Thoughts from
San Diego on Law, Politics, and Culture

 
Sicilian gesture gate update
By Tom Smith

You can't make this stuff up. Did the reporters get their legs broken? Their car blown up? Did Michael put a .22 slug into their throat over the clam linguini? No. So stop complaining. It's not personal. It's business.
posted by thomas at 3/30/2006 11:35:00 AM

 
Not only are we ugly and whiny, we're also responsible for bad music
By Tom Smith

Will the depradations of conservatives never cease? (hat tip JK)

posted by thomas at 3/30/2006 11:21:00 AM

 
The Israeli Election
By Mike Rappaport

David Bernstein and Ilya Somin discuss the Israeli Election results, and the fact that they don't bode well for free markets. I share their disappointment and pessimism. One thing they don't mention. In recent years, the Shinui Party has stood for free markets (and separation of church and state) in Israel. I have thought that I would probably vote for them if I could cast a ballot in Israel. Yet, somehow the party has imploded, and has gone from 15 seats to none. While the members have gone to other parties, the elimination of this party is another discouraging sign from Israel.

Update:Another interesting fact about the elections. Likud was cut down to 11 members, and the 11th person on their list: Natan Sharanksy. Unless I am misinterpreting things, he just barely kept a seat in the Knesset.

Further Update: For information about Shinui and its decline, see this very informative Wikipedia entry.
posted by MichaelTom at 3/29/2006 08:41:00 AM

 
Scandal at Columbia (Part II)?
By Gail Heriot

Avery Katz of Columbia Law School wrote to draw my attention to a Letter to the Editor written by Columbia's Dean David Schizer in response to Curt Levey's op-ed:

"Curt A. Levey's column titled "Bollinger on the Spot" implied that Columbia University President Lee Bollinger was personally involved in the recent appointment of Olati Johnson to the Columbia Law School faculty [Opinion,March 24, 2006]. This is not the case. Although President Bollinger is a member of our faculty, he obviously has many responsibilities throughout Columbia University, and was not personally involved in the Law School's decision to hire Professor Johnson. Professor Johnson, a former clerk to Justice Stevens on the United States Supreme Court, has been serving as a Kellis Parker Fellow at the Law School for the past two years. She brings a wealth of knowledge to her scholarship and teaching, and she will teach courses here in civil procedure and constitutional law.The ethics charges referred to in the column arose in a highly partisan atmosphere and involved many disputed issues of fact that were never adjudicated, principally because the complaints were dismissed in the jurisdiction (New York) where Olati Johnson is licensed to practice law. As Mr. Levey himself noted in his column, she is personable, extremely articulate, and exceptionally bright. We're pleased to
welcome her to the faculty."

In addition, Avery, who was chair of entry-level hiring, added the following points:

"1. Olati Johnson is a superb appointment for our law school, and we were fortunate to hire her in the face of stiff competition from other top schools, including Harvard....

2. At Columbia Law School, the president of the university is not involved in entry-level hiring. While Columbia President Bollinger's formal academic appointment is in law, he does not participate in law school faculty deliberations or teach law school classes; and we did not consult him or consider his possible views regarding Olati's candidacy.

3. Our faculty was aware of CFIF's allegations and the associated ethicscomplaints it had filed at the time it considered Olati's candidacy. As lawyers and law teachers, we take allegations of professional misconduct extremely seriously; and before we voted the appointment we reviewed and discussed the CFIF complaints and Olati's formal responses to them.

4. Based on this review, we concluded that CFIF's allegations did not warrant our rejecting an otherwise outstanding appointment. This conclusion was based on the following considerations:

-- Even if the allegations were assumed arguendo to be accurate, our judgment was that, taken in context, they would at most constitute an error in judgment that ought not disqualify someone from pursuing a career in teaching.

--We did not feel we had any reliable basis to conclude that the allegations were accurate. In particular, they arose in the context of an intensely partisan atmosphere; and many of the relevant facts, including several of the assertions stated as fact in the Sun editorial, are disputed.

--None of the ethics complaints that CFIF filed in connection with these allegations resulted in any finding of wrongdoing. In particular, the complaint that CFIF filed in New York state, the jurisdiction where Olati Johnson is licensed to practice law, was summarily dismissed on the merits -- a fact not mentioned in the Sun editorial. [In addition, the editorial does not mention that the complaint filed against Elaine Jones before the Virginia state bar was also dismissed.]"
posted by Gail at 3/29/2006 12:03:00 AM

 
Bernard Siegan
Distinguished Professor of Law
University of San Diego School of Law
By Gail Heriot

Our beloved friend and colleague Bernie Siegan passed away last night. Bernie had remained hospitalized since suffering a stroke late last year, but his death was nevertheless unexpected.

Bernie was a friend and inspiration to many. He will be sorely missed. I will post further information when I receive it.
posted by Gail at 3/28/2006 09:46:00 AM

 
Scandal at Columbia University?
By Gail Heriot

Curt Levey in an op-ed for the New York Sun has the following story:

"BOLLINGER ON THE SPOT

Columbia University and its president, Lee Bollinger, have some explaining to do. The university recently announced that its law school had awarded a coveted faculty position to Olatunde "Olati" Johnson, a woman with a scandal-plagued connection to Mr. Bollinger.

Ms. Johnson played a central role in the two-year-old Senate scandal known as memogate, which involved, most notoriously, her recommendation that the judicial confirmation process be rigged to influence the outcome of a pair of pending federal court cases. The cases were the landmark challenges to affirmative action at the University of Michigan, and the defendant was the university's president at the time, Lee Bollinger. That Ms. Johnson should now find herself working under Mr. Bollinger raises questions about a conflict of interest and a possible payoff for services rendered.

The scandal came to light in late 2003 with the disclosure of memos prepared by Ms. Johnson and other Democratic staffers on the Senate Judiciary Committee. The memos--whose authenticity was never denied--disclosed that Senate Democrats were cynically manipulating the judicial confirmation process, and that liberal outside interest groups were calling the shots on which of the president's nominees would be blocked. It was all very unseemly, though probably not unethical--with one exception.

In April 2002, Ms. Johnson recommended a delay in the Judiciary Committee's hearing for Julia Smith Gibbons, a nominee to the U.S. Court of Appeals for the Sixth Circuit, the court that was poised to decide the University of Michigan cases. Johnson, who was working for Senator Kennedy (a Democrat of Massachusetts), was surprisingly blunt about the reason for the delay: "The thinking is that the current 6th Circuit willsustain the affirmative action program, but if a new judge with conservative views is confirmed before thecase is decided, that new judge will be able, under Sixth Circuit rules, to review the case and vote on it."

Ms. Johnson conceded that "the 6th Circuit is in dire need of additional judges" and that Ms. Gibbons was an"uncontroversial" nominee. And she recognized the ethics problem, noting that she and another Kennedy staffer "are a little concerned about the propriety of scheduling hearings based on the resolution of a particular case." Nonetheless, Ms. Johnson recommended a delay because "the Michigan case is important."

Ms. Johnson's recommendation grew out a request by her previous boss, Elaine Jones, president of the NAACP Legal Defense and Educational Fund. Ms. Jones and Ms. Johnson had a big interest in the outcome of theMichigan cases. Ms. Jones was serving as counsel to an intervening party seeking to defend Lee Bollinger from the charge that his university's race-based undergraduate admissions system was unconstitutional. Ms. Johnson was her co-counsel on the case until moving to the Senate months earlier. It turned out to be a fortuitous move, with Ms. Johnson now in a position to help her former boss and clients, as well as Mr. Bollinger.

And help she did. Ms. Gibbons's hearing in the Judiciary Committee was delayed. Then, when the Committee finally approved her, Ms. Gibbons's confirmation was delayed almost another three months. Only four of 101 judicial nominees waited longer. A full discussion of the ethics rules that govern all attorneys, including Ms. Johnson and Ms. Jones, is beyond the scope of this article. However, a few things should be obvious to even the layman. Ms. Johnson's participation in the Sixth Circuit scheme would have been avoided had she, upon moving to the Senate, recused herself from all matters involving the Michigan cases or Sixth Circuit nominations. Failing that, Ms. Johnson should have recognized that an attorney is duty-bound to refrain from improperly influencing a court outside the confines of normal legal proceedings.

That duty is foremost among the ethical principles governing attorneys because the integrity and impartiality of the judicial system depends on it. Each of us need to know that, when we go into court,the lawyers for the other side have not bribed the judges, surreptitiously packed the jury pool, or--as Ms. Johnson and Ms. Jones did--secretly manipulated which judges sit on the court.
...

In light of [the ensuing scandal], I was surprised to hear of Olati Johnson's good fortune. First, Columbia awarded her the prestigious Kellis Parker Fellowship in Law and now, a coveted faculty position at one of the nation's top law schools. Then it dawned on me that Lee Bollinger is the president of Columbia University and a member of its law school faculty. I began to wonder whether it is mere coincidence that Ms. Johnson wound up at the university headed by the very person who stood to gain the most from the delay in Ms. Gibbons's confirmation. ... Had she gotten a position at virtually any other law school, the assumption would be that the school had impartially concluded that Ms. Johnson's talents outweighed the ethical implicationsof her involvement in Memogate. Unfortunately, because of the positions held by Lee Bollinger, Columbia could not make such a judgment impartially even if it tried. As a result, there are now serious questions surrounding Lee Bollinger and his university...."

((Sadly, the Memogate mess that Curt is writing about here was not the only scandal associated with the Sixth Circuit's decision in Grutter v. Bollinger. Judge Danny Boggs, who dissented in the case took the highly unusual step of including a "Procedural Appendix" to his dissenting opinion in which he protested improper procedural manipulations by Chief Judge Royce Martin designed to ensure that the University of Michigan's controversial racial preference programs would be upheld. One of the unhappiest aspects of the race-based admissions policies is their tendency to result in this kind of deceit and manipulation. Once the colleges and universities are themselves infected, the problem spreads to the courts and to the Senate. And there's no end in sight. Whether the hiring of Ms. Johnson at Columbia is part of it or just a conincidence we'll probably never know.))

posted by Gail at 3/28/2006 08:01:00 AM

 
Republican men better in bed
By Tom Smith

So says a very informal survey in GQ magazine. Scientifically valid? No. But stop being so sensitive. Sensitive is not sexy. Not really. (Hat tip to PC)
posted by thomas at 3/27/2006 11:14:00 AM

 
We're back!
By Tom Smith

We were locked out of our blog all weekend by the evil spam prevention robots at Blogger. The RC may be a lot of things, but being identified as a spam blog, even if it was by a robot, was pretty insulting. What on earth did we do to get inside of that algorithm? I have a theory. Shortly before we were locked out, I linked both to a post on VC and to another post on VC, which the first post itself linked to. This might have made the robot think we were engaged in some sort of crawly behavior. But that's just a guess.

In any event, Blogger's stock with me is at an all time low. I really want the RC to make the switch to Typepad. Be alert for news on this score.
posted by thomas at 3/27/2006 11:09:00 AM

 
Selling "Her" Story
By Gail Heriot

The San Diego Union Tribune ran a story today entitled "Rossum Unlikely to Turn Lurid Crime Tale into Riches." Kristin Rossum, a beautiful, talented, young San Diego Woman, was convicted in 2002 of the premeditated murder of her young husband (although as far as I know she continues to maintain his death was a suicide). The story was indeed a lurid one, complete with drugs, adultery and deception. The evidence of her guilt was ample. She is serving life in prison without the possibility of parole.

Last week, a civil jury awarded her husband's family $100 million in punitive damages. Apparently, the family argued that Rossum might be able to sell the rights to her story and make a handsome profit on her crime. A "marketing expert" apparently opined that Rossum could make "at least $2.5 million" from such a sale. The Union Tribune interviewed the jury foreman shortly after the verdict was announced: "'We simply wanted to make sure that there wasn't a profit that could be made by her,' said Lyle Koonts of San Carlos, the jury foreman ...." (The jury also found the County of San Diego liable, but that should be the subject of another post.)

Criminals do sometimes profit from the publicity surrounding their crimes (and like most Americans, I agree that that's a bad thing.) California used to have a law against criminals profiting through book or movie deals, but that law was overturned by the California Supreme Court on First Amendment grounds a few years back. Still, it's worth pointing out something that seems to have been missed by the San Diego Union Tribune and that is that criminals don't "own" their stories in the first place. Sure, Rossum could write a book or screenplay about her exploits and possibly make a lot of money. Alternatively, writers or movie producers could, if they wished, pay Rossum to cooperate in their projects. One of them might even pay her to cooperate exclusively with him. But the "rights" to the story are not Rossum's to give. Anyone may write or produce a movie about the Rossum murder; it is unnecessary to seek her (or anyone else's) consent or cooperation. The murder has already been the subject of an extensive criminal trial and a civil trial. The record is there for everyone to use.

Consequently, it seems unlikely to me that anyone would pay her $2.5 million just for her cooperation. No, that doesn't necessarily mean that the jury was wrong to award punitive damages the way they did. I'm simply tired of hearing people talking about buying the "rights" to a story that is already very much in the public domain. It doesn't work that way. The most one can buy is the exclusive right of cooperation. Anyone who knows the story is free to tell it. A movie producer who pays millions for a story that is already known cannot guarantee that a dozen movies on the same subject won't appear.

(Addendum: I wrote this post on Sunday, but due to technical difficulties, it was not posted till Monday.)
posted by Gail at 3/26/2006 12:24:00 PM

 
Liberals vs. conservative: hot or not?
By Tom Smith

Jessica Wilson apparently thinks, or thinks it is funny to say, that liberals are on average better looking than conservatives. But is this really true? Here is a liberal. And here is a conservative. How are we doing so far? Well, let's try this. A liberal, and a conservative. Hmmm. A conservative? Oh dear. A liberal. On the other hand, said to be a conservative. But then, this is San Diego, and maybe our standards are a little, ah, different.
posted by thomas at 3/22/2006 08:38:00 PM

 
The artist formerly known as the tenant
By Tom Smith

Don't rent your house to Prince. Unless you really like purple.

posted by thomas at 3/22/2006 03:38:00 PM

 
Backdating corporate stock options
By Tom Smith

If the plaintiffs' lawyers haven't piling on this one, they soon will.

Among other things wrong with the practice, it eliminates at least part of the incentive effect of stock option based compensation. While you can say anything can be validated by contract, it's hard to see why a rational shareholder would ever approve this practice.
posted by thomas at 3/20/2006 12:12:00 PM

 
National Law Journal article on law prof blogging
By Tom Smith

Interesting article. (Hattip to JPC.) Of course, one cannot let go unchallenged Prof. Litvak's remark that blogging "has nothing to do with scholarship," further proof, if any is needed, that one should never say silly things to a reporter. It has lots to do with scholarship. The only question is, can one list ten things it has to do with scholarship in less than 120 seconds. So . . .

1. gives you a chance to try out new ideas and get criticisms fast
2. helps you break down writer's block
3. raises your profile so people will actually download and read your articles, see Barnett, Leiter, many other examples
4. gives you a chance to write things and clarify your own ideas. You may discover in writing you have less or more to say than you thought.
5. gets people to send you emails on stuff you should read
6. for some people like Dick Posner, they blog as fast as they write articles anyway so why not just blog and let the rest of us enjoy their insights faster
7. sometimes what you have to say will fit in a longish post but is still very much worth saying, so why bother to dress it up with a bunch of stupid footnotes, which are mostly for the benefit of students who are not the intended audience anywayl.
8. many more people read blogs than law review articles anyway. 40 percent of law review articles go completely unread; if your blog is unread you can quit without wasting so much time
9. A lot of so called scholarship is inferior to a lot of blogging. When Volokh posts something on the first amendment or Bainbridge says something about boards of directors they are drawing on a deep well of knowledge that comes out in the post. They create a public good much more valuable than another article by someone who will know less than they do even after months of research
10. Lots of people much more distinguished than Litvak blog and do think it has 'something to do' with scholarship.
11 . in case 10 doesn't really count, blogging is a conversation, which brings network effects to bear on the usual marketplace of legal ideas at a much faster time scale. Blogging is efficient!

(typed but not proofed.)

OK, I took more than 120 seconds, but I was typing fast and continuously, with no pausing for cogitation. How many reasons can you come up with that blogging has "something to do with" legal scholarship? Remember, no pausing to think.
posted by thomas at 3/20/2006 11:43:00 AM