Blawg Review #69

It’s been sometime since I’ve actively blawged (or bloged, whichever you prefer). My hectic 2L year and busy summer account for that. Whoever said that the second year of law school is easier lied. Whereas most other Blawg Reviews have been organized around a theme or a certain presentation, I have decided to approach this week’s review more eclectically. Attribute it to my uncertainty about which field of law has yet to interest me, or to a returning blawger just trying to makes sense of it all.

"Where Politics Intersects Law" Department

Bench Memos brings our attention to the recent controversy surrounding presidential signing statements.  Perhaps it's much of nothing considering heavyweights like Curtis Bradley (Duke) and Eric Posner (Chicago) "join the growing chorus of legal analysts who find no merit in the work of the ABA’s task force on signing statements." Ed Whelan chimes in here, but really here.  Dale Oesterle, at Business Law Prof Blog, accepts the issue as one about abuse of such statements, but points out "[w]hat is missing, of course, it a clear definition of abuse other than one that depends on who is in the White House."  A post co-written by six law professors and a practicing attorney, all of whom served in the Office of Legal Counsel on the Georgetown Law Faculty Blog sheds some perspective and analysis of the ABA report [PDF].  Professor Bainbridge observes this about the President's latest signing statement.

Perhaps there's a better category for this tid bit, but alas, here it is.  SCOTUSblog informs us:

Attorneys for an Atlanta woman, Sandra Cano, who was the "Mary Doe" in one of the Supreme Court's two decisions establishing abortion rights in 1973, have asked the Supreme Court to reopen her case and overturn the ruling. Doe v. Bolton was decided along with Roe v. Wade on January 22, 1973.  The new appeal is Cano v. Baker (docket 06-162), filed on Monday; it also suggests that Roe be reexamined..

The new petition parallels a similar move by the same attorney on behalf of Norma McCorvey, the Texas woman who was "Jane Roe" in the 1973 case in her name. The Supreme Court on Feb. 25 of last year denied McCorvey's appeal (McCorvey v. Hill, 04-967). There was no recorded dissent from the denial in that case.

Full post here.

"Sentencing White Collars" Department

Over at the Conglomerate, Lisa Fairfax poses this meta-philosophical question, elicited by the Second Circuit's upholding of Bernie Ebbers' 25 year sentence: "[T]he case and sentence raise an important question not about what's reasonable, but rather about how we determine reasonableness."  Peter Henning posted this commentary. 

Anthony Colleluori, who runs Long Island (Criminal) Trial Law, brought my attention to another white collar sentencing issue.  The Second Circuit Sentencing Blog fills in the details.  $ quote, for an idea of what's going on:

[I]f properly calculated, [the federal sentencing guidelines] called for a sentence of life imprisonment cabined only by the maximum of 85 years permitted under the counts for which Adelson was convicted.  And, "[s]hort of that" the Government argued that "the court should at least impose a sentence somewhere in the range of 15 to 30 years' imprisonment."  Adelson, by contrast, argued that the proper Guidelines calculation resulted in a Guidelines range of 21 to 27 months' imprisonment.  To say the least, the Government and Adelson saw the situation differently.

The judge instead imposed a 42 month sentence.  Anderson would've been in quite a different situation--or the judge, should he have attempted to dowardly depart--pre-Booker/Fanfan.  Here's a $ quote from the decision:

To put this matter in broad perspective, it is obvious that sentencing is the most sensitive, and difficult, task that any judge is called upon to undertake. Where the Sentencing Guidelines provide reasonable guidance, they are of considerable help to any judge in fashioning a sentence that is fair, just, and reasonable. But where, as here, the calculations under the guidelines have run so amok that they are patently absurd on their face, a Court is forced to place greater reliance on the more general considerations set forth in section 3553(a), as carefully applied to the particular circumstances of the case and of the human being who will bear the consequences. This court has endeavored to do, as reflected in its reasons set forth at the time of sentencing and now in this Sentence Memorandum prompted by the dictates of Rattoballi. Whether those reasons are reasonable will be for others to decide.

Thanks That Lawyer Dude.

"Where Journalism Intersects Law" Department

Eugene Volokh brings our attention to a recent Second Circuit decision [PDF] that held reporters' telephone records discoverable in a leak investigation.

Now, taking what we read from Volokh's post above, check out Jeralyn Merritt at TalkLeft on a blogger jailed for refusing to turn over protest tapes, attempting to use his "right as a journalist to shield his sources."  Will it work?

"Where Langauge Intersects Law" Department

Jonathan D. Frieden presents The Genericide of Google, which discusses "the public’s adoption of the term 'google' as a verb may destroy the value of 'Google' as a trademark," going the way  of Xerox or Q-Tip, posted at E-Commerce Law.

"Where Blawging Intersects the Law, properly understood" Department

At Bag and Baggage, Denise Howell, who coined the term "blawg," brings our, err, my attention to Circuit Judge O'Scannlain's recent quotation of Eugene Volokh's blog in a dissent, here, which, as she entitled her post, is "Another Credibility Point For Blawgs Among The Appellate Judiciary." Denise's attention to the matter was brought by Kim Kralowec, here. 

"I wish I were smarter" and "All Things Law School" Departments

Don't I wish I went to UCLA, and did well!  Speaking of law school, and doing well, Conglomerate's Victor Fleischer offers "to subdivide into what we do in the 2L and 3L years into "concepts and patterns" learning and active learning."  As a law student, I happen to agree with Fleischer's suggestions to make "concepts and patterns" more prominent in teaching the law, and also to incorporate methods of "active learning."  I have, and will probably continue, having a hard time digesting the enormous amounts of rules in most of my classes.  I've found diagramming, perhaps through a flowchart, helpful.  Second, I would've loved to have had a far more active experience in those classes where the subject matter was so foreign to me as a law school student, that without 'seeing it in practice,' a certain disconnect would remain--say, like Civil Procedure, which I believed "clicked" my 1L summer, through work experience.  But, if you're interested in law school generally, as I once was, and as most future law school students are now, be sure to check out Glenn Renyolds' post, here.  Also, Orin Kerr recently posted "How to Read a Judicial Opinion: A Guide for New Law Students" at his site, OrinKerr.com.  The only thing I would add would be to caution new students about dicta and instances where judges indulge in writing about what they might've held had the facts been different.  Similar to this is when judges assume/argue arguendo, which can often confuse a novice reader as to what is the law--I sometimes still get confused by these nonessentials.

Hanno Kaiser presents The Short Run, Humility, and Conservatism in Modern Antitrust Economics posted at Antitrust Review, in which he (begins to?) explore the "fundamental philosophical differences between US and European antitrust."

Over at Between Lawyers, Dennis Kennedy shares some comments on "Rethinking the Future of Open Source Licenses."

"Why are we in this business?" Department

What's "Caregiver discrimination" you ask?  Point of Law introduces us.

Overlawyered sobers us with this new observation regarding legal wiki entries.  Here too is another embarassing example of what plagues our profession.  Well, truth be told, I am not yet licensed, but my promissory notes for my student loans are all the license I need to feel already part of the legal profession.  Who's with me?  This "Department" I've setup could be just posts from Overlawyered!  Inasmuch as I enjoy reading that blawg, I am as much depressed afterwards.  I suppose, however, that's somewhat the point. 

"This is why..." Department

Walter Olson presents Katrina doctor, nurses indicted posted at PointOfLaw Forum.

"What's New" Department

Learned Elbow presents Bad Faith Blawg, which explores the underbelly of insurance law.  In the post brought to my attention, the author discusses Allstate v. Scroghan, "an insurance coverage bad faith case in which Allstate used Colossus to deny the plaintiff's claim"  Apparently, Colossus is "a computer program that Allstate uses, allegedly, to lowball claims."  All as foreign to me as it is interesting.

A biography of Chief Justice Roberts, already!  A3G briefs us, here.

In other news CJ John Roberts, SCOTUSblog brings us this.

The Right Coast moved?  When?  In case you didn't know, check out their new digs.  It has been a while since I've kept up with blawgs, indeed.

Legal Redux brings the US ratification of the Convention on Cybercrime to our attention, and offers some commentary in addition.

Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues.

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