Daily Archives: March 15, 2011

No more “third-tier toilet” for you to worry about?

With the release of U.S. News law school rankings comes a new style of ranking. No longer will school lower than 100 be grouped and unranked together.

Yup, that’s right: say goodbye to the term “TTT,” or “third-tier toilet.” Now these schools get individual numerical ratings, instead of being lumped into an undifferentiated “third tier.” And now Justice Clarence Thomas won’t have to defend his law clerks against allegations of TTT-hood.

If you’re not sure what exactly a TTT is, you might check here.

Not that it’ll make a difference. If you’re not in the top of the top tier, you’re better looking for  regional school in the area you want to work post graduation, and for that, ranking won’t really help you that much, anyway.

Even then, as I’ve noted in previous posts, in contrast to what law schools are marketing, there’s no guarantee that law school will be the road to wealth and prestige that you thought it was, let alone pay off your student loans before your kids get out of college and start paying down their own student loans.

(h/t  Above the Law: A Legal Tabloid – News and Colorful Commentary on Law Firms and the Legal Profession).

Prop 8 Advocates in Court Today: “Let us stand in for elected officials.”

Election results by county.

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With California elected officials opting out of defending Proposition 8, the advocates for the successful ballot measure went to court today to argue that they should be allowed to defend it in their place.

Their brief, found here, argues that the voter initiative process depends on a legal defense in court. Lyle Denniston at SCOTUSblog summarized the arguments:

The proponents contended that the very integrity of the voter initiative process in California — a prized part of the state’s lawmaking process — depends upon having someone available to mount a defense of a measure against constitutional attack if state officials don’t do so.  Citing a string of California state court rulings, the brief asserted that their interest in protecting Proposition 8 is already clearly established.

But what injury will they face if the measure is not defended?

The Proposition 8 brief sought to anticipate that question of legal injury by contending that, with state officials on the sidelines, the measure’s backers have become “agents of the people” of the state, acting “to preserve the People’s intiaitive power….”

If no one else can take the place of state officials to defend a ballot measure from constitutional attack, the new filing contended, the state’s elected officials will have succeeded in nullifying the measure even though they have no such veto power under the state constitution or state laws.

In short, by choosing not to defend the law–passed by Californians in the Proposition 8 ballot measure–elected officials are de facto overturning the will of the people with a veto they do not hold.

Meanwhile, same-sex marriage advocates have asked the court to lift the stay imposed on the decision striking down Proposition 8 so that they can begin to marry.


Stay tuned.

(h/t SCOTUSblog)

So you don’t like judicial activism? How about “rule by text?”

The United States Supreme Court.

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Don’t like judicial activism? How about jettisoning the judiciary altogether?

Both the political left and right seem to take turns accusing judges, specifically those who hand down opinions opposed to their political proclivities, of judicial activism, or judges reading into the law what just is not there.  Originalists call for judicial interpretations that read legislative texts (including the constitution) exactly as drafters intended. In contrast, others want judicial rulings to account for a “living constitution” that reflects the times and will of the people.

Unfortunately, I doubt any judicial ruling is going to please everyone all the time, let alone even some of the time. When there are winners, there must be losers.

But what if we could dispense with judges all together? What if we could be governed completely by legislative texts? In an interesting paper, Peter Tiersma examines the possibility in a new essay entitled “The Rule of Text: Is it Possible to Govern Using (Only) Statutes?“:

This essay explores whether it is possible to govern solely by means of written text, with little or no interpretive discretion allowed to judges. The rule of text, as we might refer to this concept, appears to be a goal that textualist judges are hoping to achieve. The essay first reviews the attractions of written law, which came into being not long after writing was invented. Yet it was only in the late eighteenth and early nineteenth centuries that rulers like Frederick the Great of Prussia and later the French revolutionaries tried to govern their nations by means of comprehensive codes of law, which judges were forbidden to interpret. Those efforts to implement a pure form of the rule of text largely failed. Next, we consider several U.S. Supreme Court cases that involved interpretive questions. Could the problems have been avoided by more careful drafting? I conclude that mistakes and ambiguities can in principle be prevented at the drafting stage or be solved by means of amendment after they are discovered, but that vagueness is a far more difficult problem. To the extent that the rule of text demands that judges not interpret, they would have to refer statutory uncertainties to the legislature. Both the Prussians and the French had a procedure of this kind, sometimes known as référé legislatif. Asking the legislature to interpret statutes ultimately proved impractical. Although to some extent it violates the separation of powers, there seems to be no feasible alternative to giving judges the authority to resolve the uncertainties that inevitably arise in written text.

via SSRN-The Rule of Text: Is it Possible to Govern Using (Only) Statutes? by Peter Tiersma.

Thoughts? Are you ready to take the plunge in to a “rule by text?”

(h/t Josh Blackman)

Beware the Ides of March…

Gaius Julius Caesar, Art History Museum, Vienn...

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In case you missed my post yesterday reviewing Rubicon by Tom Holland, be sure that you note that tomorrow, March 15, is the ides of March, the day traditionally marked as the death of Julius Caesar, the very protagonist who finally pushed the Roman Republic over into its grave. JD Hull eulogizes him over at his blog, What About Clients?

Today is the Ides of March, death date of Gaius Julius Caesar (July 13, 100 BC-March 15, 44 BC), general, politician, schemer, explorer, writer, alpha male, womanizer, patrician and, as we begin to observe St. Patrick’s day, no friend of Gaelic peoples. Grandiose, flawed, and truly great, he made Rome an empire. Caesar conquered what is now France and Belgium–and got Rome more interested in taking on an assortment of Celtic tribes in Britain after his death.

Caesar had been warned by a prophetess, and also by Calpurnia, his wife, that his death would come during the Ides, or middle, of March. Sure enough, a conspiracy, some say led by Brutus, descendant of one of the founders of the Roman Republic, resulted in his death when members of the Senate encircled and stabbed him in the Forum. Upon seeing Brutus, who was rumored to be Caesar’s bastard son, Caesar muttered “Et tu, Brute?” He then pulled his toga over his face to avoid the humiliation of death, and soon expired.