University of Louisville Law Faculty Blog

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).

Deaning's Seven Virtues

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OK, ok, so the number may not be exactly seven. However, the one question that people have asked me is why I focus on decanal sins so much, particularly the "deadly sins." Aren't there decanal virtues?  The simple answer is "yes."

I was thinking about titling this entry "In Praise of Tom." In general, I do not intend to write about individual deans. This blog is not about individuals, but rather is about decanal issues. But I'm going to make an exception in this case (as well as in one later blog).

The "Tom" that I'm referring to is no longer with us.  No, no, he isn't dead. He has simply left the decanal and law school ranks to become a university president.  But he is "gone" in the sense that we no longer have the pleasure of seeing him.  Of course, the "Tom" that I'm referring to is Tom Galligan (however, I'll refer to another "Tom" in a later entry).

So, why do I link this Tom with "decanal virtues?" Galligan was an extraordinary dean because he eschewed decanal narcissism and focused on ways to promote and further his faculty and his institution. Unlike some deans, Tom realized that a law school advances through the collective efforts of its faculty and staff.

Of course, I never had the pleasure of serving under Tom.  However, I sensed that his faculty held him in like regard. When the Louisville deanship came open, I remarked to a friend at Tennessee that I had my eye on Tom (who was stepping down as dean at Tennessee) as our new dean. She told me in no uncertain terms that I had better not think about taking him away from them.

Even though I did not serve under Tom, I saw his virtuous traits from my position as Executive Director of the Southeastern Association of Law Schools. Whenever I'd send out a request for panelists, I would receive an immediate response from Tom touting one of his faculty members. The net effect was that a lot more of Tom's faculty ended up on important panels than might otherwise have happened. In addition, he was unfailingly thoughtful in SEALS discussions and never allowed his ego to get in the way. 

I am pleased to say that there are lots of other deans like Tom in our region.  However, Tom was a pleasure to work with and is missed in the region (and, I'm sure,  especially at Tennessee). 

An Excellent Book

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As someone who is very interested in mental health issues in general and mental health in legal academia in particular, I highly recommend Elyn R. Saks's new book The Center Cannot Hold:  My Journey Through Madness (Hyperion 2007).  It is amazing saga of a woman who has had an outstanding leal academic career despite coping with schizophrenia, the most severe of all the mental illnesses.  It undercuts the stigma of mental illness, and overall is a memoir anyone interested in mental illness or the world of legal academics should be sure to read.

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...

 

More on Deaning's "Seven Deadly Sins"

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In a prior entry, I mentioned Dean Steven Smith's brilliant article, "The Seven Deadly Sins of Deaning." These are the "sins" that will "will rot a deanship. They may destroy the trust that allows a dean to function, dissipate the opportunity for the law school to make progress under a dean, or interfere with the collegial environment that supports learning and discovery."

One of the "sins" that Dean Smith identifies is "narcissism."  He notes that: "Narcissism may be the mother of deadly sins. Many other sins arise when deans merge the school with their own identity. They begin to see the law school as 'all about them' or egocentrically confuse the success others achieve as their personal success. Perhaps monarchs could get by with viewing personal disloyalty as treason against the state, but deans cannot. A dean should be committed to the law school, but no matter how long a dean serves, how influential, or how good the dean is, the law school is never 'the dean's.' It has a separate identity that the dean must expect to share continuously with many others."

When the Lawyer Thinks the Client Plans to Perjure Himself: Words from the Kentucky Supreme Court

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The Kentucky Supreme Court recently provided very useful guidance on a very uncomfortable problem of criminal representation. A real representational conundrum occurs when a lawyer believes that a client plans to take the stand and perjure himself or herself.

In Brown v. Commonwealth of Kentucky, 226 S.W.3d 74 (Ky. 2007), the Kentucky Supreme Court has attempted to shed some light on proper conduct, especially in the criminal context.  

The Court acknowledged the lawyer's ethical obligation under Rule 3.3 by stating that the attorney must bring the conflict to the trial court's attention. To do so the lawyer must make "[a] clear statement of the nature of the problem" but need not give a "detailed evidentiary statement of the disagreement."

The lawyer should proceed in this way only if she "in good faith" has "a firm basis in objective fact for her belief, beyond conjecture and speculation, that the client will commit perjury. "

The Court directed the attorney to follow the instruction of the trial court. The Court noted that allowing the defendant to testify in narrative form is acceptable, with the lawyer present to provide representation such as objections to cross-examination and with regard to matters not involving the perjury.  

The Court found that in the matter before it the criminal defendant was deprived of the right to counsel because the defendant's lawyer left the courtroom during the defendant's testimony and thus could not make objections with regard to the cross-examination. 

Tyrants and Freedom of Expression

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As David A. Strauss so cogently recognized, in his article, Persuasion, Autonomy, and Freedom of Expression, 91 Colum. L. Rev. 334, 337 (1991): "[T]yrants suppress speech because they fear it will be persuasive."

This fear explains some of the major developments in free speech history. For example, after Johannes Gutenburg invented the printing press in 1436, governments moved to suppress this new "technology" because people could use it to communicate more efficiently and effectively with each other. Prior to this invention, the people could communicate with each orally, but it was difficult to efficiently communicate with large audiences. The printing press changed the dynamic by allowing people to print multiple copies of texts and disseminate them widely.

At the same time, this "democratization" of technology struck fear into the heart of government which previously had exercised a semi-monopoly over the means of communication. In an attempt to address the potential "evils" that might result from unrestrained communication, governments enacted licensing laws (which prevented individuals from publishing without a license, and required that proposed texts be vetted through governmental censors), and England (in particular) enacted seditious libel laws (which made it a crime to criticize the government, and punished truthful communications more severely than untrue communications on the theory that they were more likely to have impact).

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."

KLA Conference

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Kentucky Library Association Annual Conference

"University of Louisville Libraries Digital Collections: Connecting Communities and Collections"

Presenters: Rachel Howard, Weiling Liu, Virginia M. Smith

September 20, 2007

3:10 PM - 4:00 PM

Rose Room, Marriot Downtown Louisville

http://digital.library.louisville.edu/