McBlogmick

This originally appeared in May of 2008:

I know it’s completely unhelpful for the exams just finished, but yesterday, at Prawfsblawg, Rick Hills had an interesting post on essay exam writing–his advice was to focus on the facts more, and I agree wholeheartedly. In my classes, I’ll keep giving similar advice, but feel free to come talk to me more if you’d like.

This originally appeared in May of 2008:

Today’s New York Times has a story about improperly appointed judges. The judges are patent judges and the issue is not whether they may be article I judges. That is settled because of the plenary power Congress has over patent issues. The issue instead is about the appointments clause, which requires that “inferior officers” be appointed by “department heads” which is universally thought to be cabinet-level heads. Since 2000, the director of the Patent and Trademark Office, rather than the Secretary of Commerce, has appointed these judges. And the S. Ct. has held that judges are “inferior officers” and not mere employees.

“But the Justice Department has already all but conceded that Professor Duffy is right. Given the opportunity to dispute him in a December appeals court filing, government lawyers said only that they were at work on a legislative solution.”

“They did warn that the impact of Professor Duffy’s discovery could be cataclysmic for the patent world, casting “a cloud over many thousands of board decisions” and “unsettling the expectations of patent holders and licensees across the nation.” But they did not say Professor Duffy was wrong.”

“If it was a legislative mistake, it may turn out to be a big one. The patent court hears appeals from people and companies whose patent applications were turned down by patent examiners, and it decides disputes over who invented something first. There is often a lot of money involved.”

This is as big as the bankruptcy issue in the late 70s, early 80s.

This originally appeared in December of 2007:

Try this if you like philosophy.

This originally appeared in March of 2010:

One of the frustrations of law school that many students have is that the model of school (and to some extent the model of law practice) was built at a time in which the information available to make a decision was much less. The strategy that was taught was to research all of the information on a subject and only after researching everything exhaustively, to come to a conclusion. To some extent, this is still the way that law school works.We kind of pretend like that is still possible, and we tend to try to cover as much information as possible in school “just in case” students encounter these situations in the future.

But the underlying research and decision strategy for just in case processing is not quite as workable anymore. We have too much information, and students instead have learned (or we need to teach) how to manage the information out there so that they have enough high quality information easily available to process quickly to guide a decision at the time the decision needs to be made. Students tend to follow a “just enough” and “just in time” information management strategy.

To some extent we need to have a good balance between “just in case” learning and “just in time” learning. And I just read a really interesting explanation of the difference between the two and why just in case learning is especially important. So, keep in mind that what you’re learning in class is mostly just in case learning, and that is what we are testing for at the end of the semester–can you see the possibilities and dangers of different factual scenarios, and can you explain those to someone not in your head.

That will make you better at the just in time learning that fine tunes a decision when you encounter it in the world.

This originally appeared in February of 2010:

Why is it that now that I don’t teach civil rights anymore I see all of these interesting civil rights cases? Here’s one about malicious prosecution. In Parish v. City of Chicago, the Seventh Circuit reaffirmed prior precedent that had held that malicious prosecution cases under § 1983 were to be analyzed as procedural due process cases. Essentially, this follows the reasoning that malicious prosecution essentially theorizes that the defendant’s actions were random and unauthorized acts, rather than a law, governmental policy, or government procedure. And where an injury is caused by a random and unauthorized act, as long as there is a remedy available under state law, there is no cause of action under § 1983 for a violation of due process.

That is what the Supreme Court has said about actions explicitly premised as procedural due process claims, but I’m not sure that malicious prosecution is a procedural due process claim. Malicious prosecution is an intentional tort, and usually claims that a government actor took an action for a prohibited reason are substantive and not procedural due process claims. Only two Supreme Court Justices have advocated this approach, and they glossed over the procedural/substantive distinction.Still, it doesn’t look like the Seventh Circuit will be revisiting that issue any time soon.

This originally appeared in January of 2010:

This has nothing to do with my usual subjects, although loosely it’s related to civil rights and con. law, but this is an interesting opinion from the 10th Circuit. As you may know, John Grisham wrote a nonfiction book published in 2006 about a wrongful conviction. He painted the prosecutor, a police officer, and the state criminologist in a rather negative light, and they sued Grisham along with three other men who had written about the case for defamation, intentional infliction of emotional distress, false light, and civil conspiracy. The alleged conspiracy was to abolish the death penalty, so you might guess where this is going. The district court dismissed for failure to state a claim, and the court of appeals affirmed in large part because public officials don’t get to sue people critical of them except in a few narrow circumstances. It’s an interesting opinion.

This one originally appeared in March of 2007:

This abstract came across my e-mail, and it looks great. I haven’t read this one, but I saw the author present on a prior study a few years ago. She also is one of the authors of Just Writing, one of the best style/writing manuals, and one I recommend to all of my writing students. Her legal writing textbooks are great also, but I don’t imagine that many people besides me like to geek out with a good legal writing textbook . . .

This originally appeared in March of 2007:

As a law professor, I’m always looking for good resources to help students make sense of what it is they are learning and to figure out how to understand what we are doing. Here are links to abstracts for two great ones that I ran across today.

The first is an article on how legal experts read cases and what law students can do to become experts more quickly. The Paradox of Legal Expertise, by Leah Christiansen.

The second is an article on legal logic by a judge from the United States Court of Appeals for the Third Circuit and two of his clerks. Ruggero Aldisert, the judge, has written an excellent book on appeals and another on logic for lawyers. Logic for Law Students, by Ruggero Aldisert, Stephen Clowney, and Jeremy Peterson.

This originally appeared in February of 2007:

I ran across this abstract recently, and it relates strongly to discussions in my Employment Law class on work/life balance, gender discrimination, and being a lawyer. You might find it interesting.

Originally posted in February of 2007

The Seventh Circuit issued this recent decision in Redwood v. Dawson on how not to act like a lawyer. The case presents a host of interesting federalism and procedural issues, but the most interesting part is the one meritorious claim of the plaintiffs and the court’s resolution.

And even though I don’t particularly like Easterbrook as a human being, he is one clear writer.