Welcome!

First, we would like to welcome all our incoming 1L students. We are always very excited to see new members of the UDM family. We would also like to welcome back all returning students. We hope that you are all feeling refreshed after the summer break!

We have just set out our library tour schedules, which is posted at the library entrance. All are welcome to attend the library tours--sign-up is not necessary in order to attend. The tours provide a nice opportunity to familiarize yourself with the law library, or can provide a refresher of the library facility. Additional information about the library can be found in the Library Guide, which 1L students should have received as part of the first-year orientation package. Please see a member of the reference staff if you did not receive a copy or if you would like an updated copy. Of course, you should never hesitate to talk to any member of the library staff--we are eager to help!

Greater Polarization Linked to Increased Use of Soapbox

The New York Times has an article today from Adam Liptak discussing a recent study that suggests that oral dissents from the bench have become more common since the inception of the Roberts court. As compared to the preceding Rehnquist and Burger courts, the study finds that the practice of reading a dissent from the bench has increased from an average of 3 per term to 3.75 per term. The study links the rise in oral dissents to increasing polarization on the court, claiming that such dissents could signal that bargaining and accommodation among members has broken down. Given the ideological pedigree of the members, as well as the types of cases heard by this court, is it any surprise that things aren't all peaches and cream?

Assassination of Americans by Americans for Americans

Glenn Greenwald has a looooong post over at Salon.com today discussing recent disclosures that the U.S. intelligence community has been targeting American citizens for assassination. In the ongoing War on Terror (there's a new, less menacing term for our crusade, but I don't remember what it is) the Executive has commandeered the prerogative to designate certain American citizens as terrorists, making them fair game in the assassination campaign. Obviously there are serious questions about the legality of this program, as it essentially deprives American citizens of scads of Constitutionally-guaranteed protections. Equally troubling is the absence of oversight. According to government officials, before an American citizen can be deemed fair game for assassination, special permission must be granted. Swell, right? Not exactly. That special permission comes from within the Executive branch of government, either from the president or from someone working for the president. Keep in mind that the entire program was designed and has been executed by the Executive. So, to recap, before engaging in the assassination of American citizens (deemed terrorists, as defined by the Executive), the Executive must get special permission from the Executive. Sounds like a flawless system.

New Approach to Punishing Child Porn Possessors

The New York Times has an article today detailing a novel approach to dealing with individuals convicted of possessing child pornography. Lawyer James Marsh represents "Amy," a woman who was abused by an uncle who documented and posted his crimes to the internet. The series of photos and videos are popular and are often found in the personal collection of individuals accused of possessing child pornography. Mr. Marsh devised a method for Amy to secure restitution for her suffering, demanding payment from any individual who is found to have the images in his possession. Under a theory of joint and several liability, Mr. Marsh claims that every guilty party should be ordered to pay the full amount of the restitution ($3.4 million) and then be permitted to sue co-defendants for their respective share of the total. The approach has provoked mixed responses from the legal community.

Citizens United, President Obama and Justice Alito

The last 10 days or so have been pretty big from a legal/political standpoint. We had what could be a huge decision from the Supreme Court, and also the State of the Union address from President Obama. To make matters even more interesting, certain occurrences during last night's speech could very well inflame the issue even more. Full disclosure: I did not watch the speech last night. For one thing, I was working. More importantly, I'm dreadfully tired of talk with no action. Besides, surely I can get an unbiased, non-partisan account of what happened from the myriad news sources on the television and the interwebs...

In any case, during the speech President Obama expressed his disappointment in the Citizens United case and lamented what he saw as the likely outcome of the decision. That a sitting president has a bone to pick with a Supreme Court decision is not really news. Some outlets suggest that the forum for said criticism was unconventional. However, the reaction from Justice Alito, sitting front and center for all the cameras to see, clearly indicated that he didn't take kindly to the criticism. At first he appears to be struggling with a vile taste in his mouth, after which it looks like he mouths the words "not true." What exactly he was referring to as "not true" is open for debate.

That a Supreme Court justice would react to anything said during a president's speech is highly unconventional and raises some interesting questions about the court's alleged apolitical-ness (a real word? probably not). Glenn Greenwald at Salon.com has an interesting article today discussing the situation and what it means for a court that already credibility issues in the eyes of the public.

Also, since Murphy has yet to treat the Citizens United case directly, here are two articles discussing the legitimacy of the decision. One of them is another article from Greenwald, concluding the decision was at least partially correct. The other is from Lawrence Lessig and is a response to Greenwald's column.

Positive Signs for Criminal Justice Reform

The New York Times website has an interesting article examining some new and novel approaches to law enforcement, criminal punishment and community outreach. With states facing increasingly tight budgets, the expanding prison population has become a serious issue in the search to trim expenses. Far too often the answer in these situations is to cut programs and services in the jails and prisons themselves, creating deplorable conditions for inmates and opening states and municipalities to charges of constitutional violations.

As an alternative to dubious cost-saving measures in corrections facilities, some criminal justice scholars have begun to assess current punishment and deterrent schemes in hopes of developing more effective methods of keeping people out of the facilities all together. The Times article looks at several projects formed by scholars and judges designed to increase consistency, certainty and fairness in the criminal justice system.

In one study, researchers brought together parties on both sides of the system; the police, lawbreakers and potential lawbreakers, and members of the community. At these meetings, individuals who might find themselves afoul of the law were informed that infractions would result in swift and certain punishment. By removing the often arbitrary and capricious nature common to the criminal justice system, officials were able to foster a perception of fairness in the minds of the potential lawbreakers. That perception of fairness and certainty appears to have led to reduced crime rates.

Although these studies and pilot programs have been limited to specific cities and neighborhoods, the results are promising. Furthermore, the approach advocated by these programs "should appeal to liberals (it doesn’t rely on draconian prison sentences) and to conservatives (it stresses individual choice and moral accountability)." Hopefully the appeal is powerful enough to bring about the changes to our criminal justice system that are so desperately needed.

Understanding a world of different laws

The University of Ottowa has created an interesting resource for looking up basic information about the different legal systems across the globe. With a click, you can find out if a particular jurisdiction has adopted a common law, civil law, Muslim law, or other traditional law legal system. The site also provides basic information on issues such as language and GDP.

Roeder Murder Trial Delayed

The emotionally and politically charged trial of Scott Roeder, accused of killing abortion provider Dr. George Tiller, became even more tense last week when Judge Warren Wilbert indicated that he might be receptive to evidence supporting a theory of voluntary manslaughter instead of first degree murder. The trial was delayed yesterday in order to hold a hearing on the question. Under Kansas law, voluntary manslaughter is defined as "an unreasonable but honest belief that circumstances existed that justified deadly force.” Defense attorneys are arguing that Mr. Roeder honestly believed that in killing Dr. Tiller he was preventing the deaths of unborn children.

The fact that the judge would even consider such a defense has set off howls of protest in the pro-choice camp and left pro-lifers pleasantly surprised at the unexpected victory. Pro-choicers argue that permitting such a defense will embolden others who wish to do violence to abortion providers and legitimize the use of violence. See the New York Times article here.

Strategic Default as Panacea?

We're back. At least until we decide to take another excessive holiday sabbatical, and by 'excessive holiday sabbatical' I mean from the beginning of November until after the New Year.

Surely you're wondering what could possibly be so interesting as to drive Murphy out of his/her spiderhole and return to posting. The answer lies in a New York Times article discussing the increasingly popular practice of voluntarily walking away from an underwater mortgage, also known as strategic default. In the article, the author points out how individuals are treated differently than institutions when abandoning a crummy investment.

Whereas an institution defaulting on a bad investment is viewed purely as a reflection of profit-based decision-making, the homeowner is still subject to a stigma if he/she walks away from a virtually worthless house. In fact, the stigma is even reinforced by the federal government in the way government credit counselor advise against defaulting on underwater mortgages. Why the different treatment? Why in one situation is cutting ones losses viewed as purely a business decision, and in the other a referrendum on an individual's moral character? The author goes so far as to suggest that changing the way mortgage default is viewed might actually speed the recovery of the lame housing market.

Read the article and see what you think. Should strategic default on a home loan be subject to any greater moral opprobrium than similar practices in the business world?

Secrets Don't Make Friends

With nearly every news media outlet gorging at the "healthcare debate" trough, it's easy to forget that Congress is in fact working on other legislative initiatives wholly unrelated to healthcare. One such piece of legislation is H.R. 984: State Secret Protection Act of 2009. With a name like, 'State Secret Protection Act of 2009,' it has to be good! The legislation, sponsored by Rep. Jerry Nadler of New York, was approved by the House Judiciary Committee last Friday.

The bill aims to curb the abuse of the state secrets privilege, which has been embraced by the Obama DOJ (following W. Bush's lead) as the best method of never having to answer questions about constitutionally suspect executive policies/actions. Salon.com's Glen Greenwald has a post that includes a radio interview with the bill's sponsor, Rep. Nadler. According to Rep. Nadler, both George W. Bush, and Barack Obama blazed new trails with respect to the abuse of the states secrets privilege. First, the frequency with which the privilege was invoked in suits against the government skyrocketed during the Bush administration. Then, the doctrine saw a transformation in the manner with which is was (and continues to be) applied. According to Rep. Nadler, the privilege was initially designed as an evidentiary privilege that would protect sensitive documents and other types of evidence.

That application has since been surpassed in the Bush and Obama administrations. Now, instead of simply protecting a single, or group, of documents/evidence, the executive has successfully argued that the privilege applies to subject matter. This transformation greatly expanded the scope of the privilege and permits the executive to punt a suit at the pleading stage, effectively barring citizens from seeking redress in the courts. It's hard not to see the problems with this approach to the privilege.

The State Secrets Act of 2009 would help to return the state secrets privilege to its traditional moorings as an evidentiary privilege. It provides safeguards in order that legitimately sensitive materials are protected, while also ensuring that citizens have access to the courts for redress. On its face, it would seem to satisfy both the needs of national security and the maintenance of the courts as a check on executive power. Unfortunately, as (recent)history poignantly demonstrates, once power is granted, it's a bitch to take it away.

Something Else for Glenn to Cry About

Towards the end of September, Murphy wrote about Glenn Beck filing a complaint with WIPO over a contested domain name that he claimed violated his trademark in his own name. The website, didglennbeckrapeandmurderayounggirlin1990.com, was conceived as a satire of Beck's own proclivity for inventing outrageous and baseless accusations and confronting the target with said accusations, thereby forcing someone to explain or defend against purely fictional claims. For instance, "There are people out there who claim that Murphy is a communist. Now, let's be clear, I'm not saying that Murphy is a communist. However, if Murphy has nothing to hide, why doesn't she just come out with the information to prove that she is not a communist and put this whole thing to rest?" For a real world analogy, see the Birther "movement".

Thankfully, we can chalk up a victory for the forces of good, and revel in a defeat for the forces of nutbaggery. The WIPO arbitration panel decided (.pdf) in favor of the respondent noting:

"Respondent appears to the Panel to be engaged in a parody of the style or methodology that Respondent appears genuinely to believe is employed by Complainant in the provision of political commentary, and for that reason Respondent can be said to be making a political statement. This constitutes a legitimate non-commercial use of Complainant's mark under the Policy."

Following announcement of the victory Isaac Eiland-Hall, respondent and domain-owner, issued a letter to Beck, ceding control of the domain and admonishing Beck for his hatred of Constitutional liberties.

Col. Mustard in the Office with the P2P

Copyright issues have been a frequent topic of Murphy's posts. We return to this theme today. An article. from ars discusses the multiple and varied voices that have spoken out to debunk the myth, propogated by Big Content, that P2P is the singular cause of decreasing revenues and job loss in the music industry. That this myth is a load of malarkey has been effectively demonstrated by likes such as Lawrence Lessig and EFF. However, the ars article expands the typical circle of P2P-as-Bogeyman skeptics to include officials from the EU and even longtime members of the music industry.

These new critics essentially rehash what has already been committed to paper by Lessig: primarily that the growth of P2P was not a product of rejecting the content industry wholesale, but rather a response to the failure of Big Content to give the consumer what she wanted. Certainly, there are always going to be individuals who want something for nothing. Piracy in some form or another has been a part of human societies going back to the beginning. However, pirates form a small minority of the consuming public. Most consumers wish to support artists and understand that paying for content helps to accomplish that end. The rise of P2P did not signal any sort of move away from this desire. Rather, it signalled frustration with the reactionary policies initiated by Big Content to tighten restrictions on what consumers could do with purchased content.

Net-Neutrality: A Digital Panacea?

It has been a good couple of months for net-neutrality supporters. FCC chairman Julius Genachowski is championing the idea and the Democrat-controlled Commission appears likely to commit ink to paper in order to institutionalize neutrality principles.

However, there are some that suggest that barring discrimination at the ISP level can only go so far to ensure that all content and legal activity on the internet remain on equal footing. An article at ars discusses how additional chokepoints exist and how these chokepoints could be manipulated by companies for pecuniary gain. One company well-suited to benefit from such activity? None other than one of the biggest cheerleaders for net-neutrality, search giant Google. Read the article here.

Less Fear = Less Alcohol Tragedies?

An esteemed co-worker of the Murphy blog team brought this article to my attention this afternoon. A bill recently passed the Michigan House that would exempt underage drinkers from criminal liability in the event that they place an emergency call to 911. Lawmakers hope the exemption from prosecution will lead more underage drinkers to utilize 911 in emergencies and cut down on the number of alcohol-related fatalities.

Your Utility Bill Lies Like a Rug

ars has an interesting article about a report issued by the National Academies of Science (NAS). At the request of Congress the NAS attempted to put a dollar figure on the cost of externalities of the U.S. energy economy, including electricity, transport and heating. As the article indicates, the cost of climate change was not included in the NAS estimate. Even without accounting for the costs of climate change, the number produced by the NAS is staggering at $120 billion. Oh, and the report suggests that the number is conservative. Comforting. Read the article here. Read the report online here.

You Don't Have to Go Home, But You Can't Stay Here

Today the Supreme Court set the stage for the next legal showdown in the Guantanamo detainee saga. The Court granted cert in the case Kiyemba v. Obama. The detainees involved in the case are Muslim men from the Uighur region of China. The Bush administration determined that the men posed no terrorist threat and the Justice Department has stated that the men are free to leave Guantanamo for any country that will accept them. The case is complicated by the fact that the men fear being tortured if they are returned to their native China, where they are viewed as terrorists. Despite capturing them and hauling them off to an island prison, the United States has refused to accept the men. The issue in Kiyemba focuses on the power of the courts to make immigration decisions, an area previously reserved for the legislature and executive. The Obama administration is arguing that the courts do not possess the power to order that the men be accepted into the United States. The Kiyemba team is arguing that without the power to order that the men be accepted, the ruling in the Boumediene case, which authorized federal courts to hear habeas petitions from Guantanamo prisoners, would be hollow. The New York Times and the Washington Post both have articles on the issue.

Pirates With a Conscience

If you haven't noticed already, this Murphy blogger has been on quite an ars technica kick lately. There are a couple of reasons for this. First, they do a really nice job of covering a range of issues in the tech world. From science to law and policy to business, ars covers issues in a manner that makes tech accessible to the less tech-savvy, like myself, for instance. Also, they have a pretty good sense of humor. Finally, as an added bonus, I can get my video game news fix while still appearing to be hard at work on this blog. Everybody wins!

Those of you following the library via the intarwebs and our print publication, the Murphy's Law newsletter, may recall a book review of Lawrence Lessig's Free Culture. One of the central theses of that book was that with the rise and apparent permanency of p2p file sharing technology, the content industry must abandon its antiquated business model if it wishes to survive as a lucrative business. That has not happened. The RIAA and the MPAA continue to pursue their scorched earth policy of attempting to sue illegal filesharing into oblivion.

However, just because the industry itself is not exploring other models does not mean that everyone is standing pat. In fact, ars posted an article today detailing the efforts of an Australian man to provide means for guilt ridden pirates to clear their conscience and compensate artists. According to the article, the website, piracypayback.org, isn't exactly setting the world on fire (or even self-sustaining) just yet. Regardless, it does provide an example of someone trying to create a novel system where consumers and artists get what they want out of content.

Net Neutrality Update

Here's an interesting update to the post of September 21 dealing with the FCC's desire to enact rules regarding net neutrality. It appears that the GOP is lining up for a fight, arguing that neutralitiy requirements for ISPs/Telecoms will reduce competition, reduce investment in new technology, and be detrimental to consumers. Already, we have seen a rider thrown into a Department of the Interior appropriations bill that would have prohibited any funds going to promulgating rules requiring neutrality. Additionally, House Republicans sent a letter to President Obama expressing their disappointment that the FCC would be looking at neutrality rules given the current economic quagmire.

I think they have a valid point. Afterall, it was excessive regulation of the finance world that created this quagmire. Wait...that's not actually true. In any case, rest assured that this is not the last we'll hear of Republicans on this issue as the FCC continues in the rulemaking process.

Patriot Act Revisited

The USA PATRIOT Act Sunset Extension Act of 2009 (S. 1692) would have required the government to show that any records it seeks access to pursuant to a section 215 order have some connection to a suspected terrorist--in other words, no more fishing expeditions.

But before the mark-up, Patrick Leahy, a cosponsor of S. 1692, along with
Senators Ben Cardin, Ted Kaufman, and Dianne Feinstein drafted a substitute bill that waters down several of the provisions in the original bill.

Click here to learn more. Or take a look at the 2009 Patriot Act Resource Guide.

Can education be saved in Detroit?

It's that time of the year again. Students around the nation have begun filing into their classrooms for the start of the 2009-10 academic year. In Michigan, the questions most critical to their future academic achievements might not appear in any exams, but instead be tasked to the administrators and politicians in whose charge they have been placed. As the state confronts a budget deficit of approximately $2.7 billion, education spending is increasingly viewed as a target for cutbacks by lawmakers in Lansing. The problem is particularly dire where it is especially vulnerable.

Despite the widely publicized, $500,000 "I'm In" pupil retention campaign occurring in Detroit, there has been a continuing exodus of schoolchildren away from its K-12 elementary school system (ABC 7 Action News). The district emergency financial manager Robert Bobb has prepared the 2009-10 budget anticipating 83,777 pupils, 16,223 fewer than necessary to secure "first class" status for Detroit public schools (Id.). The designation is significant for protecting the district against the encroachment of charter schools which have increasingly been viewed by parents as an attractive alternative to the city's beleaguered public school system. Bill Cosby's recent visit to Detroit as part of the "I'm In" campaign was directed principally at this problem. The actor and activist made door-to-door visits to area parents exhorting them to keep their children in the system and lauding the efforts of Mr. Bobb and the school board in reforming the elementary education system (Id.).
Highlighting the difficulty of this effort is the fact that public school aid is calculated according to the number of enrolled students (Detroit News). In the budget being contemplated by Lansing, aid to Michigan schools stands to be reduced by $483 million, or about $218 per pupil, for the remainder of the school year. Among the other measures being considered are a 25% reduction in early childhood grants, and the elimination of Governor Jennifer Granholm's small high schools initiative (Id.). The usual casualties of education cutbacks: afterschool programs, student to teacher ratios, centers and facilities closures, among others, are taken for granted along with the actual educational damage that they each entail. The $18.6 million dollar cut designated for Detroit public schools is the most significant of all district reductions in Michigan (Detroit Free Press). Notwithstanding the city's own $18.6 million budget deficit, and the stark possibility of bankruptcy still looming in the offing, we will see whether the city can be resilient in the face of further financial malaise. Are you in?