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March 2006
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May 2006

My New Hero

The former Editor-in-Chief of the Yale Law Journal finally grew tired of having some coward unfairly malign his character from the comfort of a lounge chair and e-mail, and thus proposed a rather gentlemanly solution: Pistols or swords?  (Via Amber Taylor.)  While I recognize that the challenge to a duel was made tongue-in-cheek (sword-in-sheath?), I do respect the fellow's spunk.

Academic Freedom and Education "Contracts"

I've been wrestling with an issue for quite a while, and would appreciate commentary or citation to relevant sources.  Here's my thinking:

A public school student whose speech and associational rights have been violated has a cause of action against the offending school officials, since they are state actors and thus must obey the Constitution.  School officials at private schools are not subject to constitutional restraints.

Yet in almost every private-school student handbook, school officials promise students equal treatment when it comes to matters of free speech.  When school officials break that promise, is there any cause of action?  (I'm not looking for causes of action under Title VI, or related anti-discrimination laws.)

What I'm wondering is whether a student whose free speech and associational rights (as defined and promised by the school), can sue, alleging that the school, by not providing him the educational atomphere it promised him, has breached an implied educational contract. 

I have zero understanding of this area of law and would love to hear your thoughts.

What Torture Sounds Like

Five warriors against the war on drugs were recently sentenced to federal prison for violating the rights of a suspected drug dealer, Lester Eugene Siler.  How did they violate this suspect's rights?   They literally tortured him.

Of course, if the defendant had claimed that the officers had beat him, no one would have believed him.  At a suppression hearing (when Siler would have argued that the search was unconstitutional), the presiding judge would have said, "After listening to the officer's testimony, I find the defendant's contentions to be without merit."

Thankfully, Lester Siler did not have to rely on a judge's objective judgment.  Instead, his wife taped most of the torture. 

Yes, that's right: the police abuse was caught on audiotape.  After learning about the torture, federal prosecutors prosecuted the five savages.

You can listen to a tape-recording of the torture here.  To learn about the officers and their prison sentences, go here.  Jason Kuznick comments here.

UPDATE: It's worth noting that Campbell County Sheriff Ron McLellan may have a defense-lawyer streak in him, as he said:

"They're not bad people, these officers involved in this... I just hope people take this one aspect of their life and this incident and look beyond that."

Yeah, he's right: we can't infer that five people who brutally beat someone for two hours are bad men.  And, although this was the only time they were caught on audio, I'm sure it's the first time any of them beat up any suspects.  With sheriffs like these, who needs criminals?

"Litigation boutiques"

I was already feeling snarky this morning before I read the article regarding the prosecutor who was reprimanded for blogging about a pending case.  The needle on my snark-o-meter jumped when I noticed a term in that article that I've seen before:  "litigation boutique."

I'm interested to know what defines a "litigation boutique."  My firm has six lawyers, five of whom are regularly in court and trying cases - - albeit on behalf of personal injury and civil rights plaintiffs and criminal defendants.  Do we count as a "litigation boutique"?  [Would we want to?]

I'm guessing that the answer to that question is "no."  Unless I'm mistaken, a "litigation boutique" is stocked with primarily defense lawyers in the realms of commercial litigation and, perhaps, major products liability defense for self-insured clients.  The suits are probably more expensive; hell, the socks are probably more expensive.

If that is the type of firm that qualifies as a "litigation boutique," then what is the right moniker for a small law firm whose members are regularly trying cases (as opposed to just litigating), but on behalf of criminal defendants and non-commercial civil plaintiffs?

Prosecutor Reprimanded for Blogging About Pending Case

I'd have to read the actual posts to know whether I agree with the judge's decisionUPDATE: Via A&C comes a few post excerpts:

The jury was waiting outside to be seated. I knew all their names. I had my peremptories ready. My witnesses were prepped. My opening statement was polished. I had just won a tentative ruling on a major evidentiary issue admitting the defendant's prior felony conviction for armed robbery. I was going to skewer him on the stand.


The Public Defender pulled the "I'm pregnant, and I can't proceed." IN THE MIDDLE OF JURY SELECTION. Her doctor said that this was supposed to be her last trial--there was no medical emergency preventing her from going forward. She's just chicken. Chic-KEN!

More commentary is available here.

Legislative Hubris in Connecticut

A cat-fight on the Connecticut Supreme Court is now taking the shape of something like a constitutional crisis, thanks to the two knucklehealds chairing the Legislature's Judiciary Committee. They want the Justices to come testify about how work gets done on the Court, and how the Justices get along.Legislative Over-Reaching

Let's hope we do not get the government we deserve and that the Court has the sense to reject the invitation to testify.

It all started when the current acting chief justice wrote a letter to the Judiciary Committee complaining that the out-going chief had delayed publication of a controversial opinion. Why? One of the Justices voting in favor of the opinion had been nominated to be the new chief. Why publish the opinion right away if it would hurt the nominee, reasoned the out-going chief?  (See, Connecticut Supreme Court Cat Fight, below.)

The former chief justice is William Sullivan. He has acknowledge manipulating the docket to help his favorite son become the new chief.

This is a discredit to the Court. It confirms the suspicion that the doing of justice is something other than dispassionate. In a moment, Oz has been exposed: Sullivan, the venal little man behind the veil manipulating levers in the service of something small and insignificant.

But this does not and should not require the Justices of the Court to testify before the Legislature. The very suggestion that they should do so is little more than Legislative arrogance.

The Connecticut Legislaure toppled a governor not long ago. No doubt the surge of power associated with this felt good. It might well gratify the ambition of some lawmakers to bloody the nose of the Court now, too.

This is not a crisis of constitutional dimension. No high crime or misdemeanor has been alleged. We have learned, simply, that a former chief justice can behave poorly. This should not become an occasion for Legislative aggrandizement.

May I suggest the following memo?


From: Court to Legislature

Re:  Testimony of Justices

      No, a thousand times no. Just what are you folks smoking over there?

Important Development in the Federal Rules of Evidence

The White Collar Crime Prof bloggers have alerted readers to a very important change in the Federal Rules of Evidence.  Under the proposed modification of FRE 408, statements made during civil settlement discussions with administrative agencies would be admissible in a later criminal case.  Given that most people and many lawyers (wrongly) think the line between civil and criminal conduct is clear, this could become a major trap for the unweary.  Robert Weninger has more information.