The abstract says it all:
This paper was written for judges to assist them in understanding: their obligations concerning Facebook and other social networking sites, including “friending” lawyers; the confidentiality of email, texts, and other e-communications; the use of the Internet by lawyers to research jurors or potential jurors; the use of the Internet by judges to research the facts and law; and how to admonish jurors not to use the Internet to research the case before them or to discuss it prior to deliberations.
The full paper is here.
Thanks to Minnesota Lawyer, judges (and lawyers) might be able to write better:
Legal writing guru Brian Wagner has a list of words or phrases all lawyers should do away with in their writing immediately. He calls it his “verbal blacklist” and there are some familiar ones. Thankfully, “said”–the most useless word of all, makes the list.
said As the past tense of say, this word is fine. As a fancy-pants substitute for the (such as said agreement), it isn’t fine at all. It’s foolish. It doesn’t add one iota of precision. It makes you sound like a parody of law-talk.
and/or Is it a word? Is it a phrase? American and British courts have held that and/or is not part of the English language. The Illinois Appellate Court called it a “freakish fad” and an “accuracy-destroying symbol.” The New Mexico Supreme Court declared it a “meaningless symbol.” The Wisconsin Supreme Court denounced it as “that befuddling, nameless thing, that Janus-faced verbal monstrosity.” More recently, the Supreme Court of Kentucky called it a “much-condemned conjunctive-disjunctive crutch of sloppy thinkers.” Now if Apple can just had the list of words to the spell check function on judge’s computers there will be far more readable orders.
Linda Greenhouse has an essay in The New York Times that begins:
Someone at the Supreme Court got an assignment last week: start drafting a majority opinion to answer the question whether a for-profit company can claim a religious exemption from the federal requirement to include particular products in any employee insurance plan.
Ms. Greenhouse is the winner of the 1998 Pulitzer Prize. She writes on alternate Thursdays about the Supreme Court and the law. Ms. Greenhouse reported on the Supreme Court for The New York Times from 1978 to 2008. She now teaches at Yale Law School.
Thanks to the Minnesota Lawyer, we know that Justice Stevens is a fan of Dave Barry.
In an interview with the New York Times Review of Books, former Supreme Court Justice John Paul Stevens said that the last book to make him laugh was by humorist Dave Barry.
Stevens said that the best writers on the subject of law are Justice Stephen Breyer and Judge Richard Posner, and he said that he reads U.S. Supreme Court opinions when he travels. Ever the careful justice, he twice lauded the plays and works “attributed to William Shakespeare.”
Gavel to Gavel reports:
A century old law to require Minnesota judges render their decisions within 90 days or forfeit their pay looks to be on its way towards repeal. The Senate Judiciary Committee on March 28 approved SB 2718, a bill that would eliminate the 90-days-or-no-pay statute that had been around since at least 1905 (prior discussion here). Testimony (2:45:00) was heard that the provision had never been used in 45 years.
SB 2718, as amended, keeps the 90 days for a disposition language, but provides that the judiciary’s Board of Judicial Standards is to adopt rules for compliance. In the event that the Board of Judicial Standards fails to do so, the bill lays out an enforcement mechanism. That mechanism, again if the Board doesn’t adopt an alternative, would be:
- The Board of Judicial Standards and the chief justices of the judicial districts would review judge’s compliance monthly, not at least annually
- A first infraction would result in notification to the chief judge of the judicial district
- A second infraction within 5 years would result in the chief judge and the judge who committed the infraction developing a written plan with the judge to remedy the current non-compliance and avoid future ones. A failure to comply with the plan would be sent to the Board by the chief judge.
- A third infraction within 5 years of the first would result in the Board taking immediate action without referral to the chief judge (the chief judge would be notified).
- Nothing in this would preclude the chief judge to take appropriate action under the Code of Judicial Conduct.
- Should the Board receive a complaint alleging a serious violation of the time standard, the statute would not limit the Board’s ability to act on it.
Meanwhile a similar House bill HB 2687 was approved by the House Judiciary Committee on March 11 and the House Civil Law Committee on March 19.
Jeffrey Bellin (William & Mary Law School) has posted The Inverse Relationship between the Constitutionality and Effectiveness of New York City ‘Stop and Frisk’ (Boston University Law Review, Forthcoming) on SSRN.
Here is the abstract:
New York City sits at the epicenter of an extraordinary criminal justice phenomenon. While employing aggressive policing tactics, such as “stop and frisk,” on an unprecedented scale, the City dramatically reduced both violent crime and incarceration – with the connections between these developments (if any) hotly disputed. Further clouding the picture, in August 2013, a federal district court ruled the City’s heavy reliance on “stop and frisk” unconstitutional. Popular and academic commentary generally highlights isolated pieces of this complex story, constructing an incomplete vision of the lessons to be drawn from the New York experience. This Article brings together all of the strands – falling crime, reduced incarceration and aggressive policing – analyzing the hazy historical and empirical connections between them, and evaluating the legal implications of a crime-fighting policy that might “work” to reduce both crime and incarceration precisely because of the factors that render it unconstitutional.
If there is one thing a lot of judges do, it is fine people.
Some courts proudly boast of all the “revenue” that the courts collect and others bemoan the lack of recognition for the effort they make at collecting fines. Most judges try to be reasonable in the amount they fine people, but there are occasions where judges go too far.
So, is it important if you are a judge who fines people – or you are an appellate judge who reviews the relatively infrequent appeal of a fine – to know excessive fine clause jurisprudence?
The title of this post is the title of this notable new paper by Beth Colgan now available via SSRN.
Here is the abstract:
Millions of American adults and children struggle with debt stemming from economic sanctions issued by the criminal and juvenile courts. For those unable to pay, the consequences — including incarceration, exclusion from public benefits, and persistent poverty — can be draconian and perpetual. The Supreme Court has nevertheless concluded that many of these concerns lie outside the scope of the Eighth Amendment’s Excessive Fines Clause. In interpreting the Clause, the Court relied upon a limited set of historical sources to restrict “fines” to sanctions that are punitive in nature and paid exclusively to the government, and to define “excessive” as referring to — either exclusively or primarily — the proportionality between the crime’s gravity and the amount of the fine.
This Article takes the Court at its word by assuming history is constitutionally relevant, but it challenges the Court’s limited use of history by providing the first detailed analysis of colonial and early American statutory and court records regarding fines. This robust historical analysis belies the Court’s use of history to announce historical “truths” to limit the scope of the Clause, by showing significant evidence that contradicts those limitations.
The Article uses the historical record to identify questions regarding the Clause’s meaning, to assess the quality of the historical evidence suggesting an answer to such questions, and then to consider that evidence — according to its value — within a debate that incorporates contemporary understandings of just punishment. Under the resulting interpretation, the historical evidence articulated in this Article would support an understanding of a “fine” as a deprivation of anything of economic value in response to a public offense. “Excessive,” in turn, would be assessed through a broad understanding of proportionality that takes account of both offense and offender characteristics, as well as the effect of the fine on the individual. The proposed interpretation more faithfully reflects the history and its limitations, and broadens the Clause’s scope to provide greater individual protections.
The Huffington Post reports:
A ”billboard criticizing Louisiana Gov. Bobby Jindal (R) for his opposition to Medicaid expansion may remain, a federal judge ruled on Monday in a trademark infringement case.
The state of Louisiana sued MoveOn.org in March for the billboard’s design, accusing the liberal policy group of ripping off its multi-million dollar tourism brand and seeking an injunction ordering the billboard removed. The billboard parodies the state’s “Louisiana: Pick Your Passion” motto and logo.
U.S. District Judge Shelly D. Dick ruled Monday that the billboard is permissible, saying that Lt. Gov. Jay Dardenne, whose office developed the tourism slogan and sued MoveOn.org, “underestimates the intelligence and reasonableness of people viewing the billboard.”
“The State has not demonstrated a substantial likelihood of prevailing on its burden of proving confusion by viewers of the billboard. Furthermore, the State has failed to demonstrate a compelling reason to curtail MoveOn.org.’s political speech in favor of protecting of the State’s service mark,” Dick wrote in her opinion. “There has been no showing of irreparable injury to the State.”
MoveOn.org had argued that the billboard was protected under the First Amendment. Anna Galland, the group’s civic action executive director, released a statement expressing disappointment in the state’s “baseless lawsuit.”
Here is the rest of the story.
The Fair courts E Alert reports:
Two rule changes made by the Iowa Supreme Court last month directed significant resources to state legal aid organizations, according to The Gazette. The first new rule allows retired Iowa attorneys and attorneys licensed in other states “to provide pro bono services to legal aid organizations. The state’s legal aid offices turns thousands of low income people away every year because of the high caseload and lack of attorneys. The rule allows retired attorneys to apply for an emeritus license and volunteer their time for a legal aid office.” With this ruling, a total of 36 states across the country now offer an emeritus license. The state Supreme Court also amended the state’s student practice rule last month, which allows law students to take on cases under supervision. “Scott Hartsook, managing attorney for Iowa Legal Aid’s Older Iowans Legal Hotline, said it’s great for the students who get practical experience. One advantage of the new rule is that now law students who finish an internship can continue to appear in court with clients after the internship ends. The old rule stated they had to be involved in an educational program to practice before a court or administrative agencies.” Guy Cook, president of the Iowa State Bar Association, praised the changes to the student practice rule, saying, “It’s very forward thinking of the court to approve this rule. This will really help out in the rural areas that have a tremendous need.”
The Boston Globe reports:
WHEN GOVERNOR Deval Patrick introduced his budget proposal for the upcoming fiscal year, tucked amid big-ticket items like education and health care were a few small changes to the Massachusetts criminal justice system. If approved, the budget would create eight new courts: three designed specifically to deal with defendants suffering from mental illness and five for those struggling with drug addiction.
In the scheme of the $36.4 billion budget, these courts represent a modest investment, and would seem like an uncontroversial nod to the idea that certain people benefit from more individualized attention in court. But in legal terms, Governor Patrick’s proposal is tapping into something much bigger. It’s a new idea about criminal justice, rooted as much in sociology and psychology as in law: the notion that certain kinds of offenders are better handled by dealing with the problems underlying their crimes rather than with simple punishment.
Continue reading here.