June 26th, 2008
My Badge of Honor: “Deselected” by Bush’s Department of Justice (pdf) by Lewis & Clark Law School alum Jamie Saul.
Background:
On Tuesday, June 24 the U.S. Department of Justice Office of the Inspector General and the Office of Professional Responsibility published their report on the improper use of political and ideological affiliations to reject applications to the DOJ.
The scathing report, An Investigation of Allegations of Politicized Hiring in the Department of Justice Honors Program and Summer Law Intern Program (pdf, 115 pages), provides numerous examples of the Justice Department illegally weeding out “leftist” candidates for nonpartisan career attorney positions. This New York Times article, Report Assails Political Hiring In Justice Dept. , has a good overview of the findings.
Turn to page 86 of the report (this link should get you there) and you will read of a candidate for the Honors Program from Lewis & Clark Law School. A member of the top 10 percent of his class, he was “deselected” due to his work with the Law School’s Northwest Environment Defense Center, Earthjustice, and his position as articles editor for Environmental Law:
The candidate indicated in his essay a strong interest in working in environmental law, including that he wanted “to serve as part of the team charged with enforcing the world’s most comprehensive environmental laws, and with defending the crucial work of our environmental and resource management agencies.”
Elston commented that while he did not know anything about the organizations that the candidate worked for
the impression I’m left with after a quick look at this is that this is someone who had come to the Environment Division . . . with an agenda, not with an open mind as to the best way to enforce the environment, environmental laws. . . . I had a negative reaction to that. So, I may well have voted with Esther on that one.
Investigation, p. 86 & footnote 55
The candidate, left unnamed in the report, was Jamie Saul, a 2007 graduate of Lewis & Clark Law School. Saul is a Staff Attorney at Midwest Environmental Advocates, a non-profit environmental law center in Wisconsin.
Jamie Saul has written a piece describing his reaction to the report, and to discovering that he was one of the candidates deselected for political reasons:
I have been advised by friends in the legal field to wear this rejection like a badge of honor, and that’s what I intend to do. It’s reassuring to know that my views on environmental protection don’t quite line up with those of this administrations policymakers (that’s an understatement, folks), and now I find myself working at the wonderful Midwest Environmental Advocates in Madison.
BoleyBlogs! appreciates Mr. Saul sharing My Badge of Honor with us. He provides a valuable perspective which, we trust, will shortly also be appearing in local and national newspapers.
Read My Badge of Honor: “Deselected” by Bush’s Department of Justice (pdf) by Jamie Saul.
June 20th, 2008
Fans of open access to law (and unless your name rhymes with Bromson-Loiters or HexisBexis, who isn’t?) will be pleased with this morning’s news that Oregon is backing away from enforcing its copyright claims on key elements of the Oregon Revised Statutes (ORS).
As you may remember, back in April Oregon sent cease and desist letters to Justia and Public.Resource.Org which had been posting electronic copies of the ORS. See our post from the time for the details. As Professor Bojack illustrates, stripping out the elements in which the state was asserting copyright leads to rather unfortunate results.
However, in a hearing yesterday the Oregon Legislative Counsel Committee recommended and the Senate agreed that Oregon would no longer be enforcing its copyright on the statutes.
via BoingBoing:
Rogue archivist Carl Malamud sez,
Justia and Public.Resource.Org were invited, along with Karl Olson our counsel, to testify before the Oregon Legislative Counsel Committee. We were joined by a public panel of wikipedians and open source advocates.
The process was incredibly well organized. There was a comprehensive briefing packet prepared for the committee, the members asked lots of intelligent questions, and then Dexter Johnson the Legislative Counsel recommended to the committee that they waive assertion of copyright on their statutes. The Majority Leader placed the motion, the President of the Senate called the vote, and the vote was unanimous. This was democracy in action and was great to watch.
OPB News told the story in brief this morning (though they have not posted it online), and those in attendance have yet to post more than a brief but welcome update (thanks Tim!), but keep an eye on Public.Resource.Org’s The Oregon Question, Justia’s Law, Technology & Legal Marketing Blog, and Oregon Legal Research for the rich details. You can also read the prepared statements of Tim Stanley, Karl Olson and Carl Malamud.
For a detailed and educational analysis of the issues involved see this timely essay, Copyright, Technology, and Access to the Law: An Opinionated Primer, by New York Law School professor James Grimmelmann. [htsg]
Update: Carl Malamud of Public.Resource.Org has let us know that video of the hearings is now available online.
Sources: Legal Research Plus
June 2nd, 2008
The latest Lewis & Clark Law School Legal Studies Research Paper Series has now been posted. The series, part of the SSRN Legal Scholarship Network, presents papers accepted for publication and working papers of the Lewis & Clark Law School faculty.
Volume 2, Number 3 of the Lewis & Clark Law School Legal Studies Research Paper Series contains these articles. Follow the links to view abstracts and download the full-text articles:
- Arbitration of Shareholder Claims: Why Change is Not Always a Measure of Progress
Jennifer J. Johnson, Lewis & Clark Law School
Edward Brunet, Lewis & Clark Law School
- Healthcare Reform in the United States: The Role of the States
Seattle Journal for Social Justice, Vol. 6, No. 1, p. 199, 2007
Arthur B. LaFrance, Lewis & Clark Law School
- What History Teaches Us About Copyright Injunctions and the Inadequate-Remedy-At-Law Requirement
Southern California Law Review, September 2008
Tomas Gomez-Arostegui, Lewis & Clark Law School
- Summary Judgment is Constitutional
Iowa Law Review, Forthcoming
Edward Brunet, Lewis & Clark Law School
- The Pope’s Copyright? Aligning Incentives with Reality by Using Creative Motivation to Shape Copyright Protection
Louisiana Law Review, Forthcoming
Lydia Pallas Loren, Lewis & Clark Law School
Subscribe to receive announcements of all new papers in the Lewis & Clark Law School Legal Studies Research Paper Series.
New L&C Law Scholarship is a regular feature of BoleyBlogs! Here we announce new content from the Law Reviews of Lewis & Clark Law School, along with the latest publishing ventures of our own faculty, students and staff.
May 23rd, 2008
Thinking About Law and Creativity: On the 100 Most Creative Moments in American Law
In a boon for fans of law lists everywhere, Valparaiso School of Law professor Robert F. Blomquist has put together a list of the “100 Most Creative Moments in American Law.”
Professor Blomquist surveyed 426 American law professors in 2005, seeking their opinions on the most creative moments in Anglo-American law. Based on their replies and his own opinions, and after limiting his focus to American law, Blomquist provides in his forthcoming article a rich discussion of creativity and ‘creative moments’ in law, and a delightful top-100 list of such moments.
Blomquist also provides explanations for why each of those moments qualified for the list. It makes for a grand Memorial Day weekend read, as well as the challenge all such lists provide for the reader: what is missing, and how would you have ranked them?
Find the abstract and link to the full text of the article on SSRN. Here are the top and bottom 10s to get you started:
Top 1-10 Most Creative Moments in American Law
- The Constitution of the United States (1787) and the ratification debates (1787-1788).
- The Declaration of Independence (1776).
- The Bill of Rights (1791-1792).
- The Articles of Confederation (1777).
- The Ordinance of 1787: the Northwest Territorial Government.
- Marbury v. Madison (1803).
- President Lincoln’s Emancipation Proclamation (1863).
- The Judiciary Act of 1789.
- President Lincoln’s suspension of the Writ of Habeas Corpus during the Civil War (1861-1865).
- Brown v. Board of Education (Brown I & Brown II) (1954-55).
Top 91-100 Most Creative Moments in American Law
- Daubert v. Merrill Dow (1993).
- Lemon v. Kurtzman (1971).
- Euclid v. Ambler (1926).
- Erie R.R. v. Tompkins (1938).
- New York Times v. Sullivan (1964).
- Katz v. U.S. (1967).
- Shelley v. Kraemer (1948).
- Lucas v. South Carolina Coastal Council (1992).
- Miller v. California (1973).
- Goldberg v. Kelly (1970).
Sources: Legal History Blog, ABA Journal
April 29th, 2008
The latest issue of Lewis & Clark Law School’s Lewis & Clark Law Review is now out.
Here are the articles published in Volume 12, Number 1 of Lewis & Clark Law Review, complete with links to the abstracts and full-text articles:
Symposium: Speech and the Public Schools After Morse v. Frederick
Article
Notes & Comments
New L&C Law Scholarship is a regular feature of BoleyBlogs! Here we announce new content from the Law Reviews of Lewis & Clark Law School, along with the latest publishing ventures of our own faculty, students and staff.
April 29th, 2008
Kenneth W. Starr, Our Libertarian Court: Bong Hits and the Enduring Hamiltonian-Jeffersonian Colloquy, 12 Lewis & Clark Law Review 1 (2008)
The Supreme Court?s decision in Morse v. Frederick, otherwise known as the ?Bong Hits 4 Jesus? case, highlights the non-realization of Chief Justice Roberts?s goal of greater cohesion and unanimity among the nine Justices. Bong Hits is an example of the Chief Justice appearing increasingly among the majority, Justice Stevens speaking vigorously for the minority, and Justice Thomas?s iconoclastic approach to constitutional issues. Importantly, the case also reveals a trend of alliance between Justices Kennedy and Alito and their shared Hamiltonian skepticism of local power, as well as Chief Justice Roberts? unsuccessful attempts to limit constitutional questions to narrow grounds of decision. This Essay explores the divided factions of the Court through the lens of Bong Hits and offers further insight into the Justices? constitutional jurisprudence.
(abstract from Lewis & Clark Law Review)
April 29th, 2008
Erwin Chemerinsky,
How Will Morse v. Frederick Be Applied?, 12 Lewis & Clark Law Review 17 (2008)
In 2007, the Supreme Court decided Morse v. Frederick, a 5-4 decision in which Chief Justice Roberts, writing for the majority, decided that a student could be punished for displaying a banner with the words ?BONG HiTS 4 JESUS? on a public sidewalk. In this Essay, the author explores the implications of this decision, focusing on the important question of how it will be understood and applied by school officials, school boards, and lower court judges. The author suggests that the opinion was misguided and?from a First Amendment perspective?highly undesirable.
The author argues that the decision cannot be justified under existing First Amendment principles, and cautions that it could be seen as authorizing punishment of students for speech that is deemed distasteful or offensive, even just juvenile. However, the concurring opinion by Justice Alito suggests that the decision is exceedingly narrow and based on a very unusual factual context. The author notes that if Justice Alito?s opinion is seen as defining the scope of the holding, the case establishes only the power of schools to punish speech encouraging illegal drug use rather than giving school officials great discretion to punish student speech.
Despite the fact that Morse v. Frederick is consistent with decisions from the Supreme Court and lower federal courts over the last two decades, the author?s hope is that Chief Justice Roberts?s majority opinion will be read through the prism of Justice Alito?s concurring opinion, thereby having little effect on the already very limited First Amendment rights of students.
(abstract from Lewis & Clark Law Review)
April 29th, 2008
Sonja R. West,
Sanctionable Conduct: How the Supreme Court Stealthily Opened the Schoolhouse Gate, 12 Lewis & Clark Law Review 27 (2008)
The Supreme Court’s decision in Morse v. Frederick signaled that public school authority over student expression extends beyond the schoolhouse gate. This authority may extend to any activity in which a student participates that the school has officially sanctioned. The author argues that this decision is unsupported by precedent, and could encourage schools to sanction more events in the future. Because the Court failed to limit or define the power of a school to sanction an activity, the decision could have a chilling effect on even protected student expression. The author commends the Court for taking up this issue after a long silence, but concludes that the messy facts in the case chosen made the case a poor vehicle for the Court to address the underlying school-speech issues.
(abstract from Lewis & Clark Law Review)
April 29th, 2008
Richard W. Garnett, Can There Really Be “Free Speech” in Public Schools?, 12 Lewis & Clark Law Review 45 (2008)
The Supreme Court?s decision in Morse v. Frederick leaves unresolved many interesting and difficult problems about the authority of public-school officials to regulate public-school students? speech. Perhaps the most intriguing question posed by the litigation, decision, and opinions in Morse is one that the various Justices who wrote in the case never squarely addressed: What is the ?basic educational mission? of public schools, and what are the implications of this ?mission? for officials? authority and students? free-speech rights? Given what we have come to think the Free Speech Clause means, and considering the values it is thought to enshrine and the dangers against which it is thought to protect, is it really possible for the freedom of speech to co-exist with the ?mission? of the public schools? We all recall Justice Jackson?s stirring rhetoric in the West Virginia flag-salute case: ?If there is any fixed star in our constitutional constellation,? he proclaimed, ?it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion[.]? But, is this really true?could it be true??in public schools?
(abstract from Lewis & Clark Law Review)
April 29th, 2008
Stephen Kanter, Bong Hits 4 Jesus as a Cautionary Tale of Two Cities, 12 Lewis & Clark Law Review 61 (2008)
In September of 1987, several high school students in Tigard, Oregon wore various T-shirts allegedly promoting the use of alcohol. In January of 2002, a number of students in Juneau, Alaska held up a banner with the words ?BONG HITS 4 JESUS? on it while the Olympic torch passed by their school. Both groups of students claimed their First Amendment rights were violated when they were summarily punished for their actions; however, the processes and the end result in each case were quite different. This Article recounts how the Tigard High administration turned the situation into a learning experience. A mock Supreme Court was convened, with high school students acting as attorneys on both sides of the issue. The author then compares the treatment and outcome of the Oregon T-shirt incident with that of the Alaska banner incident, concluding that the administration in the ?Bong Hits? case missed a valuable learning opportunity, ultimately resulting in dire consequences for student speech. The Article analyzes the five separate opinions in Morse v. Frederick and criticizes the United States Supreme Court for diluting student rights. The author draws important lessons from different Justices? views to suggest what the future may portend for the direction of the current United States Supreme Court.
(abstract from Lewis & Clark Law Review)
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