Wednesday, April 16, 2014

50 Years at Albany Street: Prof. Goldman Recalls Supreme Encounter

By Professor Stan Goldman '75

William Brennan was a surprise in so many ways. Appointed to the Supreme Court by Republican Dwight D. Eisenhower, he was to become perhaps the most potent liberal justice to have ever sat on the nation's high court. He achieved this by simply outmaneuvering many of those who vehemently opposed his political persuasion. Even as the court"s makeup grew more and more conservative, and he would find himself on the losing end of most arguments, he managed to use his seemingly unparalleled political savvy to piece together majorities no other justice could have created. The tradition of our highest court is that, if the chief justice is in the dissent, the most senior member of the majority is authorized to write, or assign, the court's opinion. So fearful was Chief Justice Warren Burger of Justice Brennan's ability to persuade with his words, that the rock-ribbed conservative chief would switch his vote to support positions he despised solely so that he could block Brennan from delivering the court's judgments. Brennan was surprising in other ways as well. 

Share your campus memories 
An idol of mine, I approached weak-kneed and with great trepidation years ago when he graciously agreed to become Loyola Law School's most distinguished graduation speaker. He proved to be as welcoming and generous spirit, to a young law professor, as he was wise. Of course, there is one other reason for my looking fondly back upon the great man's appearance at our university. Graduation took place the first Sunday in June. An outdoor ceremony, graduates, family and faculty would bake beneath the Westchester sun. Fearful that the elderly justice wouldn't be able to take the afternoon heat, the school decided to acquire a tent to cover the dais beneath which the faculty and graduation speakers could comfortably repose during the lengthy ceremony. That is, blessedly, a tradition that is continued now. Three decades later, any member of the Loyola faculty should not only remember fondly the great man's appearance at our school, but also the comfort we are able to enjoy during the ceremony.

Monday, April 14, 2014

Professor Peter Tiersma, Crafter of Jury Instructions, Leaves Legacy of Scholarship

To view remembrances of Peter or post one, please click here.

Professor Peter Tiersma passed away on Sunday, April 13 after a long battle with pancreatic cancer.

Tiersma joined the Loyola Law School faculty in 1990. His courses included Remedies, the Language and the Law Seminar, and Trusts & Wills. As director of international programs, he oversaw Loyola’s summer programs abroad. The holder of the Hon. William Matthew Byrne, Jr. Chair, he was a member of the California Judicial Council Advisory Committees on Jury Instructions and a co-founder of the International Language and Law Association.

“A member of our faculty for nearly 25 years, Peter was an internationally renowned scholar, a beloved teacher and played an important role in crafting the jury instructions delivered in every civil and criminal trial in the California state courts,” said Dean Victor Gold. “ The grace and heroism he displayed while battling his illness will remain one of the many reasons he will always inspire us.”

A prolific scholar, Tiersma was most recently the co-editor of The Oxford Handbook of Language and Law (with Lawrence Solan, Oxford University Press, 2012). He was the author of Parchment, Paper, Pixels: Law and the Technologies of Communication (University of Chicago Press, 2010).

Additionally, Tiersma was the author of the books Legal Language (University of Chicago Press, 1999) and Speaking of Crime: The Language of Criminal Justice (with Lawrence Solan, University of Chicago Press, 2005), as well as numerous articles and book chapters. His booklet, "Communicating with Juries: How to Draft More Understandable Jury Instructions," was published by the National Center for State Courts and was broadly disseminated to state jury instruction committees. His website, www.languageandlaw.org, served as a repository for his commentary on the intersection of those two disciplines.

Tiersma, born in the Netherlands, immigrated with his parents to the United States when he was 5 years old and grew up on a dairy farm in California’s San Joaquin Valley. Following graduation from Stanford University, he received a doctorate in linguistics from the University of California, San Diego. Subsequently, he obtained a JD from Boalt Hall School of Law at the University of California, Berkeley. He clerked for Justice Stanley Mosk of the California Supreme Court for a year and worked in private practice for three years in San Francisco and Santa Barbara.

When not teaching, researching or writing, Tiersma could be found tending his cactus garden, kayaking in the ocean or scouring the Internet for old legal documents. He is survived by his wife, Matthea Cremers, a professor at the University of California, Santa Barbara.

REMEMBRANCES

Please leave your memories of Professor Tiersma below in the comments. Please include your relationship with Peter. If a former student, please note your class year.

Monday, April 7, 2014

Urban Water and the Era of No-Longer Possible

By Professor Jeffery Atik

This review of Water 4.0: The Past, Present, and Future of the World's Most Vital Resource originally appeared in the Los Angeles Review of Books.

There are two currents flowing through the contemporary political imagination that limit us. The first is the notion of sustainability, which teaches us that what we have had in the past and what we may still desire can no longer be provided. Sustainability, like its reflection, unsustainability, is a child of environmentalism, built on an unflinching examination of what the planet might bear. The second stems from our doubts about the State. In its most virulent form, it appears as Tea Partyism: everything the State practices is incompetence or theft, or both. The State is a villain -- to be attacked and starved -- and if we forgo traditional state services, we will be better for it. The result is a growing paucity of public goods.

Read the complete post.

Friday, April 4, 2014

HILJ Online Symposium: The Next Step

By Professor Michael Waterstone

This post originally appeared on Opiniojuris.com.

I am grateful that the Harvard International Law Journal and Opinio Juris have asked me to write a response to The Democratic Life of the Union: Toward Equal Voting Participation for Europeans with Disabilities, written by Janos Fiala-Butora, Michael Stein and Janet Lord. This Article seeks to put forward “preliminary legal scholarship on equal political participation by persons with disabilities and what international human rights law requires for its attainment.” Given their various experiences as academics, international human rights lawyers, and academics, the authors are certainly well suited to this task (and I should note that two of the three are former co-authors and friends).

As I see it, this Article makes three significant points: (1) it describes Kiss, a European Court of Human Rights decision holding that Hungary had unjustly and indiscriminately taken voting rights away from someone solely by nature of his being placed under guardianship, and critiques the decision for offering limited standards for what type of individualized inquiry is required to restrict the franchise; (2) argues that under international law, states should not be able to disenfranchise persons on the basis of disability, even in the case where individual assessments are made; and (3) challenges Martha Nussbaum’s suggestion that states should authorize guardians to vote on behalf of individuals who are neither able to form a view on political issues for themselves nor communicate their choices to others (the authors would not have a guardian exercise decision-making, meaning that those who cannot vote – properly construed, a small number – do not vote).

Read the complete post.

Thursday, April 3, 2014

Why McCutcheon Is Bad News For Millionaires

By Associate Professor Justin Levitt

This op-ed originally appeared on Politico.

On Wednesday, the Supreme Court struck down a set of federal campaign finance limits. Some immediately bemoaned the ruling as another step toward plutocracy. But here’s a striking side effect: More than a few high rollers have not yet noticed that they just got bumped outside the velvet rope.

The final result in McCutcheon v. FEC was not the apocalyptic ruling some anticipated. Leading up to Wednesday’s opinion, there was no shortage of end-of-days soothsaying. Blame the court’s 2010 Citizens United decision, which apparently recalibrated the rhetorical stakes for this type of case.

The court’s actual ruling undershot the hype. It left intact the same legal approach in place since the 1970s. The court used to look very skeptically at limits on independent spending (by organizations like super PACs), and left more regulatory latitude for limits on gifts directly to parties and candidates (and groups that donate directly to parties and candidates). It does still.

Read the complete op-ed.

Wednesday, March 26, 2014

Marissa Alexander and Overpolicing and Underprotection of Black Women



This op-ed originally appeared on Ebony.com.

Marissa Alexander is a 33-year-old African-American woman who stands accused of three counts of aggravated assault with a firearm after firing a warning shot to ward off a violent husband whom she believed was attempting to kill her. The shooting occurred after her husband assaulted her multiple times---once landing her in the hospital with head injuries---and after he made credible threats to kill her. Nevertheless, a Florida state court rejected her self-defense argument, specifically the “Stand Your Ground” defense. Angela Corey, the same state prosecutor who unsuccessfully prosecuted the killers of Trayvon Martin and Jordan Davis for murder, is now seeking to imprison Alexander for up to 60 years, effectively placing a life sentence around a Black woman who—unlike George Zimmerman and Michael Dunn--had every reason to believe her life was in danger.

Read the complete op-ed.

Tuesday, March 25, 2014

The Shadow Tells a Story: Teller Gets Summary Judgment for Copyright Infringement of His “Shadows” Illusion

By Professor Jay Dougherty

As I wrote about in a blog in 2012, magician, Teller, half of the famous “Penn & Teller” duo, brought an interesting and perhaps unprecedented copyright infringement claim against a Dutch magician, Gerard Dogge, who made of video of a “strikingly similar” illusion, posted it on Youtube and offered to sell DVD’s and reveal the “secret” of the illusion (which, in this case he appears to claim is different from Teller’s method). After several procedural rulings since then, in a decision on March 20,2014, Judge Mahan in the U.S. District Court for the  District of Nevada gave summary judgment to Teller on the copyright infringement claim, finding that Dogge had essentially admitted access, and there was not even a genuine issue of material fact on “substantial similarity” under both the “extrinsic” (objective) and “intrinsic” (more subjective, “total concept and feel”) tests used in the Ninth Circuit.  Teller v. Dogge (2:12-CV-591 JCM)(D.Nev., 2014).

Magicians incur many obstacles in trying to protect their illusions by copyright law. The “method” or “system” embodying the illusion won’t be protected (although some have qualified for patent protection), nor will the abstract “ideas” and commonplace “scenes a faire.” As Judge Mahan pointed out here, “While Dogge is correct that magic tricks are not copyrightable, this does not mean that ‘Shadows’ is not subject to copyright protection... The mere fact that a dramatic work or pantomime includes a magic trick, or even that a particular illusion is its central feature does not render it devoid of copyright protection.”