Tuesday, July 22, 2014

Memorials for Dan Markel

So much outpouring of affection for our friend.

1) At Brooklyn Law School as we speak (it began around 5:30). It is on the 22d floor of Feil Hall, 205 State Street (building # 3 on this map). Sorry for the late notice; get there if you can.

2) An informal gathering at Harvard Hillel on Thursday evening. For details, email Jill Goldenziel at Jill_Goldenziel@hks.harvard.edu.

3) Funeral and shiva in Toronto on Thursday. You can email any of the perma-Prawfs for more details and information on these events and on memorial tributes.

4) Florida State will sponsor a memorial at the upcoming SEALS Conference at Amelia Island on Monday August 4 from 6:15-7:15, right after a discussion group in which Dan was to participate. Precise location will be announced soon. If you plan to attend, please fill out this form.

5) Also at SEALS, will be the first-ever MarkelFest! on Saturday evening, August 2 (Time and Location T/B/D). As you know, blog-sponsored happy hours have been a regular feature at the major prawf conferences, thanks to Dan's energy and organizational skills. Steve Vladeck suggested that all such gatherings should henceforth be known as MarkelFest!(s) and we agreed.

We will post information about other local gatherings and memorial efforts as we receive them.

Posted by Howard Wasserman on July 22, 2014 at 05:53 PM in Howard Wasserman | Permalink | Comments (0)

Saturday, July 19, 2014

We Have Lost Our Beloved Friend, Dan Markel

We write this together, all of us, as a community. Our friend Dan Markel has been taken from us, suddenly and terribly. His law school, the Florida State University College of Law, will issue an announcement in due time. We do not have all the details, but our understanding is that Dan was shot and killed. Painful as it is to say that, and as little as we know, the early news reports left enough room for speculation that it seemed necessary to say that much. The terrible, senseless nature of his loss makes it all the harder to bear. 

All of us here on Prawfsblawg live in different places and come from different backgrounds. What we have in common, with many others, is Dan. His network of friends and loved ones--and he had a great deal of love for all his many friends, as we did and do for him--is enormous. His boundless energy was at the center of this community; it made it run, it gave it life. We are stunned and bereaved by his loss, and our thoughts go to his two little boys, who were precious to him, and to his family. Many, many people loved him and are grieving today. Baruch dayan emet.

Matt Bodie

Rick Garnett

Paul Horwitz

Rick Hills

Lyrissa Lidsky

Ethan Leib

Orly Lobel

Jonathan Simon

Steve Vladeck

Howard Wasserman

 

 

Posted by Paul Horwitz on July 19, 2014 at 05:50 PM | Permalink | Comments (75)

Chokeholds and clearly established rights

This is a tragic story and has all the trappings of yet another racially polarized split involving police, city government, and the public. Plus, we have video, with all the confusion and false certainty that goes along with visual images of police-public encounters gone bad. The NYPD, the City, and the DA all are investigating, and I would not be surprised if DOJ jumped into the mix at some point (likely depending on what the City and DA do).

I want to skip ahead to several interesting issues that likely will arise in the inevitable § 1983 action:

1) What will the court do with the video on summary judgment? As I wrote in a  draft paper for a SEALS discussion group, the Court last term in Plumhoff v. Rickard, just as in Scott v. Harris, was all too willing to interpret the video for itself and identify its single meaning (in favor of the defendant officer) as a basis for granting summary judgment. Will courts be similarly bold with potentially more damning video or will they be less willing to find a single message and leave it all to the jury? On that note, check out the lede of The Times article describing the officer "holding him in what appears, in a video, to be a chokehold." (emphasis added). That is the proper way to report on video, since it is about appearances and what different viewers will or might see. But it is veery different than what everyone (press, government officials, and courts) has done in, for example, describing video of high-speed chases.

2) According to The Times, chokeholds are expressly prohibited by NYPD regulations. How will that affect the qualified immunity analysis? In Hope v. Pelzer and Wilson v. Layne, the Court looked at department regulations and whether they endorsed or prohibited some conduct as indications of whether theright at issue is clearly established. While not conclusive, administrative regs can support a doctrinal consensus or demonstrate the absence of that consensus. Absent case law holding that chokeholds always violate the Fourth Amendment or violate the Fourth Amendment when in furtherance of arresting non-violent offenders, what will the court do with this officer violating clear departments regulations in dealing with a non-violent offender (they were trying to arrest the victim for selling loose cigarettes on the street).

3) What happens when the plaintiff tries to make his Monell claim against the city? On one hand, the express prohibition on chokeholds in department regs would seem to weigh against any argument that the city had a policy of allowing its officers to utilize such holds, since the very opposite is true--he really is the "bad apple" expressly disobeying how we told him to behave. On the other hand, according to The Times, more than 4% of excessive-force complaints to the Civilian Complaint Review Board involve allegations of officers using chokeholds, a number that has gone up in the past decade; this could support an argument that the city is failing to train its officers on its own policies or that the city is being deliberately indifferent to the actual practices and actions of officers who are employing chokeholds despite department prohibitions. (Note that many of those complaints never go anywhere or are unsubstantiated--the point is that many citizens are talking about officers using chokeholds).

Posted by Howard Wasserman on July 19, 2014 at 10:25 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Friday, July 18, 2014

Green Bag Call for Papers: Scalia and Garner’s “Reading Law”

The Green Bag invites submissions for our third micro-symposium, to be published in the Green Bag and the Journal of Law.

Theme: Reading Law: The Interpretation of Legal Texts (2012), by Antonin Scalia and Bryan Garner, was the subject of a notable review by Richard Posner: The Incoherence of Antonin Scalia, New Republic, Aug. 24, 2012. Since then, much commentary on Reading Law has focused on the clash of celebrity lawyers, rather than the content of the book, at the expense of substantive critiques of the sorts that usually appear in serious reviews of a new work. Critiques not only help consumers make choices about what to read, and what to rely on, but also help authors produce better second editions. And we do not doubt that Scalia and Garner will put out Reading Law 2d someday. So, we invite you to pick nits, and motes and beams, in Reading Law. Tell us what is and isn’t worthwhile in it, and tell Scalia and Garner how to do better next time. As part of this symposium, we will be printing the “Hirsch Report” – commissioned by Garner in response to the Posner review – in the Journal of Law, so commentary on Hirsch’s work is also welcome.

Invited topics: Any theoretical, empirical, or practical commentary that will help readers better understand the book – its correctness or incorrectness, the good or bad uses to which it might be put, or anything else useful or interesting. Please do not waste your time or ours on tiresome anti-Scalia/Garner or anti-Posner ax-grinding. Scalia and Garner will have the last word, if they want it.

Length limit: 1,000 words, including title, text, footnotes, and everything else.

Deadline: Finished works must be received at editors@greenbag.org by September 1, 2014. No extensions will be granted and no post-deadline tinkering will be permitted.

Selection criteria: We will select works for publication based on how original, interesting, well-researched, well-written, good-spirited, and potentially useful they are.

Posted by Ross Davies on July 18, 2014 at 07:55 PM | Permalink | Comments (0)

Marilyn Peters - Lawyer, Leader, Friend, Survivor, Hero

I just got off the phone with my friend (and former law partner) of some thirty-four years running, Marilyn Peters, a partner at Dykema LLC (Detroit, Bloomfield Hills, and the world).  Marilyn is married to my friend since 7th grade at Norup Junior High School in Oak Park, Michigan and also Dykema law partner, Alan Greene.   Marilyn has been a member of Dykema's management committee, manages its Bloomfield Hills office, and leads its Commercial Litigation Practice Group.

363We worked and raised our kids (all about the same age) in parallel, in suburban Detroit houses a couple miles from each other (actually, a little irritating to my wife Alene who on vacations or when dining out had to listen to the other three of us going on and on about Dykema crap).  

She was also diagnosed with stage IV stomach cancer earlier this spring and is doing her chemo now.  Her blog, "EatChantChemo," is a narrative of friendship, hope, love, survival, and some helpful tips on healthy eating.  

Not only is she one of the most alive people I know, she is personally responsible (let's get our priorities straight here) for Michigan's victory (and therefore ensuing national championship) in the 1998 Rose Bowl because she went into the bathroom at our house in Charlevoix just before Michigan started its final drive, Michigan got a first down, and we didn't want to jinx things, so we didn't let her out for something like seven consecutive first downs and the final punt.

Please read the blog and recall Deuteronomy 30:19:  "I call heaven and earth to witness against you this day, that I have set before you life and death, the blessing and the curse; therefore choose life, that you may live, you and your seed."  Seems to me this is one amazing person's narrative of choosing life.

Posted by Jeff Lipshaw on July 18, 2014 at 10:30 AM | Permalink | Comments (2)

An Update

Since Prof Nancy Leong's request for investigation by the bar of an anonymous lawyer received a good deal of attention on the front end, it's only fair, it seems to me, to note that the lawyer in question reports that the bar decided to "proceed no further" on the matter. I have not seen any formal materials, I should say, including either the request for investigation or the bar's communication; I'm passing on the report but can't verify it. (Except as a matter of custom, I don't think that lawyer has any "right" to anonymity, incidentally, although I think there can be value in online anonymity, in general though not in all cases. In any event, I'm otherwise occupied and not currently inclined to do any detective work.) At least based on what I had read online earlier, I tend to think this is the proper resolution, although I also think and have said that there is a difference between writing anonymously because you have cause for concern that even a fairly, if vehemently, offered opinion may have adverse employment consequences, and writing anonymously because you want to be vulgar, personal, intemperate, and sometimes worse without any professional consequences. As a practical matter, I think there are sometimes good reasons for anonymity, although almost never, if ever, for law professors writing about the law; as a matter of personal honor, I think those who opt for anonymity should be doubly insistent on not saying things they would be, or ought to be, ashamed of saying in their own name. Anonymity, such as it is, should be treated by the anonymous speaker as a protection, not a perverse incentive.

[NOTE: The post reflects a couple of updates, including: 1) referring to a request for investigation rather than a bar complaint; 2) noting that I have not seen the record; and 3) noting that my view is therefore tentative, and based on the rather extensive earlier writing on the subject, including by the principals.]  

Posted by Paul Horwitz on July 18, 2014 at 09:54 AM | Permalink | Comments (0)

Thursday, July 17, 2014

Marriage equality in Florida

Judge Luis Garcia of the 16th Judicial Circuit of Florida (the higher-level trial court covering the Keys) has invalidated Florida's prohibition on same-sex marriage, finding that marriage is a fundamental right for Due Process purposes and that there is no rational basis for prohibiting same-sex marriage. The ruling does not take effect until next Tuesday, July 22. This is one of three actions in Florida challenging the anti-equality constitutional amendment passed in 2008--the other two are in state court in Miami-Dade County and in federal court in the Northern District of Florida.

Several quick thoughts:

1) Judge Garcia is up for non-partisan election this fall; let's see what happens in that race.

2) I genuinely expected Florida to be one of the stragglers that would get marriage equality only when SCOTUS finally spoke after 40 other states had eliminated SSM bans.

3) At this point, we need to stop reporting on trial-court decisions, since they are all going in one direction, but their coverage is so limited. It really will matter when federal courts of appeals and state supreme courts begin speaking out.

4) Is it even remotely possible that these lower courts are all getting it wrong? Is there any chance that appeals courts will split or go in different directions or that SCOTUS will ignore the singular position of these lower courts and hold that SSM bans do not violate the Constitution?

Posted by Howard Wasserman on July 17, 2014 at 04:05 PM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (3)

Kolber on Dichotomies in Law ... And Just Another Few Words on the (False) Dichotomy of Theory and Practice

Apropos of my comments about "dichotomy skepticism," frequent Prawfs guest Adam Kolber (Brooklyn, below left) dropped me a nice note about his recently published California Law Review article Smooth and Bumpy Laws on the same topic. Here's the abstract: 

Adam_kolberModest differences in conduct can lead to wildly different legal outcomes. A person deemed slightly negligent when harming another may owe millions of dollars. Had the person been just a bit more cautious, he would owe nothing. Similarly, when self-defense is deemed slightly negligent, a person may spend several years in prison. Had the person been just a bit more cautious, he would have no criminal liability at all. Though the law must draw difficult lines, the lines need not have such startling effects. We can adjust damage awards and the severity of prison sentences anywhere along a spectrum.
A legal input and output have a “smooth” relationship when a gradual change to the input leads to a gradual change to the output. The prior examples are not smooth but “bumpy”: a gradual change to the input sometimes dramatically affects the output and sometimes has no effect at all. The law is full of these bumpy relationships that create hard-to-justify discontinuities.
In this Essay, I discuss the relative advantages of smooth and bumpy legal relationships and explain how the choice of an input-output relationship differs from the choice between rules and standards. I argue that smooth relationships will often create less “rounding error” than bumpy relationships by more closely approximating our underlying moral norms.

Adam's approach to this issue is infinitely more practical than my own - the goal of the article is to set forth a template for creating law that does a better job of not being binary where the consequences of actions are not themselve binary but fall on a continuum of harm or fault.  It's a terrific piece (with over 400 downloads on SSRN); I'd see Larry Solum's "Highly Recommended," and raise him one "Download It While  It's Hot!

Perhaps to beat a dead horse, but below the break I want to return to theorizing about the false dichotomy between practice and theory (NB: it's a horse that doesn't want to die, seeing as how in 1793 Kant published his essay "On the Old Saw 'That May Be Right in Theory But It Won't Work in Practice'", and we're still debating it here).

Continue reading "Kolber on Dichotomies in Law ... And Just Another Few Words on the (False) Dichotomy of Theory and Practice"

Posted by Jeff Lipshaw on July 17, 2014 at 03:25 PM | Permalink | Comments (0)

Wednesday, July 16, 2014

What's an acceptable error rate in death penalty distributions? And some other thoughts on the Jones decision

The indispensable Doug "not that subway fugitive" Berman alerted me earlier today to the Jones v. Chappell opinion by the federal judge in California who struck down the Cal death penalty on the grounds that the insane amounts of delay between sentence and execution are violative of the Eighth Amendment's ban on cruel and unusual punishments. (I have registered my retributivist and constitutional doubts about the death penalty before, but I haven't been too enamored of the argument that wins the day in this case. Whether I revise my views, well, anything's possible. I am after all getting older.)

Having worked my way through the opinion by Judge Cormac Carney (a GWB appointee), I imagine the outcome won't stand on appeal to SCOTUS should it get there. That said, with Justice Kennedy as the swing vote deciding on California issues, you never know for sure. Moreover, Justice Breyer has in the past voiced concern about foot-dragging death penalty delays.

Regardless of when/if it gets struck down, the Carney opinion notes the following about error rates, which I found to be of profound interest. Specifically:

"Of the 748 inmates currently on California’s Death Row, more than 40 percent, including Mr. Jones, have been there longer than 19 years."

"Of the 511 individuals sentenced to death between 1978 and 1997, 79 died of natural causes, suicide,
or causes other than execution by the State of California."

"For those that survive the extraordinary wait for their challenge to be both heard and decided by the federal courts, there is a substantial chance that their death sentence will be vacated. As of June 2014, only 81 of the 511 individuals sentenced to death between 1978 and 1997 had completed the post-conviction review process. Of them, 32 were denied relief by both the state and federal courts—13 were executed, 17 are currently awaiting execution, and two died of natural causes before the State acted to execute them. The other 49—or 60 percent of all inmates whose habeas claims have been finally evaluated by the federal courts—were each granted relief from the death sentence by the federal courts."  But of those 49, the "State resentenced 10 of these individuals to death, thus starting anew the post-sentencing appeal process on the renewed sentences, though two have since died while on post-conviction review for the second time." 

A few points here.

Continue reading "What's an acceptable error rate in death penalty distributions? And some other thoughts on the Jones decision"

Posted by Dan Markel on July 16, 2014 at 07:16 PM in Constitutional thoughts, Criminal Law, Dan Markel | Permalink | Comments (8)

Two (more) op-eds on Hobby Lobby

Ann Lipton has nicely captured the zeitgeist with the notion that "there is something of an obligation for all corporate law bloggers to weigh in on Hobby Lobby."  Today, for example, the Conglomerate is starting up on its second Hobby Lobby symposium.  So it is with some trepidation that I highlight for you two additional pieces on that speak to this case once again.  First, Brett McDonnell defends the decision from a progressive perspective in "Ideological Blind Spots: The Left on Hobby Lobby," appearing in the Minneapolis Star-Tribune.  Brett argues that the decision provides space for corporations to have goals outside of shareholder wealth maximization -- something that liberals have promoted in the corporate social responsibility context.  The op-ed also recounts the history of RFRA, which overturned Justice Scalia's Smith opinion, and points out that progressives have traditionally been defenders of religious liberty and toleration.  The op-ed has (at this point in time) 716 comments, which kind of puts us blawgs to shame.

Second, Grant Hayden and I have penned "Who Controls Corporate Culture?", which appears this morning in the St. Louis Post-Dispatch.  Although not written with this intention, it is actually a nice complement/rejoinder to Brett's piece.  It argues that folks are riled up about Hobby Lobby in part because the company's 13,000 employees had no role in making the decision.  If corporations are going to be according political and religious rights, we argue, the employees need a voice in choosing how to exercise them, particularly when the primary impact is on employees.

Posted by Matt Bodie on July 16, 2014 at 10:57 AM in Constitutional thoughts, Corporate, Current Affairs, Workplace Law | Permalink | Comments (3)

"Something That U Post Instead of Doing Passably Original Sophisticated Thinking," or, a Reprise of "So, A Rough Cartoon Always Says Much"

For some reason the significance of the controversy over refresh rates and their effect on Paul Caron's blog rankings didn't kick in for me until late last night, and all I could think about that EVERYBODY in that thread (at least who wasn't anonymous) was male, and was there some gender significance to the fact that it was only men who seemed to be so concerned about issues of measurement?  (I'm not going to throw stones from my glass house; I confess to knowing exactly how hits you will get for "lipshaw % pinosky" under "Secondary Sources/Law Reviews & Journals" in Westlaw Next.)

Acronym Cartoon

As usual, Dan Markel got right to the heart of it with this comment:  "Of course, since Prawfs doesn't engage in auto-refresh, it suggests further that on Paul's rankings (which should have a Roger Maris type asterisk on the LawProf Network ones), we're totally kicking ass ;-)."

And I thought, "You know, he's right, and I did a post awhile back on one of those blogs whose ass Prawfs is kicking, and I ought to refresh it here where a lot more people will see it."  That post had its origins in my friend Joan Heminway's interesting things to say about the private-public distinction in securities law over at  Business Law Prof, another Law Prof Network blog whose ass Prawfs is kicking.*

The point there (and again here) was to highlight my usual instinct for avoiding the import of a serious presentation and jumping immediately to the trivial and irrelevant, it having never dawned on me until Joan pointed it out that the Crowdfund Act of 2012 was really the CROWDFUND Act of 2012.  

My cartooning skills are not up to what they were in my productive peak thirty-five to forty years ago during my brief stints at the Michigan Daily and the Stanford Law Journal,** but I was inspired to grab a sharp pencil and some paper and sketch the not very funny but unbearably clever cartoon at the left.

* Disclaimer:  I am an editor on two blogs, Legal Profession Blog and The Legal Whiteboard, within the Law Professors Blog network, and every couple years Paul Caron sends me a check with which my wife and I can splurge for dinner at a restaurant that makes your keep your silverware for the next course.  I have no idea how the refresh rates work.

** This was the student newspaper, not the law review, something I noted on my resume for many years.

Posted by Jeff Lipshaw on July 16, 2014 at 09:45 AM | Permalink | Comments (0)

Tuesday, July 15, 2014

Weird Al teaches English

And Slate evaluates the rules he espouses in the song. Someone said this could be the new generation's "Conjunction Junction."

 

 

Posted by Howard Wasserman on July 15, 2014 at 05:48 PM in Howard Wasserman | Permalink | Comments (2)

Implicit Bias at the Point of Contact: Refereeing and Police Encounters with the Public

Since the World Cup is over, and the best team won, this is my last post on soccer, refereeing, and policing, I promise.

This is my last post on soccer, refereeing, and policing, I promise. In the dying minutes of the group-stage game between Ivory Coast and Greec, the Greek striker Samaras tangled with an Ivory Coast player, and the referee awarded a penalty. Foul? Flop? The penalty certainly looked really soft. What provoked some ire from my friends on Facebook was, not only the fact that the penalty seemed to be an overreaction, but that it was an overreaction to a foul committed by a black person on a white one. Was bias at play here.

The—by now familiar—answer is: probably. My buddy Song Richardson has written some great articles explaining how implicit bias works. Because officiating requires the referee to make instant fact-based determinations in highly stressful circumstances, these judgements prove susceptible to an unconscious, implicit bias. Implicit biases affect all of us, regardless of our race. But they impact us in strikingly racially differentiated ways.

Richardson is concerned to demonstrate the relevance of recent innovations in cognitive science for the Fourth Amendment in general, and police encounters with racial minorities (primarily African Americans) in particular. Her argument is both simple and powerful: the current Fourth Amendment doctrine on stop-and-frisks promotes a form of policing that is racially biased and practically inefficient. The cause of the inefficiency is unconscious cognitive biases that the officer may not be aware of; the problem is that such biases decrease the efficiency with which an officer is able to separate criminal from non-criminal activity.

She identifies two sources of cognitive bias as particularly problematic in the Fourth Amendment context: (1) perception bias, which is the degree of hostility or aggressiveness that a subject attributes to a target varies based on the target’s race; and (2) attention bias, which is the speed with which an observer notices the conduct of a target based on the target’s race. Importantly, African Americans are perceived as more hostile and attract attention more quickly than their white counterparts. Perception and attention bias operate no matter what the race of the observer.

Perception and attention bias have important Fourth-Amendment side-effects: they render officers more inclined to perceive the same equivocal conduct as suspicious when engaged in by African Americans rather than whites.

Continue reading "Implicit Bias at the Point of Contact: Refereeing and Police Encounters with the Public"

Posted by Eric Miller on July 15, 2014 at 01:05 PM | Permalink | Comments (4)

JOTWELL: Levy on Bray on declaratory judgments

The new essay for JOTWELL's Courts Law comes from Marin Levy (Duke), reviewing Samuel Bray's The Myth of the Mild Declaratory Judgment (Duke L.J.). Sam's article is terrific and both it and the review essay are worth a read.

Posted by Howard Wasserman on July 15, 2014 at 10:46 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Intentions, Compliance, and Fiduciary Obligations

Stephen Galoob and I have just published Intentions, Compliance, and Fiduciary Obligations in Legal Theory.  Here is an abstract:

This essay investigates the structure of fiduciary obligations, specifically the obligation of loyalty.  Fiduciary obligations differ from promissory obligations with respect to “accidental compliance.”  Promissory obligations can be satisfied through behavior that conforms to a promise, even if that behavior is done for inappropriate reasons.  By contrast, fiduciary loyalty necessarily has an intentional dimension, one that prevents satisfaction through accidental compliance.  The intentional dimension of fiduciary loyalty is best described by what we call the “shaping” account.  This account both explains the conscientiousness that loyalty demands and improves on other accounts of the intentional dimension of loyalty.  Our analysis challenges two of the most prominent ways of conceptualizing fiduciary obligations.  “Contractarianism” configures fiduciary obligations as a species of contractual duties.  The view that we call “proscriptivism” reduces fiduciary obligations to the juridical prohibitions that apply to fiduciaries.  Neither of these approaches is satisfactory, because each neglects the intentional dimension of fiduciary loyalty.

The paper is available for download here from Cambridge University Press: Download -LEG-S1352325214000032a.

The citation will be as follows:  Stephen R. Galoob & Ethan J. Leib, Intentions, Compliance, and Fiduciary Obligations, 20 Legal Theory 106 (2014).

Posted by Ethan Leib on July 15, 2014 at 10:17 AM | Permalink | Comments (0)

Monday, July 14, 2014

Wechsler vs. Black Will Be the New Black

Based on what I have been reading in the past month or so, allow me to venture a small, perhaps obvious prediction: The next five years, leading up to the sixtieth anniversary or so, will see a cottage industry of articles revisiting, reassessing--and refighting--two classic law review articles: Herbert Wechsler's Toward Neutral Principles of Constitutional Law, and Charles Black's The Lawfulness of the Desegregation Decisions. These will be treatments of a live issue, not just the typical anniversary pieces or historical assessments. And I suspect it will become evident that we have made fewer advances on these issues than is generally assumed.

Posted by Paul Horwitz on July 14, 2014 at 10:34 PM | Permalink | Comments (0)

Practice Experience vs. Scholarly Chops in Legal Academia - False Dichotomy?

Over at Faculty Lounge, Brian Clarke mentioned me (in an kind way) in the process of picking at a particularly popular scab right now - the balance within faculties between practice and scholarship chops.  (It's a lot easier to make an extended comment in TypePad than in the comments, and I don't want to hijack Brian's thread, so I'm closing comments here, and invite commenters to head thataway.)

I've written at some length in prequel, full-length feature, and sequel about being a tenure-track or tenured law professor after significantly more practice experience than is the norm.  (Think of them as "Rise of 'Retire and Teach'" and "Dawn of 'Retire and Teach'", then decide as between practitioners and academics who gets to be the humans and who gets to be the apes. I have dibs on Caesar, the chimpanzee raised by humans.  Do what you want with that metaphor.)

Brian's plea is for balance across the faculty between, on one hand, what Larry Solum described as "the normative turn" in legal scholarship - that mix of theory and interdisciplinarity that critiques rather than merely elucidates doctrine - and, on the other, an orientation toward the real-world practice of law.

I've come to believe more and more that we need to treat analytical dichotomies with a grain of salt.  There are zillions of reasons why we have to set arbitrary lines within continuums or family resemblances, particularly in the law (e.g., to be protected as free exercise, something either is or is not religion).  But those lines tend not to do a great job of cutting reality at the joints, as it were; hence the Munchausen's (or Agrippa's) Trilemma of casuistry in working back and forth across and resetting thoses lines.  Indeed, one of those continuums between practice and scholarship relates to instrumental advocacy, on one hand, versus academic argument, on the other, something I talk about in the Retire and Teach sequel.

But after the fold are some observations in no particular order.

Continue reading "Practice Experience vs. Scholarly Chops in Legal Academia - False Dichotomy?"

Posted by Jeff Lipshaw on July 14, 2014 at 12:49 PM | Permalink | Comments (0)

Suicide Net

Last year 46 leapt to their deaths from the Golden Gate Bridge.  Last month the relevant government district approved a funding plan for a $76 million suicide net.story

Is the net likely to save lives?  There are reasons to be skeptical: there are plenty of other places to jump from in and around San Francisco.  And there are other ways to commit suicide---firearms being the most common and most deadly. 

On the other hand, the research on suicide suggests that the net probably will save some lives.research  Most suicide attempts are impulsive.  Erecting any hurdle may deter the attempt.  No other structure in San Francisco is as attractive as the Golden Gate Bridge, where there have been an estimated 1,600 suicides.story  And switching to a gun in California is relatively difficult: there is a 10-day waiting period to purchase a firearm.  Most suicidal crises pass more quickly than this.

Posted by Fredrick Vars on July 14, 2014 at 11:49 AM | Permalink | Comments (0)

Sunday, July 13, 2014

Refresh Rates and Traffic Rankings in the Law Prof Blog Network

Blog Emperor Paul Caron has the latest law prof blog traffic rankings up over at TaxProf Blog.  If you look over the stats closely, you'll notice that all of the members of his Law Professor Blogs Network are up between 35% and 350% in traffic over the last year, with most of the blogs increasing between 100% and 200%.  At the same time, I have noticed my LPBN pages automatically refreshing when I leave the window open. 

So I guess I'll lay out my views straightforwardly -- I don't see any real reason to have auto-refresh other than to boost traffic.  I suppose that if I wanted to just open up the blog and let the auto-refresh do my work for me, I could be assured of getting the most recent content.  But if I leave the window open to a blog, it's often because I am in the midst of working my way through the past blog posts and want to come back to it -- not to have to figure out where I was. It makes viewing a video over time impossible, as well (as Caron himself notes).  And if I'm on the page of a particular post, I suppose I might like the refresh to show any new comments -- but that's a pretty niche desire.  What's more likely, perhaps, is that a lengthy comment will get "vaporized" by the refresh rates, as this comment thread indicates.  (A great post & comment thread, BTW!)

So is the refresh innovation a real improvement in the blogging experience, or just a way to boost traffic?

Posted by Matt Bodie on July 13, 2014 at 10:02 AM in Blogging | Permalink | Comments (16)

The risk to catalyzed fans

As everyone in the Free World now knows, LeBron James chose not to re-sign with the Miami Heat and is on his way back to Cleveland to play for the Cavs, the team he abandoned (to angry rants and burned jerseys) four years ago. So it appears the efforts of two Miami sports-radio hosts to use charitable fan contributions to help keep James did not work.

This demonstrates the risk in Dan, Mike McCann, and my idea about fan action committees--it might not work and if it might not work, fans might not want to participate (I have not been able to find out how much money was donated to Boys & Girls Club or how many fans contributed). One way around that is to utilize a trigger, as many kickstarter campaigns do--the contribution remains only a pledge until and unless the player signs; this one did not have a trigger, and I imagine most charities will not allow triggers when the program is set up directly through the organization (as this one was). Alternatively, organizers hope fans still contribute despite the risk. Perhaps fans continue to donate as a way of engaging in the purely expressive act of showing their support for team and player; fans spend money on many things to support their team--why not charity? Alternatively, fans may be willing to participate because contributing to the charity is a social good (note the non-political nature of the chosen charity) and worth the donation, even if not achieving the alternative goal of convincing James to stay.

Posted by Howard Wasserman on July 13, 2014 at 07:38 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)