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Thursday, October 30, 2014

Judges: Don't Be Afraid to Give Out Candy on Halloween

From Texas Supreme Court Justice Don Willett's wonderful Twitter feed, I learned about this entry in the American Judges Association Blog. It reports on this 2013 story from the Milwaukee, Wisconsin Journal Sentinel. From the article:

Jimmie C. Green, 31, was convicted of a 2009 drive-by gang shooting in Racine that killed a 12-year-old boy. As part of of his appeal, he claimed he might have been prejudiced by the trial judge passing some leftover Halloween candy to the jury.
More specifically, Green claimed his attorney was deficient for not moving for a mistrial when he learned that the jury had sent a thank-you note to the judge for the candy. 
"Green argues that this indirect contact may have caused the jury 'to view Mr. Green’s case as a ‘we vs. them’ matter,' especially given the gang-related evidence," the court wrote in a per curiam decision
. . .

Apparently, the judge had given the candy to the bailiff to give the jury, not intending for jurors to know where it came from. But the bailiff mentioned the treats were courtesy of the judge. 
"The record demonstrates that the trial court was well aware of the prohibition against ex parte communication with the jury and avoided any direct contact," the appeals court found. "There is nothing improper about a neutral body providing leftover candy to the jury through the bailiff."
Unfortunately, this case says nothing about judges providing attorneys with Halloween candy. But if a judge were to provide candy to attorneys on all sides of the case he or she was presiding over, I suspect that this evenhanded treatment would avoid any appearance of bias.

Moreover, a quick perusal of the California Code of Judicial Ethics reveals numerous mentions of gifts, but the Code notes that "gifts" are defined as things "of value." If you were to ask me, this would clearly apply to candy, but an ethics board might not share my priorities. Moreover, the Code of Judicial Ethics places numerous restrictions on judges' receipt of gifts, but there seems to be a  lack of discussion regarding judges' giving gifts. So it appears that my candy recommendation may survive ethical scrutiny.

So judges, feel free to give candy to attorneys as well as jurors! At the very least, this practice may result in some interesting judicial ethics test cases.


The author of this post frequently appears in court in front of judges who, if they were to follow the author's recommendations, would give candy to the author. Therefore, the claims and recommendations in this post should at least be taken with a grain of salt -- and it may be even more prudent to regard every claim in this post as entirely untrue.

Wednesday, October 29, 2014

FAA Criminalizes Flying Drones Over Stadiums During Games

So reports the Associated Press. From the article:

Operators who fly drones or model planes near or over large sports stadiums and auto racetracks are breaking the law and can be fined and imprisoned for up to a year, the Federal Aviation Administration warned in a notice posted on the agency's website. 
The notice marks the first time the FAA has sought to criminalize the use of drones and model planes, attorneys representing drone users said. 
The notice, posted on Monday, updates a previous notice to pilots warning that aircraft are prohibited from flying below 3,000 feet and within 3 miles of a Major League Baseball, National Football League and NCAA Division I college football game for national security reasons. The NSCAR Sprint Cup, Indy Car and Champ series auto races are also included. The prohibition extends from one hour before the events until one hour after. 
The original version of the notice was issued shortly after the Sept. 11, 2001, terrorist attacks and has been previously updated. The original and most recent prior version of the notice, issued in 2009, make no mention of drones or other remotely controlled aircraft.
The article points out that officials and sports teams are concerned that drones could be used to film games and that drones could crash into players or spectators. The article quotes Brendan Schulman, who argues that this law would not add any meaningful protections against terrorism.

I think that this law is sensible, and I think that it is important to acknowledge the law's limits before rushing to criticize it. The law only applies to stadiums that seat 30,000 people or more, and Schulman states that this covers about 150 stadiums in the United States. Moreover, the law only prohibits drone use near sports stadiums during sport events, and for a one hour window before and after the events. That means that even stupid drone use like this would not be covered by the law, since that drone use did not take place during (or right before or after) a game.

Additionally, while I agree with Schulman that this law might not do much to prevent terrorist activities, I think that the risk of drones falling and striking spectators or players warrants this restriction. Any fan of Iowa football will tell you that football players already have enough to worry about when it comes to mechanical devices falling onto the field. And with the dense traffic that precedes and follows sport events, and the large crowds of people present during these events, the risk of a falling drone crashing into somebody is multiplied.

Alaska Law Purports to Restrict Government Drones, But Does it Really?

Earlier this summer, Alaska's governor signed HB 255, a bill regulating the government's use of drones. As of October 26, that bill is now law.

You can find the full text of the bill here. The most noteworthy portion of the bill adds Alaska Statutes sections 18.65.900 - 909, which are the provisions pertaining to government drone use. Last I checked, these statutes are still not up on Westlaw or on any website displaying the Alaska Statutes, but the legislature's website makes it pretty clear that this bill was signed into law and that its effective date was three days ago. I will therefore refer to Alaska's drone law by the numbers of the sections that HB 255 added to the statutes.

Privacy advocates typically argue that restrictions on government drone use protect citizens' privacy, since drones could be used to undertake continuous surveillance of people's public movements and homes. Privacy advocates argue that warrants should be required for law enforcement agencies to use drones.

At first glance, it looks like privacy advocates have gotten what they want with Alaska's drone law. Section 18.65.900 prohibits government drone use unless that use falls under the exceptions specified in the bill. Section 18.65.902(1)(A) states that government agencies may use drones in criminal investigations as long as the drone use takes place "under the express terms of a search warrant issued by a court."

But Section 18.65.902(1)(B) states that government agencies can use drones for criminal investigations as long as the drone use is "in accordance with a judicially recognized exception to the warrant requirement." As I have previously discussed at length in the context of California law, and in other discussions of drone laws here and here, this sort of provision effectively removes any meaningful restriction that this law could have on law enforcement drone use. Under existing Fourth Amendment case law, police do not need a warrant to track somebody's movements from the air, nor do they need a warrant to conduct surveillance of a person's yard as long as the police are flying in commonly used airspace.

Because the Alaska law permits existing judicial exceptions to the warrant requirement, the bill would not meaningfully restrict law enforcement agencies from using drones to track people's public movements or conduct surveillance of people's homes. While law enforcement agencies may feel that this is a favorable outcome, it carries the risk of putting more pressure on judges to restrict exceptions to the warrant requirement in cases of government drone use -- which could cause this law's broad allowance on government drone use to backfire.

This is also not to say that privacy advocates haven't gained anything through this legislation. Section 18.65.901(a)(5)-(6) would require law enforcement agencies to keep records of their drone use, which would include the time, date, and purpose of the flights, and be open to audit. If the fears of privacy advocates were realized, and the government ended up using drones for pervasive surveillance, this use would be reflected by these records, which could prompt policy changes in the future.

Additionally, I think that this law could have been better drafted. Parts of the law are written in such a slipshod manner that they have substantive implications for the law's operation. Consider, for example, section 18.65.901(a)(7), which requires law enforcement agencies to "establish a method for notifying the public of the operation of an unmanned aircraft system, unless notifying the public would endanger the safety of a person."

Does this mean that law enforcement agencies will be required to use this notification method when the method is in place? It doesn't say that. But if the law did require the use of that notification method, would notification be required in all cases where the "safety of a person" was not endangered? This would seem to limit the effectiveness of drone use in, say, drug crime investigations if the notification happened before, rather than after, the use of the drone. And if notifying the public of the government's drone use would endanger the safety of a person, should law enforcement agencies not notify the public, or should they cease establishing a method for notifying the public altogether? The wording of the subsection seems to call for the latter meaning.

Finally, it seems downright inconsiderate to those reading the statute to require a search warrant for law enforcement drone use in criminal cases, but then permit that drone use in non-criminal situations where no "unwarranted" invasion of privacy will occur. While I get the meaning of this subsection, and while I think that this section of the statute can be applied without any serious problems, the inconsistent uses of the term "warrant" in the same subsection of the law lead me to conclude that the drafters should have put a bit more thought into the wording of the statute.

Tuesday, October 28, 2014

It's Illegal for Minors to Purchase Spray Paint in California

So states section 594.1(b) of the California Penal Code, which also criminalizes the sale of spray paint to minors. California is apparently one of five jurisdictions with such a law. The code states, in relevant part:

594.1. (a) (1) It shall be unlawful for any person, firm, or corporation, except a parent or legal guardian, to sell or give or in any way furnish to another person, who is in fact under the age of 18 years, any etching cream or aerosol container of paint that is capable of defacing property without first obtaining bona fide evidence of majority and identity.

. . .

(b) It shall be unlawful for any person under the age of 18 years to purchase etching cream or an aerosol container of paint that is capable of defacing property.
(c) Every retailer selling or offering for sale in this state etching cream or aerosol containers of paint capable of defacing property shall post in a conspicuous place a sign in letters at least three-eighths of an inch high stating: "Any person who maliciously defaces real or personal property with etching cream or paint is guilty of vandalism which is punishable by a fine, imprisonment, or both."
. . .

(f) Violation of any provision of this section is a misdemeanor. Upon conviction of any person under this section, the court may, in addition to any other punishment imposed, if the jurisdiction has adopted a graffiti abatement program as defined in subdivision (f) of Section 594, order the defendant, and his or her parents or guardians if the defendant is a minor, to keep the damaged property or another specified property in the community free of graffiti, as follows: 
(1) For a first conviction under this section, for 90 days. 
(2) If the defendant has a prior conviction under this section, for 180 days. 
(3) If the defendant has two or more prior convictions under this section, for 240 days. 
This law is part of California's broader statutory scheme restricting spray paint and other tools that can be used for graffiti and other vandalism activities.

This may not be news to my readers who live in California. But because only several days of my life as a minor were spent in California (and because I did not need spray paint to compete in the high school debate tournament that brought me to the state), I confess that I was not aware of this law until quite recently.

The law's broad mandates and punishments for sellers of spray paint strike me as noteworthy. Businesses that sell spray paint are required to post an admonishment to buyers that using spray paint to commit vandalism is a violation of the law. And under subsection (f), sellers of spray paint may be required to clean up graffiti as part of their punishment just as a juvenile caught purchasing spray paint may be required to do so.

I have been spending a lot of time looking at the California Penal Code over the past couple of months, and Penal Code section 594.1 is only one of the laws that has caught my attention. I will likely have additional future posts on interesting California criminal laws as I come across them.

Saturday, October 25, 2014

Finally, Some Useful Scholarship on the "Smell" of Law

From Lawrence Solum's Legal Theory Blog, I learned about this article, What is the Smell of Law? First Assumptions for the Semiotics of Juridical 'Matter,' by Maria Francisca Carneiro, Eliseu Raphael Venturi, and LaƩrcio A. Becker. Here is the abstract:

This article is a semiological approach to a possible smell of Law, considering that the area of semiotics may include any of the five senses. Based on the perception of Law being represented by the Latin expression "Fumus boni juris", we conjecture here if the smell of Law would be the smell of smoke, also describing its structures. From that point on, we discussed the structures of the juridical matter.
For good measure, here's a paragraph from page six of the article:

The aroma of law is smelled before the sentence. Just think of the “smoke of a good right”. Well, the smoke (“fumus”) is not a gas, but a colloid, solid particles (micelles) in the air (“undone”, cf. remarkable image created by Marshall Berman), in a Brownian movement that is only observable thanks to the Tyndall effect. The smoke is a dissipative structure, related to the chaos theory (Prigogine). The Brownian movement is usually chaotic, which apparently means that the semiotics of the “smell of law” would in fact allow for an approach using the theory of dissipative structures. The theory of dissipative structures and the Principle of order through fluctuation contributed to the creation of a new mindset. The following aspects stand out in this new perspective: history, unpredictability, interpretation, spontaneity, disorder, creativity, accident and self-organization. This theory also states that the thought is always in process. It is temporary, not stable or fixed. Similar to the temporary restraining order that is based on “fumus”: temporary, unstable, subject to procedural fluctuations (and the procedural path is not a straight one, but one filled with different circumstances, therefore, fractal, that is, chaotic) that may repeal it or suspend it. 
Chief Justice Roberts has denounced legal scholarship as being too esoteric and disconnected from the practice of law. It is good to see that scholarship like Carnerio, Venturi, and Becker's paper exists to prove him wrong.

Friday, October 24, 2014

Stone on the "Spurious" Rule Against Propensity Evidence

Want to read a law review article in which the author uses the word, "spurious" 90 times?

Then look no further than Julius Stone's 1938 article, The Rule of Exclusion of Similar Fact Evidence: America (51 Harv. L. Rev. 988). I am not aware of any publicly available version of the article, so I can only include the link to the HeinOnline version.

In the article, Stone criticizes the rule of evidence that states that, in general, evidence of a person's prior acts cannot be introduced to show that the person has a propensity to act in a certain way. This rule is codified at Federal Rule of Evidence 404(b)(1), which states: "Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character."

Stone argues that a broad rule excluding prior act evidence is "spurious," and contends that, historically, judges only excluded evidence of prior acts when they were irrelevant. In the absence of a broad rule against prior act evidence, judges had broad discretion to admit prior act evidence. But in the early 1800s, English courts began applying a far broader restriction on prior act evidence. American courts followed suit, and cited the broad rule as though it was the historic approach to this type of evidence.

Stone's article is one of several that I draw upon in an upcoming article on propensity evidence. The article is partially based on the questions I began to explore in this post on exceptions to the propensity evidence ban and due process.

I am still in the process of revising the article, but I hope to post it to SSRN soon. As a preview/spoiler, however, I admit that the current draft of the paper does not use the term "spurious" as liberally as Professor Stone.

Wednesday, October 22, 2014

Patel on Cross-Cultural Competency Training for Law Students

Serena Patel, a former classmate of mine from UCLA Law, has recently published this essay in UCLA Law Review Discourse. The title is Cultural Competency Training: Preparing Law Students for Practice in Our Multicultural World. Here is the abstract:

This Article advocates for increased cross-cultural competency training for lawyers. With increasing diversity in society and among future lawyers, it is necessary for lawyers to be able to effectively communicate and create trusting relationships with clients from a variety of cultures and backgrounds. This Article recommends that a seminar be offered in law schools to develop and practice cross-cultural skills in line with The Five Habits: Building Cross-Cultural Competence in Lawyers, developed by Professors Susan Bryant and Jean Koh Peters. Implementation of the proposed seminar would help prepare law students to be culturally competent, successful lawyers.
Patel discusses techniques for developing cross-cultural competency in a clear and concise manner. She discusses how these techniques could be integrated into the law school environment, and advocates seminars that would teach cultural competency. Ideally, students would take these seminars before or alongside clinical coursework.

Patel's essay discusses an important skill that law schools should do more to emphasize, and that students should take more initiative to develop. Even if schools do not offer a cultural competency seminar, students should try to put themselves in situations where they interact in a cross-cultural environment. Volunteer clinics during the year, or nonprofit internships during summers can give students opportunities to have interact with clients of different cultures and backgrounds.

But these cross-cultural legal interactions would be more beneficial for students and clients if the law student has a foundation for approaching these situations. The seminar Patel proposes would be one way of building this foundation for students. The seminar would give direction to students' cultural competency development, and this benefit would be passed on to the clients with whom students would interact.

Tuesday, October 21, 2014

Arbitration by Combat and Game of Thrones

I am happy to announce that I will be coauthoring an article with my former UCLA Law classmate, Raj Shah, in an upcoming special issue of the Media and Arts Law Review. The issue will contain articles on "Law and Law Breaking in Game of Thrones." Prior posts on the call for papers can be found here and here.

Our article currently has the title, Arbitration by Combat. Here is the article proposal that we submitted:

Trial by combat is a popular method of dispute resolution in the Game of Thrones universe. The trials of Tyrion Lannister and Sandor Clegane stand as some of the most defining moments of the series. However, as the series vividly illustrates through Oberyn Martell’s duel with Gregor Clegane, trial by combat can pose mortal dangers for combatants not endowed with the protection of the god R’hllor. Furthermore, as Tyrion Lannister’s prosecution by the Iron Throne demonstrates, trial by combat can often lead to unjust results.

Trial by combat was also a common method for resolving disputes in medieval Europe. Trials by combat were subject to numerous procedural rules and were often (but not always) less violent than the disputes in Game of Thrones. But trial by combat has since been rejected as an unjust and barbaric ritual. 
The concerns surrounding trial by combat as a means of dispute resolution raise several interesting questions: can agreements to arbitrate disputes by means of a trial by combat be enforced in the United States? And if these “arbitration by combat” provisions are enforceable, what form of combat would be permitted under existing law? The more restrained historic form of trial by combat or the Game of Thrones variety?

In this article, we seek to answer these questions by examining how arbitration by combat agreements might implicate state and federal laws in the United States. First, we explore whether such agreements would run afoul of state laws barring contracts that are unconscionable or against public policy. We argue that savvy drafters of arbitration by combat provisions should avoid the gory proceedings in the Game of Thrones universe. But arbitration by combat based on historic practices may survive judicial review.

Second, we examine whether state regulation of arbitration by combat provisions would be preempted by the Federal Arbitration Act’s protections for arbitration agreements. In particular, we analyze whether the Act would protect an arbitration by combat agreement against state interference, given the U.S. Supreme Court’s recent expansion of the Act’s reach in AT&T Mobility v. Concepcion, 563 U.S. 321 (2011).

We argue that while Game of Thrones–style arbitration by combat may violate state contract laws, arbitration by combat that conforms to historic practices may find more success. We also conclude that there is a strong argument that an arbitration by combat procedure falls under the protection of the Federal Arbitration Act, provided it satisfies certain “fundamental attributes of arbitration” identified in Concepcion. That is, the combat would have to be informal, speedily resolved, and relatively inexpensive to conduct. Hence, state safety regulations of combat proceedings – while permissible – would be preempted to the extent they interfere with such characteristics.
The topic of this paper should not be too much of a surprise to regular readers of this blog. Trial by combat has always fascinated me, and you can find my previous posts on the subject here and here.

I must confess, however, that I am not well-versed in the Game of Thrones literature. Fortunately, my coauthor, Raj Shah, has extensive expertise in that area (as well as in the area of researching and writing about the Federal Arbitration Act). While Raj, like myself, has not published on the subject of Game of Thrones before, he has published a critical race perspective on U.S. standing doctrine in the UCLA Law Review, which you can find here.

As is the case with any post or paper I have announced on this blog, comments and criticism from readers are welcome. Our deadline for completing the full paper is December 19.

Monday, October 20, 2014

Pennsylvania Supreme Court Votes to Suspend Justice McCaffery

Dave Hoffman at Concurring Opinions writes that the Pennsylvania Supreme Court has voted to suspend Justice Seamus McCaffery. At How Appealing, Howard Bashman has links to further coverage. The per curiam opinion of the court cites numerous scandals -- including allegations that Justice McCaffery improperly contacted a traffic court judge over a traffic citation issued to Justice McCaffery's wife, claims that Justice McCaffery and his wife improperly gathered referral fees through Justice McCaffery's official capacity, and a recent scandal involving a vast exchange of sexually explicit emails between Justice McCaffery and people at the office of the Pennsylvania Office of the Attorney General.

Meanwhile, an ethics investigation of Justice McCaffery will move forward. Justice Todd dissented from the Court taking an active role in the matter.

The bottom of the per curiam opinion indicates that Chief Justice Castille wrote a concurring opinion. That opinion is available here, and it is merciless and unlike any opinion I have ever read. I cannot do justice to the opinion with descriptive terms, so I conclude this post with the parts of the opinion that I found particularly noteworthy (though I recommend you read the entire thing):

Justice McCaffery blames me for a series of egregious acts of misconduct on his part. However, it was not I who caused his wife to be cited for driving the wrong way on Market Street. It was not I who caused Justice McCaffery to meet with the main Philadelphia Traffic Court ticket fixer, an admitted felon, to “discuss” his wife’s ticket which was then dismissed by a Traffic Court judge who later pled guilty to federal crimes arising from ticket fixing. It was not I who subpoenaed his wife’s traffic ticket file which was then officially brought to my attention as part of the review of Philadelphia Traffic Court – that was the work of the FBI. It was not I who gave his wife, a Supreme Court employee, permission to run a law practice out of a Supreme Court chambers, earning millions of dollars. It was not I who referred that matter to the US Attorney’s Office. It was not I, but it was Justice McCaffery, who hired Chadwick Associates to assist in reforming Philadelphia’s criminal courts and who was lawfully compensated for his services to the Philadelphia Court system for his professional work. 
. . . 

Justice McCaffery is correct in one of his allegations against me. I have been attempting to remove Justice McCaffery from this Court. In my two decades of experience on this Court, no other Justice, including Justice Joan Orie Melvin, has done as much to bring the Supreme Court into disrepute. No other Justice has failed to live up to the high ethical demands required of a Justice of this Court or has been the constant focus of ethical lapses to the degree of Justice McCaffery. 
. . .  
As a prosecutor in the Philadelphia District Attorney’s Office, I often had the occasion to review pre-sentence psychiatric reports, although I do not claim to be an expert in the field. One pathology that I do recall, and as confirmed in a review of a prominent medical journal, describes the pathology of an individual who has the personality traits of not caring about others, thinking he or she can do whatever is in that person’s own self-interest and having little or no sympathy for others. The most telling pathology is that when that person is caught, or called out for his transgressions, that person does not accept blame but instead blames others for his or her own misconduct. Those pathological symptoms describe a sociopath. So far in the blame game, Justice McCaffery has blamed the US Marine Corps, the US Air Force, the Philadelphia Police Department, Chadwick Associates, the US Attorney and the FBI, Attorney General Kathleen Kane, now Justice Michael Eakin, and myself for the consequences arising from actions all initiated by him, but thought by him to be of little consequence: just a few “cooked up controversies” by his perceived tormentors. 

Parents' Liability for Their Children's Online Conduct

The Wall Street Journal Law Blog has this interesting post about Boston v. Athearn, a recent case from the Court of Appeals of Georgia. From the Law Blog:
The Georgia Court of Appeals ruled that the parents of a seventh-grade student may be negligent for failing to get their son to delete a fake Facebook profile that allegedly defamed a female classmate. 
The trouble started in 2011 when, with the help of another student, the boy constructed a Facebook profile pretending to be the girl. He used a “Fat Face” app to make her look obese and posted profane and sexually explicit comments on the page depicting her as racist and promiscuous, according to court documents. 
When the girl found out about it, she told her parents who then complained to the school’s principal. The school punished the boy with two days of in-school suspension and alerted his parents, who grounded him for a week. 
But for the next 11 months, according to the appeals court opinion, the page stayed up. It wasn’t deleted until Facebook deactivated the account at the urging of the girl’s parents, the opinion said. The girl’s lawyer says the child’s parents didn’t immediately confront the boy’s parents because their school refused to identify the culprit for confidentiality reasons.
The full opinion of the court is available here.

The court emphasized that the parents had been notified of their child's online conduct, and pointed out that the nature of online defamation created an ongoing harm to the plaintiffs. From the opinion:
In this case, it is undisputed that Dustin used a computer and access to an Internet account improperly, in a way likely to cause harm, and with malicious intent. The Ahearns contend that they had no reason to anticipate that Dustin would engage in that conduct until after he had done so, when they received notice from the school that he had been disciplined for creating the unauthorized Facebook profile. Based on this, they contend that they cannot be held liable for negligently supervising Dustin’s use of the computer and Internet account. The Ahearns’ argument does not take into account that, as Dustin’s parents, they continued to be responsible for supervising Dustin’s use of the computer and Internet after learning that he had created the unauthorized Facebook profile. While it may be true that Alex was harmed, and the tort of defamation had accrued, when even one person viewed the false and offensive postings, it does not follow that the Athearns’ parental duty of reasonable supervision ended with the first publication.

Given the nature of libel, the original tortious conduct may continue to unfold as the false and injurious communication is published to additional readers or the defamatory content persists in a public forum without public correction or retraction. With regard to the instant action, we conclude that a reasonable jury could find that, after learning on May 10, 2011, of Dustin’s recent misconduct in the use of the computer and Internet account, the Ahearns failed to exercise due care in supervising and controlling such activity going forward. Given that the false and offensive statements remained on display, and continued to reach readers, for an additional eleven months, we conclude that a jury could find that the Athearns’ negligence proximately caused some part of the injury Alex sustained from Dustin’s actions (and inactions). Accordingly, the trial court erred in granting the Athearns’ motion for summary judgment in part. (footnotes omitted).
Critics have spoken out against this ruling, arguing that it is undesirable or that the negligence lawsuit should have been barred by section 230 of the Communications Decency Act (CDA). I think that this ruling is far less problematic than the critics have argued, and I explain my reasoning after the break.

Stand-Your-Ground, Castle Doctrine, and Domestic Violence

From the ABA Journal, I learned about an interesting self-defense case in South Carolina that is causing some controversy. From the ABA Journal:

Prosecutors in Charleston, South Carolina, contend the state’s stand-your-ground law doesn’t apply to domestic disputes in the home. 
Prosecutors say they will make that argument when they appeal a judge’s finding in an immunity hearing that Whitlee Jones of North Charleston was justified in fatally stabbing her boyfriend, Eric Lee, the Charleston Post and Courier reports. 
. . .
Jones stabbed Lee in November 2012 in an incident that began in an argument over a cellphone. Lee had given Jones the phone, but he wanted it back, the Post and Courier says, citing court documents. Jones says she refused, leading Lee to punch her and, when she got out through the back door, to pull her by the hair down the street. A neighbor called 911 and Jones tried to do so too, but the phone went dead. She gave up the cellphone, ending the initial confrontation, and ran down the street. 
When police arrived, Lee said Jones had smashed his phone and there had been no assault. Jones later returned home to gather her belongings and leave for good. She says Lee became agitated and when she saw a knife, she tucked it into her bra. Jones claims Lee tried to block her as he was leaving, shook her, and was getting ready to hit her when she retrieved the knife and stabbed Lee in the heart. 
Kidd points to the wording of the state’s stand-your-ground law, which creates a presumption that a person has a reasonable fear of death when an intruder is trying to forcefully enter a home, but not when a person against whom deadly force is used has the right to be in the dwelling.
The Charleston Post and Courier has the full story on the case here.

The story has caused quite a bit of backlash, with news outlets and commentators reporting everywhere that this case stands for the proposition that domestic violence victims cannot take advantage of "stand-your-ground" self-defense laws. Examples of these critical stories can be found here, here, here, here, and here.

This criticism (along with the ABA Journal's reporting) is mistaken, however, because it incorrectly claims that this case turns on questions of "stand-your-ground." More importantly, while the prosecution's argument in this case leads to what many may see as an unpleasant result, it is completely in line with the language of South Carolina's self-defense law. And most importantly, while this particular case may seem to have an unfortunate result, the defendant can still raise and successfully argue self-defense, and reading the law more broadly could have extremely negative consequences.

Thursday, October 16, 2014

Impeachment by Blog Post

From Walter Olson's Overlawyered, I learned about this post by Jim Dedman who writes at the blog, Abnormal Use. Dedman tells a cautionary tail about another lawyer's attempt to respond to Dedman's argument in court with a contradictory prior statement from the Abnormal Use blog.

Sometimes I wonder whether anybody will attempt to contradict an argument I make in court or in a paper by appealing to this blog. It hasn't happened yet, but I continue to hope that the blog will become popular enough that people begin making these impeachment attempts.

If that does end up happening, I suppose that a reasonable reply would be to point out that my thinking sometimes evolves. I welcome criticism and commentary on every post I write, and if I hear a compelling reply to an argument I make, I may well end up changing my view.

On the other hand, a craftier response would be to deny authorship and claim that the post was written by a different Michael Smith. While my common name may occasionally create embarrassing confusion (even with the middle initial listed!), in an impeachment situation, my generic name can be effective form of camouflage.

One might think that the inclusion of a picture in the blog would spell defeat for this ploy. But I don't think that's necessarily the case. I had the fortune of getting my blog's picture from a friend who has an extremely nice camera. In real life, I appear far less artfully focused -- so much so that I should be able to create enough doubt to thwart any impeachment attempts.

Wednesday, October 15, 2014

India Bans Drones

India Today reports:

India is one the few places on the planet where civilian drones can be legally used. That said, with many commercial organisations planning to use drones, the Directorate General of Civil Aviation (DGCA) has announced that till proper rules and regulations are formulated use of drones in India is illegal . . . .
India Today and BGR are reporting that this ban extends to "civilian drones." But the ban is far broader, according to this public notice from the Director General of Civil Aviation (DGCA). The notice states:
DGCA is in the process of formulating the regulations (and globally harmonize those) for certification & operation for use of [unmanned aircraft systems, or] UAS in the Indian Civil Airspace. Till such regulations are issued, no non government agency, organization, or an individual will launch a UAS in Indian Civil Airspace for any purpose whatsoever.
This prohibition on drones is notably broad -- it restricts hobbyist drones, commercial drones, and government drones.

This spells problems for Amazon, which had been planning to use India's (formerly) permissive regulatory environment to test drone-based package delivery services. I have not seen any reactions by the company to this sudden, universal prohibition of drone use. But I suspect Amazon will be carrying out its drone testing somewhere else in light of this ban.

Drones raise safety and privacy concerns. To an extent, these concerns are warranted, and governments may be correct to impose regulations that address privacy and safety concerns. But effective regulations should allow for the continued use of this developing technology. India's sudden and complete ban on drones is far too broad, and will hinder the development of drone technology and the economic opportunities that this technology can (and was about to) create.

Monday, October 13, 2014

Jimmy John's Requires Noncompete Agreements for Sandwich Makers

From the Huffington Post:

A Jimmy John's employment agreement provided to The Huffington Post includes a "non-competition" clause that's surprising in its breadth. Noncompete agreements are typically reserved for managers or employees who could clearly exploit a business's inside information by jumping to a competitor. But at Jimmy John's, the agreement apparently applies to low-wage sandwich makers and delivery drivers, too. 
By signing the covenant, the worker agrees not to work at one of the sandwich chain's competitors for a period of two years following employment at Jimmy John's. But the company's definition of a "competitor" goes far beyond the Subways and Potbellys of the world. It encompasses any business that's near a Jimmy John's location and that derives a mere 10 percent of its revenue from sandwiches.
The full agreement is available here.

The article points out that there have not been any reported instances of the sandwich company attempting to enforce its noncompete agreement. This seems sensible to me, since the geographic, temporal, and practical breadth of the noncompete provision might give courts pause before enforcing the agreement.

While the law of noncompete agreements varies between states, the Jimmy John's provision would almost certainly be struck down in a California court. As this report from White & Case explains, California is notably hostile towards noncompete claims, and only permits them in narrow circumstances, such as when the a partnership, limited liability, or other ownership share in a business is sold. The departure of a sandwich-making employee to a similar business does not seem to fall into any of the exceptions to California's prohibition on noncompetes.

I have blogged about some of Jimmy John's previous legal travails here. Unlike that prior incident (involving a misguided class action lawsuit brought about by the absence of sprouts), this noncompete situation seems to involve a bit more of a misstep on the company's part.

Thursday, October 9, 2014

Sachs on State Drone Regulations

Peter Sachs, a lawyer and notable commentator on drone laws, has posted his testimony (available to download here) where he argues against regulating both government drones and private drones. At this time, I am not sure where he gave this testimony, but based on prior events, I suspect that this may be testimony for the Connecticut state legislature's Judiciary Committee. Sachs has taken a strong position against drone restrictions in prior testimony before that committee.

I do not have much to say about Sachs's points on regulating private drones. I agree that overly restrictive regulation of private drones could hinder the development of this new technology in unpredictable ways. And I think that privacy concerns related to drone use are generally overstated and can be addressed by other laws prohibiting invasion of privacy.

But I take issue with a few of Sachs's arguments against regulating government drones. Sachs argues that there is no logical need for warrants on government drones and points out that high-powered cameras in helicopters can see far more than a government drone can see. I think this fails to address the main concern of privacy advocates, which is that drones can be used for prolonged surveillance of somebody's public movements or of somebody's home.

Drones require less fuel to operate, can be launched more conveniently, and are easier to fly than a helicopter, meaning that law enforcement officers may use this technology for continuous surveillance. The fear is not that drones will necessarily see more detail than helicopters, but that they can observe somebody's home or movements for a much longer time. Sachs needs to address this particular concern in order to meet the arguments of privacy advocates.

Sachs also argues that "there is no legal need" to require law enforcement agencies to obtain warrants before using drones, Sachs is probably (though not certainly) correct that the Fourth Amendment's prohibition on unreasonable searches does not apply to aerial observations of one's property, and cites case law supporting that conclusion.

But just because continuous observation by government drones does not violate the Fourth Amendment doesn't mean that governments should not place regulations that go beyond existing constitutional protections. In fact, the Fourth Amendment's inability to regulate government drones is what motivates privacy advocates to argue for legislative restrictions in the first place. State legislatures are free to enact laws that restrict government searches beyond the restrictions of the federal constitution. And as I argue elsewhere, the interests of both privacy advocates and law enforcement would be best served if legislatures, rather than courts, were tasked with restricting government drone use.

Sachs raises some good points about government regulation of drones. But his arguments fail to address privacy advocates' concerns that government drones may be used for continuous surveillance.

Obama Teams Up With Zombies, Torts Ensue

Geoffrey Rapp has the scoop over at PrawfsBlawg.

Wednesday, October 8, 2014

Bennett's Flawed Criticism of Citron's Proposed Revenge Porn Restrictions

Over at Slate, Danielle Citron has this article excerpting her recent book, Hate Crimes in Cyberspace. In the article, Citron argues for laws that would criminalize revenge porn -- the nonconsensual sharing of another person's nude images online. Citron points out that these restrictions should only apply in particular circumstances:

Revenge porn laws should apply only if a defendant disclosed another person’s nude image knowing that person expected the image to be kept private and had not consented to the disclosure. By clarifying the mental state in this way, legislation would punish only knowing betrayals of someone’s privacy. Carelessly or foolishly posting someone’s nude image would not constitute criminal behavior. It would not be a crime, for instance, to repost a stranger’s nude photos having no idea that person intended them to be kept private.
Citron continues, providing language for a revenge porn restriction and confronting objections. One possible objection she notes is that there may be First Amendment challenges to the law. Citron argues that these challenges are unlikely to succeed:

My proposed revenge porn statute would withstand constitutional challenge. Disclosures of private communications involving nude images do not enjoy rigorous First Amendment protection. They involve the narrow set of circumstances when the publication of truthful information can be punished.
Over at his blog, Defending People, Mark Bennett responds to Citron's article, arguing that she is wrong to dismiss the First Amendment challenges. Here is Bennett's unpleasantly dismissive reply to Citron's argument that revenge porn restrictions will survive First Amendment scrutiny:

Laypeople don’t know that Citron is wrong and have no reason to doubt this bald assertions, and fellow academics are afraid of being called names for challenging zealots, so it falls to practicing lawyers to point out that this is the state of First Amendment law: 
               1.      Speech is presumptively protected.
               2.      Content-based restrictions on speech are presumptively void.
               3.      For a content-based restriction on speech to pass muster, the restricted speech must fall (at least mostly) within one of several narrowly defined categories of unprotected speech:
a.       Advocacy intended, and likely, to incite imminent lawless action;
b.      Obscenity;
c.       Defamation;
d.      Speech integral to criminal conduct;
e.       So-called “fighting words”;
f.       Child pornography;
g.      Fraud;
h.      True threats; and
i.        Speech presenting some grave and imminent threat the government has the power to prevent, “although,” says the Supreme Court, “a restriction under the last category is most difficult to sustain.”

Those are the categories of speech that the Supreme Court has recognized as unprotected. So Citron’s assertion that “disclosures of private communications involving nude images do not enjoy rigorous First Amendment protection” is incorrect. It might be her wish, but for it to be so the Supreme Court will have to make it so by recognizing another historically unprotected category. (Footnote omitted)
Bennett's statement of First Amendment doctrine is a concise outline of some of the law, but it is misleadingly incomplete. While Bennett has accurately described categories of speech that the Supreme Court has deemed "unprotected," there are other types of speech that are lesser-protected. The most established example of lesser-protected speech is commercial speech.

The Supreme Court has also recognized that "speech on matters of purely private concern" receives "less stringent" protection from the First Amendment (Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759-60 (1985)). That sounds quite a bit like the speech Citron is talking about when she says that revenge porn bans should be limited to private communications between people in a trusting relationship. And footnote 190 of Citron and Mary Anne Franks's article, Criminalizing Revenge Porn, suggests that this is precisely the area of First Amendment doctrine Citron is referencing.

Bennett's criticism misses the mark because he assumes that Citron bears the burden of arguing that revenge porn is unprotected speech. Instead, Citron is arguing is that revenge porn is simply a lesser-protected form of speech. From what I have read in the article (and hope to read in the book), it looks like Citron makes a fairly strong argument that revenge porn fits into the category of speech on matters of purely private concern, and her proposed revenge porn restriction may indeed stand up to First Amendment scrutiny as a result.

A Public Domain Version of the Bluebook?

I came across this fascinating letter by Christopher Jon Sprigman to Peter Brody, the lawyer for the Harvard Law Review Association. Sprigman informs Brody that the Bluebook -- a 500+ page tome of meticulous rules for legal citations -- is arguably not protected by copyright.

Sprigman points out that the copyright for the 10th edition of the Bluebook (now in its 19th edition) has expired. He goes on to argue that much of the 19th edition is indistinguishable, and that courts' requiring lawyers to use Bluebook citations transforms the Bluebook's rules from copyrightable material into "government edicts."

From the later paragraphs of the letter:

Based on what we’ve learned, we have embarked on a joint project with Public Resource to create and publish a public domain version of The Bluebook – a project we refer to as Baby Blue. Our project will mix public domain portions of the 19th edition with newly-created material that implements the Bluebook’s system of citation in a fully usable form.

In short, The Bluebook will soon face a public domain competitor. And when Baby Blue comes to market, The Harvard Law Review Association is likely to face questions regarding why the public – including pro se and indigent litigants – are obliged to pay for access to a resource that is indispensable to all those who seek justice from our courts. The Harvard Law Review Association is likely also to face questions regarding the financial transparency of the current structure.
I'm no expert in copyright law, so I'm not sure how far Sprigman's arguments will go. But I can't help but hope that Sprigman's Baby Blue project will succeed. Until then, however, I will get by with my hard copy of the Bluebook (and the publicly-available California Style Manual).

Tuesday, October 7, 2014

Did Ted Cruz Admit that a Constitutional Amendment is Needed to Preserve Same-Sex Marraige Bans?

From Josh Blackman's Blog, I learned that Senator Ted Cruz has made a strong statement against the Supreme Court's refusal to address a number of appellate opinions holding state bans on same-sex marriage unconstitutional.

Cruz's reaction condemns the Supreme Court's "extremely broad interpretation" of the Fourteenth Amendment. He goes on to say:

Nothing in the text, logic, structure, or original understanding of the 14th Amendment or any other constitutional provision authorizes judges to redefine marriage for the Nation. It is for the elected representatives of the People to make the laws of marriage, acting on the basis of their own constitutional authority, and protecting it, if necessary, from usurpation by the courts. 
Marriage is a question for the States. That is why I have introduced legislation, S. 2024, to protect the authority of state legislatures to define marriage. And that is why, when Congress returns to session, I will be introducing a constitutional amendment to prevent the federal government or the courts from attacking or striking down state marriage laws.
Cruz's language is not particularly surprising in light of the rapidly approaching primary season. Speaking out against same-sex marriage, while simultaneously criticizing "judicial activism at its worst" is likely to energize conservatives.

But Cruz's statement also illustrates the magnitude of the momentum behind the push for the legalization of same-sex marriage. Cruz certainly devotes much of his statement to arguing against striking down same-sex marriage bans on constitutional grounds. But by focusing on a constitutional amendment as the avenue for preserving same-sex marriage prohibition, Cruz seems to be admitting that defending the constitutionality of same-sex marriage bans is no longer a feasible prospect.

Cruz may well pursue his amendment, and it may win him some votes down the road. But ultimately, the admission that same-sex marriage bans will almost inevitably fail judicial scrutiny is the most important takeaway from Cruz's statement.

The Longest Judicial Opinions

Since starting law school over three years ago, I have occasionally wondered how long the longest judicial opinion is. While I have already blogged about the world's longest constitution, the length and origin of the longest judicial opinion has remained a mystery to me.

But this weekend, I decided to finally look into the issue -- and I found that somebody has already done the work at finding the longest opinion. The Trial Warrior blog has this 2012 post on the longest judgments in the world. Only one of the top seven judgments originates in the United States, and it ranks as sixth on the list. While all of the opinions on the list are hefty, the top three are in a class all their own.

The longest judicial opinion to originate in the United States appears to be the the Federal District Court for the District of Columbia's opinion in McConnell v. FEC. There, three judges issued a per curiam opinion followed by their individual opinions. The entire ruling takes up 743 pages.

But the longest opinion in the United States does not even come close to the longest opinion in the world. In 2010, the Allahabad High Court released an 8,000 page opinion in the long-running Ayodhya dispute. The dispute centered on the ownership of a plot of land with religious significance to a variety of parties, and had been in the courts for 60 years before the High Court ruling.

Commentators have criticized the United States Supreme Court for its increasingly lengthy rulings. But the Court has a long way to go if it wants to break into the ranks of the longest opinions in the world.

Monday, October 6, 2014

Inconsiderate Car Owners Beware: The California Vehicle Code on Bad Parking and Car Alarms

This weekend, I conducted some research of the California Vehicle Code, searching for provisions that authorized law enforcement officers to remove annoying vehicles. In particular, I was interested in learning what power law enforcement officers have over cars that obstruct driveways (or garages) and over vehicles with perpetually-sounding car alarms. This research may or may not have been based on the conduct of people in my neighborhood.

The California Vehicle Code generally prohibits law enforcement officers from towing and impounding vehicles. But section 22651 of the Vehicle Code outlines circumstances where law enforcement officers are permitted to remove vehicles. Many of these circumstances are understandable, including scenarios where a vehicle is left in the middle of a highway (subsection (b)), or when a vehicle has been reported stolen (subsection (c)).

But for those offended by inconsiderate parking, the most helpful of section 22651's subsections is (d), which allows law enforcement officers to tow a vehicle:

When a vehicle is illegally parked so as to block the entrance to a private driveway and it is impractical to move the vehicle from in front of the driveway to another point on the highway.
A skeptical reader might point out that the vehicle needs to be "illegally" parked, so section 22651(d) might not be enough to authorize the towing of vehicles parked in front of driveways. Fortunately, section 22500 of the Vehicle Code provides:

No person shall stop, park, or leave standing any vehicle whether attended or unattended, except when necessary to avoid conflict with other traffic or in compliance with the directions of a peace officer or official traffic control device, in any of the following places:
. . .

(e) In front of a public or private driveway, except that a bus engaged as a common carrier, schoolbus, or a taxicab may stop to load or unload passengers when authorized by local authorities pursuant to an ordinance.
 People who leave their car alarms running are apparently so irritating that they have their own special section of the Vehicle Code. Section 22651.5 states, in part:

(a) Any peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal Code, or any regularly employed and salaried employee who is engaged in directing traffic or enforcing parking laws or regulations, may, upon the complaint of any person, remove a vehicle parked within 500 feet of any occupied building of a school, community college, or university during normal hours of operation, or a vehicle parked within a residence or business district, from a highway or from public or private property, if an alarm device or horn has been activated within the vehicle, whether continuously activated or intermittently and repeatedly activated, the peace officer or designated employee is unable to locate the owner of the vehicle within 20 minutes from the time of arrival at the vehicle's location, and the alarm device or horn has not been completely silenced prior to removal.
When reading this law, I was at first disappointed, thinking it might only apply to areas around colleges or universities. But the breadth of the statute quickly expands to cover any vehicle parked in a residence or business district, meaning that it would likely apply to most vehicles parked within earshot of people's homes.

People who feel that they can park in obstructive manners and let their car alarms ring into the late hours of the evening should beware of these laws. While law enforcement officers are not required by these laws to remove vehicles, I suspect that it would not be too much trouble to do so, especially if people in the area notify law enforcement.

Thursday, October 2, 2014

How to Get Away With Unethical Lawyering: Episode 1

I recently watched the pilot episode of ABC's How to Get Away With Murder. I blogged about the show back in May when the trailer first came out. I noted that the show appeared to be "(1) an overly-dramatic reiteration of the second half of Legally Blonde; and (2) a professional responsibility issue-spotter."

After watching the pilot, I think it's safe to say that I was right.

The show is centered around a criminal law professor, Annalise Keating (played by Viola Davis), at a fictional law school in Pennsylvania. She teaches criminal law while simultaneously running a highly successful criminal defense firm out of her home. For her assignments, she tells students the facts of cases she is defending and asks them to provide their own defense theories. Students who do the best are promised a job at her law firm.

The show also highlights several of her students, in particular, Wes Gibbins, played by Alfred Enoch. Gibbins, a bright-eyed first year law student starts out by making the classic mistake of not being prepared for the first day of class. He soon dives into Keating's world of criminal defense and intrigue.

With a premise like this, how can't there be a slew of ethical violations? After the break, I discuss the specific ethical problems that I noticed in the pilot episode. Because the show seems to take place in Pennsylvania, I will use Pennsylvania's Rules of Professional Conduct in determining whether ethical violations have occurred, and any reference to a "rule" will be to these rules unless I note otherwise. Warning, spoilers ahead.

Well-Intentioned, But Flawed, Advice on Student Note Submission

Over at The Girls Guide to Law School, Jonathan Burns has this post on advice for writing and publishing a law review note. While I am all for encouraging students to write, submit, and publish papers, I think that Burns's advice, while well-intentioned, contains some mistaken suggestions that could hinder a paper's chances of publication.

Burns advises that students not devote significant time to bluebooking and editing the paper, urging students to throw their bluebooks and Chicago Manuals of Style "out the window." This may initially seem like good advice from the perspective of somebody who has been through the publication process. After several rounds of receiving, reviewing, and returning edits, it seems that any problems with the paper can be fixed after submission, meaning polishing the initial draft is a poor use of time.

While there will indeed be an editing process that will improve the quality of the paper both above and below the line, articles editors will probably not be enthusiastic about a paper unless they enjoy reading the paper. Consistent stylistic and grammatical shortcomings make it very difficult to get through a paper, even if the subject matter is interesting. Even more significantly, editors may conclude that poor grammar, style, and even bluebooking are indicators for poor research. Earning the trust of editors is crucial, and losing that trust to something as easy to remedy as poor editing shouldn't happen.

Burns has some other good pointers, but some of them should be qualified.

Wednesday, October 1, 2014

North Dakota: Law Enforcement Officers Use Drone to Locate Fleeing Suspect

Fox Business reports that Grand Forks County Sheriff's deputies used a drone to locate suspects who fled the scene of a traffic stop. From the article:

An unmanned aircraft unit led by the Grand Forks County sheriff's department flew its first nighttime mission after four suspects fled during a traffic stop, department officials said Monday. 
Officials said the drone team was contacted after a K-9 unit was unable to locate the occupants of a vehicle that was pulled over about 2:20 a.m. Sunday in rural Larimore, about 30 miles west of Grand Forks. 
The aircraft discovered one of the suspects in a corn field, although he ran away before deputies could find his location, officials said. Two suspects were eventually arrested on the scene, and a third was taken into custody later.
North Dakota has a history of making the news with regards to law enforcement drone use. In 2011, Nelson County Sheriff's deputies used a predator drone for aerial surveillance while investigating and ultimately arresting a suspect. The suspect's Fourth Amendment challenge to the use of the drone did not succeed.

The Fox article includes some commentary concluding that the Grand Forks incident does not raise any legal concerns. I think that is correct. North Dakota has no laws restricting the use of drones by law enforcement. And the drone in this case was used to conduct aerial surveillance of a person's outdoor movements, so there does not appear to be any infringement on a Fourth Amendment reasonable expectation of privacy.

It is also worth noting that this sort of drone use would be permitted in states with warrant requirements for government drone use as long as the states include an exception to the warrant requirement in scenarios that involve fleeing suspects. Illinois, for example, includes an exception to its warrant requirement in Section 167/15(3) of its drone regulations in cases where "swift action is needed to . . . forestall the imminent escape of a suspect."

State legislatures that are considering or debating laws requiring warrants for drone use should give serious thought to including similar exceptions to their warrant requirements. The most recent North Dakota incident shows how drones can be effective at locating fleeing suspects at night. And if police have the technology to easily locate fleeing suspects, there will be less pressure to use heightened, and possibly deadly, force to apprehend the suspect at the scene.

Brophy on the Fading Fall Submission Season for Law Journals

At The Faculty Lounge, Alfred Brophy observes that law journals seem to be cutting back on the number of articles they are accepting during the fall submission season. Brophy writes:

It seems like a lot of journals were announcing on bepress and scholarstica that they were already full for the year this summer and telling us to check back in the spring of 2015. The few law review editors I've had a chance to speak with tell me that they had very few slots left by mid-August. This causes me to wonder -- and I'm guessing other people have speculated on this, too -- whether we're essentially moving ot one submission window, in the spring? I would think this would have a lot of negative consequences for people up for retention, promotion, and tenure, because I'm guessing that a lot of people are finishing their capstone piece in the summer and looking to place it in the fall.
Law journals generally have two submission windows -- one in the spring, and one in the fall. Most journals bring on their new boards and staff members in the spring, and begin accepting submissions for their new volumes during that time, so there is generally not a shortage of space for spring submissions. But sometimes, journals may end up filling all or most of their volumes in the initial spring submission season, which would lead to fewer acceptances in the fall.

If that trend is indeed taking hold, I would agree with Brophy that it is problematic. During the spring submission season, articles editors have only just begun their roles, and have probably not had very much experience reading legal scholarship. But if my experience is any guide, the learning curve for articles editors is steep, and even by the end of the spring submission season, articles editors tend to be much better at spotting quality legal scholarship.

Unfortunately, if editors seek to fill their volumes in the spring, they will be unable to apply their increased knowledge base and article selection skills in the fall submission season. While this may not be very much time for editors' skills to improve, I suspect that the improvement is still meaningful, and that cutting out the fall submission season would have a detrimental effect on the quality of scholarship that journals end up publishing.

As a final note, Brophy's article is related to one of Orin Kerr's suggestions for successfully placing law review articles. Kerr recommends that authors submit in the spring, which -- along with his other four suggestions -- is advice worth listening to.