Tuesday, December 21, 2010

Bryant on Faigman's "Constitutional Fictions"

A. Christopher Bryant has written a review of David Faigman's book, Constitutional Fictions: A Unified Theory of Constitutional Facts, at 25 Constitutional Commentary 467 (2009).

Faigman on Apples and Oranges in Scientific Evidence

David Faigman has published "Evidentiary Incommensurability: A Preliminary Exploration of the Problem of Reasoning from General Scientific Data to Individualized Legal Decision Making," 75 Brooklyn L. Rev. 1115 (2010). The article may be viewed within a downloadable PDF of the law review.

Bloch on Learning Pathways and Legal Education

Kate Bloch has published an article, "Cognition and Star Trek: Learning and Legal Education," 42 John Marshall L. Rev. 959 (2009), in which she applies insights from cognitive science research to legal education. The four cognitive science insights she uses are: (1) "active learning"; (2) the value of stories; (3) the pivotal role of the visual pathway; and (4) personalizing presentation style to increase learning. The article is available from HeinOnline.

Bloch on the Models of Restorative Justice

Kate Bloch has published an article titled, "Reconceptualizing Restorative Justice," 7 Hastings Race & Poverty L. J. 201 (Winter 2010)(available from HeinOnline). This article sets forth two models of restorative justice, a "classic" version and a "hybrid" version. The "classic" version serves as a substitute for or part of an offender's court sentence, whereas that is not true of the "hybrid" version. The "hybrid" version contains a heavy dose of educational and rehabilitative programming, which may not be required in a "classic" version of restorative justice. Kate ultimately concludes that some combination of these approaches can, at least in some circumstances, "reduce recidivism and leave those involved with a greater sense of satisfaction with the justice process."

Bloch on Neuroscience and Sentencing

Kate Bloch has published an article titled, "Changing the Topography of Sentencing," 7 Hastings Race & Poverty L. J. 185 (Winter 2010)(available from HeinOnline). Kate argues that "neuroscientific approaches to addressing the underlying motivating factors that incline offenders to commit crime, and return them again and again into the correctional system, merit our sustained attention."

Monday, December 20, 2010

Lee on Judicial Restraint

Evan Lee has published a book titled, Judicial Restraint in America: How the Ageless Wisdom of the Federal Courts Was Invented (Oxford University Press). Here is the blurb written by the noted legal historian, Edward A. Purcell, Jr.:

Highlighting the importance of changing social contexts and judicial values, this thoughtful and illuminating study traces the complex shifts that marked the evolutino of standing doctrines in the Supreme Court's jurisprudence and identifies some of the unexpected consequences that those new formulations brought. Demonstrating that modern Article III standing doctrine was a product not of the Constitution or the Marshall Court but of Justice Louis D. Brandeis and the early twentieth-century, it demonstrates the essential irrelevance of originalist theories to a clear understanding of this important area of American constitutional law.

Dodge on Withdrawing from Customary International Law

Bill Dodge has published an article called "Withdrawing from Customary International Law: Some Lessons From History," 120 Yale L. J. Online 169 (2010), http://yalelawjournal.org/2010/12/17/dodge.html. In this article, Bill argues that the "default view" of customary international law -- which permitted nations to withdraw unilaterally from some international law rules upon proper notice -- was never the dominant understanding, and furthermore, it ought to have no part in the future of international law.

Thursday, December 9, 2010

Bonorris on Cap and Trade

Steven Bonorris has published an op-ed in the December 2, 2010, issue of The Recorder, making the case for cap-and-trade.

Friday, November 19, 2010

Musalo on the History of Gender Asylum in the U.S.

Karen Musalo has published an article called, "A Short History of Gender Asylum in the U.S.: Resistance and Ambivalence May Very Slowly Be Inching Towards Recognition of Women's Claims," in a special issue of the Refugee Survey Quarterly on Gender Equality and Refugee Women.

Here is the abstract:

This article provides an overview and analysis of protection for gender-related claims to refugee status, with a focus on the United States. It defines the term “ gender-related” and explains the historical interpretive barriers to such claims. The article examines the earliest United Nations High Commissioner for Refugees pronouncements on the issue – beginning with Executive Committee of the High Commissioner’s Programme Conclusion No. 39 in 1985, and the United Nations High Commissioner for Refugees’ first Guidelines on the Protection of Refugee Women in 1991, and continues through its Social Group and Gender Guidelines, issued in 2002. Within this context (and the context of other developments – such as the 1993 issuance of Canadian Guidelines), the article discusses developments in the United States, beginning with the release of “Gender Considerations” in 1995. It reviews the subsequent development of the United States jurisprudence, from Matter of Kasinga in 1996, to the recent resolution of Matter of R-A- (the case of Rody Alvarado) in 2009. It explains the current position of the Obama Administration, as set forth in a brief in the case of L.R. Through the discussion of this jurisprudence, the article highlights the ambivalence among United States adjudicators, and examines the advances and setbacks in the recognition of gender-related claims to protection. It concludes that the United States appears to be adopting a position more consistent with international guidance, but that until there is binding precedent, adjudicators remain free to retreat from the small advances that have been made.

Tuesday, November 16, 2010

Wang on Insider Trading

Bill Wang and Marc Steinberg have published the Third Edition of their Insider Trading (Oxford Univ. Press). Here is a brief description of the treatise:

This treatise analyzes the application of various laws to stock market insider trading and tipping. Among the federal laws are Exchange Act Section 10(b), SEC Rule 10b-5, mail/wire fraud, SEC Rule 14e-3, Exchange Act Section 16, and Securities Act Section 17(a). The state law discussed is both state common law and a state law claim by the issuer.

Another chapter addresses government enforcement of the insider trading/tipping prohibitions. A chapter on compliance programs deals with how firms can try to prevent illegal insider trading and tipping. Two chapters compare the harmful and allegedly beneficial effects of stock market insider trading and discuss the harm to individual investors from each specific insider trade.

Bill has summarized the book in an article called, "The United States Law on Stock Market Insider Trading and Tipping," 26 Nihon University Comparative Law Review 107 (2009).

Wednesday, November 10, 2010

Wagman on Living and Teaching Animal Law

Bruce Wagman has published an article called "Growing Up With Animal Law: From Courtrooms to Casebooks," 60 J. Leg. Ed. 193 (Nov. 2010). Here is the intro:

Over the past eighteen years I have had the rare privilege of riding on the waves of intellectual, legal and academic development of the field of animal law. I started by incorporating isolated bits of pro bono work into a civil litigation practice and in 1996 I began teaching animal law. Since late 2005 my work has consistently been more than 90 percent animal law. I have had the honor of teaching full semester animal law classes more than twenty times at four Bay Area law schools, guest lecturing and speaking at conferences and classes in other schools across the nation, and co-authoring Animal Law: Cases and Materials, originally published in 2000 and now in its fourth edition.2 Each day I am grateful for the gift of this practice, the result of a truly providential mix of coincidence and circumstance. My path as a lawyer for the animals, and as an animal law professor and lecturer, has paralleled the incredible growth in the field. During my tenure in animal law’s thrall it has become a rapidly growing, vital social justice movement. It has developed much like environmental law, its natural older cousin, which attracted so many in the 1960s and 1970s. Given that animal law and I have grown up together, I have been asked to write this article, which will discuss our mutual path in practice and academia.

Tuesday, November 2, 2010

Feldman on the IP Landscape for iPS Cells

Robin Feldman has published an article with Deborah Furth called "The Intellectual Property Landscape for iPS Cells," 3 Stanford J. L. Sci. & Pol. 17 (2010) (peer reviewed). Here is the abstract:

Beginning in 2006, induced pluripotent stem cells have raised the tantalizing possibility that stem cell research could move forward without the significant moral and ethical dilemmas that have paralyzed the field. These cells, known as iPS cells, originate from adult somatic cells, but function in a manner that is almost equivalent to embryonic stem cells. If iPS cell research lives up to its promise, stem cell research, diagnostics, and treatment could be accomplished without destroying or in any way interfering with human embryos or their development.

While we may be entering a historic moment in stem cell research, we are also facing a historic period in American patent law. Of the five key principles of patentability, three are currently in flux, creating challenges for those who would navigate the system. In the brief space alloted here, we will survey the shifting landscape in American patent law, as it may affect the rights available to iPS cell inventors. This brief overview may serve not only as an alert for scientists in the field, but also as a reminder to those of us in the patent world that our failure to resolve doctrinal uncertainties can have a tangible effect on scientific research.

Feldman on the Subconscious in IP Law

Robin Feldman has published an article called "The Role of the Subconscious in Intellectual Property Law," 2 Sci. & Tech. L. J. 2 (2010). Here is the abstract:

Human behavior stems from a fascinating tangle of conscious and subconscious impulses. While we are often quite aware of what we are doing and how we have come to do it, such is not always the case. Various human drives can lead us, for example, to be perfectly convinced that our actions are appropriate or that our motives are pure, despite considerable evidence to the contrary.

The human mind is particular important in the realm of intellectual property. The stuff of intellectual property, that which we choose to protect, flows from processes of the human mind as it interacts with the natural world and with creations that have come before. Without knowing any more, one might imagine that subconscious processes of the human mind could come to play a role in the unfolding doctrines.

This piece will consider how Intellectual Property law handles subconscious impulses on the part of participants in the system. Looking at examples from Copyright, Trade Secret, and Patent law, the piece argues that although such impulses may be treated differently in different areas of Intellectual Propety law, the variations can be understood in the context of the moral stance adopted in the doctrinal area. Where the connection between the moral stance of the doctrine and the approach taken by the doctrine is muddled, it may signal a doctrine in disarray. As an example, the piece analyzes the doctrine of Inequitable Conduct in patent law, concluding that this area of law has lost its bearings.

Wednesday, October 20, 2010

Lefstin on Origins of the Clear and Convincing Standard in Patent Law

Jeff Lefstin has posted an article on the leading patent blog, Patently-O, on the origins of the clear and convincing standard. Here's the link: http://www.patentlyo.com/patent/2010/10/guest-post-origins-of-the-clear-and-convincing-standard.html

Monday, October 4, 2010

Aviram on California's Death Penalty

Hadar Aviram has published an op-ed in the Friday, Oct. 1, San Francisco Daily Journal, titled, "California's Death Penalty Is A Farce." The article uses the recent procedural wrangling around the now-postponed execution of Albert Brown as a point of departure.

Bazelon on Evidentiary Standard for DNA-Based Innocence Claims

Lara Bazelon has published an article titled, "West Memphis 3's California Connection," in the Monday, October 4, 2010, issue of The Recorder. The article explores the cutting-edge issue of what quantum of evidence is necessary for prisoners to establish an entitlement to new trials based on DNA evidence that is exculpatory, but less than conclusive.

Keitner on Corporate Liability Under the Alien Tort Statute

Chimene Keitner has published an article in The American Society of International Law Insights, Vol. 14, Issue 30, titled, "Kiobel v. Royal Dutch Petroleum: Another Round in the Fight over Corporate Liability Under the Alien Tort Statute." Here's the link: http://www.asil.org/insights.cfm, then scroll down to Chimene's article.

Saturday, September 4, 2010

Bisharat on a One-State Solution

George Bisharat has published an op-ed in the Friday, September 3, edition of the Washington Post entitled, "Israel and Palestine: A True One-State Solution." Here is the link: http://www.washingtonpost.com/wp-dyn/content/article/2010/09/02/AR2010090204665.html

Wu on the History of Birthright Citizenship

Frank Wu has published an op-ed piece in The Recorder titled, "A Historic Right to Birthright Citizenship" (Sept. 3, 2010). The article reminds contemporary lawyers that a powerful legal argument based on principle managed to persuade a racially unsympathetic Supreme Court to uphold the citizenship of Wong Kim Ark, the American-born son of Chinese citizens.

Sunday, August 29, 2010

Carrillo on Remedies for Interference with Home Equity

Jo Carrillo has just published an article titled, "Conversion as a Remedy for Interference with Home Equity," 29 Banking & Financial Services Policy Report 5 (Sept. 2010). The article is a preliminary inquiry into whether (intangible) financial interests -- specifically, home equity -- fall within the scope of personal property protected by the tort of conversion.

Tuesday, July 20, 2010

Hazard on Preemption in Products Liability Law

Geoff Hazard has published an article called "Quasi-Preemption: Nervous Breakdown in Our Constitutional System," 84 Tulane L. Rev. 1143 (2010). Geoff points to the hodgepodge of Supreme Court decisions on preemption with respect to drugs and medical devices and calls out Congress and the agencies for failing to think more deeply about preemption. Here's an excerpt:

The result, evident from the prevailing pattern, is: Let the courts work it out ad hoc. That resolution is often resorted to by the courts themselves, including the Supreme Court, in decisions that often appear merely ad hoc. Dealing more efficiently and effectively with problems of federal preemption would be expensive and would require much more attention and self-discipline on the part of Congress, the Executive, and the agencies.

Friday, July 9, 2010

Leib, et al., Respond to Comments on Family Ties

Ethan Leib and his co-authors of Privilege or Punish: Criminal Justice and the Challenge of Family Ties (Oxford 2009) have responded to comments on their work by a number of other academics. The response appears in the Yale Law Journal, and the link is here:


Wednesday, June 30, 2010

Leib on Kagan and Statutory Interpretation

Ethan Leib and Michael Serota have published an op-ed in the June 30, USA Today titled, "Don't Focus Solely on the Constitution." They argue that as much or more of would-be Justice Kagan's time would be spent on interpreting statutes as on constitutional questions. The link is here: http://www.usatoday.com/news/opinion/forum/2010-07-01-leib30_ST_N.htm

Monday, June 14, 2010

Marcus on American Exceptionalism in Procedure

Rick Marcus has published an article titled, "Exceptionalism and Convergence: Form versus Content and Categorical Views of Procedure," 49 Sup. Ct. L. Rev. (2d series) 521 (2010). Rick does not see much evidence to support the growing belief that American and European systems of procedure are converging:

"Although there has surely been convergence in some matters of form -- a good example of which would probably be judicial management of litigation -- it is much less clear that the content of this convergence is really significant. What is clear is that the seeming convergence that has resulted from changes to some non-American legal systems -- such as the introduction of something like discovery in Japan or Germany -- depends on provisions that are so different in content from the American version that they are insignificant as evidence of meaningful convergence. Perhaps the American embrace of private enforcement of law, which began in the mid-20th century, will fade in the 21st. For the present, however, although American procedure may be closer to that of the rest of the world than it was a generation ago, it is not much closer."

Thursday, June 3, 2010

Dodge and Keitner on The Aftermath of Samantar

Bill Dodge and Chimene Keitner have both taken to the blogosphere to discuss the aftermath of Tuesday's decision in Samantar v. Yousuf, in which the Supreme Court held that claims of official immunity are not governed by the Foreign Sovereign Immunities Act (FSIA). Both Bill and Chimene had advocated that position in separate amicus briefs.

Their blog posts are here:



Tuesday, May 25, 2010

Mart on Human Indexing Versus Computer Algorithms

Susan Mart has published an article called "The Relevance of Results Generated by Human Indexing and Computer Algorithms: A Study of West's Headnotes and Key Numbers and LexisNexis's Headnotes and Topics," 102 Law Library Journal 221 (Spring 2010). Here's the abstract:

This article begins the investigation into the different ways results are generated in West's "Custom Digest" and in LexisNexis's "Search by Topic or Headnote" and by KeyCite and Shepard's. The author took ten pairs of matching headnotes from important federal and California cases and reviewed the results sets generated by each classification and citator system for relevance. The differences in the results sets for classification systems and for citator systems raise interesting issues about the efficiency and comprehensiveness of any one system, and the need to adjust research strategies accordingly.

Friday, May 7, 2010

Little on Justice Stevens

Rory Little has just posted an essay on ScotusBlog as part of a tribute to the departing Justice John Paul Stevens. Rory's essay focuses on Justice Stevens' commitment to prosecutorial ethics. Here's the link: http://www.scotusblog.com/2010/05/justice-stevens%e2%80%99-commitment-to-prosecutorial-ethics/#more-19819

Tuesday, April 20, 2010

Keitner on Immunity of Foreign Officials

Chimene Keitner has posted an article to SSRN taking issue with the views of Professors Jack Goldsmith and Curt Bradley on whether and when current and former officials of foreign nations should have immunity in U.S. courts. Here's the abstract:

The Schooner Exchange teaches that “[t]he jurisdiction of the nation within its own territory is necessarily exclusive and absolute.” Applying the Foreign Sovereign Immunities Act to grant immunity in U.S. courts to current and former foreign officials for any non-commercial conduct undertaken with the actual or apparent authority of a foreign state would dramatically undercut this basic feature of U.S. sovereignty. Arguments based on logic, policy, and international law do not compel such an extreme result.

Here's the link: http://ssrn.com/abstract=1593189

Friday, April 9, 2010

Beth Hillman's Journal From Gitmo -- Installment Six

Time and counsel

The one issue that was addressed, if not quite resolved, this week was a motion by the defense to retain an Army officer as Noor’s counsel. After Captain Modzelewski (the presiding judge) reviewed the posture of the case, she requested Noor’s consent to consider the defense motion to retain counsel. He agreed, and she proceeded to recount the relevant facts. Army Major Amy Fitzgibbons was detailed to represent Noor more than two years ago, during a period in which she was mobilized from the Army reserve. When Major Fitzgibbons’ mobilization ended and she returned to the civilian work force, she transitioned into the pool of civilian counsel qualified to represent detainees. She filed notice to the commission that she intended to continue, with Noor’s consent, as his counsel. Now, however, she represented him as civilian, not military, counsel.

You might ask at this point: what’s the difference? Answer: Their clothes. Functionally, they’re identical. Military and civilian defense counsel have the same access to both evidence and clients, perform the same duties, have the same ethical responsibilities related to representation.

Back to our story: Several months after transitioning to the civilian defense pool, about thirty months into her continuous representation of Noor, Ms. Fitzgibbons accepted voluntary mobilization orders that sent her back into the Army, this time assigned not to represent detainees but to do capital defense work for the Army’s Trial Defense Service. The problem that led to this motion grew out of a conflict between the interests of the Trial Defense Service, for whom Major Fitzgibbons began working last month, and the interests of Noor and the military commissions, both of whom hoped she would continue to work for them. Major Fitzgibbons did not intend to resign from representation of Noor when she was mobilized this year; she wanted to continue as his attorney and likely felt an ethical responsibility to do so. But, quite understandably, her Army superiors were not entirely comfortable with loaning their new asset to the work of the military commissions, a sort of (endless?) labor that could drain the resources of even the most energetic of judge advocates.

As for Noor? According to Howard Cabot--Noor’s civilian defense counsel, a partner at Perkins Coie, and the attorney who argued this motion before the commission—Major Fitzgibbons had established an attorney-client relationship with Noor that the detainee did not want to sever and that the commission was bound to preserve. Cabot stressed the importance of continuity of counsel, cited to court-martial precedent (there is no commission precedent, alas …) in support of his position, and asked the commission to “do what’s right” to ensure Fitzgibbons was retained as Noor’s counsel.

The prosecutors' halting response to Cabot’s impassioned argument reflected their awkward position. Navy Lieutenant Commander Arthur Gaston argued that the Office of Military Commissions had no authority to order another branch of the Army – the Trial Defense Service – to release an officer for voluntary duty. The judge interrupted to point out that Chief Deputy Defense Counsel Michael Berrigan’s recently filed affidavit listed numerous instances in which Army commands had in fact consented to their judge advocates continuing to represent detainees despite being transferred out of the Office of Military Commissions. The prosecution responded by pointing out that Major Fitzgibbons took her new position with full knowledge of the potential conflict. Lieutenant Commander Gaston conceded that Noor and Fitzgibbons had an attorney-client relationship that warranted respect, but suggested that the commission could do little to preserve it, given the circumstances.

After defense counsel spoke briefly in rebuttal, the judge recessed the commission for thirty minutes and then returned with a decision. In an opinion read from the bench, she found that voluntary mobilization does not sever an attorney-client relationship and that Major Fitzgibbons accepted mobilization orders aware of her responsibility. Captain Modzelewski, however, cautioned that she could not order Fitzgibbons be detailed to the case, since she had no authority over the Trial Defense Service. She did, however, strongly recommend that Fitzgibbons’ request to continue as Noor’s counsel be accommodated by her new command. The judge closed by pointing out that even if the Trial Defense Service refused to release Fitzgibbons, she was still Noor’s attorney, implying that Fitzgibbons might have to resign from her current post if her superiors did not acquiesce.

In some ways, this hearing was an exercise in abstraction. Noor apparently wanted Fitzgibbons to continue as his attorney, the prosecution had no objection, Fitzgibbons herself wanted to continue, the judge concurred with the need for continuous representation. There was no disagreement among the parties involved in the commission. There was also no implication that Noor had suffered harm as a result of this dispute; he was well-represented at this hearing, and would continue to be in future proceedings by Mr. Cabot and Navy Lieutenant Commander Katharine Doxakis, who was the other defense counsel present at the hearing. Left unexamined were the concrete obstacles that have made representing detainees so challenging for even the most dedicated defense counsel. Could Noor in fact develop a meaningful, effective attorney-client relationship with his GITMO lawyers, given the conditions of his detention and the context of his culture, his language, his past?

Note: I wrote earlier that the defense team in this week’s hearing was two lawyers short, not just one. Noor’s team was missing not only Major Fitzgibbons, but also a Marine Corps captain who’s apparently on deployment at the moment. The issue of retaining Amy Fitzgibbons as Noor’s counsel reveals the blurriness of lines that separate civilian from military counsel and the turmoil created by the extremely long time horizons of the commissions. It also reflects the bureaucratic challenges of creating a new military-legal organization out of a Department of Defense that was not structured to support indefinite detention, permanent overseas prisons – or criminal prosecutions that last a decade.


There’s a beautiful sunset, horizontal stripes of dark and light orange, yellow, and light blue, outside the windows on the left side of the Florida Coastal Airlines plane I’m on. We’re headed north toward Fort Lauderdale and we’ll land in a few minutes. I’m looking forward to getting off the airplane and deciding which direction to walk without having someone following me, without having to bring the other NGO observers (as decent and engaging as they were!) with me to make a phone call or have breakfast. My head is spinning with awe and despair at the effort that so many people are pouring into a system of justice so contrived and so costly. I’m on my way home with a bag full of stuffed iguanas and key chains (“It don’t GITMO better than this”) for my kids. I was only there for 30 hours, but that was more than enough.

Thursday, April 8, 2010

Levine on Declaratory Relief After MedImmune

David Levine (with Charles Belle) has published an article called "Declaratory Relief After MedImmune," 14 Lewis & Clark L. Rev. 491 (2010). Here is the abstract:

In MedImmune, Inc. v. Genentech, Inc., the Supreme Court of the United States rejected the Federal Circuit’s “reasonable apprehension of imminent suit” test for determining the existence of a justiciable controversy in actions for declaratory relief involving alleged or potential patent infringement. The Supreme Court substituted the totality-of circumstances test, which has long been used trans-substantively inactions for declaratory relief. Justice Clarence Thomas, the lone dissenter,contended that the majority’s holding would allow parties to seek improper advisory opinions. This Article evaluates MedImmune’s impact on declaratory judgment actions in patent litigation and considers whether Justice Thomas’s prediction was accurate. To do so, this Article compares how the Federal Circuit and other federal courts addressed justiciability in patent cases in the three years before and after the Supreme Court announced its MedImmune decision in January 2007. The Article also examines how lower courts have (and have not)utilized their discretion to decline to hear actions for declaratory relief inpatent litigation. In sum, MedImmune appears to have had the results desired by the Court majority: (1) Parties can more easily demonstrate the existence of a controversy in order to question arguably coercive measures by patentees in court; and (2) The lower courts have adhered to a reasonable notion of when a sufficiently concrete controversy exists, even though they have not utilized the discretion to decline actions for declaratory relief as often as they might. Justice Thomas’s concern that MedImmune would unleash a torrent of hypothetical actions in and out of the realm of patent litigation does not appear to be coming to fruition.

Here's the link: http://www.lclark.edu/law/law_reviews/lewis_and_clark_law_review/current_issues.php

Beth Hillman's Journal From Gitmo -- Installment Five

At the threshold: Jurisdiction

Perhaps the most critical legal issue in Noor’s prosecution is the one that will probably be argued at the next preliminary hearing in August. It involves an Article 5 hearing, where a conclusive determination will be made regarding Noor’s vulnerability to trial by military commission. This determination goes to the very core of the commission’s legitimacy; it involves whether or not Noor can be properly tried. It also implicates many of the facts that will be presented at trial to determine his guilt or innocence. Article 5 hearings take their name from the Geneva Conventions provision that requires a “competent tribunal” to determine whether a captured belligerent is an illegal combatant and can therefore be denied procedural protections that would otherwise be available. If Noor, who is accused of being a weapons instructor and deputy commander of a terrorist training camp in Afghanistan, does not belong in the category of “unlawful belligerent,” he might still be found guilty of committing crimes of war. But he will fall outside the jurisdiction of the military commission, a commission responsible for detaining him for many years already.

Beth Hillman's Journal From Gitmo -- Installment Four

Taking a mulligan?

The explanatory sheet provided to reporters suggested that four issues would be discussed in the Noor hearings this week. The military judge, however, heard argument on only one issue during yesterday’s two-hour hearing. The rest, which involve Noor’s status under Article 5 of the Geneva Conventions and discovery motions (to compel the government to disclose and account for evidence under its control), were deferred until a later date. That later date will likely be August 9, the next time that the commission expects to be on the record in Noor. That’s four months away, a significant delay in a case already much delayed. Previously, Noor’s case languished along with those of other detainees, who waited while prosecutors struggled to navigate the logistics and politics of trying detainees. The commissions have been slowed by their checkered legal history as well, their procedures rejected and rewritten by Supreme Court decisions and congressional reform.

The delays in Noor reveal another troubling aspect of the commissions: the number of former insiders who labored within the commissions before quitting in protest. In October 2008, charges against Noor were dropped (only to be reinstated a few months later) after a military prosecutor resigned, citing grave doubts about the fairness of the proceedings. Army Lieutenant Colonel Darrel J. Vandeveld went on to become a vocal and convincing critic, explaining that the handling of classified evidence, the rules of admissibility (which permit some hearsay and evidence obtained through coercion), and the obstacles faced by defense counsel made the commissions impossible to reform. He now favors, along with many other expert commentators, that suspected terrorists be tried in federal courts.

The current delay seems due to the slog through classified documents that Noor’s case requires. Although the military commission was last on the record four and a half months ago in the Noor case, the judge conducted six meetings with opposing counsel during that time in an effort to create and apply procedures to the review of classified documents. The 2009 Military Commission Act adopted the same rules for handling classified material that are used in federal court (codified in the Classified Information Procedures Act, or CIPA). Yet there is still no procedural manual to implement the new MCA, so the judge in Noor must impose procedures to conform with the new legislation while a handbook based on a superseded law continues to govern commission procedure. In press conferences, defense counsel have repeatedly lamented the government’s failure to release an updated manual. No doubt prosecutors would lodge the same complaint (not to mention many others!) were they not operating under gag orders that restrict their ability to speak publicly.

The frightening impact of these collective delays on the mental health of detainees-- and on U.S. standards of military justice--has been much documented. Noor has been held for eight years without a trial; he was held for five years before he was even informed of the charges against him. Yesterday the judge said that she expected his trial would not commence before February 2011, when he will reach almost nine years in pre-trial detention. That sort of treatment sets a very low bar for any standard of due process. Less noticed is the profound impact of seemingly endless delays on the servicemembers and civilians who represent the detainees and the people who make GITMO’s Camp Justice run. For them, the uneven pace of the commissions is a source of great frustration. Because of the potential for intervention by federal courts, the White House, or Congress, the people assigned to make the commissions run have been asked to make impossible choices. Shall they press ahead – as they are right now in Noor —with inadequate official guidance, aware that further delay is unconscionable from a due process standpoint but knowing that changes in regulations might create issues for appeal --and force them to re-do work that they are striving mightily to accomplish right now?

Beth Hillman's Journal From Gitmo -- Installment Three

Lawyer Island

There are a lot of lawyers at Camp Justice. Two were NGO observers with whom I shared a tent, both human rights advocates and both terrific lawyers. Andrea Prasow, now senior counsel in Human Rights Watch's Terrorism and Counterterrorism Program, proved an essential guide to all things GITMO. Andrea was assistant counsel in Hamdan, the only contested military commission to date, which brought her to the island for many weeks while she was a defense attorney with the Office of Military Commissions. [The other lawyer pictured is Daphne Eviatar, senior associate for Human Rights First. --Ed.] But most of the attorneys present were directly involved in the cases now underway. They were defense counsel and prosecutors in the Noor and other detainee cases, on base to review classified documents, some of which can only be viewed in SCIFs (sensitive compartmented information facilities, deemed secure enough for not just secret, but really really secret documents) during the discovery process or meet with clients. In Courtroom 2 during the Noor hearing, there were four prosecutors and two defense counsel (the defense team was two attorneys short; more on that later).

The remoteness of the prison at GITMO makes the process of trying detainees at military commission very pricey. Lawyers, judges, court reporters, interpreters, journalists, and observers must travel to the base, either by military airlift or commercial flights, both of which are limited. They must be processed through layer upon layer of security, must endure the delays that are inevitable with such intense screening, must cease most of their other work (since cell phones don't work and internet access is spotty) during their time on base. Hearings can be held in Washington, D.C., or via conference call in some instances, but anything requiring the presence of the accused involves a journey to the island for a large party of military and civilian personnel drawn from distant homes and workplaces.

The base facilities are makeshift, austere but comfortable (so long as you don't think about the banana rats when the tent flaps in the night). Visual reminders of the grim need for security, however, are everywhere: barriers, barbed wire, guard towers, bright lights, threatening signs. The tent city in which we were housed consisted of rows of half-barrel wood-and-tarp structures with beds and furniture. In ours, three sets of two beds were separated with plywood dividing walls, and electric outlets galore made it easy to plug in computers (through which we would connect to the internet, at least some of the time) and cell phones (which were useful as alarm clocks, if not communications devices). With a massive compressor outside and big, flexible plastic ducts with round holes cut in them for circulation, the tent roared with air conditioning. Light came from bare light bulbs above each bed. We were grateful for a refrigerator and coffee maker (and a/c, however loud) as well as the gracious military personnel who managed the Camp Justice facilities.

More Scenes From Gitmo

(Top) Andrea Prasow, Human Rights Watch, and Daphne Eviatar, HRF; (Second from top) tent city; (Third) Press conference after the hearing; (Fourth) Ferry going from windward to leeward side; (Bottom) Army officer introducing press conference

Wednesday, April 7, 2010

Beth Hillman's Journal From Gitmo -- Installment Two

Courtroom 2

This morning's hearing in the case of Noor Uthman Mohammed was scheduled to start at 9:00 a.m. We headed over just after 8, accompanied by our ever-present escort. NGO observers' access to GITMO is restricted; our handlers were required to be with us at all times. Our escorts were courtly and respectful, but their presence was a not-so-subtle reminder of the grim reality of being on a naval base carved out of Cuba that's also the site of a prison complex housing suspected terrorists. A sense of wariness pervades the base, notwithstanding the warm breezes and friendly smiles of so many military personnel stationed there.

We arrived early and waited (which proved to be standard operating procedure for virtually everything we did) for the hearing to begin. To get into the courtroom, we ducked under a locked gate (it was purposefully locked; it was climb over or else go under) and walked inside a secure perimeter. Then we were checked by two fully armed guards (guns, vests, helmets) and walked over to another set of guards inside another secured area. They logged our names onto a register. A third set of monitors checked our badges as we walked into the courtroom building and then directed us to our assigned seats in the gallery. We were told to hide our badges so that our names couldn't be seen (by Noor, presumably, the only detainee who appeared in the courtroom). Most military personnel also pulled their Velcro-ed uniform nametags off or placed black tape over sewn-on names. Once in our seats, we waited, unsure of what time it was because we weren't permitted to bring any cell phones, laptops, or other electronics into the gallery.

Courtroom 2, the shiny new courtroom apparently constructed -- at an estimated cost of $12 million -- to try the 9/11 defendants, boasts a soundproof gallery separated from the action by a glass wall. As we waited I watched people move about the courtroom and glanced up at the video monitors to track the action, trying to gauge how long the transmission delay was between what I could see directly and what appeared on the screens. The video and audio feed is delayed to give an official in the courtroom a chance to block any classified information that might be inadvertently disclosed. The delay has been advertised as 20 seconds; I thought it was much longer than that, perhaps a minute or so.

The delay, a much vaunted security feature of this state-of-the-art courtroom, adds to the other-worldliness that already suffuses Camp Justice. I was chatting with reporters and other spectators, perusing the briefing information provided to journalists (but not to NGO observers), when I was surprised to look up and see that Noor (of whom there seem to be no unclassified photos) had entered the courtroom. He was dressed in white and accompanied by a phalanx of six men in the digitized desert camouflage that's ubiquitous at GITMO (except for the sailors wearing digitized blue). Then the judge entered and everyone in the courtroom stood -- but those of us in the gallery hesitated, since we couldn't hear anything yet. Were we supposed to stand when we saw the judge or when we heard her announced?

At the end of the hearing, the delayed audio feed cut out just before the judge made her final comments. When she left, we had no idea what was happening. We waited, began to discuss the hearing among ourselves and wonder whether we should leave. After about fifteen minutes, one of the uniformed spectators who had walked outside and returned said the court was in a 30-minute recess. We asked, how do you know? He smiled and mimicked drawing on a cigarette. Someone had told him what was going on when he went outside for a smoke. Information can be elusive when you're a civilian on a secure military base.

During a press conference after the hearing, both Noor's civilian and military defense counsel commented on the unusual feel of the courtroom. The room is large, with acoustics that swallow the voices of advocates. Attorneys inside can sense the presence of a relatively full gallery, and can see the people behind the glass, but feel watched instead of joined by the spectators. As for Noor, we caught only a glimpse of his face, and no sound of his voice. He wore a headset for the translation feed, and the defense interpreter at his table spoke for him when the judge requested his approval to consider the motion before the court at the start of the proceeding. Noor appeared composed and attentive from our limited vantage point.

A Scene From Gitmo

Welcome to Gitmo!

Beth Hillman's Journal From Gitmo -- Installment One

[Professor Elizabeth Hillman is one of the nation's foremost experts on military law and military justice. She flew into Guantanamo Bay yesterday as an observer for the National Institute of Military Justice and will be blogging whenever she gets a chance. -- Ed.]

Day One

Yesterday was Day One at Guantanamo Bay for me -- but more like Day 2,900 for Noor Uthman Mohammed, who has been held here for nearly eight years. He's one of about 183 prisoners remaining of the 779 detainees at the military prison at Guantanamo Bay. Noor (his preferred name), a citizen of Sudan captured in Pakistan in March 2002, has been charged with providing material support to international terrorist organizations for his role in training camps run by al Qaeda and others. This week, the United States held hearings related to his prosecution before a military commission.

I'm here as a non-governmental organization (NGO) observer for the National Institute of Military Justice, a non-profit committed to advancing the fair administration of military justice and fostering improved public understanding of the military justice system. NIMJ has been sending observers to the Guantanamo hearings since October 2008, hoping to provide a unique window on the new military commissions, a substrate of American military justice in the post-9/11 world.

Early yesterday morning, I joined dozens of others-- defense counsel, prosecutors, paralegals, commission staff, journalists (French and Brazilian as well as American), and NGO observers from Human Rights Watch and Human Rights First--in the passenger terminal at Andrews Air Force Base, Maryland. After a few hours of waiting, we boarded a Delta airbus 319 for the three-and-a-half hour flight. I could see the mountains of the main island, open water, and buildings on the far side of the bay when banked sharply to avoid Cuban airspace and landed on a U.S. airstrip. After a ferry to the side of the bay, our Marine Corps escort -- a charming, can-do lieutanant--helped get me and the other NGO observers settled into a tent in Camp Justice.

It's hard to describe how GITMO feels upon first glance. The color of the ocean, the beauty of the bay and the dramatic clouds above it, the mountains of Cuba visible over the horizon were in such contrast to the sense of foreboding evoked by the starkness of the concrete-and-concertina-wire style of the buildings, the intensity of the security measures. And, of course, the knowledge that a notorious prison complex was just past the beach where the road that I ran along this morning stopped. I felt a sense of dread as we sat in a truck with our escort and watched the plane we'd come in on fly away.

In my next post, I’ll write about the hearing this morning and Noor, the detainee whose fate rests with a military commission. But yesterday, I was struck by the juxtaposition of a post-modern naval base on such an undeveloped island, a contrast evident at virtually every turn. To wit: Yesterday we went to Taco Bell for lunch and found a restaurant that looked exactly as it would in the states --the same items on the menu, the same font on its signs, the same uniform on its employees. But it didn’t have any tacos, the rueful cashier explained. They were out of taco shells, and taco sauce, and a few other things. Even lunch at GITMO is not quite what it seems.

Monday, March 15, 2010

Wang on Insider Trading Damages

Bill Wang has published an article called "Measuring Insider Trading Damages for a Private Plaintiff," 10 U.C. Davis Business L. J. 1 (2009). Bill identifies four measures of damages: "pure" out of pocket; "expedient" out of pocket; recissory; and cover. No single measure is "fair" in all cases, he argues, because of real-world problems in determining what a particular plaintiff would have done absent the fraud.

Monday, March 1, 2010

Leib on Reactions to "Privilege or Punish"

Ethan Leib (along with co-authors Dan Markel and Jennifer Collins) have published a response to three essays reviewing their recently published book, Privilege or Punish? Criminal Justice and the Challenge of Family Ties. The three reviews were written by Doug Berman (Ohio State), Naomi Cahn (George Washington), and Gabriel Chin (Arizona). The Leib, et al., response is called (When) Should Family Status Matter in the Criminal Justice System?, 13 New Criminal Law Review (2010). Here is the link to the entire symposium, which is in the Criminal Law Review: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1561777

Lee on Special Populations in California Prisons

Eumi Lee has published an article called An Overview of Special Populations in California Prisons, 7 Hastings Race & Poverty L. J. 223 (2010) (symposium on California correctional crisis)(available on HeinOnline). The article (like the panel that generated it) is limited to three groups: transgender, immigrant, and women prisoners. The article concludes that, with the state facing such severe budget and inmate population problems in general, the treatment of these special populations must continue to be monitored.

Lee on the Many Barriers to Reentry in California

Eumi Lee has published an article titled, The Centerpiece to Real Reform? Political, Legal, and Social Barriers to Reentry in California, 7 Hastings Race & Poverty L. J. 243 (2010) (symposium on California correctional crisis)(available on HeinOnline). The article concludes that the reentry programs established by AB 900 have not become the "Centerpiece of Real Reform" they were promised to be. Without the implementation of community-based reentry programs and the reform of state and federal laws that impose many collateral consequences on parolees, "the self-reinforcing cycle of incarceration, parole, and recidivism will continue unabated."

Tuesday, February 23, 2010

Field on Explicit Elections in the Federal Income Tax System

Heather Field has published an article titled "Choosing Tax: Explicit Elections as an Element of Design in the Federal Income Tax System," 47 Harv. J. Legis. 21 (Winter 2010). Here's the abstract:

Taxpayer choice pervades the federal income tax system. This choice can be made either implicitly, whereby the taxpayer arranges his economic and/or legal affairs so as to qualify for his desired tax treatment, or explicitly, whereby the taxpayer merely tells the Internal Revenue Service how he wishes to be treated for tax purposes, without having to take any specific non-tax actions or structure his financial or legal dealings in any particular way. Scholars often focus on implicit taxpayer choice and seek to hinder that type of tax planning. However, explicit taxpayer choice garners little scholarly attention. This hole in the literature is surprising given that explicit taxpayer choices, in the form of tax elections, generally reflect pure tax-planning opportunities that are affirmatively granted to taxpayers by Congress and the Treasury Department and given that tax elections continue to be added to the Internal Revenue Code. To help fill this gap, this Article provides a framework for understanding how explicit tax elections are and should be used in the federal income tax system. Specifically, by drawing on a wide variety of tax elections, this Article discusses problems that may be caused by the use of explicit tax elections, identifies and assesses four major functions by the use of explicit tax elections, and derives a few generally applicable recommendations about how to design explicit tax elections so as to maximize their efficacy and minimize criticisms of their use. Despite the many compelling criticisms of the availability of explicitly provided taxpayer choices, this Article argues that carefully conceived explicit elections can be valuable tools in the design and administration of the tax system. Moreover, by isolating and analyzing situations where Congress and the Treasury affirmatively turn over to the taxpayers the right to determine their own tax consequences, this study of explicit elections can provide insight into the broader balance of power between taxpayers and the government. And, at the very least, this Article brings scholarly attention to the under-studied role of explicit elections in the tax system.

Monday, February 22, 2010

Boswell on Immigration Amnesty

Richard Boswell has published an article called "Crafting an Amnesty with Traditional Tools: Registration and Cancellation," 47 Harv. J. Legis. 175 (Winter 2010). In this article, Richard focuses on the best way to structure an amnesty program rather than on justifications for one.

The article argues that four overarching principles should govern an amnesty program: (1) the program should be rooted in preserving family unity, meeting needs for work skills, and fostering humanitarian values; (2) the program should in part aim to ameliorate unnecessary hardship to the individual applicant as well as to the community of which he has become a part; (3) the statutory scheme should be as simple as possible to minimize multiple or conflicting interpretations; and (4) ease and comprehensibility of administration.

Here's the link: http://ssrn.com/abstract=1563627

Tuesday, February 16, 2010

Carrillo on Popular Legal Culture

Jo Carrillo has written a chapter called "Popular Legal Culture" for Law in Society and History: Essays on Major Themes in the Work of Lawrence M. Friedman (Cambridge University Press) (Robert Gordon and Morton Horwitz, eds.) (forthcoming).

Wednesday, February 3, 2010

Keitner on Immunities of Foreign Officials from Civil Suit

Chimene Keitner has filed an amicus brief in the United States Supreme Court in Yousuf v. Samantar. In this case, torture survivors and victims' family members sued Samantar, the former Prime Minister and Minister of Defense of Somalia, for torture and extrajudicial killing. Samantar lives in Virginia. The Fourth Circuit held that the Foreign Sovereign Immunities Act of 1976 (FSIA) does not apply to individuals, and therefore does not shield Samantar from suit. It remanded the question of whether other, non-statutory sources of immunity might apply. The U.S. Supreme Court granted Samantar's petition for certiorari to review the Fourth Circuit's decision interpreting the FSIA. Briefing is currently in progress, and oral arguments are scheduled for March 3.

Chimene authored the Brief of Professors of Public International Law and Comparative Law as Amici Curiae in Support of Respondents, which is available online here (http://ssrn.com/abstract=1543642 http://ssrn.com/abstract=1543642> ). This amicus brief systematically examines non-FSIA case law involving the immunities of foreign officials from civil suit. In the context of this case, the brief refutes two unsupported assertions made by the Petitioner. First, Petitioner asserts that "pre-1976 common law immunized a state's officials for their official acts." He relies heavily on this assertion for his conclusion that the FSIA should be read to include former foreign officials notwithstanding the FSIA's omission of any reference to individuals in its definition of the term "foreign state." See 28 U.S.C. § 1603(a). Second, Petitioner claims that "the overwhelming current international authority" provides immunity to former foreign officials sued in their personal capacity for acts of torture and extrajudicial killing. The authorities Petitioner cites, and significant authorities that he omits to cite, do not support these assertions. Non-FSIA sources of foreign official immunity do not provide a blanket shield from personal liability for universally recognized international law violations, even if such violations were committed by individuals who held government positions.

Monday, February 1, 2010

Aviram on Shipping Out Inmates

Hadar Aviram has written an op-ed in the February 1 San Francisco Daily Journal, in which she asks some hard questions about the proposal to move many California prisoners out of the state. She refers to it as the "inmate export enterprise."

Wednesday, January 27, 2010

Weinberg on the California Stem Cell Initiative

Joanna Weinberg has posted a paper (co-authored with Joel Adelson of UCSF) on the California Institute for Regenerative Medicine (CIRM), which was created by ballot initiative to make stem-cell research a constitutional right. Joanna and Joel conducted interviews and reviewed documents to evaluate what kind of start CIRM has gotten off to. They concluded that CIRM has overcome start-up challenges, been selectively influenced by criticism, and adhered to its core mission.

Here's the link: http://ajph.aphapublications.org/first_look.shtml

Thursday, January 21, 2010

Grodin on Prop. 8 and the California Constitution

Joe Grodin has posted an article that examines the principal questions about Proposition 8 facing the California Supreme Court, namely whether the state constitution can be modified through an initiative measure that would take away from an identifiable group rights that the state Supreme Court has deemed to be "fundamental," and whether that measure, if Proposition 8 is upheld, operates to invalidate existing same-sex marriages.

The link is here: http://www.bepress.com/cjpp/vol1/iss1/13/