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The reason *not* to give is that the court is “furstrat[ing] the president’s agenda.”

“The court is critically important — the majority has made decisions that have frustrated the president’s agenda,” said Nan Aron, a liberal activist who has called for Mr. Obama to be more aggressive in nominating judges. “Our view is that balance must be restored on that court, and the empty seats must be filled.”

Senator Harry Reid of Nevada, the majority leader, said last week that the court’s rulings were “wreaking havoc” on the country.

She should at least make the argument that they are getting things wrong on the law. But this just wreaks of FDR court-packing. Woops, the judges are opposing the President so we need to replace them. Even putting aside efforts to increase the size of the D.C. Circuits, adding judges to a court of appeals indirectly replaces existing judges from sitting on more panels. That is, given a regularly constant number of cases, when there are more judges, the older (read GOP judges) will have fewer cases to hear.

In any event, the three names the Times recommended are probably solid picks to generate lots of support.

White House officials declined to say who Mr. Obama’s choices will be ahead of an announcement that could come this week, but leading contenders for the spots appear to include Cornelia T. L. Pillard, a law professor at the Georgetown University Law Center; David C. Frederick, who often represents consumers and investors at the Supreme Court; and Patricia Ann Millett, a veteran appeals lawyer in Washington. All three are experienced lawyers who would be unlikely to generate controversy individually.

They are also picks that will do little to galvanize the base. Neither the American Constitution Society nor the Constitutional Accountability Center endorsed Sri, though they pushed for his nomination.

Nominating multiple candidates at once makes me think back to the Rehnquist/Scalia 2-for-1 in 1986. Because everyone was so focused on the Chief, Scalia slid in with a 97-0 vote.

Update: CAC writes in with a correction–it seems the Mother Jones piece I liked to was confusing/misleading.

CAC did endorse Srinivasan.http://theusconstitution.org/sri-srinivasan

I believe the confusion comes from, we hold off on endorsing anyone until they’ve had their first hearing before the Committee. (I think ACS might have the same policy.) The Mother Jones article you pointed to was written before he had appeared, and there was some confusion on how they stated that. First they said CAC and ACS don’t make endorsements period, then they corrected themselves and say we do, just hadn’t in that case—but that’s misleading too.

Either way: we actively endorsed him. We sent out letter around the day after he appeared before the Committee.

Justices Scalia and Ginsburg are the best of friends on the Court. But you would never know it from reading these battling footnotes in McQuiggin v. Perkins.

Ginsburg was not persuaded by Nino’s rant:

3 For eight pages, the dissent stridently insists that federal (although not state) statutes of limitations allow no exceptions not contained in the text. Well, not quite so, the dissent ultimately acknowledges. Post, at 8. Even AEDPA’s statute of limitations, the dissent admits, is subject to equitable tolling. But that is because equitable tolling “can be seen as a reasonable assumption of genuine legislative intent.” Post, at 9. Why is it not an equally reasonable assumption that Congress would want a limitations period to yield when what is at stake is a State’s incarceration of an individual for a crime, it has become clear, no reasonable person would find he committed? For all its bluster, the dissent agrees with the Court on a crucial point: Congress legislates against the backdrop of existing law. Post, at 10. At the time of AEDPA’s enactment, multiple decisions of this Court applied the miscarriage of justice exception to overcome various threshold barriers to relief. See supra, at 7–9. It is hardly “unprecedented,” therefore, to conclude that “Congress intended or could have anticipated [a miscarriage of justice] exception” when it enacted AEDPA. Post, at 10–11.

Scalia responds, not giving an inch:

The Court concedes that “Congress legislates against the backdrop of existing law,” but protests that “[a]t the time of AEDPA’s enactment, multiple decisions of this Court applied the miscarriage of justice exception to overcome various threshold barriers to relief.” Ante, at 14, n. 3. That is right, of course, but only at an uninformative level of generality; the relevant inquiry is, to which barriers had we applied the exception? Whistling past the graveyard, the Court refuses to engage with this question.

For some reason, Justice Alito joined parts I, II, and III of the dissent, but apparently did not join this introductory paragraph?

JUSTICE SCALIA, with whom THE CHIEF JUSTICE and JUSTICE THOMAS join, and with whom JUSTICE ALITO joins as to Parts I, II, and III, dissenting.

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides that a “1-year period of limitation shall apply” to a state prisoner’s application for a writ of habeas corpus in federal court. 28 U. S. C. §2244(d)(1). The gaping hole in today’s opinion for the Court is its failure to answer the crucial question upon which all else depends: What is the source of the Court’s power to fashion what it concedes is an “exception” to this clear statutory command? That question is unanswered because there is no answer. This Court has no such power, and not one of the cases cited by the opinion says otherwise. The Constitution vests legislative power only in Congress, which never enacted the exception the Court creates today. That inconvenient truth resolves this case.

Any idea why Alito would not join this part? He agreed with the rest of the blustery dissent.

Update: Ian Milheiser points out that Alito did not join the final three paragraphs after the asterisks (is there a formal name for that)?

* * *

“It would be marvellously inspiring to be able to boast that we have a criminal-justice system in which a claim of ‘actual innocence’ will always be heard, no matter how late it is brought forward, and no matter how much the failure to bring it forward at the proper time is the defendant’s own fault.” Bousley, 523 U. S., at 635 (SCALIA, J., dissenting). I suspect it is this vision of perfect justice through abundant procedure that impels the Court today. Of course, “we do not have such a system, and no society unwilling to devote unlimited resources to repetitive criminal litigation ever could.” Ibid. Until today, a district court could dismiss an untimely petition without delving into the underlying facts. From now on, each time an untimely petitioner claims innocence—and how many prisoners asking to be let out of jail do not?—the district court will be obligated to expend limited judicial resources wading into the murky merits of the petitioner’s innocence claim. The Court notes “that tenable actual-innocence gateway pleas are rare.” Ante, at 2. That discouraging reality, intended as reassurance, is in truth “the condemnation of the procedure which has encouraged frivolous cases.” Brown, 344 U. S., at 537 (Jackson, J., concurring in result).

It has now been 60 years since Brown v. Allen, in which we struck the Faustian bargain that traded the simple elegance of the common-law writ of habeas corpus for federal-court power to probe the substantive merits of state-court convictions. Even after AEDPA’s pass through the Augean stables, no one in a position to observe the functioning of our byzantine federal-habeas system can believe it an efficient device for separating the truly deserving from the multitude of prisoners pressing false claims. “[F]loods of stale, frivolous and repetitious petitions inundate the docket of the lower courts and swell our own. . . . It must prejudice the occasional meritorious applicant to be buried in a flood of worthless ones.” Id., at 536–537.

The “inundation” that Justice Jackson lamented in 1953 “consisted of 541” federal habeas petitions filed by state prisoners. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 143 (1970). By 1969, that number had grown to 7,359. Ibid. In the year ending on September 30, 2012, 15,929 such petitions were filed. Administrative Office of the United States Courts, Judicial Business of the United States Courts 3 (Sept. 30, 2012) (Table C–2). Today’s decision piles yet more dead weight onto a postconviction habeas system already creaking at its rusted joints. I respectfully dissent.

Hello everyone. I apologize for interrupting your summer vacations with this note. I have submitted grades for Property I.  I am very proud of all of you. On the whole, you nailed it. I put together really difficult fact patterns that were quite open-ended, with the intent that there would be many, many, many correct answers. I thought I had considered all the possible answers, but several of you came up with things I didn’t even think of. Well done.

Additionally, many of you incorporated various concepts we talked about in class that were not in the textbook (such as the Coase Theorem, various constitutional concepts, etc.). The best pun goes to whoever wrote, “Booki’s heirs will claim that because it belonged to Booki, they could have inherited it and all other claims to the necklace are simply Ludacris.” Well played.

Finally, despite all of your concerns, almost every single one of you managed to completely answer the question within the word limit. In other words, the differences between the A, B, and C was not due to an inability to write within the word limits.

You can download the exam here.

You can download the A+ paper here: Property I – Spring 2013 Top Exam. If this is your paper, please drop me a line.

The Grades

First year classe are subject to the school’s mandatory grading curve (see p. 84 of the handbook):

grades assigned in classes of 40 or more students shall conform to a mandatory grading distribution. That distribution provides for a required 9-16 percent for A+/A, a required 16-30 percent for A+/A/A-; a required 16-30 percent for C+/C/C-/D+/D/F; and a required 9-16 percent for C/C-/D+/D/F. The class average shall be 2.85-3.15.

I think you will find that I maximized the grades here. I approached the upper limits of the grades allowed above an A-, and approached the lower limits of grades below C+. In addition, the class average was very close to the upper limit (3.15). In other words, there were more As than Cs, and the class averages were quite high.

Here is the full breakdown.

• Average: 3.148
• A and above -14.8%
• A- and above – 29.6%
• C+ and below: 17.3%
• C and below: 12.3%

 

Thank you all for a great semester.

This is the entirety of Nino’s dissent in Trevino v. Thaler:

I dissent for the reasons set forth in my dissent in Martinez v. Ryan, 566 U. S. 1 (2012). That opinion sought to minimize the impact of its novel holding as follows:

“Our holding here addresses only the constitutional claims presented in this case, where the State barred the defendant from raising the claims on direct appeal.’’ Id., at ___ (slip op., at 14).

I wrote in my dissent: “That line lacks any principled basis, and will not last.’’ Id., at ___ (slip op., at 2, n. 1).

The Court says today: “Texas law on its face appears to permit (but not require) the defendant to raise the claim on direct appeal. Does this difference matter?’’ “[W]e can find no significant difference between this case and Martinez.’’ Ante, at 8, 13 (emphasis removed).

The only thing missing was “See, I told you so!”

It was only joined by Thomas. Roberts, joined by Alito, wrote a substantive dissent.

I fully expect Scalia to write something like this when Brown v. Plata comes back up after the Governor of California refuses to comply with the 9th Circuit’s order. Also, when the Prop 8 case says a ban on same-sex marriage is unconstitutional. He’ll cite his Lawrence dissent, but with more more fanfare.

Lawyers, on the whole, tend not to be technologically savvy. One GC is taking steps to correct this:

D. Casey Flaherty, corporate counsel at Kia Motors America, really does have good intentions as he humiliates Big Law firms about their dismal technology skills — and he is careful never to embarrass a partner.

Flaherty mesmerized a standing-room-only crowd on the opening day of LegalTech West Coast at the Westin Bonaventure in Los Angeles with his electric keynote, “Raising the Bar on Technological Competence — the Outside Counsel Tech Audit.”

Frustrated by ridiculous bills for routine “commodity” matters, Flaherty decided to strike back, and recently launched his technology audit program, where firms bidding for Kia’s business must bring a top associate for a live test of their skills using basic, generic business tech tools such as Microsoft Word and Excel, for simple, rudimentary tasks.

So far, the track record is zero. Nine firms have taken the test, and all failed. One firm flunked twice.

“The audit should take one hour,” said Flaherty, “but the average pace is five hours.” In real life, that adds up to a whole lot of wasted money, he said. Flaherty uses the test to help him decide winners of the beauty contests, and to set rates and set performance goals. “I take 5 percent off every bill until they pass the test.”

But, you may ask, why do lawyers need to know how to use basic word processing or spreadsheet features? Because not knowing these skills leads to massive inefficiencies. Even something as simple as a PDF is a skill, that if done inefficiently, wastes time (and money):

As a dramatic example of his point about how little we all know about basic tech, Flaherty polled the audience to find out how many of us knew that you can “print to PDF” in one click. Less than 30 percent of attendees raised their hand — the same percentage, said Flaherty, of associates who do not know how to print to PDF during his audits.

“Basic PDFs are required by courts,” he explained, and it’s a one-click process. But there’s a but — you can’t have live links on PDFs that go to the court, and the document must be properly formatted — tasks many lawyers simply do not know how to execute, said Flaherty, who is based in Los Angeles.

If instead of printing to PDF, if you go to a scanner, that takes four minutes, average. But those four minutes add up. “Four minutes at $200/hour is $20. It’s cumulative, it scales,” instructed Flaherty.

Some firms, he said, enter Bates numbers by hand or hire vendors, even though their secretaries and others have software that can handle that task with one push of a button.

As GCs start to emerge from the internet generation, firms will start to look to technology to find ways to cut costs. Learning how to create a PDF is only the first step. Attorneys who can speak the language of data and information will be uniquely suited to utilize, and help develop, many of the legal tools that will help to improve research and decision-making progress.

H/T TaxProfBlog