Hubbell refers to United States v. Hubbell, a case that grew out of Ken Starr’s Whitewater investigation (which, of course, grew into the Monica Lewinsky investigation, President Clinton’s impeachment, etc).

The case itself is significant in that it dealt with the questions [...]]]> This was a quote at the bottom of a page of our Criminal Procedure syllabus.

Hubbell refers to United States v. Hubbell, a case that grew out of Ken Starr’s Whitewater investigation (which, of course, grew into the Monica Lewinsky investigation, President Clinton’s impeachment, etc).

The case itself is significant in that it dealt with the questions of how the act of producing documents in response to a subpoena does, or does not, impact a person’s 5th Amendment privilege against self-incrimination and whether a government’s offer of immunity in order to secure production of such documents precludes prosecution of the person producing the information.

There is some disagreement among lawyers over Hubbell’s effect and our professor has a reading of it that seems reasonable to me. Naturally, for the purposes of the class, the professor’s view is the “correct” approach for the exam, whatever ends up being the “correct” approach in real life. (Though the professor in question is a former prosecutor, has decades of teaching experience, and has written extensively on issues in evidence and criminal procedure. So I’m inclined to think he’s more likely to be at least mostly right.)

The interesting thing is that this isn’t the first time we’ve encountered an unsettled area of case law (Crim Pro is basically all case law) where our Professor has proposed what he thinks is the correct way to settle the conflicting cases and principles (another one being Montejo’s impact on the 6th Amendment right to the assistance of counsel).

This is an interesting function of a professor and it hasn’t really happened in other classes where the rules we needed to know are more settled. But it’s a vital function for students to rely on.

It’s not we’re not capable of figuring this all out on our own. We are. Really once you’ve completed first semester you’re capable of doing that.

But let’s face it: professors know more than us at this point and we don’t have the time to catch up fully. Plus understanding how an experienced attorney settles these issue provide a good picture, a learning experience, of how we will do it when we’re out of school.

Source: Courtoons

It’s an improvement in look and feel.

In integrating the design of the University’s page, it serves as an important reminder of the law school’s connection to the college. This connection is often forgotten, but with the increased visibility and popularity of interdisciplinary approaches to the law (law and economics, [...]]]> Our law school has a new website.

It’s an improvement in look and feel.

In integrating the design of the University’s page, it serves as an important reminder of the law school’s connection to the college. This connection is often forgotten, but with the increased visibility and popularity of interdisciplinary approaches to the law (law and economics, feminist theory, law and religion, etc), the closer a law school and university interact the better.

The important thing to remember, for those who follow such things, is that this is an important step forward. The site organization is hugely improved and things fit together a little more neatly. It looks better than the old site and looks more like other law school websites. It’s also important to remember that law school websites are difficult. Pure and simple. Who’s the primary audience? To what extent should your website be the same as those of other schools?

That said, it still misses an opportunity to use the school’s online presence as an effective marketing presence. Overall, there are no regular communications tools that engage the user – blogs, e-newsletters, etc. Along with this point, it carries over – at least at this initial launch – the shortcomings of the old site.

I don’t intend for this to become a bash session, but I’ve listed some concerns here and welcome you to suggest some other ways to improve the site. If we have some constructive ideas, I’ll send them along to the school.

There are several things that I think make Catholic Law unique:

• highly respected clinical programs
• a reputation among law firms and employers in town that outpaces our US News rankings
• significant focus on social justice
• collegial environment and good facilities
• good speakers that focus on issues of the day (including an ongoing series of panels at the National Press Club focusing on various issues)
• highly regarded securities and communications law programs
• growing focus on jurisprudential studies and, at the same time, wider offerings of professional skills courses
• respect for the role of religion in society

Yet, when you push through the website content and organization, these are not the things that jump out at you. While some of these may be addressed as they finalize the launch of the new design, I’ve listed the things that jump out at me.

In terms of navigation, how do you get back to the homepage once you’ve drilled down into a section of the page? This no longer applies to all areas of the site, but there are still some places where you can’t get back to the homepage.

Many of the event detail pages are available only in .pdf. See, e.g., the event on the homepage called “The Consequences of Human Differences.” Why can’t I access an html version?

Where are the law review/journal pages and information? And why isn’t the Commlaw Conspectus, a very well respected Communications Law journal highlighted? (Having these included under publications might help.)

The “Latest News” “feature” on the front page does not allow you to link to more information about the event allows you to link to more information about the event, but it’s static – you can’t comment on it, or give you a link to save to twitter, facebook, delicious, StumbleUpon. (Folding the latest news into a blog for the entire site could remedy this.)

It is hard to find the clinical programs. (Placing clinical programs higher in the navigation choices or having clinical work and achievements being a prominent feature could remedy this.)

Professor scholarship is hard to find. The location of student achievements and organizations are not immediately apparent. (These are things that could easily be listed under “news” and could also be highlighted in the blog.)

Blogs that are on there are dated, unupdated. Seems to me that  you should just drop them or develop an editorial calendar for them and stick to it. (I’m suggesting that the site have ONE blog on which all of this information is posted. This will act as a funnel, so to speak, linking the user to the other static components of the site.)

Video and audio of events are actually posted (buried, really) in the undergraduate website. Having these more prominently available (perhaps via a vimeo or youtube page) would be helpful and make the site more engaging.

What did I miss? Or am I being too critical?

We read the case at an early summary judgment phase. It was interesting in that it dealt with how a company may assess the actions of its own directors and officers in the context of insider trading claims [...]]]> Last night, we discussed the In re Oracle Derivative Litigation, 824 A.2d 917 (Del. Ch. 2003), in Corporations.

We read the case at an early summary judgment phase. It was interesting in that it dealt with how a company may assess the actions of its own directors and officers in the context of insider trading claims brought by shareholders in a derivative action. Companies may, as a last resort, establish Special Litigating Committees composed of uninterested directors and others to assess the merits of a claim made against a company’s officers or directors. In many cases these SLCs can terminate the litigation where they deem it is not in the best interests of the company.

Plaintiffs challenged the independence of the SLC members. Here, Oracle’s SLC said that its members were independent because they were not under the “domination and control” of the officers who had been charged with insider trading, suggesting that because the members were not directly benefiting financially from the defendants, they were still independent. The court doesn’t buy this as a primary motivator of human actions and judgment and lays this gem of a quote on us:

Delaware law should not be based on a reductionist view of human nature that simplifies human motivations on the lines of the least sophisticated notions of the law and economics movement. Homo sapiens is not merely homo economicus. We may be thankful that an array of other motivations exist that influence human behavior; not all are any better than reed or avarice, think of envy, to name just one. But also think of motives like love, friendship, and collegiality, think of those among us who direct their behavior as best they can on a guiding creed or set of moral values.

The court in this opinion goes on to rule that the members of the SLC could not possibly have been independent, but you can read all about it at the link above. Ultimately, the case is dismissed for want of evidence that the defendants possessed any insider information.

In it, he questions whether Ken Feinberg’s job as Pay Czar is unconstitutional, in light of the actions he took last week.

Time Magazine describes what Feinberg is tasked to do:

The Treasury established Feinberg’s position after [...]]]> Former 10th Circuit Judge and current Stanford Law Professor Michael McConnell has a good editorial in the Wall Street Journal today.

In it, he questions whether Ken Feinberg’s job as Pay Czar is unconstitutional, in light of the actions he took last week.

Time Magazine describes what Feinberg is tasked to do:

The Treasury established Feinberg’s position after Congress passed the American Recovery and Reinvestment Act in February. Feinberg has jurisdiction over the 100 highest-paid employees at the seven firms that the government deemed “exceptional assistance recipients”: insurer AIG, financial firms Bank of America and Citigroup, auto companies Chrysler and General Motors and their former finance arms Chrysler Financial and GMAC.

That’s just the start. Feinberg will oversee the pay at the firms until each has repaid the government — or until he quits, and he has no plans to do so anytime soon. Having established a set of principles on which to base compensation for these execs, Feinberg says it will be easier to pass judgment on next year’s pay packages, a process he pledges to start in January.

McConnell’s question considers whether, in light of Buckley v. Valeo,  this task can constitutionally be accomplished absent either appointment of a Pay Czar as an officer of the United States by and with the consent of the Senate OR Congressional directive authorizing appointment of a Pay Czar as an “inferior officer.” The core of his argument is:

As part of the hastily enacted and seldom-read legislation establishing the Troubled Asset Relief Program (TARP), Congress authorized the Secretary of the Treasury to “require each TARP recipient to meet appropriate standards for executive compensation.” To carry out this task, last June the Treasury promulgated an emergency “Interim Final Rule,” waiving ordinary requirements for a public comment period.

As part of this emergency rule, Treasury Secretary Timothy Geithner created the office of “Special Master” for compensation, delegated his TARP authority to set compensation standards to this officer, and appointed Mr. Feinberg (a lawyer and mediator) to this position, without obtaining Senate confirmation.

Therein lies the problem. The Appointments clause of the Constitution, Article II, section 2, provides that all “Officers of the United States” must be appointed by the president “by and with the Advice and Consent of the Senate.” This means subject to confirmation, except that “the Congress may by Law vest the Appointment” of “inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

There is no doubt that Mr. Feinberg is an “officer” of the United States. The Supreme Court has defined this term (Buckley v. Valeo, 1976) as “any appointee exercising significant authority pursuant to the laws of the United States.” Mr. Feinberg signed last week’s orders setting pay levels for executives at Bank of America, AIG, Chrysler Financial, Citigroup, GMAC, General Motors and Chrysler. They have the force of law and are surely an exercise of “significant authority” pursuant to an Act of Congress. He is not a mere “employee,” acting at the direction of a superior. That means his office is subject to the requirements of the Appointments Clause.

While somewhat more disputable, Mr. Feinberg’s is probably an “inferior” officer, defined as one subject to supervision and removal by a member of the cabinet. Although he has substantial discretion and independence, Mr. Feinberg reports to the secretary of the Treasury, who can fire him any time for any reason. This means that Congress could, if it wished, vest the appointment of the pay czar in the secretary, without any need for Senate confirmation.

But Congress has not done so. On the contrary, it vested the authority to implement TARP’s compensation provision in the secretary of the Treasury. The secretary may sub-delegate that power to someone else—but that someone must be an “officer” properly appointed “by and with the advice and consent of the Senate.”

The WSJ Law Blog points out that McConnell seeks to impose an overly formalistic view of the constitutional appointment power during a time of national crisis, though suggests that McConnell’s answers this at the end of his piece by pointing to how the Pay Czar’s vast power completely undermines the purpose of the appointments clause to prevent abuse by the Executive.

But can’t Congress oversee Feinberg’s actions by holding Geithner’s feet to the fire? Or does the breadth of the Pay Czar’s power actually give the Treasury Secretary too much plausible deniability when the Czar abuses his power?

And why on earth do we have so many freaking Czars? And doesn’t the fact that we call them Czars suggest, on its face, that we’ve given these unappointed, unconfirmed officials far too much unbridled authority?

“Just remember this when you’re in practice: don’t ever try to answer hypotheticals. [My associate] was trying to answer a client’s question today, and I had to intervene. I told her that ‘there was no question because there were no facts.’ We don’t deal in hypotheticals when dealing [...]]]> A quote from my Land Transaction and Finance Professor today:

“Just remember this when you’re in practice: don’t ever try to answer hypotheticals. [My associate] was trying to answer a client’s question today, and I had to intervene. I told her that ‘there was no question because there were no facts.’ We don’t deal in hypotheticals when dealing with real property.”

Indeed.