Generation J.D.

The subject of this post is a local variation on a question posed by Professor Eugene Volokh in a recent post titled, District Court Opinions Precedential Within the Same District? His post cited Kerr v. Hurd, (S.D. Ohio Mar. 15, 2010), in which a federal magistrate judge recently held as follows:

In the absence of supervening case authority from the Supreme Court or the Court of Appeals, this Court is bound, under the doctrine of stare decisis, to follow decisions of its own judges.

Interestingly, the magistrate’s decision was based on United States v. Hirschhorn, 21 F.2d 758 (S.D.N.Y. 1927), a case in which the judge cited “the general rule that a matter which is decided by any District Judge in this district should be, as a matter of comity, without re-examination by another judge…,” but then declined to follow the decision of his District colleague.

Because the majority of my practice occurs in state courts, the question that came to mind was whether circuit court judges in Maryland view previous opinions and decisions of their colleagues as precedential, persuasive, or none of the above, in the absence of appellate authority? Read the rest of this entry »

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Just as we saw after Justice Sotomayor was nominated, the web is teeming with pro- and anti-Kagan articles, blog posts and anecdotes.  Times like these demonstrate how incredibly valuable the quick-to-press, divergent view, blogging model has become.

On slow news days, the number of television news channels and newspapers seems staggering, but in truth, airtime and column space is limited, resulting in a tendency for television news and newspapers to highlight the opinions of talking heads that specialize in analysis that is partisan, knee-jerk and decidedly not analytical.

Enter the blogosphere.

Below are a few of the more interesting and (sometimes) well-reasoned blog posts and articles I have seen on the internet regarding Elena Kagan’s nomination to the Supreme Court: Read the rest of this entry »

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Mark Zuckerberg is the 25-year-old co-founder of Facebook.  Facebook is the social networking site on which users are invited to post status updates, photographs, videos, links, and any other tidbit of information they wish to share with their friends, their friends’ friends, or the world (depending on their privacy settings).

As it has grown in popularity, Facebook has endured frequent and continued criticism regarding the weakness of its privacy policies and its habit of changing the privacy policy without notifying users. Until recently, the company’s response to such criticism has been to say that they will announce proposed privacy changes for comment by Facebook users and will take those comments into account when changing the settings and policies. It has not been the most transparent process, but their agreement to work with the public was at least a nod to legitimate concerns about the privacy changes.

As of late, it seems Facebook has grown weary of its feigned concern over criticisms of its privacy policies.  In an interview in January, Zuckerberg diplomatically explained that privacy is not what it used to be:

People have really gotten comfortable not only sharing more information and different kinds, but more openly and with more people. That social norm is just something that has evolved over time… But we viewed that as a really important thing, to always keep a beginner’s mind and what would we do if we were starting the company now and we decided that these would be the social norms now and we just went for it.

Though he did not say so outright, journalists interpreted these comments to mean that, at least according to Zuckerberg’s worldview, privacy is dead. Not quite Nietzsche, but controversial in its own right. Now comes word from Zuckerberg’s inner circle that “privacy is dead” may have been exactly what Zuckerberg meant. Read the rest of this entry »

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I read with great interest a recent biography in The New Yorker about Justice John Paul Stevens.  There were some great biographical tidbits in the article, like the reason John Stevens started using his middle name in professional life (“I had a professor who said that every lawyer should have something unique about them…”) and about how he was known as the “FedEx Judge” in the 1980s because he spent so much time in Florida that he was forced to correspond with his chambers by overnight mail.

But perhaps the most important and consequential information in the article relates to Justice Stevens’ (possibly) imminent retirement.  At 89, Justice Stevens is one of the oldest and longest-serving justices in the history of the Supreme Court.  He ordinarily hires four new law clerks each year, but hired only one this year, leading many commentators to speculate that he would be retiring this year.

Jeffrey Toobin, the author of The New Yorker piece, asked Justice Stevens about this speculation, and Justice Stevens explained that he is still making up his mind, but would make the decision “within a month.”  That was on March 8.  Even more recently, Justice Stevens confirmed that a decision would be forthcoming soon, explaining that “there are still pros and cons to be considered.”

If Justice Stevens makes the decision to retire, as it seems likely he may do, the speculation about his replacement will ramp up even more intensely than it already has.  Even if he does not retire in the coming weeks, Justice Stevens told Toobin that he will definitely retire within the next three years, meaning we can all look forward to being inundated with analysis and commentary about who President Obama will nominate. That analysis is sure to include a discussion about whether the next judge should be black, white, Asian, Hispanic, male, female, Catholic, Protestant, Jewish, or [insert your own demographic identifier].

But there was another point in the New Yorker article that struck me as particularly interesting, despite the fact that it seems to get little analysis. Read the rest of this entry »

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As it is taught in law school, legal analysis and writing does not allow for a great deal of creativity from young lawyers.  Issue, Rule, Application, Conclusion (“IRAC”) is the modern roadmap and veering off the prescribed path is generally frowned upon for fear of appearing glib, insincere, or offensive.

The court’s opinion of our arguments and analyses ultimately carries the day, so lawyers are rightfully hesitant to do anything other than present those arguments clearly and concisely — or as a former writing professor always reminded us, “keep it simple, stupid.”

It is perhaps as a result of these limitations on legal practice that when lawyers ascend to the bench, they find freedom to introduce creativity and levity into their judicial opinions. Read the rest of this entry »

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Perhaps even more than online investing, E*Trade has become famous for its talking baby commercials, now a Super Bowl staple.  Though there have been some memorable installments over the years (see, e.g., “why don’t you try reading the rules shankopotomus“), the gimmick had grown stale in recent years.

During the most recent Super Bowl, however, a new commercial premiered in which the E*Trade baby was confronted via online chat by his baby girlfriend about why he did not call the previous evening as he had promised.  The girlfriend appeared skeptical about his explanations and then asked accusingly, “And that milkaholic Lindsay wasn’t over?”  The E*Trade baby uncomfortably replies, “Lindsay?”, at which point another baby girl appears onscreen next to him, and asks, “Milk-a-what?”

During a Super Bowl in which the commercials were generally sub-par, the E*Trade commercial was at least mildly entertaining.  At no point, though, did I ever think that the commercial was spoofing Lindsay Lohan.  Apparently Lindsay and I disagree.

Taking the top spot in the “you truly must be kidding” news file, Ms. Lohan has filed a $100 million lawsuit against E*Trade for misappropriating her “likeness, name, characterization, and personality” and violating her right of privacy.  I made an honest attempt to read the Complaint without laughing, but could not make it past the second paragraph, which alleges that Ms. Lohan “was and still is a professional actor of good repute and standing.”  That such an allegation was not followed by a winking emoticon probably subjects Ms. Lohan’s attorneys to New York’s equivalent of Rule 11 sanctions. And that was only the second most outrageous claim being made by Lindsay’s camp.

Read the rest of this entry »

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