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Introducing Guest Blogger Rachel Godsil

godsil-rachel.jpgI’m delighted to introduce Professor Rachel Godsil of Seton Hall Law School. Rachel will be visiting with us for the next several weeks. She teaches Equality Under American Law, Property, and Zoning and Land Use Policy. Racel graduated from the University of Michigan Law School, where she served as executive articles editor of the law review, was awarded the Henry M. Bates Memorial Award, and was elected to the Order of the Coif. She clerked for the Honorable John M. Walker, Jr., U.S. Court of Appeals for the Second Circuit. She was an Assistant United States Attorney for the Southern District of New York, an Associate Counsel at the NAACP Legal Defense and Educational Fund, and an associate with Berle, Kass & Case and Arnold & Porter in New York City.

Rachel writes about the convergence of race, poverty, and the environment. Her publications include: Race-Nuisance: The Politics of Law in the Jim Crow Era, 105 Mich. L. Rev. (forthcoming December 2006); Viewing the Cathedral from Behind the Color Line: Property Rules, Liability Rules, and Environmental Racism, 54 Emory L. J. 1808 (2004); Environmental Justice and the Integration Ideal, 59 NY L. J. 1109 (2004). She is a co-editor of the book, Awakening From the Dream: Civil Rights under Siege and the New Struggle for Equal Justice (2005). Her law school note, Remedying Environmental Racism, 90 Mich. L. Rev. 394 (1991), is one of the most cited law school notes of all time.

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The accidental bigamist?

Warren Jeffs is in the news lately, and you may find yourself discussing bigamy at a cocktail party some time. Given that possibility, let me forearm you with a genuine, certifiable cocktail-party question guaranteed to dazzle and impress your friends and co-workers (or your money back):

In order to be convicted of bigamy in Utah, what is the minimum number of wives (or husbands) a person must have?

(answer below the fold)

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Stored Text Messages Ruled Not Subject to Wiretap Act

GPS 2.JPG

One of my favorite shows, The Wire, is about to start on HBO, and in a life/art convergence moment, Declan McCullagh has just written about a drug case where according to the opinion the government seized “97 kilograms of cocaine, 3 kilograms of crack cocaine, and in excess of $800,000” in part by using taps and gaining access to text messages. As part of their defense, the defendants claimed that the government’s use of stored text messages and a GPS device to track a car were improper. U.S. District Judge Huvelle ruled that the government access to stored text messages is not subject to the Wiretap Act. The opinion makes the distinction between the Wiretap Act and the Stored Communications Act. The opinion also addresses the use of a GPS device to track the car and found that one does not have an expectation of privacy when on public roads but does have an expectation of privacy at home thus data related to using the device while the subject was at home was suppressed.

In short, Judge Huvelle noted that “An ‘intercept’ is defined in the Wiretap Act as ‘the aural or other acquisition of the contents of any wire, electronic, or oral communication though the use of any electronic, mechanical or other device.’” She then explained “Courts consistently have held that the Wiretap Act governs only the acquisition of the contents of electronic communications that occur contemporaneous with their transmission, and not — as is the case here — the subsequent acquisition of such communications while they are held in electronic storage by third parties.” Next Judge Huvelle pointed out that when considering stored electronic communications the Stored Communications Act controls and that the Act “the procedures the government must follow to access the contents of stored electronic communications ‘are considerably less burdensome and less restrictive than those required to obtain a wiretap order under the Wiretap Act.’”

So for those of you who think that text messages or emails are lost to the ether, they aren’t. According to the Stored Communications Act if the provider stores the information for 180 days or less, the government may gain access to it with a warrant.

As for the tracking device, in the case at hand it appears that the government obtained a warrant to use it, the warrant expired, and the government continued to use the device. It seems that Judge Huvelle’s point about privacy on public roads as opposed to in one’s home is that the government never needed a warrant in the first place when tracking someone in public so the expired warrant did not matter. CNET has previously noted that the Washington Supreme Court has ruled that using a GPS device should require a warrant because “use of GPS tracking devices is a particularly intrusive method of surveillance, making it possible to acquire an enormous amount of personal information about the citizen under circumstances where the individual is unaware that every single vehicle trip taken and the duration of every single stop may be recorded by the government.” But the article also quoted Concurring Opinions own Dan Solove as explaining that if the U.S. Supreme Court rules on the use of GPS devices it is unlikely to agree with the Washington ruling.

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Introducing Guest Blogger Salil Mehra

salilWe’re delighted to announce that Salil Mehra will be visiting with us this month. Salil is an Associate Professor at Temple University’s James E. Beasley School of Law, where he teaches contracts, antitrust, corporations, and Japanese law.

Salil’s research interests are broad. Some representative publications include: “Post a Message and Go to Jail: Criminalizing Internet Libel in Japan and the United States,” 78 Colorado L. Rev. __ (forthcoming 2007); “Software as Crime: Japan, the United States and Contributory Copyright Infringement,” 79 Tulane L. Rev. 265 (2004); and “Copyright and Comics in Japan: Does Law Explain Why All the Cartoons My Kid Watches Are Japanese Imports?” 55 Rutgers L. Rev. 155 (2002).

Welcome, Salil!

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Finally, A Law School Dedicated To Human Sacrifice

The American Justice School of Law, in Kentucky, has an interesting perspective on the world. It explains:

As implied by Kentucky’s latin motto, “Deo gratiam habeamus,” we hold our rights as a free people by God’s grace as well as human sacrifice.

Does Kentucky’s motto really imply a need for human sacrifice? (My understanding is that the direct translation is “Let us be grateful to God.” What a way to show it!) And how does human sacrifice fit in with ABA accreditation? (Hint: this is a high-risk site inspection.)

If this were a news story, it would surely belong in the Columbia Journalism Review’s page of funny headlines.

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APSA-Opinio Juris Happy Hour in Philadelphia

Opinio Juris, the international law blog at which three (count ’em!) of my Temple colleagues are currently blogging, is on a roll of late. They’re holding a neat “virtual round-table” that coincides with the American Political Science Association (APSA)’s annual meeting. And tomorrow night, from 5:30 through 7:30 at Philadelphia’s swanky Continental Midtown , they are hosting a happy hour for APSA members, and other international law junkies. I’ll be crashing, and if you are one of our readers and happen to be at the event, be sure to say hello.

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The Unconstitutionality of State-Created Bankruptcy-Specific Exemptions

Judge Jeffrey R. Hughes, writing for the U.S. Bankruptcy Court for the Western District of Michigan, has held a Michigan exemption law that applies only in federal bankruptcy proceedings to be unconstitutional. In re Wallace, 2006 WL 2347807 (Bankr. W.D. Mich. Aug. 9, 2006) (to be published). The Bankruptcy Code authorizes states to opt out of the Code’s exemption scheme. As a general matter, then, debtors from opt-out states may only exempt property from their bankruptcy estates pursuant to state-provided exemptions and nonbankruptcy federal exemptions. 11 U.S.C. § 522(b)(2), (3)(A). In this regard, the Bankruptcy Code recognizes and defers to nonbankruptcy entitlements. A state exemption law that applies only in federal bankruptcy proceedings (a “bankruptcy-specific exemption”) raises the issue of whether the recognition of and deference to nonbankruptcy entitlements translates into a congressionally-delegated authority for states to create bankruptcy entitlements. Within the exemption context, the Wallace court has answered “no.” States do not have such authority, thus rendering a state-created bankruptcy-specific exemption unconstitutional.

The court in Wallace referenced a 2000 decision issued by the U.S. Bankruptcy Court for the Northern District of Indiana, In re Cross, 255 B.R. 25 (Bankr. N.D. Ind. 2000), which found that an Indiana bankruptcy-specific exemption regarding entireties property was unconstitutional. Aside from these two decisions, I know of no others that address this issue. This is curious as Delaware, Georgia, Iowa, Kentucky, New York, Ohio, and West Virginia have all enacted bankruptcy-specific exemptions in one form or another—some allowing debtors in bankruptcy to claim more exempt property than they otherwise could outside of bankruptcy and others providing the opposite. I wonder whether courts and/or legislatures in these jurisdictions will take notice of the Wallace decision. Perhaps there are more constitutional challenges or even statutory amendments on the horizon. Stay tuned.

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The Supreme Court Clerkship Meritocracy

Lots of people, including the NYTimes, have noted and commented on the paucity of females among this year’s Supreme Court clerkship class. But one particular quote in the Times article stuck out. Linda Greenhouse wrote that Souter “explained that he had hired the top four applicants, who turned out to be men.”

Wait a second. The “top four applicants”? Are things really so cut and dried that one can clearly identify the top four applicants? First, it sure seems like most Justices filter out many excellent applicants. Based on the narrow range of schools that provide clerks, it appears that many Justices simply set aside highly qualified applicants based on school alone. I understand that this may be a simple way to limit an otherwise unwieldly pool of candidates. But it surely works to exclude many people – women, minorities, and yes, white men – who would do an equally good job. Many law non-Ivyish law schools have a top grad, an uber-star, who would make a top notch clerk. Alabama has one in the class of 2006 (a female) and I know more are in the pipeline.

But even if one accepts the assumption that four schools – Yale, Chicago, Harvard and Stanford (the schools identified by Brian Leiter as disproportionate feeders) – graduate better potential clerks than weaklings like Alabama, Texas, Temple, Vanderbilt, Emory, and Duke, I still doubt that whatever assessment tools the Justices use really identify the four objectively best candidates. Perhaps if the Justices had some data showing that a Yale Law Journal graduates who graduated summa from Williams is less likely to flame out than a Yale grad who graduated summa from Knox College, I’d buy it. And maybe the person who ingratiates himself to Larry Tribe really does pan out more often than the person who studies and thinks really hard, but never desires to do research assistance – or who does research for Jon Hanson. I just doubt it.

Diversity on the bench matters, if only because lived experience shows that people with different life experiences approach problems differently. (In that sense, Alabama’s monochromatic judiciary – 15 white men and 4 white women sit on the state’s three appellate courts – guarantees a cramped view of how to solve conflicts.) Diversity among clerks matters as well, partly because clerks sometimes do affect outcomes and partly because clerks form a primary pool for future solicitors, Supreme Court litigators, academics, and other leaders in the law. When Justice Souter and others (and clearly, Souter is relatively good on sex diversity) adopt dubious heuristics for evaluating candidates, their narrow choices have a wide ripple effect.

I’m certain that all nine Justices are focused on hiring good clerks. I simply believe that a pool of equally strong, and more diverse “top four applicants” can be found on the cutting room floor.

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Are We Writing Only For Ourselves?

In 1992, Judge Harry Edwards wrote an article in Michigan, The Growing Disjuncture Between Legal Education and the Legal Profession, which was, as the title suggests, an effort to redirect legal scholarship from what Edwards perceived as a too-abstract and theoretical path towards work that would be of more immediate use to h judges and lawyers. I think it fair to say that, while legal scholarship, has since evolved in a variety of directions, one of them has not been more practical scholarship along the lines Judge Edwards urged.

His piece has been much discussed, but also essentially ignored as legal scholarship has moved futher in the direction Edwards decried (I’m speaking too broadly here, I know, since terrific doctrinal scholarship continues to be produced and an increasingly empirical literature might be the most “practical” of anything that appears in the law reviews). But the median journal article, so to speak, at least in the leading law reviews, is one it is hard to imagine a lawyer or court citing, and not much easier to imagine your average policy-maker even understanding.

But this is old news. As I start this academic year, iit occurred to me that not only is legal scholarship no longer written for judges and attorneys but we in the legal academy seem far less interested than in past years in even acquainting future judges, lawers, legislators, and policy makers with our scholarship. Casebooks are increasing ignoring the literature that is the stuff of academic discussions of the topic in question, and, when the scholarship is cited it is typically in tip-of-the-hat fashion.

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Above the Law: Welcome to the Blogosphere

above-the-law.gifYou knew her him as A3G of Underneath Their Robes. He went on to blog at Wonkette, and now David Lat is at the helm of a new blog, Above the Law.

David offers a preview of what’s to come:

1. Legal Eagle Wedding Watch. We review the New York Times wedding announcements each week, pick out some couples with lawyers, and score them — on their résumés, families, balance, and beauty (if pictured). Then we calculate overall scores and declare a winner. FUN! (We’ve been at this for a few weeks now; click here and scroll down for the Wedding Watch archives.)

2. Lawyerly Lairs. Real estate and shelter porn for the J.D. set. We take you inside the lavish homes and resplendent offices of America’s top lawyers and judges. Don’t blame us if your keyboard ends up covered in drool. (Previously covered: Greta Van Susteren and John Coale’s New York digs.)

3. The Eyes of the Law: Legal Celebrity Sightings. When you called your sister from Starbucks, in a tizzy after seeing Ted Olson, she asked: “What about Mary-Kate and Ashley?” But don’t despair; we understand.

4. Advice for the Lawlame. We take the painfully earnest questions submitted to the popular career advice columns at NYLawyer.com — and offer up responses of our own (examples here and here).

5. Hotties Contests. And lots of ’em. You get to vote on the hottest judges, law professors, and legal journalists — among many others. (First up: ERISA lawyers. Don’t say we didn’t warn you — NSFW!!!)