Novalawcity

U.S. Constitution by popular name or nickname

Need to identify the Basket Clause, Comity Clause, Elastic Clause, or any of the other 80 nicknamed sections of the Constitution? Check out the full list from UW.

They Don't Shoot Horses Anymore

Last Tuesday, the Supreme Court stayed the execution of Earl Wesley Berry.  Last Saturday, Eight Belles, the filly who fractured both her front ankles in the Kentucky Derby, was euthanized at the track.  What is the common denominator here? 

The Mississippi Death Row inmate's execution was stayed pending the Supreme Court's ruling on the constitutionality of Kentucky's form of lethal injection, the so-called "three drug cocktail."  Kentucky Death Row inmates are challenging the cocktail on the grounds that it violates the Eighth Amendment's ban on cruel and unusual punishment.  The filly, Supreme Court Justice John Paul Stevens suggested at a conference of the Sixth Circuit Federal Court of Appeals, died more humanely than do human beings who are injected with the lethal cocktail, because she did not receive one of the drugs found in the cocktail. 

Video of the Week: Congratulations, graduates!

To all our graduating students: congratulations!

Soon-to-be 2Ls and 3Ls: see you next year!

Views on tenure & the memorandum on torture written by John C. Yoo in 2003

The Chronicle of Higher Education discusses the interaction of the memo with the role of tenure and quotes many views from the legal academy. Chronicle.

Open Access at Harvard

The faculty at Harvard Law School has unanimously voted to make all of the faculty's scholarly articles available online for free.  See details here.  Hat tip to Law Librarian Blog

National Security Letters, Internet Privacy and the First Amendment

Internet Archive, which runs the Wayback Machine, has successfully challenged the FBI's demand that they turn over the name, address and e-mail records of one of their subscribers.  The Wayback Machine is an archive of 2 billion web pages that allows users to look at what “used to be” on the web.  The FBI sought to obtain the subscriber’s records via a national security letter (NSL), which operates as a subpoena, but does not require judicial approval.  NSLs contain gag orders that prohibit recipients from revealing even the existence of the letter.  Use of NSLs has skyrocketed since 2001, and the FBI now issues more than 30,000 each year, up from the historical figure of 300 per year.  According to a report from the Justice Department’s inspector general in March, the bureau often uses the letters improperly and sometimes illegally.  Readers may remember the case of George Christian, a Connecticut librarian who received an NSL and a gag order after someone made a terrorist threat on a computer in a Connecticut library.  Christian challenged the gag order in court.  After the Christian case, the Patriot Act was amended to largely exempt libraries from national security letters.

A New York federal judge held that the original provision in the Patriot Act violated the First Amendment right of free speech.  The same New York judge struck down the successor version as well. The revised Act sought to avoid the constitutional difficulties of the original by requiring that the FBI certify in each case that disclosure might harm national security, criminal investigations, diplomacy or people’s safety.  In the Act as revised, judicial review was provided for, but under extremely deferential standards.  The New York judge held that not only the First Amendment but also the principle of separation of powers was violated by the revised Act.

In the Internet Archive case, the FBI agreed to settle and allow public discussion of the case.  An attorney for the Electronic Frontier Foundation, which helped represent the Internet Archive, speculates that the FBI did so out of a desire to avoid further negative precedent. 

Hat tip to Law.com.

Property Rights on the Moon? Far out!

A new article in the SMU Journal of Air Law and Commerce argues that it's legal under international law to own lunar property, and that the establishment of property rights for the moon is necessary to provide the financial incentives for lunar settlement.

It's a rather intriguing concept although I wonder how the lunar real estate market would operate in practice.  Can you say Klaatu barada nikto?

Scalia to lawyers: read good literature!

Among other tips that come out of the ABA Journal's interview with Justice Antonin Scalia and Bryan Garner, authors of the new book Making Your Case: the Art of Persuading Judges, is this one:

Scalia: ....the average practitioner is not going to be reading Grant Gilmore and Charles Alan Wright and Lon Fuller. He’s going to be reading some miserable judge who issued a terribly written opinion, the only virtue of which is that it’s authoritative. And that is, as we point out in the book, one reason legal writing is so turgid and generally so bad—because we are reading the worst instead of the best.

What we must read is not selected on the basis of whether it’s well-written or even, for that matter, on whether it’s well-reasoned. It’s authoritative and that’s why we have to read it. You read enough of this stuff, and you begin to write that way.

One of the more important recommendations in the book is that lawyers read other stuff. Read good literature, good current literature. If you read only legal opinions, you’re going to write like legal opinions—which is not what you want to do, generally.

Other topics discussed include brevity of briefs, knowing your audience, oral arguments, use of humor, and awareness of when a judge is trying to help you out.  ABA Journal also has an excerpt from the book with some writing tips (n.b. Scalia and Garner acknowledge that their advice often differs from that of other authorities), as well as a transcript of the complete interview in text and audio. Whatever you think of Scalia, if the interview is anything to go by, the book will be an enlightening and enjoyable read.

The library's copy of Scalia and Garner's book is on its way!

CHEAP GAS!

Now that I have your attention, I'd like to give a shout out to Grace York, Political Science Librarian and Coordinator of the Documents Center at the University of Michigan Library, and her talented library staff who continue rocking the government documents world with the unveiling of their latest Internet creation.  The Gasoline Prices web page is now available at http://www.lib.umich.edu/govdocs/dn08/dn08gas.html.   

Chockful of information, the Gasoline Prices web page provides ample statistics regarding pump and crude oil prices, exchange rates, and oil reserves.  The site also addresses potential solutions to high prices due to supply and demand on the Strategic Petroleum Reserve, the impact of gas tax holidays, and regulating commodity exchanges.

Fabulous features include the GasBuddy at http://www.gasbuddy.com.  This network permits users to search for the cheapest gas prices across the country and to add local fuel prices by state, county, and zip code.

Will We Need Passports to Drive North on 95?

The North Lauderdale City Commission wants to divide Florida into two states - North Florida and South Florida.  See why here.