Spring 2012

As most of us come near to the end of our law school career, the next step is to apply for jobs. Most job applicants have a checklist before applying or interviewing that includes updating a resume, preparing cover letters, and seeking a professional outfit. However, a crucial item on the checklist that most students skip is cleaning up the Facebook profile. I know, most of you have heard this many times, so why do I bring it up again? Because students are still not listening!

According to a study conducted by Harris Interactive for CareerBuilder.com, “45 percent of employers questioned are using social networks to screen job candidates—more than double from a year earlier, when a similar survey found that just 22 percent of supervisors were researching potential hires on social networking sites like Facebook, MySpace, Twitter and LinkedIn.”

The study consisted of questioning “2,667 managers and human resource workers, found that 35 percent of employers decided not to offer a job to a candidate” based on what they revealed on websites like Facebook.  And yes, Facebook was checked more than LinkedIn, the world's largest professional network.

What raises red flags to employers?

• Provocative photos • Drinking and drug use • Bad mouthing of previous employers • Bad mouthing of previous colleagues • Poor online communication skills

• Discriminatory comments • Leaking confidential information from previous job(s)

Facebook can also help hire candidates. How?

The career builder survey revealed “Eighteen percent of employers reported they have found content on social networking sites that caused them to hire the candidate.” The top examples listed:

• Profile provided a good feel for the candidate’s personality and fit • Profile supported candidate’s professional qualifications • Candidate was creative  • Candidate showed solid communication skills • Candidate was well-rounded • Other people posted good references about the candidate

These are some of the most obvious tips and red flags.  What about pictures or posts that fall in the gray area? The rule of thumb is, when in doubt, do not post it.  Think, is it important to let the world know "John sucks at his job?" Probably not. A prudent option would be to set your privacy setting to keep questionable content away from the public eye.  “As Facebook continues to grow as an essential personal and business networking tool for most of the Web, these issues are only going to get thornier.” The legal field requires the utmost level of professionalism, and a tidy Facebook page is a start before entering the legal field.

December 31, 2011 – New Year’s Eve.  President Obama signed into law the National Defense Authorization Act.  The $662 billion defense bill is more than just this year’s new defense budget.  Politics aside, when the dust in Washington settled, the NDAA contained two shocking provisions that are further serving the erosion of our beliefs and values as a nation. According to an article written on Foxnews.com, the first provision would require any Al-Queda member, or affiliate of Al-Queda, suspected of fighting against the U.S. to be mandatorily detained by the military.  At this point, the Attorney General in consultation with the Secretary of Defense may decide to try the individual in a military tribunal, or in federal court, if at all.  Lastly, the President has executive authority to completely override this entire process, and may authorize the detainee to just sit in detention, indefinitely.  Yes, this practice has been occurring for the better part of the last decade, and quite frankly probably a lot longer, but this bill now authorizes these crimes to be carried out on American soil.  We may not have a need for Guantanamo Bay any more after all.

The second provision, section 1021 of the NDAA, allows for the indefinite detention of any United States citizens, with out charge virtually anywhere in the world, on or off the battlefield.  Of course the provision does not expressly state this, however the provision is written so vaguely that it can be interpreted to this effect.  The exact language of the bill has not been released as of yet, but most reports suggest that the bill allows for the detainment of, “any person engaged in hostilities against the U.S. or its coalition partners . . . with out trial, until the end of the hostilities.”  (Robert Johnson from the Businessinsider.com) 

There are several arguments against the power of sections 1021’s ability to indefinitely detain U.S. citizens.  According to some sources, the original AUMF bill sign by G.W. Bush already allowed for the indefinite detainment of U.S. citizens.  Does that make this any better?  No.  What the NDAA does though, it now extends this “courtesy” beyond the FBI, CIA, and other operative branches of the government to the Military now.  Basically it just codifies this already horrid practice on a much larger scale.   The President of the United States has been quoted to say that he had “serious reservations” about the bill – but that he signed it anyway.

Again – politics aside this bill has serious implications on the civil liberties of American citizens, and non-citizens around the world.  This bill more or less gives the President of the United States executive power to deem anybody a threat and to detain them, indefinitely, with out charge or trial.  While Obama has said that he does not plan to use this executive power, he still signed the bill into effect that would give future presidents this executive power. 

The argument that we have not had another terrorist attack on American soil since 9/11, therefore these law are working and therefore should be left alone is inherently flawed.  Just because there has not been another attack does not mean we should blindly enact laws that strip away life and liberty with no due process.  This is not a red state blue state issue – this is an issue about who we are as a people, as a country, as one country among the rest of the world.  The bill passed by with an 87-13 vote in the Senate.  These are the people that we vote for, drafting legislation that inherently destroys our liberties and freedoms.  It’s time we start holding them accountable for their actions, and/or inactions.

Please enjoy the new issue of The Jeffersonian.  Hot off the e-press.  As promised, it is at least 4% better than the previous issue.  Also, my soapbox has become much higher (see below). 

I’d like to address the articles that are featured on the homepage:

Please pay particular note to Professor Semeraro’s article regarding bar study and legal synthesis.  As many of you have noticed, Professor Semeraro is literally taking legal synth along with us students in order to get a better understanding of how the program works (and to brush up on his contracts).

Please enjoy Lindsey-Shannon Lee’s article regarding the recent SCOTUS decision on GPS tracking devices and the Fourth Amendment.  Lindsey consistently produces excellent quality work for the paper and her contributions are greatly appreciated. 

Some general and specific complaints…

Bar Passage Rates: Please stop pointing fingers—unless you are pointing the finger at yourself.  Every law student in the country knows that at the end of their 3-year program they have a test called “the bar.”  It’s not a pop-quiz; you literally have 3 years to study for it.   Yeah, I get it, California has a hard test.  But please don’t blame the school, the bar prep programs, or the professors if you don’t pass this test.  Take some personal accountability.  I’d like to see everyone pass the test but, of course, everyone won’t.     

My guess is that the people who won’t pass the bar are the ones who talk over Professors Johnson and Sccuzzo during legal synthesis, spend the class on G-chat and facebook, show up late or leave early and generally can’t comprehend the idea that how to learn is just as important as black letter law.  I could be wrong--I have been in the past. 

Generally:  I’ve noticed a lot of people complaining but I don’t see anyone really doing anything about the perceived problems.  Join the SBA or a student organization if you want to do something. Remember, a snarky facebook status isn’t going to help.

On January 23 of this year, The Supreme Court of the United States came down with a long anticipated decision addressing major issues relating to privacy rights. The justices unanimously invalidated a drug conviction against Antoine Jones, a D.C. nightclub operator, stating that the police in the investigation violated his Fourth Amendment Constitutional rights when they attached a GPS tracking device to his wife’s car without a valid warrant.

Investigators were looking into Jones’ activities, suspicious that he was involved in a powder and crack cocaine ring. They obtained a valid warrant from a federal district court judge, permitting them to secretly install a GPS tracking device on a Jeep Grand Cherokee registered to Jones’ wife. However, their execution of the warrant created some serious concerns.

Both sides agreed that the warrant was not executed properly. Investigators failed to install the tracking device within the 10-day period allotted in the warrant. Furthermore, investigators installed the device in the car, in suburban Maryland, outside of District of Columbia where the warrant was issued. Despite conformity with the requirements of the warrant, investigators tracked Jones’ activities for four weeks, eventually obtaining enough information to link him to a drug “stash house.”

After being acquitted of numerous other charges, Jones was convicted in a second trial of “conspiracy to distribute 5 or more kilograms of cocaine and 50 or more grams of cocaine base.” The U.S. Court of Appeals for the District of Columbia Circuit overturned the conviction, stating that Jones had a reasonable expectation of privacy in his activities throughout the course of the month he was being tracked. Such an invasive search required a valid warrant.

On November 8, 2011 the Supreme Court of United States justices took up the issue of whether the long term, precise GPS tracking of a criminal suspect without a valid warrant, violated the Fourth Amendment guarantee against unreasonable search and seizure. Although the justices were unanimous in their decision that such electronic monitoring without a valid warrant was a Constitutional violation, they could not have been more split in their reasoning. The decision was split 5-4.

Scalia wrote for the majority, echoing the sentiment that the Fourth Amendment's protection of "persons, houses, papers, and effects, against unreasonable searches and seizures" would extend to private property such as an automobile.

Ever an “originalist,” Scalia relied on the history of the Fourth Amendment’s language, asserting that it was about protecting private property from searches. Emphasizing the relevant concern with property rights, he quoted Lord Camden, “[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour’s ground, he must justify it by law.”  Entick v. Carrington, 95 Eng. Rep. 807 (C. P. 1765), Boyd v. United States, 116 U. S. 616, 626 (1886)). Therefore, even a small trespass in an attempt to obtain information amounted to a search under the Fourth Amendment.

Justice Alito wrote a concurring opinion, joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan. He noted, “use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. For such offenses, society's expectation has been that law enforcement agents and others would not — and indeed, in the main, simply could not — secretly monitor and catalog every single movement of an individual's car for a very long period."

Sotomayer, joined Scalia’s majority opinion, but in her own concurring opinion, echoed Alito’s disappointment that the court did not take a more definitive approach regarding the use of tracking devices and their implication on Fourth Amendment rights.

Interestingly enough, the government argued that there were no privacy rights at stake. They argued that under United States v. Knotts, information that is exposed to public view, such as Jones’ travels throughout the D.C. area, is unlikely to be considered private. Therefore, individuals should have no reasonable expectation of privacy. However, Jones’ lawyers reminded the court that the issue of 24-hour surveillance was left undecided in Knotts. 

Former federal prosecutor and executive director of the Center on the Administration of Criminal Law at New York University, Anthony S. Barkow filed an amicus brief for the government. In support of his stance, he indicated that “[i]n general, we are talking about activity that the police would be able to engage in anyway” (without a warrant).

Despite the unanimous decision, the aftermath of United States v. Jones raises some serious issues. How do we update our interpretation of the 4th Amendment to deal with rapid advances in technology?

(Read the opinion here http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf)

With each player congratulating him as they made their way to the bench, Michigan State head basketball coach Tom Izzo could not hold back his emotions any longer.  The veteran coach began to shed a few tears as he won his 400th game with a win over conference foe Minnesota on January 25, 68-52.

Showing emotion is nothing new for Izzo.  He is one of the most intense coaches in the game today, always demanding the best out of his players, coaches, and fans.  He does not try and hide anything on the court.  However, it’s when that emotion comes from his achievements that makes it a surprise. 

Izzo is never one to mention the numerous accomplishments he has accumulated over his  past 17 seasons roaming the sidelines of the Breslin Center.  He always gives credit to anyone and everyone who has helped him throughout his career before he acknowledges his own success.  And since he is so modest, I’ll do the bragging for him. 

One national championship.  Six final fours.  Six Big Ten Championships.  Four National Coach of the year awards.  14 straight NCAA tournament berths.  Sixth most wins (383) by a head coach through their first 16 seasons in the history of college basketball.  MSU’s all-time wins leader (401-166).  A 72.9 winning percentage in the NCAA tournament.  The list goes on and on.

As an avid Spartan fan, since I moved to the MSU area in 1996, I understand how much Izzo means to the community.  He’s more than just the head coach of the men’s basketball team.  He’s an advocate for the school as well as the state of Michigan.  He never shy’s away from autographs or public appearances while representing the upmost professionalism on and off the court. 

Unlike many other coaches (See John Calipari) and programs (See Baylor) around the country, Izzo and the MSU men’s basketball team has been scandal free.  Not once has he been accused of paying players, cheating, or violating any major recruiting violations.  The minor blip on his radar was a one-game suspension he served in December of 2010 for a secondary violation of NCAA rules.  Essentially MSU employed a man to help with the summer basketball camp MSU always puts on and it just so happened that the individual had personal contact (which is against the rules) with a middle school prospect.  Yes, you read that correctly, middle school.

Even with the minor violation Izzo remains one of the most respected coaches in the game today.  You will be hard pressed to find someone who has something bad to say about him (outside of Ann Arbor, at least).

The Spartan family understands 400th meant more to Izzo than just a great individual achievement.  It meant all his hard work, all the hours spent recruiting, all the ups and downs, all 17 years at the helm have contributed to building the MSU program into a perennial powerhouse in college basketball.  And even with all of the admiration he receives, Izzo never lets it get to him.

So when he finally broke down and enjoyed his 400th victory, it came as a bit of a surprise to many MSU faithful.  Spartan Nation believes he has earned the right to enjoy his milestone...even if he would say otherwise.

Super Bowl XLVI (46) was a closely fought game between the New York Giants and the New England Patriots.  Saving readers an exhaustive recap on the football game, here are some fascinating, some outright shocking facts related to the Super Bowl experience.

• NBC has announced the average T.V. ad price- $3.5 million per 30-second spot, $100k per second.

• The average ticket to attend Super Bowl 46 was $4,000.

• During the game, Americans were expected to consume 1.25 billion chicken wings (100 million pounds) which is five percent of the total expected chicken wing consumption for all of 2012, according to the National Chicken Council.

• Eight million pounds of popcorn to be consumed, 28 million pounds of potato chips, 26 million avocados and 49 million cases of beer.

• The NFL does not award a stadium to host the Super Bowl if the city has an average temperature below 50 degrees on the game-day date, unless in a dome or stadium with a retractable roof.

• 26 of 45 Super Bowls have been played in Miami, Los Angeles and New Orleans.

• On average, six percent of the U.S. workforce are expectd to call out the Monday following the Super Bowl. Unfortunately, classes at the law school were held as usual.

One of the greatest achievements a student can obtain in law school, or any sort of educational institute for that matter, is scholarly publication.  A well-written article or Note impresses potential employers, can be cited in an annotation or legal encyclopedia, or may even get cited in a Supreme Court opinion.  Student scholarship is a demonstration of a student’s ability to master complex concepts and discuss them in an interesting new light.  Students who are published demonstrate to their respective professional communities they are competent and that they can contribute to the progress of their field.  Good scholarship is one way a student can help shape the law.

With that said publishing a scholarly work takes serious time and effort and will likely saturate your life for a good period of time.  Forget about free time for a while.  You will be fussing over commas and spending hours trying to get a sentence perfect.  After all, once a work is published, it is out there for everybody to see.  A published work must be polished, intelligent and most importantly, logically sound.  If shaping the law is what you are after, a poorly written work can be the antithesis of what you are trying to achieve.  A bad argument on your part can easily be cited to show why your position is wrong. 

The students chosen to be published in the Thomas Jefferson Law Review (TJLR) go through a grueling process to ensure their Notes are something of which they can be proud of.  The process takes almost an entire academic year and requires nearly constant focus. 

The Notes published in TJLR are typically selected from a group of Notes written by TJLR’s Staff Associates every semester.  Staff Associates must write a Note of “publishable quality” to be formally invited to join the Editorial Board of TJLR.  Writing a Note is a semester long process that requires surviving a thesis defense in front of the Managing Board of TJLR, eight written submissions, and incorporating four rounds of edits from two editors.  Writing a Note is difficult in itself.  For students who are chosen to publish, this is just the beginning.

Once a student is chosen to be published based on their Note, more editing and revision begins.  This time, the timeframe is truncated.  Generally, a publication editor will edit the document and make significant large-scale edits, such as organization.  It is also not unusual to ask the writer to incorporate more research or ask for an entire new section to be added.  The writer will typically have less than a week to incorporate these edits.  This can mean round the clock work by the writer to get it done.  The writer then sends the Note back to the editor, only to have it returned several days later with many more new edits to incorporate. This goes on four or five times until the work is close to a finished product. 

If the writing and editing wasn’t difficult enough, every source cited in the Note must be “source checked.”  Source checking is primarily due diligence on the part of TJLR and requires every source to be found in hard copy, photocopied, including book cover, spine, and title page, and finally archived in a binder.  Source checking the hundreds of footnotes in a Note can take hours upon hours and is probably the last thing any author wants to do after spending all that time writing.  Fortunately, it is the last major hurdle over which the author must conquer. 

TJLR is not the only avenue for a TJSL student to publish.  Many ways of getting published exist.  There are even services, such as ExpressO, that will submit your written work to almost any law review and journal out there for $2.20 per submission.  LexOpus will submit your work to any of their participating journals for free.  Being a published student is really a rewarding experience.  Apart from being able to provide your own Lexis or Westlaw citation on your resume, it can define you as a professional and make you stand out in your field of legal expertise.

At the end of a long day of studying Evidence in July 2010, I got up from my favorite study chair to go to bed.   I had been comfortable on my cushy chair with my feet up on the ottoman, the soft blanket on my lap, cat snuggling with me as I read case after case and tried to draw out the rules.  But when I stood up, I felt like my ribs had been kicked in and replaced with broken glass.  I tried to take a deep breath, and it didn’t come easily.  Sadly, but also fortunately, I recognized this sensation.  I was experiencing my second pulmonary embolism.  A trip to the Kaiser emergency room confirmed that multiple blood clots had broken off and made their way to both sides of my lungs.  I was immediately hospitalized and stayed there for nearly a week. 

“As a cause of sudden death, massive pulmonary embolism is second only to sudden cardiac death.”  E-medicine. 

So what are blood clots (also known as a thrombus) and pulmonary embolisms? 

The source of pulmonary embolisms (P.E.) is almost always a DVT (deep vein thrombosis, or blood clot in a main vein in your body).  DVT affects an estimated 2 million Americans each year. Up to 600,000 people are hospitalized and approximately 300,000 Americans die each year from DVT-related PE in the U.S.—that’s more than AIDS and breast cancer combined.   There are so many reasons for blood clots to form that the medical profession has admittedly not even identified them all.  The most common cause is inactivity, which is where the term “economy class syndrome” came from.  If you’ve travelled internationally, you’ve probably been told to make sure to get up and move around on your long flight.  Another common cause of clots is when patients are hospitalized for a long time or are immobilized for any other reason.  Blood pools in the major blood vessels, and forms a clot.  But even without those extreme environments, there are many other contributing factors.  They include (but are not limited to): 

• Birth control pills or any kind of hormone replacement therapy • Smoking • being overweight • Any kind of trauma to your body • Surgery • Cancer • Pregnancy • Prolonged inactivity

This last one is the one that can get us, as law students, in trouble.  It’s so easy to get wrapped up in our studies – especially during final exams and while studying for the bar.  Before you know it, a couple of hours may have passed without you moving from your chair.  This is the kind of inactivity that puts you at risk of developing a blood clot. 

How do you know if you have a DVT?

Symptoms of DVT are usually located in the patient’s leg.  They may include: 

• Pain • Swelling • Tenderness • Discoloration or redness of the affected area • Skin that is warm to the touch

Left untreated, the clot will either continue to grow, or break off into pieces.  Once the blood clot travels through the bloodstream and lodges in the pulmonary arteries, you are at risk of losing oxygenated blood flow to your heart.  That’s called a pulmonary embolism.  Blood clots can also travel to your brain, causing a stroke. While often fatal, these don’t have to be if caught and treated quickly. 

In my case, and in the case of the late David Bloom, the NBC embedded reporter during the Iraq war, we have a genetic mutation called Factor V Leiden, which makes us more prone to clotting.   Again, there are many of these genetic mutations being discovered all the time.  For both David and me, an additional contributing factor was necessary to cause a clot.  For me, it was the long term use of birth control pills (hormones).  For him, it was being immobile in a tank in the middle of the Iraqi desert.  The night before David Bloom died; he talked to his wife Melody by satellite phone while on top of the tank.  She could hear the whiz of bullets above, and asked him why he was outside the tank, putting himself in danger?  He responded that he had been suffering from a bad muscle cramp in his calf and just couldn’t take it anymore.  That muscle cramp turned out to be a DVT.  It went untreated, traveled to his lungs, and caused a pulmonary embolism that killed him. Sadly, David Bloom died at age 39, and left behind his wife of 13 years and three beautiful daughters.  So I feel incredibly fortunate to have survived a P.E. not just once, but twice.  While law school is hard work, I’m grateful to be able to attend.

How can you prevent DVT’s and pulmonary emboli?

• Stay hydrated • Stay active • Know your family history.  If someone in your family has experienced a DVT or pulmonary embolism, or stroke, get tested for genetic conditions that may have been the cause.  Factor V Leiden is inherited from one or both parents.  Knowing if you have it will give you the information you need to adjust your lifestyle • Quit smoking • Avoid hormones or birth control pills if you can

For more information about DVTs, please see http://www.preventdvt.org 

March is DVT Awareness month, but I intentionally published this article early for the benefit of those studying for the February bar exam.

[Editor's Note:  This article contained footnotes that could not be preserved.  Please email thejeffersonian@tjsl.edu for an original copy of the article.   The following sources were cited:  

-http://ehealthmd.com

-Gerotziafas GT, Samama MM. Prophylaxis of venous thromboembolism medical patients. CurrOpin PulmMed. 2004; 10:356-365. -American Public Health Association. Presented at: Public Health Leadership Conference on Deep-Vein Thrombosis: February 26, 2003: Washington, D.C. White Paper.

-“Media Mix” article published 3/6/2006 by Peter Johnson, USA Today]

January 23rd was the 39th anniversary of the Supreme Court of the United State'’s decision in Roe v. Wade, where the Court ruled that the right of privacy found under Fourteenth Amendment applies to a woman's decision to have an abortion.  This landmark ruling was seen as supporting women’s autonomy in exercising reproductive rights. To mark this anniversary, here is a sampling of recent news concerning reproductive rights:

• Under the Obama Administration’s Affordable Care Act, employers that provide health insurance must include coverage for contraceptives in the insurance they provide to their employees. The requirement also applies to faith-based employers. Unless one works directly for a church or religious institution, one is now entitled to access preventative services. Thus, women that work for faith-based organizations, such as Catholic schools or hospitals, will be provided with coverage for birth control.

• Abortion takes the spotlight during an early part of the election year as “Personhood” proposals—measures that define human life as beginning with fertilization and are intended to ban virtually all abortions—enter the ballots in 12 states.

• The Fifth Circuit Court of Appeals in Texas held that the controversial mandatory sonogram law will remain enforceable.  The court decided that the law’s required disclosures were the best source of information for women seeking abortion. This sonogram law mandates that doctors offer pictures, audio of the heartbeat, and a lengthy verbal description of the fetus to women seeking abortion-providers. Patients may opt out of the visual and audio components, but are required to listen to the doctor’s verbal description unless the patients are victims of rape or incest.