I have a Torts final exam in a few hours, so blogging will continue to be light (and by light, I mean non-existent). This is my first final, and I’m finding it to be one hell of a challenge. The trick in Torts examinations is spotting all the relevant issues, and with negligence there are a lot of them. Spotting an intentional tort is pretty easy – someone hits somebody, you have battery. Somebody takes a swing at someone, that’s probably assault (provided the contact was imminent and the person was aware). With negligence, you have a complex analysis involving whether there’s a duty involved, whether that duty was breached, whether there was an actual injury, and a very complex causation analysis to show that the defendant’s negligent conduct was a cause of the injury. It’s very easy to miss things like intervening and subsequent causes along the way. There’s a reason why law school is considered one of the most intellectually challenging endeavors out there.

For those considering law school or those unlucky saps going through finals, I’m finding that doing lots of practice exams is extremely helpful. For Torts, this site has some very helpful practice exam questions, some of which have answer keys that let you see what issues you missed. Outlining is important, but ultimately you don’t get judged on what you know, but how well you can spot the issues and then apply that outline. If you don’t spot the issues, you don’t get the points, and the only way to get good at spotting issues is to practice as much as possible.

If nothing else, I’ve learned one thing: it’s generally a bad idea to carry fireworks on the Long Island Railroad. (And if you get that reference without clicking on the link, you’re either a lawyer, a law student, or absurdly overeducated.)

Blogging will be light, while coffee consumption will be completely ridiculous…

U of M law student and blogger Ivan Ludmer has an interesting piece on the University’s decision to hire former Office of Legal Counsel attorney Robert Delahunty. Prof. Delahunty was one of the authors of a controversial memo that stated that the Geneva Conventions do not apply to captured al-Qaeda prisoners.

In the spirit of full disclosure, Prof. Delahunty is a professor at the University of St. Thomas, and will be my Constitutional Law professor in the spring.

At The Volokh Conspiracy there is also a lengthy series of posts on the controversy as well.

There are two arguments generally getting bandied about here, the first being a violation of academic freedom and the other a questionable determination of legal scholarship.

The first argument is that Prof. Delahunty’s position on the torture issue makes him unfit to be a member of the legal academy. That argument doesn’t fly with the notion of academic freedom. If we are to have an open and inclusive academy, then unpopular, controversial, or difficult opinions must not be shunned on expressly ideological grounds. As one opponent to the Prof. Delahunty hiring has said, this is an issue about ideology. (UPDATE: The student was misquoted. However, the arguments being made are generally ideological ones, regardless of the stated intentions of the petitioners.) Some people have a deep-seated opposition to the use of coercive interrogation methods. They have a right to that opinion, but that does not mean that they have the right to determine who can be a member of the legal community merely on the basis of their ideological beliefs.

The second argument is that the OLC memo was simply sloppy legal work that’s unbefitting of a member of the legal academy. That’s a plausible argument, but as David Bernstein notes, the view espoused by that memo is shared by at least one member of the United States Supreme Court. Looking at the memo doesn’t seem to support the contention that it’s such a sloppy piece of work that it’s completely invalid or a sign of bad faith.

The real test here is this: would there be any controversy if Prof. Delahunty had authored a memo of equal legal scholarship in support of a massive new expansion of federal government powers on environmental issues? Something tells me that the level of controversy would be practically nil. My impression is that the scholarship argument tends to be little more than a façade for the real ideology basis for opposition to Prof. Delahunty’s hiring.

The University of St. Thomas is a Catholic law school that tries to integrate Catholic values into the curriculum whenever appropriate. I don’t think one can make a strong argument that the interrogation methods advocated in the OLC memo are at all compatible with Catholic legal tradition — in fact, Catholic legal theory is quite explicit in its opposition to torture. Yet UST did what I believe was the right thing: brought in someone with an excellent record of legal scholarship who can challenge those beliefs. That’s what the academic community should do.

The University of Minnesota has the right to uphold whatever standards they want in hiring their faculty. However, if the grounds for withdrawing Delahunty’s offer is one of ideology, that the U of M is abrogating their obligation to support academic freedom. The position of the OLC memo may be morally questionable, but the overheated rhetoric that some have used to attack it is pure hyperbole. The memo may be sloppy legal work — I don’t find that to be particularly persuasive — but if the issue is that Prof. Delahunty supported a position that some find morally reprehensible, that’s still not enough.

UPDATE: The Minnesota Daily has updated the quotation from Mr. Taylor to say that the issue isn’t about ideology. However, that seems to be a less than persuasive arguments based on the attacks being used. Still, the correction should be noted.

This afternoon I had the privilege of attending the formal investiture ceremony of the 33rd District Court Judge for the District of Minnesota, Patrick J. Schiltz. In attendance at this event was none other than Justice Antonin Scalia of the United States Supreme Court. Justice Scalia was kind enough to take questions from students prior to the event, which was quite an amazing experience. Even those who disagree with Justice Scalia must respect that he is one of the finest legal minds in American jurisprudence today, and that was apparent from his answers. What many don’t know about Justice Scalia is that he’s one of the most engaging and witty speakers I’ve ever heard. Despite having an impressive understanding of the issues, he came across as someone with a set of deeply-held convictions about the law, and he felt no need to gussy up his jurisprudence in any way. With Justice Scalia, what you see is what you get. He believes in the originalist theory of constitutional interpretation, and that’s how he’ll decide.

Scalia gets a rap for being an ideologue, and while that’s true, he’s not ideological in the conventional sense. He isn’t a conservative ideologue in the sense of modern American political conservatism. If anyone has any doubts of that, read his opinions on the flag-burning ban legislation and also his brilliant dissenting opinion in Hamdi v. Rumsfeld (an opinion that argued for extensive restrictions on Executive power to detain US citizens which was joined by Court “liberal” John Paul Stevens). He is ideological about his belief in originalism, but that jurisprudence does not make him either some organ of the Bush Administration or a conservative judicial activists. Justice Scalia even said that his belief in originalism even prevented him from doing “all those crazy conservative things” that he might otherwise like to do.

It’s a rare event to be able to get close to a sitting member of the highest court in the country, especially when one is a mere 1L. Not only did I get to see Justice Scalia, but also watch as the state of Minnesota gains an experienced and wise new member of the federal bench. Congratulations to newly-invested Judge Schiltz, and thanks to Justice Scalia for honoring us with his presence.

UPDATE: Powerline has a note about the event as well.