Judge Joan Lefkow.

I came home today interested in blog coverage of the murder of federal Judge Joan Lefkow’s husband and mother in her home yesterday. Everyone seems more interested about today’s USSCT decision outlawing the death penalty for juvenile offenders.

This is really an astonishing and bizarre crime. Judge Lefkow had ruled against a white supremacist group in a trademark dispute (!!) and one of its members was subsequently arrested for plotting to have her killed in retaliation. The supremacist was scheduled to be sentenced next month.

Someone, presumably associated with the supremacist group, entered Lefkow’s home and killed her husband and 89-yr-old mother, and the judge found them on returning from work.


01 Mar 05


Roper v. Simmons.

The supreme court ruled two days ago that juvenile offenders can’t be sentenced to death. As another blogger put it, “I haven’t read the decision yet, but I can’t imagine how this could be a bad thing.”

Gee, why didn’t I think of that. My error was that I did read the opinion. Now I’m stuck thinking it’s pretty sketchy.

Certainly it’s good news for juveniles currently on death row or heading there. Past that, the majority opinion skates on ice that’s pretty thin a lot of the time. Scalia, in a majestically tart dissenting opinion, accurately targets a lot of them.

Roper is being heralded as a victory for death penalty and child welfare advocates. Right now, it is. But ultimately the reasoning behind a case is just as important as the outcome itself, because it ensures that the case remains relevant and applicable into the future, and more pragmatically, is solid enough to resist being overturned by a future set of justices.

Though I support the outcome, I wish the majority had found something a little better to hang their hat on aside from a perceived “national consensus” that executing juveniles is morally distasteful. Roper overturned another supreme court decision that was only 15 years old. Without a stronger footing, Roper’s attempt to stake out new territory may only survive as long.

02 Mar 05


Where’s Waldo.

Alongside the social security agenda, George W Bush has been decrying the pains of frivolous litigation and has promised to make it tougher for plaintiffs to file malpractice & other big-money suits.

These are always interesting debates because it’s one of the few issues where both sides have a lot of money to throw at lobbying and political donations. On the one side we have businesses, health insurers, doctors, etc who want litigation reform. On the other are trial lawyers, who want to preserve & expand plaintiff’s rights.

One large set of people conspicuously missing from these debates are the defense lawyers. When people think of big law firms charging big money to big corporate clients, those guys are typically working on the defense side. Wouldn’t we expect to see them standing shoulder to shoulder with their clients, demanding reform?

Maybe, until we realize their financial motivations are aligned with the trial lawyers. If the government makes suits harder to file, that means fewer suits initiated by trial lawyers, but it also means fewer cases for these big firms to defend against. Every time the plaintiff’s bar wins another legislative concession, it just means more billable hours for the defense.

06 Mar 05


Law review.

Next week is thet start of the law review write-on competition. More work for everyone (most of all the law review members who have to score the entries) but it’s a much fairer way to select people than a grade-on.

A grade-on means the top 10% or so of the class, based on legal writing grades or overall GPA, is automatically promoted to law review. This is a form of regressive taxation. People can do poorly on exams for a variety of reasons having nothing to do with the skills they need on a law review. So the rich get richer, the poor get poorer.

People who got lower grades have already been penalized once for their performance; making them ineligible for law review with a grade-on just penalizes them again for the same crime.

That said I’m somewhat surprised that only 1/3 of the 1L class participates in the competition. What’s the downside? I mean, aside from spending half your spring break on what amounts to a 40 hr take home exam? That’s about as much fun as you can have with your pants on.

08 Mar 05


What’s the downside? How about being on Law Review?

Posted by: anonymous at March 11, 2005 08:32 AM

Don’t go there. If you do, you’ll form a black hole that will suck in all of law school.

Posted by: MB at March 12, 2005 07:02 AM

Nice one, LexisNexis.

From the NYTimes:

“In yet another apparent theft of consumers’ personal data, the LexisNexis Group, a major compiler of legal and consumer information, said today that about 30,000 of its records - including names, addresses and Social Security numbers of individuals - may have fallen into the hands of thieves.”

09 Mar 05


Vital update.

on the Dave Matthews toxic dumping case:

A bus driver for the Dave Matthews Band pleading guilty to dumping 800 pounds of human waste from the bus onto sightseers on a boat in the Chicago River. Stefan Wohl will serve 18 months’ probation and 150 hours of community service and pay a $1,000 fine to a conservation group.

Dave Matthews himself still not charged with flooding America with millions of copies of his particular brand of mellow gold.

10 Mar 05



Our final graded memo is due this week. I think everyone hoped it would be less brain damaged than the prior assignments, but that hope was misplaced. Right now I have a pretty complete draft but I’m a page over the limit, so I’m going through looking for excess verbiage to cut. Why say “This is very different from Case X" when you can just say “Contrast Case X“?

I wouldn’t wish this on anyone to read due to its mildly abstract use of the english language. Fortunately, it won’t be. I learned my lesson with the last graded memo: no points for things like verbs, adjectives, connecting phrases, etc. So, they’re gone, a luxury of civilian life.

13 Mar 05


The county fair.

When you show up, you inevitably see someone walking around the midway with a 5 foot tall stuffed tweety bird. So you say damn, I’ve got to get one of those. So then you spend $70 trying to shoot the basketball in the hoop or throw darts at a balloon and all you win is a crap decoder ring.

And you realize, they only have to have a few tweety birds walking around during the evening for everyone to think they have a great shot at getting their own tweety bird. When really it’s just a matter of luck. Or knowing the guy who runs the basketball game.

So you go home with your $70 decoder ring. At least it was fun.

14 Mar 05



Today the graded memo is due. The professor still was sending out amendments to the assignment as of Tuesday night.

Three hours later, the law review write-on begins.

17 Mar 05



1) Why is Sen. Bill Frist, an M.D., maintaining “we should investigate every avenue before we take the life of a living human being”? He knows damn well she’s not alive except in purely biological terms.

2) Why is George Bush ready to go back to Washington at a moment’s notice apparently because “a woman’s life is at stake”? One death is a tragedy, 1000 deaths is a statistic, I guess.

3) Why does anyone think that Schiavo’s life, even in its best-case scenario, is any better than being held immobile in solitary confinement?

4) Failing congressional action, maybe they can get a constitutional amendment passed this week. How many states do we need? 38?

20 Mar 05


Law Review write-on + spring break.

= not much posting this coming week.

20 Mar 05


Law review write-on.

I did finish the write-on. I did not enjoy it. No, enjoyment is not the point of the write-on. Rather, it sent me into a state of strange androidal nihilism, where I was quite compelled to do the best job I could, yet simultaneously completely indifferent about the outcome.

Does anyone really want to be on law review? I’m sure many want the credential and the prestige—that’s why 100 people will attempt the write-on—but I imagine precious, precious few have been thinking all year “damn, I was born to cite check, baby. I have an uncontrollable urge to Shepardize.”

There were two key moments of depression during the write-on: about halfway through, when I’d just written 5 pages of useless dreck (which I’d throw out later) and finishing seemed highly improbable. I worked through it. The other was finishing, and realizing that best case, you make law review and get a 2-yr assignment to do ... more of the same (not least of which is grading next year’s write-ons)

Worst case, you don’t make law review, and you’ve just invested half your spring break in the most labor-intensive waste of time of your academic career. Are you left with an interesting research paper? No. Are you left with a credential? No, you can’t put “attempted law review write-on” on your resume. Your best bet is just to forget the whole thing ever happened.

I have some words for those who didn’t attempt the write-on or abandoned it or don’t make it. 90% of lawyers were not on law review. Yet they have managed to find employment and have, you know, productive careers. In the end the write-on is just another freakin’ fire drill.

27 Mar 05


People v. Harlan.

An interesting decision today from Colorado. The Supreme Court overturned a death sentence after it was discovered some jurors brought bibles into the deliberation room and looked up Old Testament passages.

It’s a strange decision. The court wants to assert that using the bible contravened the instruction to not consider evidence outside the courtroom; yet they also acknowledge that a verdict is necessarily based partly on the morals & beliefs of the jury members, which they bring into the room independent of evidence issues.

I would’ve been hopping mad if I were the defendant finding out I was sentenced according to the Old Testament (guess they didn’t get to the page with “thou shalt not kill”).

But I’m not sure it’s the right decision to overturn the verdict. Juries can find any verdict they want. They can disregard all the evidence and go with their gut instinct. A case is going to have conflicting evidence anyhow—part of the jury’s job is to decide which evidence and which witnesses are credible and which are not.

They also, especially during sentencing, are asked to apply a moral judgment, and that’s why we select 12 human beings to do the job and don’t just look it up in some sentencing index. The judges in Colorado seemed to think it was important that certain jurors brought bibles into the deliberation room. What if they had memorized the passages? What if it was a secular text?

The court eventually rested its decision on the possibility that jurors might have been unreasonably influenced by the bible passages. But part of what we want jurors to do is influence each other—that’s the most likely way to get a unanimous verdict. It’s a puzzling result, and an illustration of why we never ask a jury “why” in a criminal trial.

28 Mar 05


Matthew, it’s me Peter. Just read your last entry - you’re really starting to think like an attorney now (thanks to my fine teaching no doubt). I only wish we had more time in class to discuss jury instruction. Why don’t you do some model penal code analysis on Colorado’s homicide statutes in the context of the Harlan case and drop it off at my office tomorrow. I miss you.

Remember, never be afraid to take a risk. step back and throw the ball.



Posted by: Prof Crim Law at March 28, 2005 07:00 PM

Write-on + 7.

The thought of actually being on law review has not gotten any more attractive. Maybe next week.

I think most advice that “you need to do X, it’ll be good for your resume” is overstated. First, anyone who did X is not exactly a neutral observer. Second, I’ve never found it worthwhile to do anything because of some perceived future value of having done it. If you don’t have a good reason in the present to do it—like, enjoying it—it’s a waste.

Here’s the problem. You do X because it’s useful to get job Y, which you need because it’s helpful to get clerkship Z ... and so on. It gets you on this cycle where everything is a stepping stone; nothing is a destination. Small wonder there’s so many 3rd-year associates who feel negative about the legal profession and drop out.

Also, there’s the issue of opportunity cost. Doing law review means automatically foreclosing other uses of my time in the next 2 yrs before I know what they are. Can I say, right now, that law review is better use of my time than any of them? No. In fact, I’m pretty sure it’s not.

31 Mar 05

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