As reported by the Washington Post, ex-spouses and domain names can lead to litigation.

 “No, really — that’s [Audrey] Dunham v. [Paige] Dunham (C.D. Cal. Jan. 21, 2015), involving the current and past wives of “ventriloquist, producer and stand-up comedian Jeff Dunham” (Hollywood Reporter, Eriq Gardner). From the Complaint:

7. In May, 1994, Defendant married Jeff Dunham, now a renowned ventriloquist, producer, and stand-up comedian. Due to irreconcilable differences, Defendant and Jeff Dunham subsequently divorced.

8. On or about December 25, 2011, Jeff Dunham and Plaintiff were engaged to be married. Defendant was aware of Plaintiff and Plaintiff’s engagement with Jeff Dunham at that time.

9. On or about January 3, 2012, Defendant, without notice to Plaintiff, registered the following domain names through Network Solutions, LLC, a domain name registering company: AudreyDunham.com, AudreyDunham.net, AudreyDunham.us, and AudreyDunham.biz (collectively “Accused Domains”). On information and belief, Defendant concealed her name as the registrant for AudreyDunham.com, AudreyDunham.net, and AudreyDunham.biz domains by employing the services of Perfect Privacy, LLC, a company that specializes in keeping the identities of domain name registrants private. Defendant knew at the time she registered the Accused Domains, that Plaintiff would soon change her name to AUDREY DUNHAM….

12. On or about January 4, 2013, Plaintiff asked Defendant, in writing, to transfer the Accused Domains to Plaintiff and offered to reimburse Defendant for any out-of-pocket expenses associated with transferring the Accused Domains. Defendant refused to transfer the Accused Domains. On or about January 18, 2013, Defendant, through her agent, offered to sell the Accused Domains to Plaintiff in exchange for a payment of tens of thousands of dollars, for each domain name….”

Brandon Parker Ruben has posted Should the Medium Affect the Message? Legal and Ethical Implications of Prosecutors Reading Inmate-Attorney Email (Fordham Law Review, Forthcoming) on SSRN.

Here is the abstract:

The attorney-client privilege protects confidential, legal communications between a party and her attorney from being used against her. It is among American jurisprudence’s most sacrosanct evidentiary principles. Unsurprisingly, federal prosecutors cannot eavesdrop on inmate-attorney visits or phone calls, or read inmate-attorney mail. Courts are currently divided, however, on whether or not the government can be prevented from reading inmate-attorney emails.

This Note explores the incipient body of case law that addresses whether federal prosecutors can read inmates’ legal email.

The forms of attack on judicial independence are often different, but they also often threaten our democracy. Fortunately, most of these ideas among legislative bodies never actually get passed. With some, an argument can be made to either just ignore it or don’t dignify it with comment. Fair Courts has such a piece:

Texas Bill Would Cut Salaries of Judges Who Enforce Same-Sex Marriage Rights

A bill introduced in Texas last week would withhold the pay of any state or local government employee giving out, recognizing, granting, or enforcing same-sex marriage licenses. The bill, filed by Rep. Cecil Bell Jr. (R-Magnolia), states that “[i]f an employee violates this subsection, the employee may not continue to receive a salary, pension, or other employee benefit at the expense of the taxpayers of this State.” This legislation is similar to a bill introduced in South Carolina last month, which prohibited payment of salaries and benefits to government employees recognizing, granting, or enforcing same-sex marriage licenses. Equality Texas legislative specialist Daniel Williams said “Texas [] may not ignore federal law whenever it wants…. Beyond it ignoring federal law, it would actually punish state employees who follow the law.”

David H. Kaye , Frederick R. Bieber and Damir Primorac (respectively, The Pennsylvania State University Dickinson School of Law, Independent, and Primorac & Partners) have posted DNA as Evidence in the Courtroom (Forensic DNA Applications: An Interdisciplinary Perspective 509-25 (Dragan Primorac & Moses Schanfield eds. 2014)) on SSRN.

Here is the abstract:

This paper appears in Forensic DNA Applications: An Interdisciplinary Perspective, a textbook and reference work on forensic molecular biology prepared for the International Society of Applied Biological Sciences. Originally submitted in January 2012, the chapter outlines the legal principles that govern the admissibility of scientific evidence, briefly surveys the history of legal challenges to forensic DNA typing, and simply identifies some current legal issues in the use of the technology in trials.

The title of this post is the title of this interesting new paper by Brandon Garrett now available via SSRN.

Here is the abstract:

Is a plea bargain a type of confession? Plea-bargaining is often justified as at its core a process involving in-court confession. The U.S. Supreme Court’s early decisions approved plea bargains as something “more than a confession which admits that the accused did various acts.”

I argue in this Article that plea bargains are not confessions — they do not even typically involve detailed admissions of guilt. The defendant generally admits to acts satisfying elements of the crime — a legally sufficient admission to be sure, but often not under oath, and often not supported by an extensive factual record. Because plea bargains typically contain only formulaic admissions, they have limited preclusive impact in future cases. The modern trend is to find issues not precluded by a guilty plea, except perhaps as to elements of the charged offense. The problem with the lack of adjudicated facts arises when other actors later seek to attach collateral consequences on that conviction.

More careful development of the factual record could help to prevent at least some guilty pleas by innocent defendants, but also important, it could produce reforms to more narrowly target the collateral consequences that now attach to entire categories of convictions. That is why I view it as particularly important to understand precisely why plea bargains are not “more than” and are in fact much less than confessions.

Elizabeth E. Joh (U.C. Davis School of Law) has posted Should Arrestee DNA Databases Extend to Misdemeanors? (Recent Advances in DNA & Gene Sequences, 2015, Forthcoming) on SSRN.

Here is the abstract:

The collection of DNA samples from felony arrestees will likely be adopted by many more states after the Supreme Court’s 2013 decision in Maryland v. King. At the time of the decision, 28 states and the federal government already had arrestee DNA collection statutes in places. Nevada became the 29th state to collect DNA from arrestees in May 2013, and several others have bills under consideration. The federal government also encourages those states without arrestee DNA collection laws to enact them with the aid of federal grants. Should states collect DNA from misdemeanor arrestees as well? This article considers the as yet largely unrealized but nevertheless important potential expansion of arrestee DNA databases.

Last week, Sam Ervin IV took the oath to serve on the North Carolina Supreme Court, following in the footsteps of his grandfather.  Sam Ervin Jr. was an associate justice when he was appointed to the Senate in 1954.

See more here.

Mike C. Materni has posted Rebooting the Discourse on Causation in the Criminal Law: A Pragmatic (and Imperfect) Approach (Criminal Law Bulletin, Volume 50 Issue 6, Winter 2014) on SSRN.

Here is the abstract:

Causation in the criminal law is an extremely complex issue for several reasons. Prime among those reasons is the fact that most scholars who have tackled the issue have done so by searching for a universal, comprehensive solution. This Article starts from the premise that such a solution is unattainable. Rather than embarking in extravagant philosophical inquiries, the Article offers a pragmatic solution to the issue of causation in the criminal law. Applying a methodology that finds validation in the philosophy of science, the Article argues that causation in the criminal law should be constructed in functional terms. Linking the concept of cause to its function within the criminal law, the Article maintains that “cause” should be informed to the idea of necessity, not sufficiency — nor any other idea of “cause,” no matter how strong or even better that idea might be from the perspective of metaphysics. The proposal advanced in this Article, while necessarily imperfect, gives coherence to a concept (that of but for cause) that, as of today, has been thought to be faulty and flawed to the point of inadequacy. Only by understanding causation within this framework it will be possible to move past the flawed dichotomy of “cause in fact” and “proximate cause” and focus on the more delicate policy issues that relate to culpability. While it is not the Article’s goal to be the last word on the subject — indeed, the Article expressly aims to be an initial building block — the Article does clarify several basic (and yet, until now, somewhat obscure) concepts that relate to causation in the criminal law, thus raising the level of discourse and providing a stronger foundation for further debate on the subject.

Jury nullification is interesting to a lot of law students and to a very small niche of the Bar. A few states instruct juries on their right to nullification, but the prevailing rule is say nothing.

So, perhaps this is just about Kansas, but it is interesting.  Recently, Professor Eugene Volokh wrote for the Washington Post:

From the Kansas Supreme Court’s decision in State v. Smith-Parker (Kan. Dec. 24, 2014):

The [jury] instruction read: “If you do not have a reasonable doubt from all the evidence that the State has proven murder in the first degree on either or both theories, then you will enter a verdict of guilty.” (Emphasis added.) According to Smith-Parker, the instruction should have been identical to the general reasonable doubt instruction that was also given. That instruction said: “If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.) …

This court addressed a similar instruction challenge in State v. Lovelace, 227 Kan. 348, 607 P.2d 49 (1980). The questioned Lovelace instruction told jurors that they “must” find defendant guilty if they did had no reasonable doubt on the elements of the crime. This court rejected Lovelace’s argument that “must” commanded the jury to find the defendant guilty and noted that “should” and “must” could be used interchangeably in criminal instructions. Smith-Parker acknowledges this precedent but argues that it was wrongly decided. We agree with him and overrule the Lovelace holding.

Although we have rejected a defense argument that a criminal jury should be instructed on its inherent power of nullification, the district judge’s instruction in this case went too far in the other direction. It essentially forbade the jury from exercising its power of nullification. Both the wording of the instruction at issue in Lovelace — “must” — and the wording at issue here — “will” — fly too close to the sun of directing a verdict for the State. A judge cannot compel a jury to convict, even if it finds all elements proved beyond a reasonable doubt.

Nothing requires states to offer vanity plates…other than the desire to get additional revenue. But, they can cause legal problems too.

The Constitutional Law Professor’s blog reports:

The United States Supreme Court has granted certiorari in Walker v. Texas Sons of Confederate Veterans involving a First Amendment challenge to the denial of a specialty license plate that would display the confederate flag to the Sons of Confederate Veterans.

The Fifth Circuit’s divided panel opinion, authored by Judge Edward Pardo, reversed the district judge’s grant of summary judgment to Texas and concluded that the denial of a specialty license plate bearing a Confederate flag symbol constituted impermissible viewpoint discrimination under the First Amendment. The majority concluded that a “reasonable observer” of the license plate would believe it was the speech of the automobile’s owner and not the government, and thus Texas cannot constitutionally allow some viewpoints to be expressed on the license plates but not others. Dissenting, Judge Jerry Smith contended that the doctrine of government speech articulated in the Court’s unanimous Pleasant Grove City v. Summum (2009) controls: there is no meaningful distinction between the privately placed monuments in Summum and the license plates in Texas.

The constitutional status of license plates – – – whether they are specialty, vanity, or state-mandated – – – has been fertile ground for First Amendment litigation. As we’ve discussed, the Fourth Circuit recently held that North Carolina’s provision of a “Choose Life” specialty license plate violated the First Amendment; the New Hampshire Supreme Court invalidated a vanity license plate regulation requiring “good taste”; a Michigan federal district judge similarly invalidated a refusal of specific letters on a vanity plate; and on remand from the Tenth Circuit, the design of the Oklahoma standard license plate was upheld.

What might be called the First Amendment doctrine of license plates, following from the classic First Amendment case of Wooley v. Maynard (1977) involving compelled speech has become more complex with the introduction of specialty and vanity license plates. Such plates do produce revenue for states, but also provoke First Amendment concerns and expensive litigation. In granting certorari, the Court has the opportunity to settle the matter. Or perhaps the Court will further complicate the issue of expressive license plates on our cars.