting part. The dissent felt that the errors were not substantial. That same dissent then complained that the Mississippi Supreme Court has been ruling in favor of large corporations when individual plaintiffs recover substantial jury awards. The dissent then listed a series of recent Mississippi cases to support that position. The case, the Court's opinion and the dissent make for an interesting study of evidence, the role of the jury, the role of appellate courts and the claim that courts support the large corporations.

I recently read Beth Simone Noveck's article Wikepedia and the Future of Legal Education, 57 J. Legal Educ. 3 (March 2007). In it, she discusses teaching law students how to write wikis. She suggests law students are "ideally suited to contribute their newly developed expertise" to substantive wikis. She also suggests using an internal, class-based wiki so that students can learn from each other.

In the past, I have used wikis only as a reader, so do not profess to have expertise in their use. But I am always interested in ideas for teaching legal writing, and this seems like a good one.

I envision using wikis to teach legal writing in the following manner. First, the student writes a short piece, perhaps an IRREAC exercise or a blurb on a legal topic of interest to the student, and posts the piece to a wiki. Next, the student edits someone else's post to a wiki, perhaps the IRREAC of another student or a publicly available post on a topic of interest to the student. Finally, the student returns to the student's original piece and edits it, using the same editing techniques applied to edit another's post.

Another interesting use of a wiki in a legal writing class is that developed by Peter Friedman. He has used a wiki in his legal writing class to have his class compose a checklist for writing a persuasive brief. You can find out about this exercise at http://www.case.edu/pubs/casemagazine/fall2006/Wiki_feature_edit.pdf , and you can view the checklist at the wiki, http://wiki.case.edu/Brief_writing_checklist .

I also envision using wikis as a component of legal writing across the curriculum. Writing and editing wikis is an opportunity to practice concise legal writing that, as discussed in Noveck's article, fits easily into a substantive law class. If students had experience with writing and editing wikis in their legal writing class, they would make the connection with writing across the curriculum.

Moreover, even if students are not writing or editing wikis for class, their use might provide an excellent opportunity for students to practice legal writing, collaborate with others in the legal community, and provide useful information to the public. From time to time, one hears antidotal stories about a student obtaining an employment opportunity because of a webpage. Certainly, writing and editing a wiki might also lead to opportunities. In the future, when I am counseling and speaking with students about writing opportunities, this is one that I will mention.

 

The Kentucky Supreme Court decision in Smith v. Carbide & Chemicals, Corpl, 226 S.W.3d 52 (Ky. 2007) is a good opinion to read. It provides a nice discussion of the basis of the intentional tort of trepass and a further discussion of damages for that claim. For the student of tort law, the older decision of Randall v. Shelton, 293 S.W.2d 559 (Ky. 1956) should be read also.

The most recent pocket part to my book on Kentucky Workers' Compensation is now available. It appears to have been shipped out during last week.

 I had the opportunity recently to read Leah M. Christensen & Julie A. Oseid, Navigating the Law Review Article Selection Process:  An Empirical Study of Those with All the Power - Student Editors, 59 South Carolina Law Review 465 (forthcoming 2008) (available at http://papers.ssrn.com/abstract=1002640).  I recommend it to students, practitioners, and scholars interested in publishing in law reviews.  As a basic legal skills instructor, I was heartened to learn that student editors value interesting and well-written manuscripts.  They care about "technical writing including: grammar, punctuation, spelling, citation form, proofreading, and easy-to-read formats."

The methodology used by the authors was to survey student editors and ask them about the selection process used and the factors that the student editors consider.  I would like to see a follow-up inquiry.  Perhaps someone can convince student editors to record, via Ipod or other recording device, their contemporaneous thoughts as they sit down to review and select manuscripts.  This might provide confirmation of the study results, and it might provide other interesting insights.

As an undergraduate major in sociology, I did research which involved interviewing college students about their parents division of labor in the household.  While some (rare) students professed that their father and mother equally divided household labor, inquiry into specific tasks sometimes revealed otherwise.  For instance, the tasks of planning, organizing, and making lists were often times performed by wives but not included in a facial assessment of the division of labor.  These time-consuming tasks actually rendered the household labor less equal than the college student believed.  In a similar manner, an inquiry into the actual contemporaneous thought process used by the student editors might reveal some interesting insights.

 I have recently posted the following manuscripts on my SSRN author page.  http://ssrn.com/author=866378

Lawyering Skills Principles and Methods Offer Insight as to Best Practices for Arbitration, Baylor L. Rev. (forthcoming Winter 2008)

Lawyers as Problem-Solvers One Meal at a Time: A Review of Barbara Kingsolver's Animal, Vegetable, Miracle, 15 Widener L. Rev. (forthcoming 2008)

Questioning the D.C. Circuit; Harmonizing Board Precedent: Why Mere Presence of an Organizer Should Not Invalidate a Board Election, Casenote, 7 U. Pa. J. Lab. & Emp. L. 463 (2005)

Fans of the dormant Commerce Clause and/or Kentucky treasury, will be pleased to know that the transcripts of Monday's oral arguments before the U.S. Supreme Court in Department of Revenue of Kentucky v. Davis (06-666) are now available: http://www.supremecourtus.gov/oral_arguments/argument_transcripts/06-666.pdf.

SCOTUS Blog has a brief analysis of the case, which turns on whether Kentucky can favor its own government-issued revenue bonds by making them exempt from the taxes levied on the bonds of other states. It is perhaps a little less interesting than Kentucky's other case before the court (lethal injection), but with bonds being touted as the magic solution to everything from Louisville's library system to new university buildings, the issue is certainly not trivial. Of course, the real interest is seeing where the two Bush-appointed justices will come down in the Court's evolving view of the Commerce Clause.

 

UPDATE: TaxProf Blog has posted a round-up of commentary on the case here.

 

Hello,

It has been a busy year. I have finished working on two new books for Carolina Publishing. The manuscript for an Evidence book and a Products Liability book are both in the hands of the publisher. The books should be out sometime early next year.