Friday, December 18, 2009
Why no philosophy of language in Law School?
We are in the business of interpreting words, so it seems odd that prominent philosophers of mind, meaning, and language are virtually invisible in legal scholarship. Aside from Michael Moore (the jurisprude, not the movie maker), I cannot think of any legal academics who have written about the relationship between semantics and moral theory. Citations to the greats of philosophy of language -- Saul Kripke, Hilary Putnam, Donald Davidson, etc -- are rare in the law reviews even when the law reviews discuss philosophy of law. Larry Solum discusses semantic theories in his work on originalism, but there is (to my knowledge) no entry in his Legal Theory Lexicon dealing with reference theory, semantics, or philosophy of language more generally. A collection of essays on Objectivity in Law and Morals edited by Brian Leiter contains a single "cf. citation" to Donald Davidson but otherwise seems to be silent about philosophy of language --an omission that is especially weird since the third volume of Donald Davidson's philosophical papers are devoted to the distinction between the subjective and objective, and Davidson is widely regarded as one of the giants of philosophy in the twentieth century. It is almost as if Leiter and his authors consciously decided to give philosophy of mind and language the cold shoulder.
So why are we lawyers and our fellow traveling legal philosophers so indifferent to philosophy of language? Is it simply a result of a sort of path-dependent sociology of knowledge? Perhaps the agenda set by H.L.A. Hart, Ronald Dworkin, and Joseph Raz dominates legal scholars' agenda, simply because their students predominate among legal philosophers sitting on law faculties. Or is there some other explanation? One prominent legal philosopher who shall remain nameless opined that Davidson, Putnam, & Co. are simply too difficult: It is much easier to argue one more round about Riggs v Palmer than to untangle Tarski's truth definition. But I do not buy this explanation: Law profs grapple with tough empirical methodologies, and law faculties hire rigorous political scientists. Why shy away from the one of field of philosophy that would seem to be most closely related to what lawyers do -- namely, interpret language? Interest in post-modern theories of interpretation (thankfully) seems to be flagging: It would be nice if they were replaced by some interest in the real McCoy.
Posted by Rick Hills on December 18, 2009 at 07:18 PM in Legal Theory | Permalink | Comments (2) | TrackBack (0)
"A Law School Carol"
This story ("Going to law school? Proceed with caution") discusses and links to a video that is making the rounds:
Make no mistake: A Law School Carol is no heartwarming holiday tale of redemption.
The computer-animated video, which has been circulating on YouTube for several weeks, focuses on a law student named Steve who is visited by the ghost of Ralph Marley's disappointing legal career (Ralph Marley being the law student who used to rent Steve's apartment and now does document review somewhere in New Jersey). The ghosts of Steve's prelaw, law school and postlaw school lives visit him to offer a sobering accounting of the sacrifices he made to attend law school, the staggering debt he assumed in the process and the limited prospects his degree from a third-tier school will afford.
"Wake up and smell the student loan payments!" the ghost of law school present warns.
The video may be a joke, but the argument isn't. . . .
Reactions? Thoughts?
Posted by Rick Garnett on December 18, 2009 at 02:47 PM in Rick Garnett | Permalink | Comments (0) | TrackBack (0)
Estate Taxes and Natural Experiments
As the NYT reports this morning, the controversial estate tax is going to enjoy a one year repeal before it arises again in 2011. Empiricists: now's your chance to start looking at the tax effects on death. As the Congressman says, "If you are at the checkout counter, you might want to expedite things."Posted by Dan Markel on December 18, 2009 at 11:16 AM in Tax | Permalink | Comments (2) | TrackBack (0)
Tiger Woods and the Wall Street Journal
There's a fascinating story in the WSJ about efforts by Tiger Woods to hide past indiscretions. However, this paragraph within the story reminded me that Tiger is not the only one who made a deal with the tabloids:
The woman purportedly photographed with Mr. Woods in 2007, a Florida restaurant employee named Mindy Lawton—along with at least one of her family members—was recently promised an undisclosed sum in return for telling her story exclusively to News of the World, a London-based tabloid owned by News Corp., which also owns The Wall Street Journal. The agreement blocks her from discussing her alleged relationship until after Dec. 20—two weeks after it was first published in the U.K., according to people familiar with the matter.
I found it a little odd that News of the World refused to lend out a source to a sibling news organization. Seems to show a lack of synergy -- but perhaps that's a good thing.
Posted by Matt Bodie on December 18, 2009 at 11:14 AM in Corporate, Sports | Permalink | Comments (1) | TrackBack (0)
Anticipating teaching Iqbal
One (I would argue the only) benefit to having civ pro as a spring-semester course is that I get an extra five months to digest the events of the prior term and figure out how to incorporate them into the class and how they change everything I'd done previously. Given the Supreme Court's recent pleading-related mischief, that's not necessarily a bad thing. I spent the past couple days working on my syllabus and course blog, which at least got me thinking (for the first time) at least about where to work Iqbal (and Twombly) into the material and how to structure the overall discussion. This led me to the following thoughts.
First, how much time should we spend on Conley itself and everything that came prior to Twombly? My instinct is to cover it just as I did previously, then talk about Twombly/Iqbal as the current-and-future debate (that also is how my casebook authors do it). Partly it is because we cannot understand the new regime without understanding Conley and everything that came before 2007 (Charles Clark, the Forms, etc.); partly it is because the new regime seems so inconsistent with everything that came before; partly it is because we do not know how long the new regime will last, given the murmurings in Congress. On the other hand, at what point does teaching Conley become a bit like teaching Pennoyer--wonderfully nostalgic as a law-school rite of passage, but practically unimportant (beyond a broad overview) and time-consuming?
Second, my current idea is to cover Conley/"old" notice pleading and FRCP 9(b) together as two competing possible pleading systems (notice v. fact pleading) co-existing under the Federal Rules and the movement and overlap between them. I also can talk about the relative unimportance of FRCP 12(b)(6) under a pure notice-pleading system. I then turn to Twombly/Iqbal as the new regime, straddling (or blurring, depending on your perspective) the line between the two. The nice thing about teaching Iqbal is, I think, that it presents what purports to be a clear two-step approach to analyzing pleadings. We then can get into the various proposals to undo Twombly/Iqbal and return us to some form of Conley pleading, which also can provide a nice window into the federal rulemaking process specifically and the process for making legal rules generally. Ultimately, the point may be to tell students that the pleading rules they are learning now may look nothing like the pleading rules they will see when they hit the real world in two years.
I would love to hear thoughts from those of you who already went through this in the fall.
Posted by Howard Wasserman on December 18, 2009 at 10:30 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (1) | TrackBack (0)
One More Pain in the Ass: Holiday Cards in the Age of Facebook
***WARNING: THIS POST INVOLVES NO LAW. REPEAT: NO LAW***
And that was back when making a holiday card was easy.
In the age of social networking, of status updates and blog
posts, of tweets and twitters, the holiday card game has changed. These people you hadn’t heard from in decades
now share with you their every trip to the supermarket, their kids’ every
report card, their every episode of lactose intolerance. What do you not know about these people that
you could possibly learn about them from a holiday card? And what do they not know about you? Let’s face it, this year’s “we’re friends on Facebook”
is last year’s “we trade Christmas cards.”
So, what should you do now?
One possibility, if you happened to think of this early enough, would
have been to purposefully withhold your best picture of the year and most juicy
news tidbits from Facebook to save for the holiday card. Imagine the surprise of your 312 friends (you
are going to send each Facebook friend a card, aren’t you?) when they realize,
after following your every move for the past 365 days, that your wife actually
gave birth to twins back in July! If you
have the willpower to do this, then mazel tov to you—Facebook has actually made
your holiday cards more of a thrill than they used to be.
The rest of you, though—those who lack the willpower to
purposely withhold your spouse’s death from your closest friends to ensure a
big surprise come holiday season—will have to come up with something else. If you’re not going to add some value to the
picture and the news blurbs, then what’s the point? You might as well save your money and your finger
blood and forget about it. Just make
“Consider my year’s worth of status updates your holiday card this year” your
status update for a week around Christmas, and call it a day. Nobody will mind, and maybe you’ll also save
a tree while you’re at it, which is all the rage these days anyway. (perhaps mention that in your next status
update.)
But say that you don’t want to give up on holiday cards
quite yet. You’re a real sticker for
tradition, you are. Then what? If you’re artistic, maybe draw a funny
picture of a snowman or something. If
not, perhaps consider sharing a piece of information that you would feel queasy
about sharing on Facebook or Twitter.
For example, if you own a home, mention how much you paid for it, as
well as its current value. Sure, your
friends could figure this out for themselves with Zillow, but who has time with
all the cookie baking and tree decorating and twittering about cookie baking
and tree decorating that has to be done during the holiday season? Plus, everyone loves to hear about people
losing money in the real estate market.
Why should your friends be any different?
Alternatively, on the back of your card, draw one of those
maze puzzles that children love to play—you know, the ones where you have to
help the pirate find his way through all the swirly lines and wrong turns and
dead ends to get to his treasure? Imagine
how much fun you’ll be providing for the more dim friends on your holiday card
list! Plus, if you’re feeling particularly
Grinchy, you could make a really complicated maze with lots of twists and turns
but all dead ends and no way to get to the treasure. If you’re lucky, maybe some of your friends
will get so pissed off at you about the trick maze that they’ll cross you off
their holiday card list for next year.
Do it enough years in a row, and before long you won’t have to send any
holiday cards to anyone.
With the internet, who needs them anyway?
(previously posted on Holy Hullabaloos)
Posted by Jay Wexler on December 18, 2009 at 10:09 AM in Jay Wexler | Permalink | Comments (4) | TrackBack (0)
Thursday, December 17, 2009
What's Under Construction in Copenhagen?
I'm in Copenhagen for the UN climate conference this whole week. Below is a cross-post of something I wrote for Grist, and I'll be posting more here as we hit the final days of the conference. If you're interested in more details, the New York Times just posted this story about the current play of negotiations.
_______________________________
As 120 heads of state arrive at the Bella Center in Copenhagen, there’s amazingly little direction on just what exactly they are negotiating. Is this going to be an extension of the Kyoto Protocol (a second commitment period), or will the Kyoto Protocol be buried, with some brand new treaty rising from its ashes? Will the agreement be legally binding or just a declaration of principles?
Here at the “climate café” lunchroom at the Bella Center, there’s a lot of talk about the proper “architecture” of an agreement, so let’s look at some building styles that might come out of Copenhagen:
The Taj Mahal: A Legally Binding TreatyNegotiating a full-blown treaty was the original intent for COP15 in Copenhagen, according to the 2007 Bali Roadmap, A full treaty would include emissions targets for developed countries, compliance mechanisms, possible new commitments by developing countries, and detailed provisions on ratification and entry into force. Lowering expectations, the U.S. and other developed nations signaled weeks ago that there is simply not enough time to hammer out a formal treaty, but many developing states and NGOs are still pushing for the Taj to be built in the next two days.
The Concrete Foundation: A Consensus Agreement with Hard NumbersHeads of state from 120 countries don’t fly in here just to have a photo op. There’s personal and national prestige on the line to solidify some written agreement in Copenhagen. Conceivably, the agreement could contain hard numbers for emissions targets and financing by developed nations, as well as pledges by developing countries to take some low-carbon policy measures (in COP-speak, “Nationally Appropriate Mitigation Actions”). Imagine that many of the crucial blanks are filled in a draft agreement on long-term cooperation released this morning, and that the document is then completed as a treaty in 2010.
This is what lead architect Barack Obama said he wanted to build when he gets to Copenhagen: an accord that will have “immediate operational effect” in the sense that national commitments at Copenhagen could be implemented while a formal treaty is drawn up. But the parties are very far apart even on the basics, like the future status of the Kyoto Protocol, levels of emissions reductions, baseline years (1990 or 2005), financing commitments, and whether the goal of the whole thing should be limiting global temperature increases to 2 degrees or 1.5 degrees. If a foundation for a future treaty is going to be laid at Copenhagen, the concrete commitments better get solidified soon.
The Rain Tarp: Kicking Everything to 2010There’s only about 60 hours left in this conference. Walkouts and deadlock have already plagued the negotiations. There’s a real possibility that despite years of lead-up, the only thing the parties will agree to in Copenhagen is a face-saving document to protect them from political flack. This document would note general areas of agreement (such as the need to finance adaptation in the least developed countries and continuing the Clean Development Mechanism) and it might provide a roadmap for further negotiations in 2010.
The fallout would be immediate. The COP would be called a failure, and the prospects for a treaty in 2010 would not be pretty. After all, if the parties can’t agree now, with the involvement of heads of state and the attention of the world, why would they be able to resolve their differences in August or September, in the run-up to the next COP in Mexico City? U.S. cap-and-trade legislation would also be jeopardized if a flimsy deal gets patched together in Copenhagen and carries the taint of failure.
The stakes are high, and time is running very short here. I’m pretty sure a global climate architecture will get built—eventually. But we need a roof over our heads now.
Posted by Noah Sachs on December 17, 2009 at 11:39 AM | Permalink | Comments (0) | TrackBack (0)
Wednesday, December 16, 2009
The Power Of A Single Sentence: Traffic Stops
I wonder how often the Supreme Court has nonchalantly wiped off the law books an entire jurisprudential debate with one blithe sentence. That is exactly what the Court did last term in Arizona v. Johnson, 129 S. Ct. 781 (2009). For very good reasons reflecting the Court’s own muddles, federal and state courts had for many years struggled to define the contours of the police’s search power during traffic stops, and unsurprisingly had come up with widely varying doctrinal formulations. In Johnson, a case that did not even directly raise the issue, the debate over those formulations largely vanished due to one sentence.
Continue reading "The Power Of A Single Sentence: Traffic Stops"
Posted by Fabio Arcila on December 16, 2009 at 05:38 PM in Constitutional thoughts, Criminal Law | Permalink | Comments (2) | TrackBack (1)
Waiting for "The Call"
My environmental law exam is set to start in a few minutes, and so I've come to the office early to sit here and wait for "the call." By "the call," of course, I mean the hypothetical call from the registrar or someone else that I could conceivably receive sometime during the next three hours informing me that something has gone terribly, terribly wrong on my exam. For example, I don't know, something like the plaintiff's name keeps changing and so the students can't tell who I'm talking about in the second paragraph, or maybe there's a sentence missing or a page missing or it says there are three questions but there are only two or I don't have any idea what else "the call" might be about. I should say that in eight years of teaching and stressing out over whether I'm going to get "the call," I have never actually gotten "the call," but this doesn't mean that I'm still not freaking out and hoping that I don't get it this time around (in this way, it's sort of how I still really worry every single class session that I'm going to run out of material to talk about with 45 minutes left in the class, even though in probably 600 class sessions it's never happened a single time).
More generally, I should say that I find this whole time around exams very stressful. I'm sure many other prawfs feel the same. The whole building is filled with stressed out people; the students who I like so much are going through all this stress and anguish; I'm worried that I'm going to get "the call." I find that I even have dreams in which I realize I've changed the plaintiff's name and so the students can't tell who I'm talking about in the second paragraph, or even more outlandish scenarios like I've asked a long question about church-state law on my environmental law exam or maybe even accidentally written one of the questions in a foreign language. I guess I should take solace in the fact that while I'm having these particular kinds of anxiety dreams, at least I'm not having my typical anxiety dreams, which often involve sitting in one of my colleague's classes as a student having not done the reading and hoping I don't get called on, or, as has been happening ever since Obama was elected, sitting in his classroom as a student having not done the reading and hoping I don't get called on. Incidentally, I'll just mention that a couple of weeks ago, while having one of these Obama-is-my-Professor anxiety dreams, he did actually call on me. He asked me: "What is the second most prevalent reason that people object to the Star Spangled Banner?" I answered: "Because it interrupts the game?" And he said: "Not the game. A book." I don't know what that meant. I guess I should be happy that I at least was able to croak out some answer, especially because when he called on me he called me "Jason Wiebe." I responded: "Me? I'm Jay Wexler." He responded, "yeah, you."
Anyone else stressed about getting "the call" or have any fun or horrible "the call" stories they'd care to share?
Posted by Jay Wexler on December 16, 2009 at 09:32 AM | Permalink | Comments (11) | TrackBack (0)
Mack Brown's $2 million raise
Having complained about Jim Calhoun's $1.6 million salary, I think I'm obligated to take issue with a raise that dwarfs Calhoun's entire salary. Mack Brown is now making $5.1 million a year as a football coach through the year 2016 (or until the next raise). A resolution of the UT Faculty Council said the deal was "unseemly and inappropriate." This resolution has drawn its own share of criticism. The UT president pointed out that the athletic program, under Brown, has had no subsidies or deficits and has channeled $6.6 million into academic programs in recent years. This is the same version of the argument used to support Calhoun's salary -- namely, the athletic programs more than pay for themselves, so they can pay their people in the millions of dollars. Just today I heard ESPN personalities Mike Greenberg & Tony Kornheiser accuse the UT professors ("eggheads," in Kornheiser's parlance) of being completely wrong on the economics.
What the commentators are missing -- or, at least not talking about -- is that the "market" for college coaches is a grossly distorted one. There is a lot of money floating around college sports -- primarily through TV contracts, but also ticket sales, team endorsements, licensing, and advertising. But that money has nowhere to go, other than to the schools and the coaches. The NCAA places strict limits on what players can get from their university -- only a scholarship. And NBA and NFL rules essentially require that players spend time in college before entering the pros. So what we have are athletes who must spend time in college to pursue their profession but cannot get paid for it. So the money goes instead to the coaches.
If you have any doubt about this, just look at baseball. Baseball has a thriving minor league system; there is college baseball, but you need not go to college to get into the pros. How much do college baseball coaches get? This article says they make about one-sixth what football coaches make. This one (from 2007) says that the highest paid college baseball coach makes $600,000. Or look at pro football. Only four NFL coaches made more than Mack Brown last year (according to this estimation). Thirteen made less than $3 million; five made less than his raise.
If we are going to keep the system we have, let's be honest about it. We now take talented young athletes and use their skills to fund our universities. The coaches help facilitate this -- and they are taking more and more off the top. There are reasons to support this system, but saying that coaches "deserve" this money because of a distorted market is not one of them.
Posted by Matt Bodie on December 16, 2009 at 12:45 AM in Corporate, Sports | Permalink | Comments (10) | TrackBack (0)
Tuesday, December 15, 2009
The Most Significant Case, Statute, or Regulation This Decade?
Last week’s discussion of the decade's most significant developments in legal academia generated some really interesting response. The overall tone of the comments suggests that, unsurprisingly, the 2000s were a mixed bag for legal academia. Brian Leiter’s poll on which of these developments was the most significant closes tomorrow, so get your votes in now.
Since last week’s post directed our collective gaze to our collective navel, I thought that this week we might look out a bit at the broader legal landscape: What was the most significant court decision, statute, or regulation this decade? Like last time, I’m purposefully casting the net widely, and there are solid arguments for and against a lot of the probable candidates--Bush v. Gore, Sarbanes-Oxley, the Military Commissions Act, Hamdan, Heller, the Patriot Act, the TARP legislation, and so on--so please feel free to add a bit of explanation with your vote.
Posted by Joseph Blocher on December 15, 2009 at 03:59 PM | Permalink | Comments (6) | TrackBack (0)
Illegal Motion?
My wife loves this clip and it has grown on me. But I must ask the football-rules question: Is this Illegal Motion?
Posted by Howard Wasserman on December 15, 2009 at 03:45 PM in Culture, Howard Wasserman, Sports, Television | Permalink | Comments (7) | TrackBack (0)
A Quick Thought on Thomson, Padilla, and Ex parte Endo
With today's news that some large percentage of the individuals still detained at Guantanamo are going to be relocated to a federal prison in Thomson, Illinois comes the obvious (if geeky) jurisdictional question: Does this mean that all of the habeas petitions in these cases currently pending before the D.C. district court will have to be be transferred to the U.S. District Court for the Northern District of Illinois (and then, presumably, the Seventh Circuit)? [See 28 U.S.C. 93(a)(2) -- Thomson is in Carroll County.] If so, that's an awful lot of heavy lifting and wasted effort, given how much time and energy the D.D.C. judges have devoted to these cases in the past eighteen months.
The answer, I think, is no, even in light of the Supreme Court's 2004 decision in Rumsfeld v. Padilla. There, the Court held that a habeas petitioner must name his "immediate custodian" as the respondent, and that the district court must have personal jurisdiction over _that_ official in order to have jurisdiction over the petition. [The rule doesn't apply in cases in which no district court has personal jurisdiction over the immediate custodian, which is how the Guantanamo cases ended up in D.D.C. in the first place.]
So, it seems clear that, were a Thomson detainee to file a new habeas petition, it would have to be filed in the Northern District of Illinois. But what about pending petitions? The Court in Ex parte Endo (the companion case to Korematsu) held that transfer outside the district cannot defeat jurisdiction so long as the district continues to have jurisdiction so long as _someone_ "in whose custody [the petitioner is] remains within the district." As Chief Justice Rehnquist more succinctly described in Padilla, "Endo
stands for the important but limited proposition that when the
Government moves a habeas petitioner after she properly files a
petition naming her immediate custodian, the District Court retains
jurisdiction and may direct the writ to any respondent within its
jurisdiction who has legal authority to effectuate the prisoner's
release."
All this means that the pending cases can--and will--remain in D.D.C. But it also suggests that there is no barrier to a detainee filing a new petition (perhaps raising a conditions of confinement claim) in a jurisdiction that might be more receptive to the argument that the petitioner has some modicum of constitutional rights (an argument rejected by the D.C. Circuit in Kiyemba I), especially once the petitioner is physically present within the United States.
Posted by Steve Vladeck on December 15, 2009 at 03:02 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (0) | TrackBack (0)
More on Tax and Good Cards
Over at The Conglomerate, Christine Hurt discusses the tax treatment of "The Good Card," available from Network for Good:
You...give someone a gift card, which they can then use to donate to the charity of their choosing. It's not quite like a universal gift card -- it has to be used for a charitable donation. This could be a little easier than making a donation in someone's name, especially if you don't know which charities that person supports....Who gets the deduction?....[T]he gift card buyer gets the deduction, which I think is the best incentive policy, if you want people to buy the gift card. The gift card recipient either uses or looses the earmarked funds, so they need no further incentives.
From a tax law perspective, here's why (I think) the gift card buyer gets the deduction. (This is based on information from Network for Good's website; I have no particular knowledge of this organization.)
Continue reading "More on Tax and Good Cards"
Posted by Sarah Lawsky on December 15, 2009 at 02:27 PM in Tax | Permalink | Comments (1) | TrackBack (0)
Okay, fine
Just a note: due to the underwhelming response to my previous post on OLC and Second City, I have officially shelved the OLC book project. But come on, surely some of you Chicagoans have seen the new iteration of Coed Prison Sluts--how is it?Posted by Jay Wexler on December 15, 2009 at 08:38 AM in Jay Wexler | Permalink | Comments (1) | TrackBack (0)
AALS, Happy Hour, FSU Recruiting, etc.
Thought I'd share a few points related to the AALS conference coming up in January in New Orleans.
First, PrawfsBlawg, along with our mates over at Concurring Opinions (and other blawgs), will be hosting a happy hour for all prawfs attending the conference. (Not yet sure if our generous friends from Indiana will be footing the bill again, but if you think your school would be interested in doing so in whole or in part, please contact me asap!) The date and time, as mentioned earlier, will be Thursday January 7th at 9pm until about midnight. The place will be announced shortly, though it's likely it will be the Whiskey Blue bar at the W hotel. Watch this space for more complete information, including things such as drink specials...
Second, among others, a few of us from the Prawfs and Co-Op alumni will be presenting at the Fed-Soc shadow conference at AALS. You can find out more information here. It will take place Friday Jan 8th at the Wyndham Riverfront New Orleans.
Finally, as some of you know via FB, I'll be on appointments at Florida State this coming spring and, unlike so many other schools, we're fortunate to be in a position where we can hire a substantial number of people across a wide variety of areas. If you're already a prawf, whether junior or senior, and think you or someone else you know would be interested in FSU's quite extraordinary scholarly culture and good weather, among other things, please feel free to send Jim Rossi (and/or me) a cv/statement of interest soon especially if you think you will be attending AALS in NOLA. Of course, if you're not planning on going to NOLA, we'd still welcome expressions of interest. (Yes, our committee at FSU goes January to January, though there is some continuity with previous committees. The 2010 committee includes Kelli Alces, Jim Rossi (Chair), Nat Stern, Tara Grove, Mark Seidenfeld, JB Ruhl, and myself.)
Posted by Dan Markel on December 15, 2009 at 12:09 AM | Permalink | Comments (0) | TrackBack (0)
Monday, December 14, 2009
Great new issue of Ohio St. J. of Criminal Law
I am continually impressed with the great and creative conversations hosted in the Ohio State Journal of Criminal Law. Via the good folks at Tarlton Library at U of Texas, I just found out there's a new issue of the Journal with what looks to be 2 really interesting exchanges, one having to do with what criminal law can learn from criminology, and the second having to do with an article by Anders Walker (SLU) about the political history of the criminal law casebook and its relation to legal education. Congrats to the editors on putting this issue together. I look forward to reading it. If I have any reactions, I'll register them here or on Jotwell, or both.
After the jump, you can find the table of contents.
Continue reading "Great new issue of Ohio St. J. of Criminal Law"
Posted by Dan Markel on December 14, 2009 at 06:44 PM in Article Spotlight | Permalink | Comments (0) | TrackBack (0)
The Meaning of Life
Carol Williams reporting in the LATimes does a superb job of describing California's Lewis Carroll like parole system for those sentenced to life in prison for murder, with the possibility of parole; a topic which has given the California Supreme Court cause for psycho-therapy and now looms over the 9th Circuit (Hayward v. Marshall, 527 F.3d 797, granting rehearing en banc over the earlier panel opinion granting habeas corpus to lifer Hayward, 512 F.3d 536). The issue, however, makes a great way to teach core issues in substantive criminal law including the distinctions between rehabilitation, deterrence, incapacitation, and retribution, and the elements of the law of murder and manslaughter. Unlike the typical casebook murder case, these parole based cases involve core examples of murder. Moreoever, the posture of these cases is particularly good for teaching as they raise the question of whether given the facts of the crime, criminal record, and record of prison discipline and rehabilitation, some evidence exists that the petitioner convicted of murder poses an "unreasonable risk" to public safety. This contrasts with the much more limited facts available to the typical appellate murder case. The problem is that between the due process issues, and the statutory construction issues, and the two levels of administrative decision making (parole board, and governor), with trials courts added in, plus ATEDPA if its federal court, it is kind of hard to teach. Thus you might consider just using William's article and the facts of Hayward (more beneath the fold) for your discussion.
Continue reading "The Meaning of Life"
Posted by Jonathan Simon on December 14, 2009 at 01:00 PM in Criminal Law, Jonathan Simon | Permalink | Comments (0) | TrackBack (0)
Whither Law Professor Salaries: Let's Talk Money
As so many lament the sky-rocketing cost of a legal education (tuition has increased far ahead of inflation), the debt students have to incur to obtain their law degree, and the pressure that the tanking economy has placed upon financial aid and public interest support, is this the dirty little secret no one is talking about: law professor salaries are largely responsible for this state of affairs?
Continue reading "Whither Law Professor Salaries: Let's Talk Money"
Posted by Fabio Arcila on December 14, 2009 at 10:00 AM in Current Affairs, Getting a Job on the Law Teaching Market, Life of Law Schools | Permalink | Comments (9) | TrackBack (0)
Sunday, December 13, 2009
Advice for Undergraduates?
Massachusetts is, by my rough count, one of only six states without a public law school. But not for long, it seems. The public University of Massachusetts (UMASS) has recently approved a proposal to acquire the private Southern New England School of Law (SNESL), a move that will create the state's first public law school.
There remains one major hurdle left to clear--a final vote in February--but all visible signs point to yes, despite opposition from a coalition of three private law schools in the state.
Although the UMASS acquisition of SNESL will not increase the total number of American law schools, it will give more students the chance to attend law school: under the plan, enrollment will increase from 235 to 559 students. And with a new law school set to open in Dallas in 2011 and the new University of California, Irvine, School of Law, hoping eventually to grow to 600, there will be even more opportunities for law school applicants.
In the face of high demand for law school admissions (in 2008, for example, 82,000 students applied and 55,500 were admitted), the likely increase in applications this year, and given these recent developments, I am wondering how to advise undergraduates who ask me for advice about whether to go to law school.
I suspect that future law school graduates may have difficulty finding employment in law. That said, I am convinced that law school is not just for those who wish to one day practice law. The skills developed in law school are transferable to other disciplines, and are superb preparation for non-law employment. And there is, and will always be, a demand for law school graduates who possess strong analytical abilities and can think creatively, read critically, and write persuasively.
What do/would you advise an undergraduate?
(As an aside, anyone care to guess which are the five states, excluding Massachusetts, without a public law school?)
Posted by Richard Albert on December 13, 2009 at 10:00 PM in Life of Law Schools | Permalink | Comments (9) | TrackBack (0)
Fix the Senate, Part II
Professors Kerr and and DeGirolami have graciously responded to my somewhat silly post knocking the Senate with serious comments. Specifically, professor Kerr cites Federalist Papers #62 and #63 for their defense of the Senate, and Professor DeGirolami remarks that the desire for a younger and less obstructionist Senate is one of "the delusive plausibilities of moral politicians."
I'll use this post to respond to these comments. As I noted in my previous post, my argument is not new--in some respects it's pretty old. So I didn't spell out the whole argument in my original post. But I'll make a broader case for it beneath the fold.
Continue reading "Fix the Senate, Part II"
Posted by John Greenman on December 13, 2009 at 07:23 PM | Permalink | Comments (6) | TrackBack (0)
Super Behavioral Law and Economics
Levitt and Dubner have super-sized their hit. And in the legal academy, behavioral law and economics is entering the next generation. Avishalom Tor, at the law faculty of Haifa University, organized this week a fantastic and intense conference, Behavioral Analysis of Law: Markets, Institutions, and Contracts.
One of the conference participants Kim Kraweic (Duke) wrote a very nice and comprehensive post about the conference. You can read it here at the faculty lounge, and I will just highlight a couple of themes. First, as my favorite behavioral economist and I have recently argued in Stumble, Predict, Nudge: How Behavioral Economics Informs Law and Policy, Columbia Law Review (2008), behavioral law and economics generally presumes the ability of legal design and policy to increase rational choices, thereby improving overall welfare. Yet, next generation behavioral studies reveal a range of types of behavioral insights, some of which are better translated into law reform than others. On Amir and I develop a distinction between Type 1 biases, which are sourced in our automatic systems and stem from reflexive or intuitive processes, and Type 2 biases, which are generated from irrationalities in the reflective system meant to override our automatic responses, and argue that cognitive errors are more readily corrected through policy when sourced in Type 1 biases. I think the papers at the Haifa conference demonstrate these complexities and provide new insights into the way law interacts with behavior, motivation and decision-making.
At the Haifa conference, I presented the forthcoming article with my repeat collaborator, Yuval Feldman (anyone currently in Israel can catch me presenting the piece next week at ILSA, Tel-Aviv). The article The Incentives Matrix: A Study of the Comparative Effectiveness of Monetary Rewards as Compliance Systems, forthcoming, Texas Law Review (2010) we report on our experimental study of a representative panel of over 2000 employees (we received a generous grant from the ABA Litigation Section Research Fund 2008-2009). The experiment compares the effects of different regulatory mechanisms - monetary rewards, protective rights, positive obligations, and liabilities - on individual motivation and behavior. We look at the comparative advantages of these mechanisms in incentivizing individual whistleblowing. Several cool findings about the costs and benefits of different regulatory mechanisms: we find inadvertent counterproductive effects of offering monetary rewards in some cases, leading to less, rather than more, reporting of illegality -- in line with the behavioral crowding out literature in the psychology of motivation. We also find the existence of a "holier than thou" effect, where basically all of us believe we are much more ethical than average. We also show that people are bad predictors of their own motivations. A finding that always gets alot of interest is our showing of robust gender differences among whistleblowers, demonstrating that women tend to respond more to protections and duties while men respond more to money.
A final note - Tor himself, the organizer of the Haifa conference, was exceptionally generous in taking himself off the rich program to give the forum to the rest of us to present and discuss our work. But Tor has important behavioral research, including these two articles in Psych Science on competition and the effect of social comparison on motivation.
Posted by Orly Lobel on December 13, 2009 at 01:43 AM in Orly Lobel | Permalink | Comments (0) | TrackBack (0)
Saturday, December 12, 2009
Fix the Senate
This comment by Steven Hill in the Financial Times aptly sums up my feelings about the U.S. Senate: "This powerful legislative body debating healthcare for the entire country is a patrician gerontocracy more closely resembling the ancient Roman Senate than a New England town meeting." Right on, my brother. The Senate, with its anti-majoritarian structure, its obstruction-enabling procedure and its general cluelessness, is a lot like David Hasselhoff: a queasy-making combination of self-love and ridiculousness.
This view is not new, particularly among law professors. So why isn't this sentiment more widely held? Some people hate individual politicians, and some hate the government as a whole, but few beyond the academy point to the Senate itself—as opposed to the House—as a dysfunctional institution. More specifically, most people are not interested in the Senate's design or procedure. From the public's point of view, this makes sense--who has the time to look under the hood when the government keeps crashing? Easier to get a new driver. But for academics interested in reform—and, indeed, for anyone interested in political change—the general public indifference to the Senate's institutional failings is a real problem.
Posted by John Greenman on December 12, 2009 at 06:35 PM | Permalink | Comments (5) | TrackBack (0)
