[JURIST] The Federalist Society has posted a new study on The Human Rights Record of the States Parties to the Rome Statute of the International Criminal Court [PDF text]. From the Introduction: "Of the 87 states parties to the Rome Statute, a clear majority (45) have been implicated in the very worst human rights abuses involving the legal system, including extra-judicial killings, torture, and/or police misconduct resulting in death or severe bodily injury. A full third (29) have been implicated in extra-judicial killings and/or torture.... The legal culture of prosecutors and judges from states where human rights remains a slogan, and the judicial system is a tool of repression rather than a bulwark of democracy, suggests that the ICC may not actually prove to be the 'most important new institution for enforcing human rights in fifty years.'"

[JURIST] The Society of American Law Teachers (SALT) has posted its survey of law professors' salaries [PDF text] for the 2002-03 academic year. The survey covers 100 participating law schools across the US; 87 schools did not participate.

[JURIST] Johnson v. California [PDF opinion] (February 25, US 9th Circuit Court of Appeals [official website]). A panel of the Court ruled that a prison reception center housing policy which used race as one factor in assigning a new inmate's initial cell mate for 60 days did not violate the Equal Protection Clause: "Although there may be many ways in which to achieve the state’s objective in reducing racial violence in the CDC [California Department of Corrections], the path chosen by the State of California is reasonably related to the administrators’ concern for racial violence and thus must be upheld. If this policy were implemented beyond the prison walls, undoubtedly, we would strike it down as unconstitutional. The prison system, however, is inherently different and we must defer our judgment to that of the prison administrators until presented evidence demonstrating the unreasonableness of the administrators’ policy."

Valeria v. Davis [PDF opinion] (February 25, US 9th Circuit Court of Appeals [official website]). The Court refused to rehear this case involving Proposition 227 en banc on grounds that the Proposition on its face did not violate the Equal Protection Clause of the 14th Amendment. Judges Pegerson and Paez dissented, insisting that "Proposition 227’s reallocation of political power with respect to an issue with a racial focus violates the Constitution.... The initiative, passed by California voters in 1998, effectively eliminated bilingual instruction in California public schools. Now part of the California Education Code, Proposition 227 restructures the political process by shifting authority over bilingual education from local educational agencies to the state. Before the passage of Proposition 227, public school students and their parents could effect change at the local level. Now they must launch a successful statewide ballot initiative to bring about any meaningful modification in bilingual education policy. By affecting only those interested in bilingual education, this political restructuring violates the “political structure” equal protection doctrine...".

[JURIST] Lawrence Solum [Legal Theory post] of Loyola Law School Los Angeles reflects on what he terms "a very dangerous trend" in public discourse towards opposing judicial nominees on the basis of political ideology. Rick Hasen [Election Law blog post], also of Loyola Law School, disagrees, saying that political ideology does have a place in debates over judicial candidates. David Wagner [Ninomania blog post] of Regent University School of Law [official website] speculates - firmly tongue-in-cheek - on the cause of Supreme Court Justice Antonin Scalia's recent right shoulder injury.

[JURIST] SSRN is busy today. Two more new and interesting papers just posted online:

Takings, Regulations, and Natural Property Rights [abstract]
by Eric Claeys [faculty profile] of Saint Louis University School of Law [official website].
From the Abstract: "According to most legal history and takings scholarship, the whole notion of a "regulatory taking" was a contradiction in terms until Justice Oliver Wendell Holmes invented it in the 1922 Supreme Court decision Pennsylvania Coal v. Mahon. This Article calls that view into question. The Article reexamines a line of constitutional eminent-domain decisions decided in the state courts over the nineteenth century. These decisions are often read to suggest that property "regulations" could never trigger takings protections unless they physically invaded owners' land. In fact, however, they drew on Founding Era ideas about the regulation of natural property rights to generate a body of what modern lawyers would call a body of "regulatory-takings" law."

From Social Friction to Social Meaning: What Expressive Uses of Code Tell Us About Free Speech [abstract]
by David McGowan [faculty profile] of the University of Minnesota Law School [official website].
From the Abstract: "This article relates social friction to First Amendment theory and doctrine. The article defines social friction as the cost of engaging in one expressive behavior rather than another, and of moving among different types of behavior. Social friction separates social contexts and practices from one another. By separating them, it partly defines and stabilizes them, so courts may use them to relate expressive conduct to free speech values. Social friction is therefore integral to social meaning, and thus to free speech analysis. Cases involving the Internet distribution of software code exemplify the importance of social friction to free speech analysis.... Using cases such as United States v. Elcom, Ltd. and Universal City Studios, Inc., v. Corley, the article suggests ways in which courts may distinguish uses of code that implicate free speech values from those that do not. It suggests that incitement doctrine be adapted to deal with cases in which free speech interests are at stake."

[JURIST] Duke Law School [official website] professor and former US Solicitor General Walter Dellinger [faculty profile] says the process of selecting federal judges is poisoned by politics and needs reform. Read his op-ed, originally printed in Tuesday's Washington Post.

[JURIST] A bipartisan group of Senators - Patrick Leahy (D-Vt.), Charles Grassley (R-Iowa) and Arlen Specter (R-Penn.) - released a report Tuesday detailing problems in the FBI's implementation of the Foreign Intelligence Surveillance Act, and at the same time introduced a "sunshine" bill to enhance congressional oversight and public reporting of the FBI's domestic surveillance efforts. Read the full report on FISA implementation failures [text], the press release highlighting key conclusions, and the Domestic Surveillance Oversight Act of 2003, the proposed FISA oversight bill [PDF text].

UPDATE: The US Department of Justice has dismissed the Senators' report as "old news" and says that it "unfairly criticizes the Department of Justice for an alleged lack of responsiveness to Judiciary Committee oversight requests." Read the DOJ press release.

[JURIST] Attorney General John Ashcroft announced Tuesday that a federal grand jury in Denver had returned a 12-count indictment charging four former executives of Qwest Communications with corporate accounting fraud. Read a transcript of the Attorney General's announcement, the DOJ press release and the official indictment [PDF]. The US Securities & Exchange Commission also filed civil fraud charges Tuesday against eight current and former officers and employees of Qwest Communications International Inc., alleging they inflated the company's revenues by approximately $144 million in 2000 and 2001 in order to meet earnings projections and revenue expectations. Read the SEC press release and complaint.

[JURIST] Margaret Burnham [faculty profile] of Northeastern University School of Law [official website], co-author of the plaintiffs' brief in the Doe v. Bush [PDF] war powers suit now on expedited appeal to the First Circuit following its dismissal yesterday in US District Court, says that for the first time in litigation the US Government is expounding a radically expansive version of executive war powers - that the President can unilaterally launch a premeditated, preemptive all-out war, whenever, in his sole judgment, he deems it necessary to defend the country's national security interests. Read her op-ed column in JURIST's Forum series.

[JURIST] A timely paper just up on SSRN:

Law and Fear, Fear of Law: Iraq, and Beyond [abstract]
by Mark Drumbl [faculty profile] of Washington and Lee University School of Law [official website].
From the Abstract: "This Paper examines the shifts in the law regarding the use of force - the jus ad bellum - that have emerged in the wake of the September 11, 2001 terrorist attacks. These shifts import a significant elasticity - in time, space, and place - into the legal understanding of self-defense. In particular, this Paper argues that self-defense is emerging as the primary basis for legalizing violence to protect peace and security - even violence that may not seem much like self-defense."

[JURIST] Breaking news from DC Supreme Court litigators Goldstein & Howe: "the Court reversed in the Keffler[sic] case 9-0 (per Souter) and the Miller-El case 8-1 (per Kennedy, Thomas dissenting)." Opinions and more details to follow.

UPDATE: The Opinion in Washington State Department of Social and Health Services v. Keffeler [decision syllabus] is now online; Goldstein & Howe provide a summary [SCOTUSBlog post]. See also the Opinion in Miller-El v. Cockrell [decision syllabus], again with a summary [SCOTUSBlog post] from Goldstein & Howe.

[JURIST] A committee led by Harvard Law School [official website] professor Charles Ogletree [faculty profile] filed a lawsuit Monday to recover damages for the victims of the 1921 Tulsa Race Riot and their descendants. The Harvard Crimson has more.

The University of Tennessee College of Law [official website] announced Monday that its 2003 graduation speaker will be criminal defense attorney Johnnie Cochran.

[JURIST] New and interesting papers on SSRN Tuesday include:

Restorative Justice and the Dangers of Community [abstract]
by Robert Weisberg [faculty profile] of Stanford Law School [official website]
From the Abstract: "Restorative justice needs something to restore, and one key thing it is very often said to restore is, in some formulation or other, "community." But "community" is a very dangerous concept because it sometimes means very little, or nothing very coherent, and sometimes means so many things as to become useless in legal or social discourse, and because sometimes the sunny harmonious sound of the very word "community" often masks conflict and indeed discriminatory exclusion, or at least arbitrary political arrangements (as in "the international community"). This paper explores the various uses of the "community trope," from "community" as an ideal to "sense of community" as a social goal, to "the community" as a supposedly identifiable social entity to "the [group name] community" as the designation for a certain social, racial, ethnic, or other associations. It argues that greater self-criticism in the use of these tropes is essential to a thoughtful programs in the area of restorative justice."

Public Privacy: Camera Surveillance of Public Places and the Right to Anonymity [abstract]
by Christopher Slobogin [faculty profile] of the University of Florida, Levin College of Law [official website]
From the Abstract: "Government-sponsored camera surveillance of public streets and other public places is pervasive in the United Kingdom and is increasingly popular in American urban centers, especially in the wake of 9/11. Yet legal regulation of this surveillance is virtually non-existent, in part because the Supreme Court has signalled that we have no reasonable expectation of privacy in public places. This article, written for a symposium on the intersection of the Fourth Amendment and technology, contests that stance, at the same time it questions whether the traditional, "probable-cause-forever" view of Fourth Amendment protections makes sense in this technological age."

The Constitutional Law of Congressional Procedure [abstract]
by Adrian Vermeule [faculty profile] of the University of Chicago Law School [official website]
From the Abstract: "The federal constitution contains a set of rules that I will describe as the constitutional law of congressional procedure. These are rules that regulate the internal decisionmaking procedures of Congress; absent specific constitutional provision, they would be subject to the authority of each House to "determine the Rules of its Proceedings." ...The constitutional law of congressional procedure has rarely been analyzed as an integrated body of rules, largely because of historical quirks in the relevant sectors of political science and constitutional law. The article's project is to examine this body of rules as a unified topic that is central to the constitutional design of legislative power."

[JURIST] The US Supreme Court hears arguments Tuesday in Massaro v. US [US SC docket] (ineffective assistance of counsel, habeas corpus - read backgrounders and predictions from DC appellate litigators Goldstein & Howe and Sam Heldman) and Clackamas Gastroenterology v. Wells [US SC docket] (employers, Americans with Disabilities Act - more from Goldstein & Howe and Sam Heldman).