Legal Commentary

Regardless of when they are accepted, articles seem to come out in bunches, as this week attests.

Today, my essay, Jurisdiction, Merits, and Procedure: Thoughts on Dodson's Trichotomy, was published on Northwestern University Law Review Colloquy. This is a response to an article from my co-guest prawf, Scott Dodson, that appears in the latest issue of Northwestern University Law Review. This piece is either the third (in terms of timing of publication) or fourth (in terms of timing of writing) in a series of articles in which I argue for the use of clear and consistent lines between the distinct concepts of subject matter jurisdiction and the merits of federal claims of right. Earlier entries are here, here, and here. Scott's article gave me a chance to consider how pure judicial procedure fits into the mix.

Also this week, my essay Video evidence and summary judgment: The procedure of Scott v. Harris, comes out in Judicature. This is a short comment on the Court's decision last term in Scott v. Harris, the high-speed-chase/video evidence/summary judgment case. My focus here is on what I label the "myths" (more accurately, I think, "fallacies") of video evidence--namely that the video "speaks for itself" as a conclusive, objective, certain, truthful, and accurate depiction of events that requires no interpretation--to which the Court fell victim in granting summary judgment based on its own viewing (and understanding) of the video. This case was the subject of some discussion previously.

I cite briefly, but do not really engage with, the empirical study of Scott by Kahan, Hoffman, and Braman, that was discussed here, here, here, here, and here. I will consider that study (to which I largely am sympathetic) in a larger piece on the effect of video on civil rights enforcement that I am beginning to write. I likely will post some thoughts on that paper, and how it relates to my subject, in the next week or so.