Thursday, March 27, 2008

CSI Effect?

Judge Donald E. Shelton, a trial judge in Michigan, writes about a study he and two colleagues conducted in which they surveyed jurors about their expectations for scientific evidence in criminal trials in the National Institute of Justice's NIJ Journal, March 17, 2008: The 'CSI Effect': Does It Really Exist?.

See earlier post about this study.

Thanks: WisBlawg.

Friday, March 21, 2008

Public Service Speaker

Derek Douglas, director of the New York Governor's Washington office, will speak at the UW School of Law about his work in public service on Monday, March 31 at 4 p.m. This is part of the Gates Public Service Law Speakers Series and is free and open to the public. More information here.

Thursday, March 20, 2008

Juveniles charged with violent crime have no right to a jury trial, state Supreme Court rules

Juveniles charged with violent crime have no right to a jury trial, state Supreme Court rules, Seattle Times, March 20, 2008. The case is State v. Chavez, No. 79265-8, Wash. Courts website majority (C. Johnson, J.), dissent (Madsen, J.) (March 20, 2008).

Wednesday, March 19, 2008

DOJ Train Wreck, Ressam Sentencing

Former U.S. Attorney John McKay writes of the U.S. Attorney firing mess: Train Wreck at the Justice Department: An Eyewitness Account, 31 Seattle U.L. Rev. 265 (2008), available on the Seattle Weekly's website.

The Weekly discusses the article and the Ahmed Ressam case, now before the U.S. Supreme Court: Rick Anderson, Former U.S. Attorney John McKay Takes the Gloves Off on the White House, March 12, 2008.

Taken as a whole, McKay's Law Review article sounds like a closing argument for locking up most of the Bush administration. Though he once picked his words cautiously when speaking of the Bush Justice Department, McKay refers to former Attorney General Alberto Gonzales as a "liar" with "sinister" motives, and says other Justice and White House officials also perjured themselves in Senate hearings as part of a possible criminal conspiracy.

Sunshine Week - News, Resources

I just got back from a great Sunshine Week event, Government Secrecy: Censoring Your Right to Know. It was a national webcast followed by a local discussion with Michele Earl-Hubbard (co-editor of WSBA's Public Records Act Deskbook, KFW462.5.P8 .P83 2006 at Reference Area in the Gallagher Law Library) and Knute Berger (columnist for Crosscut and for Washington Law & Politics, editor-at-large of Seattle Magazine). See Mr. Berger's Crosscut column this week: It's Sunshine Week: Do you know what your government is doing?.

Local sponsors were Law Librarians of Puget Sound, the Washington State Library, and the Washington Coalition for Open Government.

I'd like to share some of what I picked up.


Ms. Earl-Hubbard's firm just filed cases against five government entities for violating the public meetings law: Wash. open-government advocates sue five agencies around the state. Wash. open-government advocates sue five agencies around state, Seattle P-I, March 17, 2008.

Washington open-government advocates rang in Sunshine Week by filing lawsuits Monday accusing one regional and four local agencies of violating the state's public meetings law.

The Spokane Regional Clean Air Agency, Arlington School Board, Yelm Fire District, Port of Longview and town of Ridgefield improperly conducted public business in closed "executive sessions" or held illegal secret meetings, the complaints say.

They were filed by Allied Law Group, a Seattle and Olympia law firm that focuses on open-government cases, on behalf of the Spokane-based public interest group Center for Justice.
(By the way, you can get a nice sampling of public disclosure disputes by going to the Seattle Times or Seattle P-I website and searching for "Earl-Hubbard." She's been involved in scads!)


Cool resources highlighted by some of the speakers in the webcast:
  • brings together bill information (text, sponsors, actions) with news and blog coverage of the bill. (The speaker said the site's software is open-source and the group would love to see others pick it up. is the first state site.

  • EveryBlock compiles municipal government information and lets you search by address or ZIP code. So -- if you're in New York, San Francisco, or Chicago (so far) -- you can find out about burglaries, stolen cars, building permits, restaurant health inspections, and more right in your neighborhood.

  • (from the Center for Responsive Politics) focuses on campaign finance and the information available in disclosure statements of members of Congress, the President, and presidential candidates. You can find information about individuals, about PACs, about industries (e.g., look at the trend in pharmaceutical companies' donations), and so on.

  •, "created by OMB Watch, is a free, searchable database of approximately $16.8 trillion in Federal government spending, with complete annual data from FY 2000 through FY 2006 and partial data available for FY 2007." Grants and contracts -- who gets them? where are they (by state, by congressional district)? how much?
    • In December, the federal government "launched a website mandated by the Federal Funding, Accountability, and Transparency Act. The website is based on the software that runs OMB Watch intends to continue to operate and upgrade, adding new features and data to provide a more powerful accountability tool for citizens."

Harvard Law School launches new Public Service Initiative

Yesterday Harvard Law School announced a new program that will waive the third year of tuition for law students who commit to public service after graduation. The plan is in addition to Harvard's Loan Repayment Assistance Program. Harvard Law School launches new Public Service Initiative, HLS News, March 18, 2008.

Students interested in participating in the initiative must demonstrate a commitment to public service during their time in law school. Students will earn eligibility “credits” by engaging in public service activities such as summer internships and relevant clinical programs. Students who pledge to work for five years in a qualifying public service job will receive a grant totaling the cost of their tuition for the third year.
Starting with the class of 2011, this will mean a $40,000+ grant for eligible students. (Next year's tuition is $41,500.) Students in the classes of 2009 and 2010 will be eligible for $5,000 and $10,000 tuition grants.

Press coverage: Harvard Law, Hoping Students Will Consider Public Service, Offers Tuition Break, N.Y. Times, March 18, 2008; At Harvard Law, a Financial Incentive for Public Service, Wash. Post, March 19, 2008. See also comments at the Volokh Conspiracy.

Monday, March 17, 2008

Jury Deadlock in Hamlet Case

Last year Justice Anthony Kennedy and the Shakespeare Theatre Company cooked up a mock trial: What would have happened if Hamlet had survived the final scene of the play and been tried for the murder of Polonius? A sold-out crowd at the Kennedy Center watched the lawyers call expert witnesses and argue the case: was Hamlet insane at the time of the homicide? And then the jury retired to deliberate -- and came back, deadlocked 6-6.Is He to Be Guilty, Or Not to Be Guilty?, Wash. Post, March 17, 2007.

Photo: Edwin Booth as Hamlet, from the Library of Congress.

Justices Back Pay Raise, Oppose Cameras

Justices Back Pay Raise, Oppose Cameras, Wash. Post, March 13, 2008:

Two Supreme Court justices pressed lawmakers Thursday to raise the pay of federal judges and refrain from requiring the court to televise its sessions.

Justices Anthony Kennedy and Clarence Thomas went to Capitol Hill to discuss the court's budget request for next year, a largely formal exercise made interesting by the rare give-and-take between justices and members of Congress.

Bills are pending in the House and Senate that would give judges pay hikes of 30 percent or more.

Thomas, noting that federal trial judges earn no more than first-year lawyers at top private firms, said, "I don't think it makes much sense for people with that level of responsibility to be paid at the level of first-year associates."
Is it that judges are underpaid or that Wall Street (and other big firm) associates are overpaid?

See also Dahlia Lithwick, No Justice in These Pay Scales, Wash. Post, March 11, 2007 (discussing large signing bonuses some firms pay to Supreme Court clerks).

Justices Turn Down Microsoft Appeal

Justices Turn Down Microsoft Appeal, Wash. Post, March 17, 2008:

The Supreme Court on Monday handed Microsoft Corp. a defeat by refusing to rule on the software giant's request to halt an antitrust suit against it.

The suit was brought in 2004 by Waltham, Mass.-based Novell Inc., which said in court papers that Microsoft 'deliberately targeted and destroyed' its WordPerfect and QuattroPro programs in order to protect its Windows operating system monopoly.

King County Equity and Social Justice Initiative

Jerry Large's column (Seattle Times) this morning led me to King County's Equity and Social Justice Initiative website:

The King County Equity and Social Justice Initiative takes aim at long-standing and persistent local inequities and injustices. Government and local communities are better prepared than ever before to address these challenges.

"It is unacceptable that the color of your skin or your home address are good predictors of whether you will have a low birth weight baby, die from diabetes or your children will graduate from high school or end up in jail," says King County Executive Ron Sims.

The King County Equity and Social Justice Initiative aims to end persistent local inequities and injustices that result in, among other things, higher rates of disease among low-income populations and disproportionate rates of young black men in jail.
A pdf of the report is here. See pp. 16-17 for a discussion of adult and juvenile detention.

In Seattle, Mayor Nickels's Race and Social Justice Initiative was started several years ago.

Sunday, March 16, 2008

Vehicular Homicide Acquittal in Spokane

Clifford Helm's truck crossed the median and struck a car, killing five children and injuring one adult. Not long after, the family -- Mennonites -- said that they forgave him and didn't want him to be prosecuted. The Spokane County prosecutor did prosecute him, pointing to evidence that he had used a cell phone briefly before the crash. The defense suggested that he might have fainted because of a coughing fit. On Friday, a jury acquitted him.

The jury forewoman, Rebecca Backstrom, said it was a long, emotional trial. When asked if she believed Helm fainted before the crash, she said the prosecution didn’t prove that he hadn’t.

She added: “I hope both families are at peace.”
Helm Acquitted of Vehicular Homicide, Spokesman Review, March 15, 2008.

Pretrial News in Jewish Federation Case

Naveed Haq is accused of shooting six people, killing one, in the Jewish Federation of Greater Seattle offices in July 2006. Jury selection began on Friday. And defense attorneys John Carpenter and C. Wesley Richards have filed several pretrial motions.

  • The defense argues that the state should have the burden of showing that Mr. Haq was sane at the time of the shootings. Prosecutors say the opposite.
  • The defense has moved to suppress evidence from his apartment and statements he made to the police.
The presiding judge is Judge Paris Kallas. Question of Sanity at Center of Trial, Seattle Times, March 15, 2008.

Saturday, March 15, 2008

Hague gets 6 months probation for DUI

Hague gets 6 months probation for DUI, Seattle Times, March 14, 2008:

Sentenced to six months' probation for a driving-under-the-influence charge brought against her last summer, Metropolitan King County Councilmember Jane Hague said she intends to become "the poster child" of efforts to reduce the pain and damage done by drunken driving.

"You haven't heard the last from me," she said. "I definitely feel as a public official I should be held to a higher standard."
If Councilmember Hague fulfills the terms of her probation, it is expected that the charge will be reduced to reckless driving -- a common result in DUI cases.

Man Denied Release from Western State

Man who killed pregnant wife won't be released into community, March 14, 2008:

A man who fatally shot his wife and their unborn child in 2003 will not be released into the community despite recommendations from his doctors at Western State Hospital, a King County Superior Court judge [Michael Hayden] ruled Thursday.

Justices toss out rape conviction

Justices toss out rape conviction, Seattle Times, March 14, 2008:

A Lynnwood man's conviction for third-degree child rape has been overturned by the state Supreme Court, which ruled that prosecutors were wrong to tell jurors his refusal to discuss the case with police implied guilt.

During his 2004 trial, Justin Burke testified he believed the girl was 16 — the age of consent — when they had consensual sex at a party in 2003. But Snohomish County prosecutors implied to jurors that if Burke had truly believed that, he would have told his side of the story to police during his initial interview.

The jury later found Burke guilty of third-degree child rape and he was sentenced to 13 months in prison.

A sharply divided Supreme Court, in a 5-4 ruling issued Thursday, agreed with Burke's appeal attorneys who argued it was unfair and unconstitutional to use his silence against him.
State v. Burke, No. 78528-7, majority (Chambers, J.), dissent (Madsen, J.).

WA high court says random school drug testing unconstitutional

WA high court says random school drug testing unconstitutional, Seattle P-I, March 14, 2008:

A fractured state Supreme Court has ruled that random drug testing of student athletes is unconstitutional, finding that each has "a genuine and fundamental privacy interest in controlling his or her own bodily functions."

The court ruled unanimously Thursday in favor of parents and students in the lower Columbia River town of Cathlamet who opposed the tiny Wahkiakum School District's policy of random urine tests of middle school and high school student athletes, but some justices said random tests could be justified under different circumstances.
York v. Wahkiakum School District No. 200, No. 78946-1, Washington Courts website: majority (Sanders, J.), concurrence (Madsen, J.), concurrence (Chambers, J.), concurrence (J.M. Johnson, J.) (March 13, 2008).

The ACLU of Washington represented the plaintiff students and parents. See the ACLU's press release.

Photo: The Wahkiakum Mules basketball team, which took 4th place in the 2008 WIAA 2B Boys State Basketball Championship. These boys were not plaintiffs. The students in the suit participated in sports at Wahkiakum in 1999-2000 and 2000-2001. But I wanted to show the face of student athletics. Source:

Judge rejects father's bid to visit daughter

Judge rejects father's bid to visit daughter, Seattle P-I, March 14, 2008:

A Tacoma man acquitted last year of kidnapping his daughter cannot see the girl unless he undergoes psychological assessment, batterer's treatment and counseling, a Pierce County Superior Court judge [Kathryn Nelson] ruled Friday.
Mark Supanich took his daughter (then six, now 10 years old) from her mother and disappeared for two years, living under a false name. He says he did it for the girl's safety, alleging that the mother was abusive. A King County jury acquitted him in December.

"Spam King" Pleads Guilty

'Spam king' pleads guilty: Sentence for three charges could top 20 years, Seattle P-I, March 14, 2008.

Robert Soloway, 28, pleaded guilty to three counts: fraud, e-mail fraud -- also known as the Can-Spam Act -- and failure to file an income tax return. He had faced 40 charges.
The case is in the Western District of Washington. Mr. Soloway will be sentenced by Judge Marsha Pechman.

This is only the second conviction under the CAN-SPAM Act, Pub. L. 108-187, 117 Stat. 2699 (2003).

Tangent: The full statute name is Controlling the Assault of Non-Solicited Pornography And Marketing (CAN-SPAM) Act. There were rival names. Other names for bills to do something about spam were the Stop Pornography and Abusive Marketing Act (SPAM Act), Restrict and eliminate the Delivery of Unsolicited Commercial Electronic mail or Spam Act (REDUCE Spam Act), and Reduction In Distribution of Spam (RID Spam Act). Mary Whisner, What's in a Statute Name?, 97 Law Libr. J. 169, 180 n.77 (2005).

What's the relationship between the meat product and the invasive email, anyway? Hormel, the company that makes SPAM, links it to the Monty Python skit in which the crescendoing chorus of "SPAM, SPAM, SPAM" drowned out all other discourse. Id.

(The essay is about much more than the CAN-SPAM Act, in case you ever wondered why the Sherman Act is "the Sherman Act" or Megan's Law is "Megan's Law.")

Graphic: SPAM poster from the SPAM Store.

Friday, March 14, 2008

Around the U.S., High Courts Follow California’s Lead

More on the study comparing the influence of states' high courts: Adam Liptak, Around the U.S., High Courts Follow California’s Lead, N.Y. Times, March 11, 2008. (See my earlier post.)

Wednesday, March 12, 2008

Federal Court Caseload Stats

The Administrative Office of the United States Courts released statistics for the last fiscal year (the year ending Sept. 30, 2007) yesterday. The press release is here; it links to dozens of statistical tables here or (if you can handle a huge download) a 416-page PDF: James C. Duff, Administrative Office of the U.S. Courts, Judicial Business of the United States Courts 2007 Annual Report of the Director.

A few highlights:

  • Appeals are down 12%.

  • The decline in appeals is because of a big drop (21%) in appeals from the Board of Immigration Appeals.

  • District court filings held about steady -- with a slight decrease (less than 1%) in civil filings and an increase (2%) in criminal filings.

  • "Sex offense filings jumped 31 percent to 2,460 cases, and defendants in such cases climbed 30 percent to 2,572. The surge in filing was primarily due to filings related to sexually explicit materials."

  • "Overall drug cases dropped 2 percent to 17,046 and defendants charged with drug crimes fell 2 percent to 29,885. The decline came as filings associated with non-marijuana drugs fell 5 percent. Marijuana cases increased 5 percent to 5,040."

  • Bankruptcy filings were at their lowest since 1990, due to the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA). But there might be growth -- each quarter of the fiscal year saw more filings than the one before. Since BAPCPA, the percentage of filings that under Chapter 7 has declined and the percentage under Chapter 13 has gone up.

  • Some district courts get a lot more business than others -- even weighted by the number of judges. (See map below.)
Numbers people are sometimes disparaged as mere "bean counters" -- but statistics can reveal a lot about real live people, the administration of justice, and society. I get overwhelmed when I think about, say, the human stories behind thousands of bankrupcty filings or thousands of marijuana prosecutions, but it's a good exercise to try.

Sources for graphics: Civil Cases Filed, by Type of Case" (top) -- Judicial Business of the United States Courts 2007 Annual Report of the Director, at 21; 2007 Weighted Filings by Authorized Judgeship, by District" -- id. at 29.

New Federal Rules for Judicial Misconduct, Disability

The Judicial Conference of the United States today [March 11] approved the first-ever binding, nationwide set of rules for handling conduct and disability complaints against federal judges, bringing consistency and rigor to the process.

The new rules, which take effect in 30 days, are authorized under a statute (the Judicial Conduct and Disability Act of 1980) that allows any person to file a complaint alleging that a federal judge has engaged in conduct "prejudicial to the effective and expeditious administration of the business of the courts." The statute also permits the filing of a complaint relating to a judge's inability to perform his or her duties because of "mental or physical disability."

The Conference approved these rules in response to recommendations made in September 2006 by a special committee chaired by Supreme Court Justice Stephen Breyer (the Judicial Conduct and Disability Act Study Committee). The rules cover such topics as complaint initiation and review, venue, confidentiality and publication, remedies, the conduct of investigations, and the rights and roles of participants in the process.
U.S. Courts News Release, March 11, 2008.

Before these binding rules, the national body had illustrative rules that served as models for rules in the different circuits.

Tuesday, March 11, 2008

9th Circuit FPD Blog

Do you want to follow criminal law developments in the Ninth Circuit? Then check out Ninth Circuit Blog, written by seven attorneys from Federal Public Defender offices in the circuit. (The ones whose cities I found were: Steven Kalar, San Francisco; David M. Porter, Sacramento; John Rhodes, Missoula; Jon M. Sands, Phoenix; Steven R. Sady, Portland. The others are Carl Gund and Paul M. Rashkind.)

Most of the posts are summaries of recent ninth circuit cases -- a great way to keep up!

A side note: many of the public defender blogs I've seen are written anonymously. That allows for a wider range of commentary than a signed blog. If you want to be able to say how much you hate the prosecutor and how stupid a judge is, then it's best to keep it anonymous because you're sure to see them again and again. This blog is signed and (therefore) has a different tone.

Map from U.S. Courts.

Monday, March 10, 2008

Fragile evidence dooms murder case

The P-I has an interesting article by Tracy Johnson looking at the uncertain evidence in a murder case that once seemed solid. Fragile evidence dooms murder case, Seattle P-I, March 9, 2008.

Prosecutors dismissed charges filed a year and a half ago because they realized their evidence wasn't as strong as it had appeared at first. DNA evidence -- saliva on a marijuana "blunt" -- showed some connection between the defendant and the victim, but the defendant could have rolled the blunt long before the murder. The gun that killed the victim had only a tenuous connection to the defendant. And the eyewitness who had come forward had a history of lying (having set up someone before) and could well have killed the victim himself.

"Scientific evidence, whether it's ballistics or DNA, seldom tells the whole story," Deputy Prosecutor Hugh Barber said. "We're not going to put a case before a jury unless we have absolute certainty."

The rare dismissal provides a look at how even the most painstakingly built murder case still can be fragile.

[The defendant's] attorneys credited the Prosecutor's Office for doing the right thing after they said they "uncovered significant problems with the state's case."

Low Income Taxpayer Clinic

Congratulations to the UW Federal Tax Clinic for receiving a renewal of its federal grant. See a list of all the law schools with such grants here.

Sunday, March 9, 2008

1 out of 100 Americans are behind bars

Laura Appleman (Willamette) comments on the shocking stats of U.S. imprisonment: 1 out of 100 Americans are behind bars, The Faculty Lounge, Feb. 28, 2008.

New Data On Effectiveness Of Megan's Law Sex Offender Community Notification

An interesting post from a new law professor blog, the Faculty Lounge: Dan Filler, New Data On Effectiveness Of Megan's Law Sex Offender Community Notification, Faculty Lounge, March 7, 2008.

Sex Offender Issues Blog

I just came across the Sex Offenders Issues Blog and spent a while reading. The author ("ZMan!") is thoughtful and shares a lot of news. See his introduction:

I want to first start off with saying I am NOT pro-pedophile or pro-sex offender but pro-Constitution. I am totally against any form of abuse to any animal or human being. Anybody who commits any crime should be punished. But, once that person has done the time they were convicted under, via contract, and is off parole and/or probation, they should be able to get on with their lives without all the rules and regulations. No other criminal has to live by such draconian laws, so why sex offenders? If we must do this for sex offenders, then I think, to be fair, all criminals must be under similar rules and regulations.
If you're interested in the issue, take a look.

Saturday, March 8, 2008

What Judges Look for in Law Clerks

Judge Paul Cassell (D. Utah) write about What Judges Look for in Law Clerks, Volokh Conspiracy, March 7, 2008. His post links to a couple of earlier posts with advice for would-be clerks. Worth looking at if you're thinking about clerking.

New Washington Practice Volumes

Washington Practice has a new volume (volume 30): Washington Motions in Limine by David N. Finley & Lisa McGuire. Read Kelly Aldrich's description in the Law Library news here.

And if you haven't been watching the bookshelves closely you might also want to look at volume 29, which was added last year. Washington Elements of an Action by David K. DeWolf

provides legal analysis of the required elements for various causes of action, including defenses, checklists, sample pleadings, jury instructions, and jury verdicts, providing a streamlined approach to your research efforts. Topics included in the 2007 edition include actions for abuse of process, animals, business torts, contracts, dram shop liability, employment, false imprisonment, breach of fiduciary duties, fraud, government tort liability, insurance bad faith, intentional infliction of emotional distress, libel and slander, malicious prosecution, medical malpractice, negligence, nuisance, premises liability, privacy, products liability, and wrongful death.
The publisher's description links to the table of contents and index.

Washington Practice is in the Reference Area of the library, at KFW80. It's also on Westlaw (WAPRAC database) -- but the new volume on motions in limine isn't online yet.

King County Superior Court Leader in Electronic Records

The King County Superior Court Clerk’s Office will be honored Thursday by the King County Council’s Law, Justice and Human Services Committee for its nationally recognized Electronic Case Records (ECR) program.

The Court Clerk’s Office was recognized late last year as a “2007 Innovation in American Government” winner by the Ash Institute for Democratic Governance and Innovation, which is based at Harvard University’s Kennedy School of Government. The Clerk’s Office will receive a $100,000 award for the honor, which will be used to share information with other courts and agencies who are interested in establishing electronic records systems.

Washington Courts Press Release: King County Superior Court to be honored Thursday, March 5, 2008.

Friday, March 7, 2008

"How to Give Great Speeches" and some examples for you to watch

Rich Karlgaard at gives pointers on How to Give Great Speeches, Dec. 10, 2007. One of his tips is to watch some great speeches on YouTube. A blogger went one step further and provided the links to those speeches: idealawg: From "How to Give Great Speeches" and some examples for you to watch.

So I thought: what sort of trial examples are there? Lots, it turns out. I searched YouTube for opening statement trial. The first hit turned out to be a TV news story about the Fred Russell trial, a couple of clips include a few seconds of Russell's attorney, Francisco Duarte, who is also a Trial Ad instructor.

Another clip I watched part of was Judge Murray Sinclair - How to Be a Good Lawyer. This isn't about trial practice, but rather about law practice generally. Judge Sinclair was Manitoba's first Aboriginal judge and Canada's second.

Well, this searching might turn up some good stuff, but it's not easy to sort out. I'd like to see someone's recommendations of the best clips showing good technique.

Beauty and The Law

A Howard 3L who is Miss District of Columbia USA is interviewed in Beauty and The Law, The BLT: The Blog of Legal Times, March 7, 2008.

What sort of feedback do you get from professors or other students about being a beauty queen?
* * * One time in class I got a question * * * [and my] answer was obviously wrong, and the professor looked at me and I paused and said “And world peace.” My classmates gave me a standing ovation....You never know when a pageant technique might come in handy.

Has your study of law helped you win contests?
I do think it has, and I'm going to say that because with litigation you're dealing with being able to speak on your feet. I always say that the toughest interview I've ever had in my life is a pageant interview....There's no fear factor like being in a pageant interview because you have no idea what the next question is.

Lawyer, Client Sanctioned $29K for Client’s Profanity-Laced Deposition | ABA Journal - Law News Now

Lawyer, Client Sanctioned $29K for Client’s Profanity-Laced Deposition, ABA Journal - Law News Now, March 5, 2008. The foul-mouthed client was the CEO of a company accused of selling poor-quality mortgages to the plaintiff.

Taking "hostile witness" to new heights...

Thanks: Maureen Howard.

Wednesday, March 5, 2008

Transnational IP Program

I just went to a very interesting lunchtime talk about CASRIP's Transnational Intellectual Property Program held in Rome last month. It was a one-week class attended by students from the University of Washington (JD and LL.M.) and law schools in Italy, France, Germany, and the United Kingdom and taught by professors from here and Europe.

In teams composed of students from all the jurisdictions represented, students prepared and conducted a patent license negotiation and a mock trial of a patent dispute. The three mock trials had three different judges, from Italy, Germany, and the U.S. This gave the students exposure to different trial practice, since the Italian judge said she wanted the presentations to follow the procedure used in Italy. (The students before the German judge had a mock trial that was mostly U.S.-style with a little German procedure.)

The lunchtime presentation included two of the faculty members (Toshiko Takenaka and Signe Brunstad) and three UW students who led student teams (Chris Kuyper, Dario Machleidt, and David Ray). It sounds like an amazing week -- lots of substantive material, lots of hard work on the simulations, and great exposure to other legal systems and cultures -- not to mention new friendships with law students from all over.

In 2007 there was a similar program at Waseda University in Japan. Next year, they'll run the program in Strasbourg, France.

Tuesday, March 4, 2008

Comparing Elected and Appointed Judges

What difference does it make whether a state appoints its judges, elects them, or has some system in between? A team of researchers examined the opinions of states' highest courts from 1998-2000 and tried to come up with measurements that would say something about quality. Stephen J. Choi, G. Mitu Gulati & Eric A. Posner, Professionals or Politicians: The Uncertain Empirical Case for an Elected Rather Than Appointed Judiciary, U of Chicago Law & Economics, Olin Working Paper No. 357 (Aug. 2007), available at SSRN:

Here are the measures they tried:

  • Quantity - number of opinions (including dissents and concurrences. Elected judges wrote more than appointed judges.
  • Citations to opinions by courts from other jurisdictions. Appointed judges were cited more. (But see the recent study by Dear and Jessen, who found that our (elected) Washington Supreme Court was the second most influential in the country. Dear and Jessen looked at citations following an opinion, not just citations.)
  • Independence - measured by how often a judge wrote an opinion contrary to a judge of the same or different party. Elected judges are more likely to dissent than appointed judges, and they're fine dissenting against a judge of the same party.
    • I wondered what they did for states (like ours) whose judges are elected in nonpartisan elections. The answer: they did some digging.
      • They searched Nexis for news stories about the judges.
      • If the judges had at one point been appointed and, if so, they looked at the party of the governor who appointed them.
      • They checked for campaign contributions, deeming a judge who contributed to partisan campaigns to be of the same party as the candidates supported.
Here's the abstract:
Although federal judges are appointed with life tenure, most state judges are elected for short terms. Conventional wisdom holds that appointed judges are superior to elected judges because appointed judges are less vulnerable to political pressure. However, there is little empirical evidence for this view. Using a dataset of state high court opinions, we construct objective measures for three aspects of judicial performance: effort, skill and independence. The measures permit a test of the relationship between performance and the four primary methods of state high court judge selection: partisan election, non-partisan election, merit plan, and appointment.

The empirical results do not show appointed judges performing at a higher level than their elected counterparts. Appointed judges write higher quality opinions than elected judges do, but elected judges write many more opinions, and the evidence suggests that the large quantity difference makes up for the small quality difference. In addition, elected judges do not appear less independent than appointed judges.

The results suggest that elected judges are more focused on providing service to the voters (that is, they behave like politicians), whereas appointed judges are more focused on their long-term legacy as creators of precedent (that is, they behave like professionals).

Graphic from the Wyoming Secretary of State's page with 2002 election results. It's not about electing judges specifically, but it's a cute graphic.

Saturday, March 1, 2008

Arbitration "the Windermere Way"

Even though "strong public policy favors arbitration," courts won't always enforce the arbitration agreements employers have employees sign. One exception? When Windermere's system has the employer pick three arbitrators and

All potential arbitration panelists must be members of the Windermere "family" -- owners, brokers, managers, and sales associates affiliated with other Windermere franchisees.
Disputes, such as those concerning which agent receives a commission, must be resolved according to the "Windermere Way."
On the facts, the trial court and the Court of Appeals concluded that the process did not* "satisfy the neutrality requirements of the arbitration statute." Rodriguez v. Windermere Real Estate/Wall Street, Inc., 175 P.3d 604, 27 IER Cases 190, Findlaw (Div. 1, Jan. 28, 2008)(Applewick, C.J.).

Thanks: Rod Stephens, Employment Advisory.

* March 10: Thanks to reader Manny Jacobowitz who pointed out that I'd left out these critical words in my original post.