by Matt Barr

Blawg Review #62

Welcome to New World Man, a Library of Congress Web Resource on the Alito nomination, and home of Harriet Miers' con law crash course. The author is a reformed lawyer who enjoys reading blawgs and writing about legal issues and in particular the Constitution and Supreme Court. Look, we're not getting married, it's just a date, right?

In Blawg Review #62 you'll find a wide range of terrific material from blawgs to peruse, some chosen by your peers, some chosen by the host, and some recommended by the authors or readers of the posts. We hope you'll discover a new blawg, renew your acquaintance with an old favorite, be prompted to think about a new issue or an old one in a new way, and mostly we hope you enjoy yourself.

Because, after all, New World Man is known as a libertarian blog. (What blog isn't, these days? Right.) People think that libertarians are all irresponsible loners only interested in sex and drugs. And it's true! We've all moved to New Hampshire where we party constantly, have commitment-free sex with multiple partners, homeschool the children that result and get ourselves arrested regularly at the airport for trying to board planes without government ID.

But some of us get law degrees and even practice and then blawg about our best drug-induced legal hallucinations. We hope you find some good ones here in addition to the more mainstream fare you're used to as a fan or well-wisher of Blawg Review.

Because you come to a libertarian blog expecting a good time, I've enlisted the aid of a beautiful blonde, Muffin, to help present Blawg Review #62.

Jury nullification as a weapon in the war on the war on drugs

We begin with an issue, the drug war, dear to the libertarian heart, because it involves personal responsibility and victimless crime. Really, that's why! Committed opponent of the war on drugs Julian Sanchez was called for jury duty in a possession case, and told the truth during voir dire: No, there's no way he could vote to convict for a non-violent drug offense. Then he blogged about whether he made the right choice, inspiring a tremendous discussion with a range of opinion on the efficacy of jury nullification and whether perjury at voir dire is acceptable in order to deploy the tactic. Blawgger Timothy Sandefur at Positive Liberty counsels caution in Warning About Nullification:

Although I agree that the Drug War is immoral, unconstitutional, and unjustifiable in every way, I’m not so confident in my thoughts about jury nullification. It is obviously an important and legitimate part of the judicial system—I’m not sure what the point of having a jury system would be if jury nullification did not exist. That being said, we have to think about these things as realistically as possible.

See also posts and comments at TPM Cafe (Nullify!, Matthew Yglesias) and Outside the Beltway (Jury Nullification, Voir Dire, and Honorable Lying, James Joyner).

A victory for the Second Amendment (though the Amendment itself sits it out)

Pictured: Muffin demonstrates gun control.

Eugene Volokh at the Volokh Conspiracy gladly reported, San Francisco Gun Ban Struck Down By Trial Court, and followed with some more focused analysis in "Reasonable and Narrowly Tailored" Gun Control:

I'm not sure that "narrowly tailored" means that much here (except in the rather trivial sense that the law is narrowly tailored to its goal of completing [sic] banning San Francisco residents from possessing handguns in the city, and making long guns harder go get). But in any event it's something to remember when people say they're just supporting "reasonable" gun controls.

See also law student Steve at Eminent Domain with his post, San Fran Gun Ban in the Can. But see, contra Prof. Volokh, Chris Geidner at Law Dork with The "Gun Lobby" Dilemma.

Insidious Protectionism

The big IP story -- one that libertarians who (as we all are required to do) read Reason have been following for years -- is the one about the estate of James Joyce choking off any attempt to re-use the author's works. Thoughtful observers wonder who benefits from bullying over-reliance on copyright laws -- it's not the author's legacy, it's not readers, and it's really not the estate, either.

Lawrence Lessig's blog is a great place to start discussion of Schloss v. Joyce. Jason Mazzone at Concurring Opinions, though "all in favor of developing the law in this area, [is] not sure that this is the right case to do it," as he posts in James Joyce & Fair Use. Ted Frank at Overlawyered weighs in on The Bloomsday Litigants.

In other Insidious Protectionism news this week, Ronald Coleman at Likelihood of Confusion reports on "the inclination of courts to ignore the need to prove likelihood of confusion and assume damage from similarity," and, happily, a possible antidote: Sophisticated means not stupid. Stupid means not likely to be confused. Prof. Volokh challenges -- I mean, directly -- a Canadian "copyright education" site, inspiring Colin Samuels of Infamy or Praise to wonder aloud about Canada's Captain Copyright.

Finally, Wordlab talks about Trademark Protection for Lawyers, and Dan Harris at China Law Blog posts about an instance of legitimate IP theft and abuse in China: Not Exactly Counterfeit -- New Balance Shoes And China's "Third Shift".

There oughtta be a law!

Pictured: Inspired not in the least by the laws of the state of Ohio, Muffin dons a bike helmet.

In America, we want a law for everything, it sometimes seems. When there isn't one, we get one passed -- ha ha! Just kidding. We sue to get a court to say the law already says what we want it to say. Sometimes, there are good reasons for this. And then sometimes, a wealthy professional athlete like Ben Roethlisberger wrecks his motorcycle and, by all accounts, comes through without any permanent damage. This causes people to conclude that we need helmet laws so taxpayers aren't saddled with the cost of empty-pocketed victims' health care and helmetless riders won't be permanently brain damaged. Makes as much sense as most things these days!

Jim Maule at MauledAgain may have the right approach: Let's focus efforts to deter behavior on that behavior that actually results in unacceptable costs. Tax Stupidity? he asks. No, Tax Stupid Acts and Stupid Decisions. Neel Mehta blogs about whether Roethlisberger's contract forbade him from taking such risks. Read Vicious Cycle at Brevity Is... Wit.

From helmet laws to video game violence: Libertarians were once memorably (to this author) characterized as so:

I love the way many small government libertarians instantly convert into Big Government Democrats if it means sticking a finger in the collective eye of religious conservatives. If the Fed.Gov were to decree tomorrow that all Americans are required to have the number "666" tattooed on their foreheads, I'm sure many of you Reasonoids would eagerly support it simply because the Religious Right would be against it.

It's a quandary! Like which side you come down on in an infight over a Left Behind-inspired video game. There's a simple solution to children's exposure to video game violence, as simple as the solution to children's exposure to violence on TV. But when it's Evangelical Christian video game violence, all bets may be off. Unleash the hounds! Or Sen. Clinton! Jonathan Hutson at Talk To Action reports, then you decide: read Apocalypse, Now a Lawsuit (Part 5).

Losing my religion; also, You kiss your mother with that mouth?

That's as good a segue as you're likely to get around here to posts about religious liberty, in scare quotes and otherwise. KipEsquire at A Stitch In Haste writes about The Faux Crisis of "Religious Liberty versus Non-Discrimination":

[R]eligiously sponsored, yet non-church, institutions and the clerics who exercise command-and-control authority over them are hardly libertarian and should not be allowed to disingenuously borrow and cherry-pick libertarian principles only when it suits them.

Including by claiming a religious tax exemption. Also this week in God, Howard M. Friedman reports at Religion Clause that Newdow Loses "In God We Trust" Challenge; Pledge Case Still Pending. Here at New World Man, when reporting on the plaintiff therein when we must, we generally borrow a trick from Paul Harvey and say, "he would probably like for us to give his name." But this is Blawg Review, not Blawg Rewrite!

We're terrible but hope to demonstrate our freak-flag-flying libertarian bona fides by segueing from religion into two Editor's recommendations for this edition of Blawg Review involving the use of ribald language. See The Earliest Typographically-Bleeped F Word? by Mark Liberman at Language Log. This brought to mind Evan Schaeffer's pointer at Legal Underground to a... different law review article: The Intersections of the Word "Fuck" and the Law.

Jiggers, the cops!

Pictured: Muffin executes a no-knock warrant on Junior

Big week for the Fourth Amendment, and for blawgger commentary thereon. Hudson v. Michigan was decided, both flummoxing and failing to nonplus (or possibly the other way around) libertarians. In the main, though, no one's happy. Cf. Mark Moller at Cato @ Liberty, The Fourth Amendment as Legal Fiction:

Rigths [sic] grounded in originalism backed with real remedies: That’s an interpretive method with the courage of conviction in the outcomes it produces. It’s an interpretive method that forces clear, serious judicial thinking because it doesn’t shrink from the consequences of interpretation. Scalia’s opinion, by contrast, is “let’s pretend originalism” — a Potemkin fidelity to the old ways, robbed of any force by a deceptive, lawyerly slight of hand.

More Hudson analysis and commentary from Lyle Denniston at SCOTUSBlog entitled Analysis: Exclusionary Rule in Trouble? I'd say! And Orin Kerr reads Mr. Justice Scalia's opinion and digests it as so: "The Constitution — It’s alive!" Read Justice Scalia and the Living, Breathing Fourth Amendment at OrinKerr.com.

Free markets

Laws that restrain marketplace dynamics and competition may be a good idea in some circumstances, but not always. Or even mostly. The Mommy Blawgger has an update on, among other things, a 2 1/2 year prison sentence for practicing midwifery without a license. In law school we learned the Latin phrase for this kind of thing. Economist Don Boudreaux at Cafe Hayek posted in Competition For Thee, Not Me about how participants in a regulated industry always seem to regard their activities as fundamentally different in such a way that they should remain regulated. For a spirited discussion (on both sides) about legal services in this context, see the comments. And she's not a blawgger, but has a little expertise in this area: Virginia Postrel at her Dynamist Blog comments and links to her L.A. Times op-ed arguing for a move toward a free(r) market organ shortage solution in Cash--and a little respect--for kidneys.

Free people

Dustin at QuizLaw has details about an Arkansas Supreme Court case over whether gay couples can become foster parents in the state. "As it turns out, the state doesn’t allow unmarried heterosexual couples who live together to become foster parents, either; however, single unmarried folks are perfectly allowed to have foster children." Jigga-wha? Read Keep our young’uns away from ‘dem Homosex’ules. Ilya Somin at Volokh posts about Gays, federalism and minority rights: "Why have gays, contrary to the conventional wisdom, benefited from federalism?"

Free people have lives outside the law, too. Kristine at Divine Angst rounds up "posts by law students (and those who are recently NOT students) about work, family, life, and the balance thereof" at Weekly Law School Roundup #23: Balancing Work, Family and Life.

The War

Pictured: Muffin demonstrates that patriotic young Americans help their leaders eavesdrop on phone calls.

In non-Hudson Fourth Amendment evisceration news, Glenn Greenwald blawgged at Unclaimed Territory on the warrantless wiretap issue: Specter falsely denied proposing amnesty for the Administration's illegal eavesdropping. Cato blawgger Timothy Lynch writes about The Power To Seize with reference to the Duke Lacrosse fiasco.

The rest of the Constitution didn't have a good week, either. Eric Muller writes at Concurring Opinions that in a recent federal court decision on immigration enforcement authority, Japanese Internment Gets A New Breath of Life.

Heinlein!

Libertarians' favorite science fiction author Robert A. Heinlein is the focus of a regular feature by Eh Nonymous at Unused and Probably Unusable called Heinlein Friday, a "recurring examination of the books of Robert Heinlein for material of legal interest." Lawyers Beyond Stereotypes is June 9th's edition, and Getting To Justice is from June 16. TINSTAAFL!

Blawg meta

Pictured: Muffin, an aspiring blawgger, is already on the right track.

You will never understand the feeling of accomplishment and acceptance -- ok, I will never understand the feeling of accomplishment and acceptance, since I'm not on the list -- that Belle Lettre feels at her inclusion on the blawg taxonomy. Newsflash: This IS a Blawg! Yee-hah! One of the best-written blogs we frequent, which happens to be written by a law student, is The American Princess. For purposes of Blawg Review and the instant subcategory read So You Want My Job?, E.M. Zanotti's commentary on what I personally believe are tongue in cheek rules for blogging like a lawyer.

If you label me you destroy me

Are "Hispanics" a Race (And are Blacks an Ethnicity)? asks Devon Carbado at blackprof.com. The discussion in the comments is worthwhile, too. The NCAA's crusade against Native American team nicknames that are not "the Florida Seminoles" continues, and its newest venue is in North Dakota, where the Fighting Sioux are suing to fight. Read North Dakota to Sue NCAA over Fighting Sioux Nickname from Mark at SportsBiz.

That government governs best which doesn't waste billions of taxpayer dollars

Today's Mensa Pop Quiz by J. Craig Williams at May It Please the Court is, How Do These Expenditures Relate? (And Other Government Fables). Your Federal Emergency Management Agency used your money to buy people Saints season tickets, adult erotica products (another instance where perhaps libertarians are torn), a divorce lawyer and a sex change operation.

Drafty in here

How appropriate for a Blawg Review being posted the day of a Game Seven of the Stanley Cup Final involving the Edmonton Oilers: Gordon Smith at The Conglomerate tells the story of "The Wayne Gretzky of Footnotes." Meanwhile, Ken Adams at Adams Drafting examines The Concept of “Tested” Contract Language and notes that there's a reason it gets "tested."

Blawg posts you can use

Pictured: Muffin is not, in fact, licensed to practice law, she just looks good pretending.

Law practice management and marketing are popular features of any Blawg Review. Here are this week's best:

Ellen Freedman at Law Practice Management asks, Is It Live Or Is It Memorex? It's a thorough post on providing the best client service possible when you need to use voice mail instead of live people.

So what’s the bottom line? Truly, it’s having a well-trained competent human on the phone who can take a message or route to vmail as a first choice. If you’re too small for that, or choose not to go that route, it’s about having a well-designed vmail system which is user-friendly and idiot-proof.

In Passion, People and Principles, David Maister writes about differentiation and improving on your strengths. "Of course, getting better is MUCH harder work than adding volume, locations, staff, service-lines, new products and new markets - so companies avoid doing it." The Greatest American Lawyer argues that adaptability is the most necessary trait for innovation.

Bruce MacEwen at Adam Smith Esq. cautions that increasing demands for associate "responsiveness" may be causing the profession to "eat itself." Is This Model Sustainable in the Long Term? And a two-fer for Adam Smith Esq., mostly owing to a mention of Hayek! What the "Efficient Market Theory" Has To Do With Where Your Firm Should Be In Five Years:

Why would your firm not create internal (or even external—what a concept!) prediction markets in areas such as which practice areas are expected to grow or to contract, where the firm should expand or dial back geographically, and which client industries/groups will be healthier or weaker in five years?

Why indeed!

The least dangerous branch

We wrap it up for this edition with some Supreme Court miscellany not involving Hudson. At Crescat Sententia, Will Baude posts about an interesting argument between Justice Thomas and Justice Stevens over whether to grant cert in Almendarez-Torres:

Suppose a Justice believes a case to be wrongly decided, and would also vote to overturn that case if it were squarely presented. Is the Justice obligated to grant cert. in such a case, or is it legitimate to dodge the issue? (Imagine, for example, a pro-choice originalist who believes that her constitutional oath obligates her to uphold state regulations of abortion, but also believes such regulations to be profoundly noxious to a free society. May she deny cert. in cases pushing the issue in order to prolong what she believes to be Roe's illegitimate reign? Or is she obligated to help it to its demise?)

Sounds a little like that nullification/perjury at voir dire deal we started with. Circle of life, Simba! Finally, your host reprises his wildly popular early examination (as in, before the pros get around to it at the end of the Term) of Court voting stats and patterns in Early OT 2005 Court Stats. A sample:

Justice Thomas has voted with the majority a Court-low 79.6 percent of the time. Last year through 38 cases, seven Justices had joined the majority less often than that. Through 38 opinions last year Justice Breyer had been in the majority second (to O'Connor) most often at 81.6 percent. Through 50 opinions this term, nine Justices (all, including O'Connor and Alito, but Thomas) have been in the majority more often.

It's pretty clear that the Roberts Court has emphasized consensus more than the Rehnquist Court did at the end. Details at the link.

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

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