Feb 12, 2013

RBG Takes My Heart Away

This awesomeness is from the Georgetown Law Weekly.

rbg

 

H/T David Lat

Update: Here is the complete set from Georgetown Law Weekly.

cards

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Feb 12, 2013

“The sheriff has asked all members of the press to stop tweeting immediately. It is hindering officer safety. #Dorner”

The San Bernardino County Sheriff’s Department tweeted this message, and later deleted it. No, it’s not prior restraint, because it is merely asking, not instructing the press to do anything. But I can’t remember if I have ever seen such a brazen, and public request, to shut down the press by the state.

Update: I have previously blogged about the inappropriateness (and perhaps illegality) of the government destroying government records in the forms fo tweets.

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Feb 12, 2013

Justice Sotomayor’s Collaborator?

In The Atlantic, Peter Osnos writes to note that Justice Sotomayor (whom the headline dubs “charming and intelligent”) outsold Justice Thomas (who by implication is neither charming nor intelligent?).

The article provides one bit I didn’t realize.

Justice Sotomayor had a “collaborator” on her book.

As a collaborator, Sotomayor chose Zara Houshmand, an Iranian-American poet who apparently worked with transcriptions of the justice’s dictation to shape the prose.

Collaborator? Is that a co-author? Using “dictations to shape the prose” means writing. This doesn’t seem to be limited to editing (her editor is thanked later).

Houshmand is mentioned once in the Acknowledgment section of the book:

Given the demands of my day job, this book would not have been possible without the collaboration of Zara Houshmand. Zara, a most talented writer herself, listened to my endless stories and those of my families and friends, and helped choose those that in retelling would paint the most authentic picture of my life experiences. Zara, you are an incredible person with a special ability to help others understand and express themselves better; I am deeply indebted to your assistance. One of the most profound treasures of this process has been the gift of your friendship, which will last a lifetime.

I don’t recall if Justice Thomas book relied on a co-author or collaborator.

Osnos continues to pour on CT, calling him “dour.”

Anyone who has ever seen the vivacious Thomas in person would tell a different story.

From the early weeks of sales, My Beloved World appears on track to outsell the most recent Supreme Court memoir, Clarence Thomas’s 2007 book, My Grandfather’s Son, which Publisher’s Weekly said sold over 200,000 copies — a strong result at a time when e-books still barely registered. In tone and content, Thomas’s book reflected his dour persona, and I don’t recall that he made friends galore in his limited appearances to promote the book. In contrast, Sotomayor has charmed audiences at signings across the country with a natural warmth and humor, plus shown the patience to sign every copy purchased by turnouts as high as a thousand people at a time.

Indeed, one of her book-signings were so important, it conflicted with the inauguration of the Vice President of the United States.

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Feb 12, 2013

Scalia’s State of the Union

No, Justice Scalia won’t be at the State of the Union tonight. He hasn’t gone in since 1997. But where will he be?

At George Washington University giving an address at 7, two hours before Obama’s address!

Supreme Court Justice Antonin Scalia probably won’t be attending Tuesday’s State of the Union address — he’s giving his own speech on the other side of town.

The famously bombastic Scalia is scheduled to speak at George Washington University at 7 p.m., two hours before President Obama is set to address the nation.

Scalia will join NPR correspondent Nina Totenberg to discuss “his time on the Supreme Court, memorable and meaningful cases, his working life as an associate justice, and more in what’s sure to be a lively and insightful discussion.”

H/T @FedSoc

Update: Jess Bravin has the breakdown of who is in attendance.

Those expected to attend are:  Chief Justice John Roberts, plus Justices Anthony KennedyRuth Bader GinsburgStephen BreyerSonia Sotomayor, and  Elena Kagan.

Not expected to attend: Justices Antonin ScaliaClarence Thomas and Samuel Alito.

Those who’d prefer to spend the evening listening to Justice Scalia instead of President Barack Obama should head to George Washington University’s Lisner Auditorium, where $45 allows you to attend a “conversation” between the justice and NPR correspondent Nina Totenberg.

Update: Justice Alito is in Trenton, NJ to attend his mother’s funeral. My condolences to the Alito family.

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Feb 12, 2013

What time is it? Article II, Section 3, Clause 1 Time!

“He shall from time to time give to the Congress Information of the State of the Union”

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Feb 12, 2013

Si Lazarus Responds to my post on Obama’s Constitutionalism

At the Text & History Blog, Si Lazarus graciously responds to my post about President Obama’s turn to the Constitution in his second term..

Josh Blackman astutely observes, in this post and an earlier one, that President Obama’s rights-based defense of affirmative government connects to a long-running dialogue among philosophers, academics, and contemporary pundits and advocates on the Right (see Yuval Levin) and Left (see Garrett Epps) concerning “positive” and “negative” conceptions of liberty.

Especially interesting, Josh spotted this high-level dialectic behind the closing arguments in last year’s Affordable Care Act case by Solicitor General Donald Verrilli and opposing counsel Paul Clement—an important point that other observers, including me, completelyoverlooked.

Josh also nails the bottom-line regarding President Obama’s exposition of a progressive constitutional narrative: “During his first term, the Tea Party owned the constitutional narrative. Let’s see if Obama can reclaim it during the second term.”

Let’s see what the former Constitutional law Lecturer conjures up in the State of the Union tonight?

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Feb 12, 2013

Dr. Watson and Robot, Esq.

I have previously blogged about IBM’s Jeopardy-winning supercomputer, and how its technology offers great promise to revolutionize the legal services industry.

IBM is already forging ahead, and transforming player Watson into Dr. Watson–it can diagnose diseases!

Watson’s first job is to help doctors decide what kind of treatment would be most effective for certain lung cancer patients. Doctors at the Maine Center for Cancer Medicine and WestMed in New York’s Westchester County will soon be able to quiz Watson through a tablet or computer, and Watson will dig through the patient’s thousand or so pages of records and provide answers in decreasing order of confidence. Watson isn’t actually making any decisions, per se, but he is making things easier by digging through tons of data, and surfacing just the important parts. It starts sometime next month

They key is that Watson is not treating the patients by itself, but offering doctors information they could not otherwise learn about.

Watson doesn’t tell a doctor what to do, it provides several options with degrees of confidence for each, along with the supporting evidence it used to arrive at the optimal treatment. Doctors can enter on an iPad a new bit of information in plain text, such as “my patient has blood in her phlegm,” and Watson within half a minute will come back with an entirely different drug regimen that suits the individual. IBM Watson’s business chief Manoj Saxena says that 90% of nurses in the field who use Watson now follow its guidance.

This is what I have called “Assisted Decision Making,” and will be the aim of Robot, Esq.

What kind of information is Dr. Watson crunching?

And we do mean a wealth of information; as IBM explains, Watson has spent the last year digesting more than 600,000 pieces of medical evidence and two million pages of text from 42 medical journals, and it has the ability to parse some 1.5 million patient records covering decades of cancer treatment history. That all takes the form of two separate “Watson-based” products to start with, one of which IBM expects to be used by more 1,600 providers by the end of this year.

Imagine Watson crawling through the U.S. Code or the U.S. Reports.

So how accurate is Watson? 90%. And how accurate are humans. 50%

WellPoint’s chief medical officer Samuel Nussbaum said at the press event today that health care pros make accurate treatment decisions in lung cancer cases only 50% of the time (a shocker to me). Watson, since being trained in this  medical specialty, can make accurate decisions 90% of the time. Patients, of course, need 100% accuracy, but making the leap from being right half the time to being right 9 out of ten times will be a huge boon for patient care.

This is similar to accuracy rates with predictive coding and spotting protected documents during discovery (80% v. 60%). Humans are not nearly as accurate as people would wish.

Amazingly, over the past two years, IBM has been able to shrink “Watson from the size of a master bedroom to a pizza-box-sized server that can fit in any data center,” while “improv[ing] its processing speed by 240%.”

My previous coverage on Watson is here, here, here, here, here, here, here, and here.

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Feb 12, 2013

Obama’s Constitutionalism

I have previously commented on President Obama’s willingness to cite the Constitution, and the Declaration of Independence–particularly in his inaugural address. This is a theme I build on at some length in my book, where I document how the President repeatedly asserted popular constitutionalist ideals in his defense of his Affordable Care Act.

Simon Lazarus writes in The New Republic that in his second term, President Obama is finally wrapping himself in the Constitution.

Since his re-election, the president has not only pushed an unabashedly progressive policy agenda. Less noted, but more novel, he has grounded his political case for that aggressive agenda in the “enduring strength of the Constitution” and the ideals of its framers. Largely ignored on the left, Obama’s out-of-the-box tack has provoked ire on the right. Last week, the Republicans’ top Senate Judiciary Committee member, Senator Charles Grassley of Iowa, delivered a lengthy riposte to the constitutional brief Obama included in his January 16 opening pitch for strengthened gun regulation. “The president’s remarks,” Grassley complained, “turned the Constitution on its head.” Similarly miffed, Paul Ryan scolded Obama for “invoking the Constitution and Declaration” in his inaugural address, “sort of as a means to legitimize his very partisan, very ideological agenda.”

In his inaugural, Obama’s evident first goal was to knock down the claim endlessly reiterated by Ryan and his allies, that the 1789 Constitution mandated “small government,” incompatible with twentieth and twenty-first century progressive reforms. “The patriots of 1776,” he gibed, “did not fight to replace the tyranny of a king with the privileges of a few.” Hence, their vision, and the words they drafted to enact it, are hospitable to laws passed by subsequent generations, as they have “discovered that a free market only thrives when there are rules to ensure competition and fair play.” In addition to this populist thrust, the president offered a second originalist rationale for activist government. Government power, he argued, is often necessary to give real-life meaning to the individual rights prescribed by the Declaration and the Constitution: “While these truths may be self-evident, they’ve never been self-executing . . . . [P]reserving our individual freedoms ultimately requires collective action.”

During his first term, the Tea Party owned the constitutional narrative. Let’s see if Obama can reclaim it during the second term.

Thus, in addition to yoking contemporary progressive goals to the vision of the Revolutionary War generation, Obama’s emergent constitutional canon appears bent on revitalizing a cornerstone of the Civil War era’s—more unequivocally progressive—vision. Indeed, he seems already to have sparked an incipient dialogue around that prospect.

By engaging the right on the meaning of the Constitution, Obama has broken new ground. For progressives, he has sketched a fresh template for countering their adversaries’ long-unanswered constitutional narrative.

Update: At the Text & History Blog, Si Lazarus graciously responds to my post.

Josh Blackman astutely observes, in this post and an earlier one, that President Obama’s rights-based defense of affirmative government connects to a long-running dialogue among philosophers, academics, and contemporary pundits and advocates on the Right (see Yuval Levin) and Left (see Garrett Epps) concerning “positive” and “negative” conceptions of liberty.

Especially interesting, Josh spotted this high-level dialectic behind the closing arguments in last year’s Affordable Care Act case by Solicitor General Donald Verrilli and opposing counsel Paul Clement—an important point that other observers, including me, completelyoverlooked.

Josh also nails the bottom-line regarding President Obama’s exposition of a progressive constitutional narrative: “During his first term, the Tea Party owned the constitutional narrative. Let’s see if Obama can reclaim it during the second term.”

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Feb 12, 2013

Prop1 Class 9 – Fee Simple and Fee Tail

The lecture note are here. The live chat is here.

This is Justice Oliver Wendell Holmes, Jr., who famously wrote “”It is revolting to have no better reason for a rule than that it was laid down in time of Henry IV (1594-1610).It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from imitation of the past.”

holmes-statist

 

This is Justice Benjamin Cardozo, who served on the New York Court of Appeals (the highest Court in New York) from 1927-1932. In 1932, Cardozo replaced Holmes on the United States Supreme Court, and would serve until 1938. Cardozo was replaced by another famous Justice, Justice Felix Frankfurter.

Benjamin_Cardozo

The feudal system began after the Norman Conquest of 1066.

norman-conquest

(Note, in London, they do not refer to William as the Conqueror–he did not conquer London, after all!).

Picture No. 10044093a

This diagram helps to explain the feudal structure.

feudal-pyramid-of-power

This drawing represents a cleric, a knight, and a serf.

lord-knight-serf

Serfs were all the way at the bottom of the pyramid.

Reeve_and_Serfs

Here are several diagrams of the feudal manor.

Plan_mediaeval_manor

feudal manor

P-medieval_manor

0377MC11

a_medieval_manor

Here is Magna Carta–the great Charter. Forced upon King John by the Barrons at Runnymede in 1215, this document served as the basis for many of the oldest forms of constitutional freedom–including the due proces clause (then known as the law of the land clause). And there’s lots of other useless stuff. In particular, section 12 limits instances where lords can collect aid (or scutage) from tenants.

 (12) No `scutage’ or `aid’ may be levied in our kingdom without its general consent, unless it is for the ransom of our person, to make our eldest son a knight, and (once) to marry our eldest daughter. For these purposes ouly a reasonable `aid’ may be levied. `Aids’ from the city of London are to be treated similarly.

Here is a restored copy of it.

magna-carta

This diagram represents fee simple. Like Buzz Lightyear, this estate endures to infinity, and beyond.

fee-simpleThis diagram represents the fee simple’s restrictive cousin, the fee tail.

fee-tail

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Feb 12, 2013

Prop2 Class 9 : Chain of Title

Today we will discuss the chain of title, and what it takes to constitute notice (either actual or constructive). See our class on Deeds and Titles for some samples of actual documents.

The lecture notes are here. The live chat is here.

Here are some diagrams of the land at issue in Guilette v. Daly Dry Wall, courtesy of dukeminier-property.com

guillette2

 

guillette4

 

And here is a map. Note–all single-family homes.

guillette1

By the way, did any of you check the typo on the Liberty Bell in the lobby? Idem Sonans.

Philadelphia:

STCL:

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