Wednesday, September 02, 2015
New Jersey’s Legislature Takes a “Grave” Misstep
Other than fellow “property law geeks,” not many people may wonder about property rights in cemeteries, but it is a surprisingly complex and varied topic about which I’ve pondered and about which Professor Tanya Marsh of Wake Forest has developed national expertise. She has recently written the definitive casebook on cemetery law (co-authored by recent law school graduate Daniel Gibson), has launched a venture with the Urban Death Project to work for “ecologically beneficial meaningful death care” worldwide, and has recently been quoted in the national media with respect to death and internment issues. Monday, in a short but completely compelling piece on Huffington Post, Professor Marsh took the New Jersey legislature to task for passing a law limiting churches’ ability to manufacture and sell tombstones, vaults, and private mausoleums.
As Professor Marsh clearly explains, creation and care for tombstones in church-owned and operated cemeteries is a religious practice. After all “rituals that mark the transition from life to death are a central part of most modern religions.” (I’d go even further and say that such rituals have always been a central part of all religions.) But this new New Jersey law, Bill 3840, that was signed into law by Governor Chris Christie in March 2015, limits churches’ ability to fully participate in those rituals – even on their own land and on behalf of their own members. The law seems to be a blatant anti-competitive, special-interest-group spearheaded “win” by the Monument Builders of New Jersey, who agitated for government assistance to preserve their de facto monopoly on manufacturing graves, memorials and vaults. Not only does this law serve no state interest at all – let alone a compelling one – it violates religious freedom in an essential and inexcusable way. Professor Marsh sums it up thus:
This law is an amazing act by the New Jersey legislature and governor. It was adopted at the behest of a group of private market participants for a reason no more noble than to protect themselves from competition. This blatantly anti-competitive effort is even more stunning because the product at issue–headstones and memorial tablets–are not regulated. No license is required to manufacture or sell them. Literally anyone in New Jersey can manufacture and sell tombstones, vaults, and private mausoleums–everyone, that is, except religious organizations and non-profit corporations that own or manage cemeteries.
Happily for those who care about justice and religious freedom and economic liberty, the Archdiosese of Newark, assisted by the Institute for Justice, have brought a lawsuit against the State of New Jersey, seeking to have the law struck down. There are several asserted grounds pursuant to which the court could invalidate the law, including violations of Due Process, Equal Protection, and the Privileges and Immunities Clauses of the 14th Amendment, and the violations of the Contracts Clause (Art. 1, Section 1) of the Constitution.
Tuesday, September 01, 2015
(Repost): Section on Fed Courts: Annual Award for Best Untenured Article
The AALS Section on Federal Courts is pleased to announce the fourth annual award for the best article on the law of federal jurisdiction by a full-time, untenured faculty member at an AALS member or affiliate school and to solicit nominations (including self-nominations) for the prize to be awarded at the 2016 AALS Annual Meeting in New York, NY.
Contempt proceeding in Rowan County
The ACLU today moved to hold Kim Davis in contempt for refusing to allow her office to issue marriage licenses, asking for "financial penalties" seemingly tied to the compensation she continues to receive from the state despite not performing her functions. The motion does not ask for jail time, likely realized that is what she and/or her attorneys want. Judge Bunning has scheduled a hearing for Thursday.
More interestingly, the ACLU also moved the court to clarify the preliminary injunction to "state unambiguously that the preliminary injunction applies not only to future marriage license requests submitted by the four named Plaintiff couples in this action, but also to requests submitted by other individuals who are legally eligible to marry in Kentucky." The motion states that the action was filed as a "putative class action," although the court has never addressed or resolved the class certification issue. So the motion appears to be asking the court, in the guise of clarifying its injunction, to convert it into a class-wide injunction without ever doing the FRCP 23 analysis of whether certification is appropriate. Can the court do this?
The baby is coming, the baby is coming ...
Actually, she is not. She is now eight days past due and showing no signs of emerging from the womb. So the blogging must stop ... not because she needs to enter this world for all of our sakes (the in-laws are in town with nothing to do ... we are all miserable including, most prominently, the pregnant one), but because Howard has told me that my time with you has come to an end. But never fear, I'll be back ... maybe not next month, maybe not next year, maybe not in the next twenty years ... but I'll be back.
On a final note, I feel that given the origins of the blog, I owe a short word to the originator. I never knew Dan. Never met him once. So I really have nothing to offer in terms of a personal experience with him. But being a religious reader of this blog (not so religious as to deny a marriage license, but pretty religious) I can say that if I have the opportunity to touch and impact the lives of even half the people that he touched and impacted, I will consider it a life well lived.
Thank you all for your wonderful and extraordinarily interesting engagement with my blog posts. I have taken all the comments in even though I only responded to a few of them. My ideas are evolving on how to protect the marginalized poor and each of you has helped with that evolution. For that, I will be sure to reserve a star footnote slot for all of you (is there any greater honor?), even anon at 12:42. Best wishes for a rewarding, productive, and impactful new academic year.
Monday, August 31, 2015
Serving two masters in Rowan County, KY? (Further Updates)
I am not a fan of Slate's Mark Joseph Stern, who I think has been both wrong and shrill about the procedure in the marriage-equality litigation. But I wonder if he is onto something with this piece about the connection between Kim Davis, the Rowan (Ky) Clerk of Court who is ignoring a federal injunction (and no, even under the view of departmentalism I have been pushing, you can't do that), and her attorneys from the Liberty Counsel, a religious-conservative advocacy group.
Stern posits that the lawyers are taking her for a ride, using her to push their legal-ideological agenda without regard to her best legal interests, recalling Derrick Bell's famous discussion of attorney-client conflicts in desegregation litigation. One commenter on Stern's post posited that she was offered a ride and willingly accepted. And I have suggested that Davis would be perfectly happy to become a martyr to this cause--although who knows if this is her lawyers or her. Either way, if Stern is right that the lawyers advised Davis to ignore the injunction and be held in contempt, that is troubling, since it raises the possibility that she will be unable to challenge any contempt sanctions later on.
Stern reports that Davis has moved for a stay of the injunction from SCOTUS, in a petition that attempts to minimize the effect of Obergefell and to treat the dissents as binding authority. No way four justices sign-off on that. So now we see what happens when the whole thing is back in the district court.
Update: Justice Kagan (the Sixth Circuit Justice) referred the petition to the full Court, which denied it without comment or published dissent. So now we see whether Davis is really willing to go to jail (or pay hefty fines) over this.
Further Update: Davis continued refusing to issue licenses, this time on video. The irony (which no one is going to catch) is that the couple in the video--David Moore and David Ermold--are not among the eight (four couples) named plaintiffs. So Davis actually is not in contempt in denying them the license.
Gabilondo on the Cuba embargo
My FIU colleague Jose Gabilondo explores how the Obama Administration might unilaterally end the Cuba embargo, or at least set it up to be challenged by a private party. It is an elegant solution, tied to the connections between legislation and administrative rulemaking.
The standing question he mentions is interesting, but seemingly manageable. If the sole basis for the embargo is regulations enacted solely pursuant to a constitutionally defective statute with no inherent executive discretion and that statute is the only thing legally prohibiting a company from doing business in Cuba, then standing to challenge the statute seems plain. And after Zivotofsky and Bond (interestingly, both Kennedy opinions), it is clear that a private plaintiff can raise pure separation-of-power and federalism arguments in challenging the validity of federal statutes.
Big Mountain Jesus update
Back in March of 2014, I blogged about the Establishment Clause challenge brought by the Freedom From Religion Foundation against "Big Mountain Jesus." Here's a picture I took, during my own trip to enjoy the great Montana snow:
The monument, which also included a plaque dedicated to the WWII soldiers, was built and maintained by private efforts. Every 10 years the permit for the monument was renewed with the Flathead National Forest.
The FFRF lost in the District Court. Judge Dana Christensen wrote:
"To some, Big Mountain Jesus is offensive and to others it represents only a religious symbol," Chistensen wrote. "But the court suspects that most who happen to encounter Big Mountain Jesus, it neither offends nor inspires."
He said that to many the statue "serves as a historical reminder of those bygone days of sack lunches, ungroomed runs, rope tows, T-bars, leather ski boots, and 210 cm. skis."
Well, the Ninth Circuit's ruling is just in, and Big Mountain Jesus is safe again. (The opinion is here: Download SANFRAN-#160648-v1-Ninth_Circuit_Affirmance.) Among the several factors that prompted the Court to conclude that the "endorsement test" did not require the statue's removal was this: "the flippant interactions of locals and tourists with the statue suggest secular perceptions and uses: decorating it in mardi gras beads, adorning it in ski gear, taking pictures with it, high-fiving it as they ski by, and posing in Facebook pictures[.]"
Judge Pregerson dissented.
Hiring Season Posts - Reminder
The hiring committee thread is here. It includes a spreadsheet that lists, among other items, names of the members of hiring committees as well as particular areas of interests a school might have. If your school and its committee is not yet listed, please consider either emailing me or posting the information in the comments to that post, and I will make sure it gets on the spreadsheet.
At the Clearinghouse for Questions, available here, people may post general questions and information about the job market.
The informational thread is here. People may choose to share information about interview requests they have received or issued.
Happy, September, everyone.
Thanks to all of our August guests, who may be sticking around for a few final days. And please welcome our September guests--Garrick Pursley (FSU), Mark Drumbl (Washington & Lee), Tamra Rice Lave (Miami), and Beth Thornburg (SMU). And Ari Waldman (New York Law School) will be staying for another month.
Friday, August 28, 2015
Do Drugs Cause Violence?
The U.S. Sentencing Commission voted to reduce sentences for most federal drug offenders retroactively, potentially allowing 46,000 inmates to obtain slightly shorter sentences by the end of this year. Given that there are over 6 million Americans under supervision in state and federal prisons and jails, this is a positive step, but it certainly is not going to be the end of U.S. mass incarceration. And yet, even this small step forward has received opposition. The National Association of Assistant U.S. Attorneys opposes this change, calling it a “grave danger to public safety.” And current pending legislation like the Smarter Sentencing Act, which aims to reduce draconian drug sentences by half, face serious opposition. In recent testimony before Congress, the DEA asserted that drug trafficking poses serious threats due to the violence that accompanies it, and another commentator testified that simply releasing 1% of federal prisoners would lead to over 32,000 more murders, rapes, and other violent crimes. The problems with these arguments are that they are flat out wrong. The evidence simply does not support that drug defendants are violent people.
The argument that drug defendants are violent conflicts with studies, like my work with economist Frank McIntyre, that shows that drug defendants are the safest defendants to release before trial. Our study of over 100,000 felony defendants over fifteen years showed that of all of the felons released before trial, those charged with selling or possessing drugs were the least likely to commit a violent crime. In fact, they were as safe to release as those brought in on driving related crimes.
Our study is not the only one that shows that most drug defendants are not violent. There is no proof that illegal drugs pharmacologically cause violence. Though certainly drug addicts commit more crimes than nondrug users, they commit them at low rates, and the connection between drugs and violent crime is complex and inconclusive. In fact, no researchers have been able to prove that drugs have a direct influence on violence, and one study actually shows that drug users are more likely to reduce violent behavior after using drugs. Indeed, studies have pointed out that forces of violence are not caused by drugs but may come from economic hardship, poor intellectual capacity, an aggressive temperament, or other personality disorders. Interestingly, a link between alcohol and violence has much more support in data than a link between drugs and violence. And tobacco is even more significantly linked to crime than alcohol or drugs. A 1997 survey of prisoners also indicated only 12% of federal drug offenders were ever convicted of a violent crime. And against common perception, prisoners incarcerated for violent offences do not generally commit violent crimes for drug money. In 2002, only 5% of violent and public order offenders claimed to have committed their crimes for drug money. Even without protection of the state, illegal drug markets generally run without violence. For instance, Mexico has trafficked drugs for a century but has only seen an extreme rise in violence within the last decade.
So if there is not much evidence that drugs create violence, why do we all believe it? Simply blame it on the War on Drugs. In 1986, drug use was viewed as the most important problem facing the nation by only 3% of the population, but that number climbed to 64% in 1989. And during this same period drug use actually declined in America. What happened though is that U.S. Presidents “got tough” and blamed drug use for America’s problems. With this rhetoric and legislative backing, prison rates climbed quickly and between 1981 and 1990, drug defendants went from 6% to nearly 25% of the state prison population, and from 25% to 60% of the overall federal inmate population.
Though the drug-violence link lacks proper support, it is rarely challenged and forms the backbone of U.S. drug policy. Countless cases and statutes continue to rely on this link to justify trumped up sentences. Courts have asserted, without support, that drug addicts need to commit crimes of violence to satisfy their demand for drugs; that drug use and trade inevitably involves violence, and individuals involved in drugs are more likely to be involved with violence, even if the defendant has never exhibited any violent behavior. What is more, the current drug laws make no difference between violent and nonviolent offenses, and an addict with a record of drug convictions often faces a longer sentence than a murderer. Instead of actually focusing on violent crime, drug crime penalty schemes (state and federal), include sentencing enhancements based upon the quantity of drug you have, assuming that the more drugs you possess, the more violent you are, even though there is little evidence to back this claim.
The overwhelming result of connecting drugs to violence is mass incarceration. Strict drug laws have punished individuals harshly for small roles in drug operations due to the fear of violence. The drug confiscation “success rate” of state and federal drug enforcement agencies has consistently hovered around 10% since the 1960s regardless of how many people are incarcerated and how much additional funding is allocated. By 2011, more than half of federal prisoners were serving time for a drug offense, while only 11% had committed a violent offense.
Recent U.S. Sentencing Commission changes—while positive—are not enough to make a dent in prison growth from the War on Drugs. Even with this change, a defendant convicted with just 10 grams of LSD, with one prior felony drug offense, receives at least 20 years in prison. But rather, these changes demonstrate that the time may be ripe to reconsider this flawed link between drugs and violence. Indeed, the entire framework of federal and state drug statutes and cases must abandon the myth that drugs cause violence.
Thursday, August 27, 2015
Get "PRACTICE READY." Get set. Go!
The ABA’s new standard 303(a)(3) instructs law schools to require graduating students satisfactorily complete “one or more experiential course(s) totaling at least six credit hours.” This standard (along with the subsequent standard 304) goes on to explain that the requirement can be satisfied through a simulation course, a law clinic, or field placement (externship). This experiential requirement seems aimed at fulfilling the ABA House of Delegates Recommendation 10B from the 2011 Annual Meeting of the ABA that legal education implement curricular programs “intended to develop practice ready lawyers including, but not limited to enhanced capstone and clinical courses that include client meetings and court appearances.” The California Bar has gone even further, requiring that graduates take 15 “skills” credits in order to be admitted to practice in the state. These enhanced experiential requirements are responsive to calls from all quarters – from the Carnegie Report and the MacCrate Report to Brian Tamanaha’s book and the scam-blogosphere – that law schools revamp their curricula in order to ensure that their graduates are “practice ready.”
Creating experiential learning opportunities for students is a great idea. But mandates that law schools produce “practice ready” graduates seem incompletely thought out. Fundamental questions about “practice ready” graduates remain and will continue to plague the system:
- What does “practice ready” mean in a world where the practice of law involves widely disparate types of work?
- What sorts of skills, efforts, and methods are required to make a law student “practice ready”? Is it ready to be a first-day lawyer? Or are schools somehow supposed to produce graduates that can function as a second or third year associate or as an unsupervised solo practitioner on day one in practice?
- Empirically, precisely what sorts and amounts of “practice ready” deficiencies exist now and what must be done to remedy these?
- Epistemically, how can you judge anyone’s “practice readiness” to begin with?
- Theoretically, can (or should) “skills” instruction be separated from learning legal “doctrine”? After all, today’s heralded doctrinal goal of teaching students to “think like a lawyer” was originally promoted as skill training! For excellent food for thought on this topic, see Linda Edward’s fantastic article, The Trouble with Categories: What Theory Can Teach Us About the Doctrine-Skills Divide , and a review/summary of it here.
- Even if we could teach practice readiness and we could somehow measure and assess it, are law schools really the best places for lawyers to learn practice skills?
- And even if law schools are the best places for “practice readiness” instruction (whatever that means), what are the costs – opportunity costs and out-of-pocket costs – that will be incurred by schools and by students from the re-allocation of resources toward improving graduates’ practice-readiness?
Basically, although many clamor that law schools need to increase their focus on “practice readiness”, we still don’t know if “practice readiness” instruction is merited, if is it ever achievable (measurable, teachable, possible) in law school, and whether it is worth the cost.
A Clearinghouse for Questions, 2015-2016
In this comment thread to this post, you can ask questions about the law teaching market, and professors or others can weigh in.
Both questions and answers can be anonymous, but I will delete pure nastiness, irrelevance, and misinformation. If you see something that you know to be wrong, please feel free to let me know via email, slawsky*at*law*dot*uci*dot*edu.
We have a different thread in which candidates or professors can report callbacks, offers, and acceptances. That thread should be used only for information relevant to hiring, not for questions or comments on the process. This is the thread for questions.
Here is a link to the last page of comments.
Originally posted August 27, 2015.
Law School Hiring, 2015-2016, Thread One
Those on the market are invited to leave comments on this thread regarding whether they have received:
(a) a first round interview at a school (including the subject areas the school mentioned, if any, as being of particular interest, and whether the interview offer was accepted);
(b) a callback from a law school and/or accepted it; or
(c) an offer from a law school and/or accepted it; feel free to also leave details about the offer, including teaching load, research leave, etc. A school listed as "offer accepted" may have made more than one offer and may still have some slots open.
Law professors may also choose to provide information that is relevant to the entry-level market.
Four miscellaneous things:
1. If you don't want your contact information displayed, enter firstname.lastname@example.org or something like that as an email address.
2. There is a separate thread, "A Clearinghouse for Questions," for general questions or comments about the teaching market. Please do not use the thread below for general questions or comments. (Such comments will be deleted, not out of hostility or in a judgy way, just to keep this thread focused.)
4. Finally, in each of the last five years, someone who is on the market has volunteered to aggregate the information on a spreadsheet. If you would like to volunteer, please contact me directly at slawsky *at* law *dot* uci *dot* edu, and I will get you set up.
Originally posted August 27, 2015.
The Sixth Circuit has declined to stay the injunction against the County Clerk of Rowan County, Ky; her office is refusing to issue any marriage licenses, citing religious liberty, to avoid having to issue licenses to same-sex couples. The court was emphatic that there was "little or no likelihood" that the clerk would prevail on her appeal. Because the injunction runs against the clerk in her official capacity and thus against the clerk's office, "it cannot be defensibly argued that the holder of the Rowan County Clerk’s office . . . may decline to act in conformity with the United States Constitution as interpreted by a dispositive holding of the United States Supreme Court."*
[*] I would have put this point slightly differently, although the basic idea--the clerk is going to lose--is right.
So we now are set for the clerk to be held in contempt, which, as I said before, is what she and many others in this post-Obergefell crusade probably have wanted all along. Look for her to be featured in a new Ted Cruz video very soon.
Wednesday, August 26, 2015
Do not go gentle into that Nebraska night
Nebraska has asked the Eighth Circuit for rehearing en banc on whether the challenge to its same-sex marriage ban is moot in light of Obergefell and its promise to comply. The court earlier this month rejected the argument, concluding that Obergefell only spoke to the bans from Kentucky, Tennessee, Ohio, and Michigan and that whatever the state's promises not to enforce, the marriage ban remains on the books. Interestingly, the rehearing petition is even more explicit that this is all about denying the plaintiffs prevailing-party status and eligibility for attorneys' fees.
I have written previously about why I do not believe these cases are moot--or at most the appeal is moot, but plaintiffs retain prevailing-party status because they previously obtained a preliminary injunction. I will add here that under my conception of departmentalism and the nature of precedent, Obergefell is largely beside the point for the state. Because precedent (even from SCOTUS) is not legally (as opposed to practically) binding on state officials' real-world conduct, that decision is not compelling them to do anything. What we have here is simple voluntary cessation, prompted by precedent and the state's voluntary choice to follow that precedent (rather than waiting until a court applies Obergefell and enjoins them). And voluntary cessation is generally not sufficient to moot a case. Ironically, then, this approach--which most civil-rights supporters likely would find anathema--is beneficial to plaintiffs trying to avoid mootness caused by new precedent.
One more thought, courtesy of Josh Blackman, my co-author: The state seems to spending a lot of money on this side issue. Simply put, the state is gambling: If it works, they lessen (and perhaps, although likely not, eliminate) all attorneys' fees; if it doesn't, they are driving those fees up even more. Of course, as Joanna Schwartz suggests, having to pay may not matter much to the government.
Rentboy.com and the Internet's Role in Sex Work
On Tuesday, New York police officers and agents of the Department of Homeland Security raided the Manhattan offices of Rentboy.com (link is to the Wikipedia page). The company's chief executive and other members of the leadership and employment team were also arrested at their homes. According to the Complaint, rentboy.com, a social networking website that connects male sex workers to clients, has been the hub of a multimillion dollar criminal enterprise.
This episode, on the heels of another sex-related internet story at Ashley Madison, raises several questions. The broadest: Should prostitution be criminalized? Reasonable people disagree. The narrowest: Did rentboy.com commit a crime? At this stage, which just requires the government to offer facts that make the case viable, there is factual and legal sufficiency to move forward. I have additional questions: Why is this website a priority for the government? Has the internet made the problem of sexual exploitation worse?
Possible Reasons for Ambivalence to a Large Increase in AALS Dues for "Public Outreach"
On Monday Professor Michael Simkovic proposed a substantial redistribution of AALS resources to "public outreach efforts" aimed at better "explaining [legal education's] value to the press and the public," including such things as feeding individual journalists with "personally tailored content that each journalist is particularly likely to find relevant and interesting based on [his or her] past coverage and the stories they are currently researching." He also proposed that such "efforts could be funded by a 50% to 100% increase in annual [AALS] dues (roughly $5,000 to $10,000 for the smallest law schools and $15,000 to $30,000 for the largest) for the next 3 years."
Someone else will have to speak to how likely the latter proposal is to actually occur. I would have thought "not very," but I could be wrong and I don't have any special information about this. I wish the post had provided some evaluation of the proposal's likelihood of moving forward, since it might be inefficient for me to allocate my time to pondering the issue if it has little chance of happening. But perhaps no basis for an estimate is available.
My assumption based on general experience is that, at least in terms of the legal blogosphere, views of such a proposal will be heavily and perhaps excessively influenced by one's priors concerning law schools and the costs, benefits, and value of legal education. But I suspect that many law professors might be ambivalent about or opposed to such a proposal, even if they share (or are agnostic about) Simkovic's conclusions about those issues.
Here are a few reasons why, even if they agree generally with Simkovic's other arguments about legal education, they might nevertheless hesitate to support his latest proposal or even oppose it. I have made an effort throughout to impose an important constraint on this post: I have avoided any reasons that require one to take issue with Simkovic's prior conclusions about the benefits of legal education and the state of the legal/legal education economy. I will relax that constraint a little at the end of the post, and we will see that once we do so, professors may have many other reasons to disagree with the proposal to have the AALS launch an expanded "public outreach program." That is true even if they agree with the basics of his conclusions elsewhere but take issue with particular aspects of his argument and its implications. At least initially, however, I want to remove the possibility (given what I see in the legal blogosphere, the certainty) of motivated reasoning based on readers' thoughts about whether legal education is worth it for prospective law students. The list follows after the jump.
Tuesday, August 25, 2015
Rankings Rancor, a contribution from Scofflaw
I've decided to give an opportunity for a couple of my students to speak to Prawfs and any others listening. They chose to talk about rankings. As many of you know, as far as employment numbers for law schools, a JD-required job receives more points than a non-JD required job. So, in turn, law schools often push their students to accept JD-required jobs. My students make an insightful point about the rankings value of a JD required job versus a non-JD required job. I understand that we don't want to equate a job at a prosecutor's office with a job at Applebee's, but surely there are great jobs in the corporate, nonprofit, or public policy world that we would be proud that our students are able to get after obtaining a JD. There are plenty of business jobs or policy and think tank jobs that lawyers can do just as well as MBAs or MPAs or other generally smart people. Why do we (through the U.S. news rankings) disincentivize law schools in helping students get non-JD required jobs? Particularly as the legal market has not fully recovered as compared to other fields. I would be interested to hear from others on this topic. (Obviously there is more than just this to criticize as far as U.S. News goes...)
Harper, "Too Many Law Students, Too Few Legal Jobs"
In this NYT piece ("Too Many Law Students, Too Few Legal Jobs"), Steven Harper (author of The Lawyer Bubble: A Profession in Crisis) contends (among other things) that:
The crisis in legal education is real. Magical thinking and superficial rhetoric about declining enrollments, better debt counseling for students, and law schools’ experimenting with curriculum changes will not create more jobs. . . .Until student loans bear a rational relationship to individual law school outcomes, law schools will exploit their lack of accountability, the legal education market will remain dysfunctional, and equilibrium between supply and demand will remain elusive.
I'm not sure -- to put it mildly -- what "the answer" is or "the answers" are to concerns and questions about the cost of legal education, the debt-loads incurred by law students, and, for that matter, the future of higher education generally. But, I do know (I think!) this (channeling Phil Hartman): Harper is right that "curricular changes" do not "create more jobs" (although it certainly could be that some - not all - well-conceived and carefully thought out changes would help prepare some students better for the jobs that do exist and that are being created). I continue to think that law schools actually do what they purport to do, and are able to do, pretty well. This is not standpattism, but a sense -- as I wrote in response to another New York Times piece, about five years ago -- that many (not all!) of the media complaints about legal education are off-base.
Poor Lives Matter Too
Implicit within the rallying cry "Black Lives Matter" is the word "too." In the debate about the slogan, that sometimes gets lost. Some politicians and public figures seeking to be inclusive about the value of lives have responded "All lives matter" sometimes missing the implicit "too". And perhaps the movement seeking to provoke has intentionally obscured the "too" in order to elicit a reaction that feels tone deaf when you understand the implicit "too" is there. For me, the rallying cry is much more powerful with the "too" explicit. The perception that we need reminding that those lives historically treated as having lesser value through the Constitution, slavery, and Jim Crow should matter too in our supposedly "post racial" world is a damning critique of where we are as a society. The Black Lives Matter movement is critical for keeping the light brightly shining on racial injustice as the news media and the public mind shifts its attention away from Ferguson, Staten Island, and North Charleston.
But I am also frustrated with the movement as it seems to have revived the unfortunate class versus race competition. Its almost as if some of the movement's actors have forgotten the implicit "too" in their calls for the prioritization of race over other forms of inequality like class. And maybe that's right given America's original sin of racism and racial subordination. But for me, race and class are fundamentally intertwined. Michael Brown, Eric Garner, and Walter Scott obviously had in common the color of their skin, but they also were among the most economically vulnerable. Perhaps it is a coincidence that they shared this class characteristic, but I suspect it is not. I suspect that we have forgotten or perhaps never learned that poor lives matter too.
Autonomy Rhetoric in Supreme Court Opinions
Obergefell has spawned an interesting discussion about the use and abuse of rhetoric in Supreme Court opinions. (E.g., here, here, and here.) One especially salient charge is that the Court’s opinions in Casey, Lawrence, and now Obergefell all rely on “showy profundities,” as Justice Scalia has put it. But the rhetoric at issue may simply reflect a certain kind of philosophical writing, as evidenced by a forthcoming paper by Vincent Phillip Muñoz. (By way of disclaimer, I clerked for Justice Kennedy several years ago.)
Monday, August 24, 2015
Clerkship hiring and changing clerkships
Aaron Nielson (BYU) has published The Future of Federal Law Clerk Hiring (Marq. L. Rev.). The article traces the fall of the 2003 clerkship hiring plan and discusses some possible strategies and concerns in trying to get it under control. Definitely worth a read.
I want to focus on one feature of clerk hiring that Nielson discusses as a piece of the problem and of the search for a new hiring process: The increase in judges hiring only "experienced" clerks, clerks coming into chambers after several years doing something else. Sometimes it is another clerkship, which has long been the case and makes some sense for both judge and clerk. But more and more the "something else" is working at a law firm for a year or more, with the clerk not applying until she is well into practice. This trend seems to be increasing in recent years, particular on the Southern District of Florida, the district in which I live and where my students tend to look for federal clerkships.
But I believe this is an unfortunate trend.
Co-Deans Are All the Rage!
Congratulations to my colleagues Jessica Berg and Michael Scharf, whose interim co-deanship was just made permanent!
Apparently, at least a couple of other schools have jumped on the co-dean bandwagon--according to TaxProf, LSU and New Mexico have adopted this model, which was also utilized (pioneered?) at the University of Minnesota Law School.
Having observed co-deans in action since November of 2013, most recently from my post as Associate Dean for Academic Affairs, I can say that it works, or can work, fabulously.