[JURIST] By a vote of 241-155 Thursday the US House of Representatives passed a bill to prohibit human cloning. Review The Human Cloning Prohibition Act of 2003 [bill summary of HR 534], the detailed House Committee Report [text] on the bill, and read a floor statement supporting the legislation by House Judiciary Committee Chairman James Sensenbrenner [statement text]. The Senate has similar legislation under consideration.

[JURIST] Securities and Exchange Commission v. Berger [PDF opinion] (February 27, US 2nd Circuit Court of Appeals [official website]). The Court upheld a $20 million securities fraud judgment against a fugitive former hedge fund manager who skipped his criminal sentencing in 2002, saying that the trial court had jurisdiction over the fund governed by the laws of the British Virgin islands: "[W]hile operating entirely from New York, Berger executed a massive fraud upon hundreds of investors involving transactions on United States exchanges. Accordingly, the District Court properly determined that it had subject matter jurisdiction...".

Wisconsin v. Radke [opinion] (February 26, Wisconsin Supreme Court [official website]). The Court upheld the constitutionality of a Wisconsin "two strikes" law requiring automatic life sentences for persons convicted twice of sexually assaulting children: "The issue in this case is whether there is a rational basis to justify mandating the penalty of life imprisonment without the possibility of parole under the circumstances of a second conviction of a child sexual assault when the penalty is life imprisonment with the possibility of parole under the circumstances of a second conviction of a Class A homicide offense.... The "two strikes" law focuses on crimes of sexual conduct that victimize children committed by people who have already been convicted of a similar crime. It represents a legislative determination that offenders convicted under these particular circumstances pose a unique threat to society and must therefore face the maximum penalty allowable under Wisconsin law. The "three strikes" law, in contrast, encompasses a wider swath of criminal conduct. It expresses a legislative determination that offenders who commit two of these crimes do not pose the same type of unique threat as persistent repeaters under the "two strikes" law. The legislature has determined that there is something especially troublesome about the threat posed by a repeat child sex offender that does not arise when a person is convicted of a child sex offense after a prior conviction for a different serious felony that does not involve sexual conduct targeting a minor."

[JURIST] The Senate Judiciary Committee [official website] Thursday approved the nominations of Deborah Cook, John Roberts and Jay Bybee [DOJ nomination background] as new US Court of Appeals judges in a rancorous session during which Committee Chairman Senator Orrin Hatch overrode Committee rules to get a vote on Cook and Roberts over the objection of Democrats who wished to hold those two nominations in Committee. Read the opening statement of Ranking Democrat Senator Patrick Leahy. No statement or release on today's Committee vote is as yet available from Senator Hatch's office.

[JURIST] Rick Hasen [Election Law blog], Loyola Law School Los Angeles, takes columnist George Will to task for misunderstanding the Constitution and the filibuster. And Lawrence Solum [Legal Theory Blog], also of Loyola, gives his valuable regular run-down of who's-presenting-what Thursday in faculty workshops at law schools across the country. Note to Lawrence: don't forget Erik Luna [faculty profile] of the University of Utah College of Law, presenting Punishment Theory, Holism, and the Procedural Conception of Restorative Justice [PDF] right here at the University of Pittsburgh School of Law!

[JURIST] Attorney General John Ashcroft and Homeland Security Secretary Tom Ridge issued a joint statement Thursday announcing a reduction in the US terror alert level (officially, the Homeland Security Advisory System [official website]) from High/Orange to Elevated/Yellow: "The decision to raise the threat level on February 7 was based on specific intelligence, corroborated by multiple intelligence sources, received and analyzed by the full intelligence community at the time. Today's decision to lower the threat level was based on a careful review of how this specific intelligence has evolved and progressed over the past three weeks, as well as counter-terrorism actions we have taken to address specific aspects of the threat situation. Among the factors we considered was the passing of the time period in or around the end of the Hajj, a Muslim religious period ending mid-February 2003." Read the full joint statement from the Department of Justice.

[JURIST] The International Criminal Tribunal for the Former Yugoslavia [official website] elected a new President Thursday. Judge Theodor Meron (USA) was selected to succeed Judge Claude Jorda (France). Judge Meron, initially elected to the ICTY by the UN General Assembly in 2001, received his legal education at the Universities of Jerusalem, Harvard (where he received his doctorate), and Cambridge. Since 1977, he has been a Professor of International Law and, since 1994, the holder of the Charles L. Denison Chair at New York University Law School. Judge Meron will take office as ICTY President on March 11. Read the full ICTY press release, and visit Judge Meron's faculty profile page at NYU Law School.

[JURIST] More new and interesting papers posted on SSRN today:

Electrifying Copyright Norms And Making Cyberspace More Like A Book [abstract]
by Ann Bartow [faculty profile] of the University of South Carolina School of Law [official website]
From the Abstract: "Authors, content distributors and users all make decisions within a familiar longstanding copyright framework, within which lots of small scale unauthorized copying occurs, but content creation and distribution is still adequately incentivized. Nevertheless, "what is" in terms of real space copyright use norms is not making the transition to cyberspace, and will not, absent legislative intervention. Instead, copyright owners are using the attributes of digitalization to realize their own normative view of "what ought to be," absolute control over copyrighted works that are embodied in electronic formats....[T]his Article explains how society will suffer if analog copyright use norms are not electrified and "what is" becomes dramatically altered in the digital domain: Individuals will lose traditional levels of access to informational works and be deprived of familiar ways and means of using copyrighted works. In consequence, their respect for copyrights is likely to erode as the distributive goals of the copyright system are correspondingly unfulfilled."

Estimates of the Deterrent Effect of Alternative Execution Methods in the United States: 1978-2000 [abstract]
by Paul Zimmerman of the Federal Communications Commission
From the Abstract: "Using a panel of state-level data over the years 1978-2000, this paper examines whether the method by which death penalty states conduct their executions affects the per-capita incidence of murder in a differential manner. Several measures of the subjective probability of being executed are developed taking into account the timing of individual executions..... The empirical estimates suggest that the deterrent effect of capital punishment is driven primarily by executions conducted by electrocution. None of the other four methods of execution are found to have a statistically significant impact on the per-capita incidence of murder."

[JURIST] Motion Picture Association of America President Jack Valenti's Frey Lecture on Intellectual Property - "Comments on the Moral Imperative" - delivered at Duke Law School [official website] Monday is now available from Duke Law in streaming video.

[JURIST] The Leadership Conference on Civil Rights Education Fund [official website] has released a new report on racial profiling [press release] in the United States.

From the Executive Summary: "Before September 11, polls showed that Americans of all races and ethnicities believed racial profiling to be both widespread and unacceptable.... On September 11, this consensus evaporated. The 19 men who hijacked airplanes to carry out the horrific attacks on the World Trade Center and the Pentagon were Arabs from Muslim countries. The federal government immediately focused massive investigative resources and law enforcement attention on Arabs, Arab Americans, Muslims, and those perceived to be Arab or Muslim, such as Sikhs and other South Asians. Many of the practices employed in the name of fighting terrorism - from the singling out of young Arab or Muslim men in the United States for questioning and detention to the selective application of the immigration laws to nationals of Arab or Muslim countries - amount to racial profiling. But despite public hostility to street-level racial profiling, anti-terror profiling has flourished. At the same time, there is new evidence that "traditional" racial profiling remains prevalent after September 11. The persistence of both forms of racial profiling makes clear the need to revive the pre-September 11 consensus that the practice of profiling is always wrong and should be prohibited."

Read the full text of Wrong Then, Wrong Now: Racial Profiling Before and After September 11, 2001.

[JURIST] The International Criminal Tribunal for the Former Yugoslavia [official website] Thursday sentenced former Bosnian Serb President Bijlana Plavsic to 11 years in prison for what it described as "a crime of the utmost gravity, involving a campaign of ethnic separation which resulted in the death of thousands and the expulsion of thousands more in circumstances of great brutality." Read the summary of the sentencing judgment delivered by Presiding Judge Richard May. The full judgment of the Tribunal is also available.

[JURIST] Children's TV icon Fred Rogers [profile] died Thursday here in Pittsburgh at the age of 74. More details on MisterRogers.org and in the Pittsburgh Post-Gazette. Many lawyers and law students recall Mr. Rogers from their youth, but only a few may remember the significant legal role he played nineteen years ago in persuading the US Supreme Court to protect new home videotaping technology from a copyright infringement lawsuit launched against Sony, its progenitor, by various film studios and production companies.

Delivering the Court majority Opinion [text] in Sony v. University City Studios 464 U.S. 417 (1984), Justice Stevens wrote: "Fred Rogers [is] president of the corporation that produces and owns the copyright on Mister Rogers' Neighborhood. The program is carried by more public television stations than any other program. Its audience numbers over 3,000,000 families a day. He testified [at trial] that he had absolutely no objection to home taping for noncommercial use and expressed the opinion that it is a real service to families to be able to record children's programs and to show them at appropriate times. If there are millions of owners of VTR's [video tape recorders] who make copies of televised sports events, religious broadcasts, and educational programs such as Mister Rogers' Neighborhood, and if the proprietors of those programs welcome the practice, the business of supplying the equipment that makes such copying feasible should not be stifled simply because the equipment is used by some individuals to make unauthorized reproductions of respondents' works."

We rest his case.

[JURIST] The latest issue of the University of Southern California Law Review [official website] is now available online. Articles include:

Private Justice
by Pamela Bucy [faculty profile] of the University of Alabama School of Law [official website].
From the paper: "This Article addresses the tool of private justice. "Private justice" occurs when private persons initiate lawsuits to detect, prove, and deter public harms. No matter how talented or dedicated our public law enforcement personnel may be nor how many resources our society commits to regulatory efforts, a public regulatory system will always lack the one resource that is indispensable to effective detection and deterrence of complex economic wrongdoing: inside information. For the purposes herein, inside information is defined as significantly helpful information about economic wrongdoing produced by someone who has experience, insight, or contacts to, the industry or perpetrator involved. Private justice can supply the resource of inside information. Because of the necessary and nonsubstitutable nature of this resource, private justice is not just one option for addressing economic banditry in a global, computerized world; it is the best option."

Lurking in the Shadow: The Unseen Hand of Doctrine in Dispute Resolution
by Ray Madoff [faculty profile] of Boston College Law School [official website].
From the paper: "In this Article, I argue that there is a connection between substantive doctrinal law and the acceptance of alternative dispute resolution. In particular, I argue that the widespread adoption of mediation in divorce disputes would not have been possible without the changes in the substantive legal rules governing divorce brought about by the no-fault revolution. This transformation effectively changed the core story about divorce from one about guilt and innocence to one that minimized the importance of fault and instead created a complex forward-looking inquiry. This new regime effectively discouraged parties from seeking judicial resolution of their disputes and encouraged them to resolve their disputes through negotiation or mediation. The rules governing divorce stand in sharp contrast to the rules governing will contests. Largely unchanged in the United States over the last 200 years, wills law involves a backward-looking inquiry that focuses on testator intent and provides moral condemnation under a winner-take-all system, effectively encouraging parties to seek judicial resolution of their disputes."

See also a student Note: Walker v. Cheney: Politics, Posturing, and Executive Privilege.

New and interesting papers on SSRN Thursday include:

Envisioning A Global Legal Culture [abstract]
by Charles Koch [faculty profile] of William and Mary School of Law [official website].
From the Abstract: "This paper envisions a global legal culture. This global legal culture will interact with the national legal cultures and will fundamentally change legal practice, even ostensibly local legal practice. Thus, there is a practical imperative in contemplating this evolving legal culture for all lawyers and legal scholars. US lawyers and US legal scholars face a special urgency because we are so far behind others in recognizing the practical importance of understanding the world's legal cultures. This paper hopes to initiate reflections on the blending of legal cultures in the world arena."

Form and Function in Business Organizations [abstract]
by Richard Booth [faculty profile] of the University of Maryland School of Law [official website]
From the Abstract: "In this piece, I argue that the recent proliferation of forms of business organizations in addition to the traditional partnership and corporation may have arisen from the implicit recognition that various organizations may serve needs of business people in different types of businesses, and that traditional theory of the firm explanations are too narrowly focused on market failure explanations for firm formation."