Pitt Law Faculty

Professor John Burkoff was quoted in both Pittsburgh daily newspapers recently in connection with the death of an FBI agent while executing an arrest warrant at a house in a Pittsburgh suburb. A woman in the house fired a shot that struck and killed the agent.

Post-Gazette:

Or there is voluntary manslaughter. That would be the case if Ms. Korbe believed she had to fire the gun to protect herself, even though no one else would think that that was a reasonable decision.

That is what is called an imperfect self-defense, said University of Pittsburgh law professor John Burkoff.

When there is that circumstance, he said, a conviction on voluntary manslaughter is likely.

To determine whether her actions were reasonable, the fact-finder — either the judge or jury — would have to put themselves in her position.

“The jury needs to figure out what a reasonable person, who knew what she knew and saw what she saw, would think in her situation,” Mr. Burkoff said.

Part of that consideration, he continued, is that Ms. Korbe’s husband has been convicted of drug and other charges and potentially associates himself with other criminals.

Tribune-Review:

Officers using a so-called knock-and-announce procedure must knock on the front door, identify themselves as police, give a reason for their presence and give the homeowner a few minutes to answer the door before breaking it down, said John Burkoff, a professor at the University of Pittsburgh School of Law and an expert in constitutional law.

There are exceptions to that law. If officers have reasonable suspicion that a suspect might use deadly force against them or destroy evidence before they get inside, a judge can issue a warrant allowing them to break down the door without announcing their presence, Burkoff said.

Professor Arthur Hellman argued for a presumption of disclosure when federal judges are publicly accused of misconduct, but a prominent federal judge expressed disagreement, according to a report of a panel debate at the Federalist Society’s 2008 National Lawyers Convention.

“When the subject of a pending complaint becomes known in the mainstream media, the presumption should be that the chief judge will make it public,” Professor Hellman said, as quoted in the Blog of Legal Times. He added: “The calculus changes in these high profile cases.” However, Chief Judge Dennis Jacobs of the U.S. Court of Appeals for the 2nd Circuit said that, for the most part, disciplinary actions that have to be taken are best kept in house.

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Professor Arthur Hellman met with the Ethics Committee of the Pennsylvania Conference of State Trial Judges to discuss ethical issues that face judges in Pennsylvania. The committee provides confidential advice to judges who request advance guidance about conduct that may raise questions under the ethics code.

Professor Hellman focused on the implications of the United States Supreme Court decision in Republican Party of Minnesota v. White, which held unconstitutional a state regulation that prohibited candidates for judicial office from announcing their views on disputed legal or political issues. Professor Hellman is a nationally recognized authority on judicial ethics; he is also the co-author of a casebook on the First Amendment.

Professor Lawrence A. Frolik’s chapter “Later Life Legal Planning,” appears in the new book, Theories on Law and Ageing- The Jurisprudence of Elder Law (Springer 2009). The book, edited by Israel Doron, Professor of Law, Haifa University, Israel, attempts to provide a theoretical framework for the field of elder law in order to justify it as a distinct field within the law. Professor Frolik argues that elder law is best understood as a “rich mosaic of legal planning” that evolves to meet older individuals’ legal, financial and social needs and concerns.

On Wednesday, November 19, Professor Deborah Brake presented a workshop called “Rights Claiming and Retaliation” at the Pennsylvania Bar Institute’s Annual Employment Law Institute. Professor Brake discussed the intersection of timely filing doctrines and the gaps in legal protections from retaliation under federal employment discrimination laws.

Professor Haider Ala Hamoudi spoke to ABC News recently on the implications of Iraqi law possibly subjecting American contractors to jurisdiction in Iraqi courts.

“It’s a positive gesture because it’s a move to recognize the sovereignty of Iraq,” said Haider Hamoudi, a professor at the University of Pittsburgh School of Law. “But I don’t think it’s as practical as it is symbolic.”

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Professor Haider Ala Hamoudi participated in a film screening recently at the Chicago Humanities Festival. The film and the program are described:

In the past five years more than four million Iraqis—20 percent of the entire population—have been driven from their homes as a result of the war and sectarian bloodshed. Two million have become exiles, living desperate lives across the border in Syria and Jordan. The Lost Generation, from journalist and documentary filmmaker Sharmeen Obaid-Chinoy (Terror’s Children, On a Razor’s Edge) investigates this massive and catastrophic refugee crisis. Following the screening, the filmmaker will be joined in discussion by University of Pittsburgh associate professor of law Haider Ala Hamoudi, author of Howling in Mesopotamia: An Iraqi-American Memoir.

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On November 18, 2008, Professor John Burkoff was the speaker at the Western Pennsylvania State and Federal Trial Judges Annual Dinner, held this year at the Rivers Club in Pittsburgh. The topic of his speech was “The Effect of the Presidential Election on the Supreme Court.”

Professor Burkoff made the point in his speech that even if President-Elect Obama has the opportunity to nominate two or three new Supreme Court justices during his first term, no significant change in the current ideological balance of the Court is likely. Since the three justices most likely to retire in the next few years – Souter, Stevens, and Ginsburg – are all associated with the minority, center-left wing of the Court, replacement of those justices by new center-left nominees will not change anything that the Court is likely to do in the short run.

However, the real significance of the Presidential election, Burkoff noted, will be evident in the long run. By not electing John McCain – who had pledged to nominate more justices with judicial philosophies like those that already prevail on the majority, right wing of the Court – the current ideological balance of the Court is likely to be maintained for many more years, rather than tipping precipitously to the right in the near future.

Professor David Harris says that withholding the name of the victim of a police shooting victim who is now hospitalized needlessly raises suspicions of a cover up.

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Professor Stella Smetanka published a book chapter titled “Susie’s Voice,” with Rosa Lynn Pinkus and Nathan A. Kottkamp, in Complex Ethics Consultations: Cases that Haunt Us (Cambridge Univ. Press 2008), edited by Paul J. Ford and Denise M. Dudzinski.

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Professor Pat Chew’s article “Myth of the Color-Blind Judge: An Empirical Analysis of Racial Harassment Cases,” co-authored with Robert Kelley, has been posted on SSRN. The article will be published in Washington University Law Review in the Spring of 2009.

The article is based on an empirical study of over 400 federal cases, representing workplace racial harassment jurisprudence over a twenty-year period, found that judges’ race significantly affects outcomes in these cases. African American judges rule differently than White judges, even when we take into account their political affiliation and case characteristics. At the same time, our findings indicate that judges of all races are attentive to relevant facts of the cases but interpret them differently. Thus, while we cannot predict how an individual judge might act, our study results strongly suggest that African American judges as a group and White judges as a group perceive racial harassment differently. These findings counter the traditional myth of judicial decision-making that the race of a judge would not make a difference, since the decision-making process is presumed to be rationale and objective.

Given the underrepresentation of minority judges on the federal bench, the growing minority population in the U.S., and minority skepticism of judicial fairness, this article offers empirical support for a more racially-diverse judiciary. Having more judges of color promises to increase the impartiality of the judicial system and yield more equitable legal outcomes.

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Professor Lawrence A Frolik was the Keynote Speaker at the Fourth Annual Guardianship Conference, “Best Practices in Guardianship Cases,” held in Boston, Massachusetts on Friday, November 4, 2008.  The Conference is sponsored by The Massachusetts Guardianship Association and the Flaschner Judicial Institute and brings together judges, attorneys and profession guardians to discuss current issues faced by the Massachusetts guardianship system. Professor Frolik addressed the topic, “Guardianship in Practice – Are We Progressing or Regressing?”.

On November 8, 2008, Professor Ronald A. Brand spoke on “Treaties and Separation of Powers in the United States: A Reassessment after Medellín v. Texas” at the Seminar on “Separation of Powers in the Americas . . . and Beyond” at the Duquesne University School of Law.  The Seminar was co-sponsored by the Inter-American Bar Association and included presentations the Chief Justices, professors, and scholars from throughout the Western Hemisphere and from Europe.

On October 27, 2008 Professor George Taylor presented a paper on “Equality and Diversity:  Some Jurisprudential Considerations” to the Law Department of the London School of Economics.  From October 28-31, he participated in an international conference on the work of philosopher Paul Ricoeur at the Catholic University of Leuven, Belgium, and on October 31, he presented a keynote paper there on “Legal Hermeneutics.”

Commenting for the Pittsburgh Post-Gazette on a request for a change of venue in the pending retrial of former Alleghen County Coroner Dr. Cyril Wecht:

David A. Harris, a criminal procedure professor at the University of Pittsburgh School of Law, agreed that the prosecution making a motion for change of venue is rare. “It’s an indication of just how much trouble the government has had with this case,” he said.

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On October 11-15, 2008, Professor Ronald A. Brand traveled to Muscat, Oman, with Kate Drabecki (JD ‘08) and Katerina Ossenova (JD ‘08) to help the Sultan Qaboos University School of Law develop a Vis International Commercial Arbitration Moot team as part of an effort to develop that school’s commercial law and arbitration curriculum.  The work is sponsored by the U.S. Department of Commerce as part of its Commercial Law Development Program (CLDP) under the Middle East Partnership Initiative.  This project represents the second CLDP contract awarded to the Center for International Legal Education to assist law faculties in the Persian Gulf Region.

On October 18, 2008, Professor Ronald A. Brand provided a review of ten significant developments as part of a panel on Recent Developments in Private International Law at the International Law Weekend sponsored by the American Branch of the International Law Association and the Association of the Bar of the City of New York.

Professor Brand has been elected an associate member of the International Academy of Comparative Law.  The Academy is the premier international organization for the study of comparative law.

Federal District Judge Edward Nottingham of Colorado, who has been under investigation for a variety of alleged ethical transgressions, has resigned from his life-tenured position on the federal bench. Professor Arthur Hellman commented on the resignation in stories in the National Law Journal and the Denver Post. The chief judge of the circuit said that Judge Nottingham may have made false statements to the misconduct inquiry. Professor Hellman said that, based on those statements, Judge Nottingham may face the loss of his license to practice law or even federal criminal charges.

Links:

http://www.denverpost.com/news/ci_10860631

http://www.law.com/jsp/article.jsp?id=1202425690409

Andrew E. Taslitz, the Welsh S. White Distinguished Visiting Professor of Law, has just been appointed to the new Federal Law Subcommittee of the Committee on Policy and Legislation of the American Bar Association’s Criminal Justice Section. This new Subcommittee’s charge is to review all proposed criminal justice legislation in the new Congress and to examine changes in criminal justice policy or practice of the new Administration, then to make recommendations to the Section leadership, and ultimately the ABA leadership, on the need to express an ABA position on these matters.

Professor Taslitz has also become a participant in the University of Pittsburgh’s interdisciplinary Center for Race and Social Problems and has agreed to present to the Center on the topic of race and innocence. Professor Taslitz, along with Pittsburgh Professor David Harris and Indiana-Bloomington law professor and sociologist Jeanine Bell, has also begun the research design phase of an empirical study of search warrant bases in the City of Pittsburgh over the last several years. On October 31 and November 1, 2008, Professor Taslitz completed his first full meeting of the National Conference of Commissioners on Uniform State Laws’ Committee on Electronic Recordation of Custodial Interrogations and, as a result, is expected to present draft legislation for that Committee’s consideration in March 2009. He also helped to review draft standards of the ABA Committee on Transactional Surveillance Standards (addressing government surveillance of third parties holding private record information, for example, internet service providers or banks) at its last meeting in Denver, Colorado.

Professor Taslitz has just published Ferguson v. City of Charleston: the Feminization of Consent, in THE ENCYCLOPEDIA OF THE SUPREME COURT OF THE UNITED STATES (Gale Publishing, 2008); The Guilty Plea State, 2 CRIM. JUSTICE __ (2008) (editor’s introduction to symposium on guilty pleas); Prosecutorial Preconditions to Plea Negotiations: “Voluntary” Waivers of Constitutional Rights, 23 CRIM. JUSTICE __ (2008); a 2008 Supplement to his co-authored text, EVIDENCE LAW AND PRACTICE (3d ed. 2007); and a 2008 Supplement to his co-authored text, CONSTITUTIONAL CRIMINAL PROCEDURE (3d ed. 2007).

Last week, Professor Michael Madison presented a new paper, Notes on a Geography of Knowlege, at a faculty workshop at Brooklyn Law School and at a conference at Fordham Law School titled “When Worlds Collide: Intellectual Property at the Interface Between Systems of Knowledge Creation.”

Two lectures by Professor Harry Flechtner on the United Nations Convention on Contract for the International Sales of Goods (“CISG”) are part of the recently-launched United Nations Audiovisual Library of International Law, The library, available at http://www.un.org/law/avl/, contains a wealth of resources and historical materials on international law. Professor Flechtner’s contributions are a part of the library’s Lecture Series, comprising video-recorded lectures by leading experts from around the world — academics, judges and practitioners — on significant topics in international law. Professor Flechtner’s lectures are available at http://untreaty.un.org/cod/avl/faculty/Flechtner.html.