Saturday, April 30, 2005
Did you ever think you would hear those words outside of property class? (Every time I hear treasure trove it makes me think of my own property law final, where the concept showed up as a major component in one of three questions. Afterwards, I heard some students complaining to each other about being ambushed by the topic -- they apparently felt that it was unjust to put so much weight on such a minor topic).
Well, treasure troves do still matter, it turns out. Four Massachusetts men have been charged with theft and related charges for removing decades-old money that they found stored in a barn. And as Jack Chin points out on CrimProf, these men may be able to rely on the concept of treasure trove in their defense: "A landowner is said not to be in constructive possession of 'treasure trove,' which has been defined as gold, silver, bullion, or those metals' paper representatives, concealed for safekeeping, possessory rights to which exist in the finder."
Jennifer has usefully posted on one of the inevitable (or is it? see below) facts of legal teaching, far worse than those also-rans, death and taxes: exams. Drafting an exam is a taxing process, and drafting multiple-choice questions is still more taxing, although there is a great payoff in the reduction in grading time. A few comments, perhaps more for future lawprofs than for Jennifer:
1) Multiple choice questions may be more common at more "practically" oriented law schools. Not without reason: much turns on bar passage rate (not least the investments that these students have made in law school, but also the school's ABA accreditation status), so there is some incentive for these schools to ensure that exams provide a reasonable rehearsal for the bar exam.
2) I am not crazy about multiple choice, although my legal ethics exam this year will be half MC and half essay. But there is some basis for the assertion that these exams can more reliably test actual knowledge of the subject than essay questions, and can more reliably measure gradations in skill and knowledge among the test-taking body.
3) There are educational experts out there who can provide some useful advice on how to design multiple choice questions to eliminate some of the problems that the commenters to Jennifer's post mentioned. I know because my school, wisely, brings in someone every year. And questions can be analyzed after the fact to weed out outlier questions, until you have a nice body of fairly reliable and trustworthy questions.
4) Of course, multiple choice questions can test for knowledge, and even nuance, but can't test for other legal skills. But this still begs the question for me why the legal academy tends to rely so heavily on 1) issue-spotters 2) administered at the end of semester 3) for 100% of the grade. The answer, I think, is that guiding principle that should be engraved over the doors of all law schools (right next to that quote from Dante about abandoning hope): Path Dependence. (Or, as Tevye put it, Tradition!) Some profs obviously experiment with more skill-based testing methods, and/or with testing throughout the semester. This seems to be the wiser course. But it is time-intensive, and my own professors didn't do it, so it'll have to wait for next year.)
5) Law professors, not to draw on too cliched an idea, are paid vast sums of money -- tens of thousands of dollars for a few weeks' work -- to draft and grade exams. Everything else, save perhaps for committee work, we generously do for free.
Step away from the Burrito!
Friday, April 29, 2005
Pope Benedict XVI and the Economics of Religion
E.J. Dionne has a piece in The New Republic (Dionne also writes regularly for Commonweal) about the new Pope, in which he describes Pope Benedict XVI as favoring a Church that "comprise[s] a tough band of orthodox believers who confront modernity and uphold the truths the Church teaches, without any hesitations. If that means a smaller Church, with squishy doubters or dissenters left by the wayside, so be it." Given the breadth of American and European views on Catholic doctrine, that's a vision that may hold less appeal to many Western Catholics.
But, to engage in an almost self-parodic use of economic language, is it a rational strategy? Why encourage movement in the faith toward a narrower faith that can accommodate fewer of the faithful?
The answer, arguably, is that this is a rational strategy. Although a narrower, stricter doctrinal approach may reduce membership, economic and sociological analysis of religion suggests that it may also enhance the vibrancy of the faith, strengthen the cohesive ties among the faithful, raise exit costs, and decrease the costs of monitoring for compliance. So Pope Benedict's vision, if it is accurately described by Dionne, would make good economic sense -- perhaps especially in the West, in which concerns about fading membership might be greatest. It might also alleviate a problem that is perhaps greater than concerns about the number of adherents: the relative scarcity of clergy.
A few spin-off observations. First, while I am not "petrified" at this prospect, unlike Dionne, as the spouse of a faithful Catholic I must say one of the traits that most favorably strikes me about the Church is its, um, catholicity. "In my Father's house, there are many rooms," the verse says, and that has been a highly salient trait of the Catholic Church: there is room for the mystic, the doctrinalist, the intellectual, the dogmatist, the bourgeois, the poor, etc. The rationalist in me (but see below) says that this is a sound and necessary adaptive strategy for any institution that seeks to last over the long haul. But rationalism aside, it is a source of much spiritual and social wealth. I think, though, that Dionne's fears might be overstated; although the Pope is emphatically the head of the Church, it has many branches and they are unlikely to move in the same direction.
Second, this move (if Dionne is right) toward a more cohesive and vibrant Church is in some tension with the Church's occasional efforts to reassert its established role as a state religion, or one of several state religions, in Europe. As the economic/sociological literature also suggests, dating back to Hume, establishment reduces religious competition, but also reduces religious fervor; this may be one cause of the relative lack of religiosity in Western Europe, in which the Church or other churches are well entrenched in the structure of the state. (On this point, see chapter 9 of Frontiers of Legal Theory, by the Pos. He adds: "What social conservatives denounce as the antireligious character of the Supreme Court's religion decisions may actually be one of the reasons that Americans are more religious than most of the populations of other modern nations.") Somewhat paradoxically, if the Church wishes to be stronger in Europe, it may need to sacrifice its favored position there.
Finally, in treating these questions analytically I don't mean to suggest that analysis is all there is; I risk peeling the onion down to oblivion. Pope Benedict's vision may admit of rational analysis but one should acknowledge, and assume in good faith, that it is precisely that: a vision, born of both reasoned consideration and prayerful consideration. As a nonadherent who is nevertheless deeply respectful of religious belief and strongly interested in issues of law and religion, I make it my watchword to approach any question of the relation between religion and the state with the assumption that an asserted religious belief is true, or possibly true; how else can we meaningfully evaluate the (to engage in econ-speak again) costs and benefits of a religious belief or practice? The tricky part -- and it is an issue for scholars who are religious, as well as non-religious scholars of religion -- is to toggle back and forth between the internal and the external view; to consider religious institutions both as adaptive organizations and as sources of truth and revelation.
Might I recommend taking a few minutes out of your day today to make sure all your family members know that you wish to be an organ donor? Even if you have signed a donor card, organ procurement organizations will not take your organs when and if they become available to save others' lives if anyone in your family objects. There really is no good reason not to volunteer your organs once you are dead -- so do make your wishes known. In this domain, I'm pretty strongly pro-life. Indeed, I tend to favor mandatory organ donation ,but could live with an opt-out system rather than the opt-in system we have now. This system has proven remarkably poor at meeting the need to prevent completely unnecessary deaths (of fully developed and viable human beings). Choice in this domain is a luxury we shouldn't indulge.
If you happen to be Jewish and have been using Judiasm as an excuse for not becoming a donor, here is link to the Halachic Organ Donor Society. I don't mean to single out the Jews here, but we are not well-known for our generosity in this area:
Although the Chief Rabbinate of Israel ruled that brain-death fits the definition of Halachic death, there remains a widespread misperception in Israel that Jewish law categorically prohibits organ donation. As a result, Jews have the lowest percentage, among all other ethnic groups worldwide, of signing organ-donor cards. So while most western countries achieve organ-donor membership of up to 30% of their population, Israel – a predominately Jewish country – remains at 3%. Israel was recently expelled from the European Union Organ Donor Network because, year after year, they accepted organs but didn’t donate organs. Even though most Israelis are secular, when it comes to issues of death they adopt a more ‘religious’ perspective and don’t donate organs.
Mark Godsey is blogging over at CrimProf today about the statistics released yesterday showing the courts approved each and every application for a wiretap submitted by the government last year, a remarkable 100% success rate for the government. I believe the figures would be quite comparable for approval of search and arrest warrant applications generally. One study (although a bit dated now) of the warrant application process found an 8% declination rate. In my seven years as a prosecutor, I never had a judge deny an application for a search or arrest warrant. Can it really be that prosecutors are so skilled at shaping affidavits that there can be no dispute on the probable cause determination? Or as Mark Godsey suggests, have judges just become rubber stamps after 9/11? There could be some simpler explanations -- rather than just denying the application, the judges or magistrates return deficient affidavits to to prosecutors with suggestions about how to fix them and then approve the reworked application. Or that wiretap applications are so time-intensive for the government that prosecutors ensure the applications are in acceptable condition before submitting them. Or perhaps there is a more pernicious pro-law enforcement bias at work? A fertile ground for future research.
Thursday, April 28, 2005
If you've seen this girl . . .
. . . please call the number on the poster.
(This girl is not believed to be a victim of a crime, but is considered a material witness in a child pornography case involving over 200 photos of abuse of another preteen girl).
Now let's ask a few follow up questions. When should police release photos like this onto the internet? Some of the problems with this kind of tactic are discussed in this grim LA Times article, where police note that the perpetrators may be willing to kill the victims in some cases. Disclosure of victim identity thus requires resources in place for "immediate rescue."
Ugliness all around. I'm quite glad that someone tracks down the evil men who abuse children and photograph it. And I'm also quite glad that that job is not mine.
Althouse on Paglia on Blogging
Ann Althouse has a fun entry about her visit to hear Camille Paglia at a local Borders. Ms. Paglia was asked about blogging:
[Paglia] says, “I’m worried about blogging.” There’s “decadence” in the web. Once you’re “swept up in the blogosphere,” you become self-referential. (Afterwards, my colleague expresses amusement that she said other people were being self-referential.) Instead of blogs, she prefers on-line magazines. Mainly, Salon. Do you know she’s returning to Salon? There’s also Slate, but Slate’s “a little bit more wonky,” though it has “some good wonky articles now and then.” Who knows which blogs to read? There are so many! What bloggers need to do is join together and make on-line magazines. Like Salon. Did you know she’s returning to Salon? On Salon, years ago, she was developing a style that was “all about her,” but she was “an established writer” already, and she’s worried about people now trying to start becoming writers through blogging. But, she admits, if she were just starting out now, she’d be blogging.
But those blogs! Some are just “snark, snark, snark,” and others are very pedestrian. But maybe “blog style will mature,” maybe a “blog master will emerge.” Then, shifting position, she says “bark bark bark yap yap yap – I like that!”
This will mostly be of interest to the DC readership, but it may not be of interest at all. It's a rant. I hate my internet/cable/telephone provider. It's Starpower, now known as RCN. They charge tons of money and have shitty service. I remember from when I was living in another city that I couldn't effectively have them stop billing me even though service had long since terminated, and even though I had asked them to terminate service long ago. I'm convinced that they were violating all sorts of fair trade practices that would govern.
There has been very slight improvement over the last five years. When I moved to DC three years ago, they installed a cable box, along with modem and telephone service in my apartment. Six months ago I decided to try a six month promotion with HBO, which I barely watched. Now I want to revert back to my previous package and they claim that the box they gave me three years ago and didn't charge for all these years is now subject to a rental fee if I don't keep the premium package that was part of the trial. What's more, they make you wait forever if you want to downgrade service but if you want to add more services, they have salespeople ready to help you right away.
Even worse: part of the premium package was that you get five fancy phone features. They charged me all along for these features but never actually gave them to me.
So like I said: this is a rant. I hate RCN and look forward to the day the FCC and FTC fine them gazillions of dollars and that customers are given enough options to tell them to go suck it.
Ok. That feels better.
It's exam time
The worst time of the year, for students and professors alike! I'm giving an exam that is primarily multiple choice for the first time, which does not seem to be making my students very happy. Why are multiple choice exams perceived as worse than essay exams? I would think the fact that the grading is more objective would tend to make students happy, since grading in general is perceived as being overly subjective. I'd be interested in hearing thoughts from both students and professors about what exam format is preferable. I also seem to be one of the few professors here doing a multiple choice exam that is open book. Is that really a rarity?
Wednesday, April 27, 2005
What about Brennan?
I'm not particularly convinced by the arguments laid out by Professor Bainbridge and others, to the effect that an abortion litmus test (and we'll assume for the moment that one is being used) -- or in other words, asking a candidate's beliefs on Roe (and opposing candidates who would overturn Roe) -- is anti-Catholic.
After all, there have been a total of four Catholic Justices who have addressed the topic of Roe v. Wade.
Two of the four have consistently argued that Roe ought to be overturned.
One of the four (Brennan) joined the Roe majority opinion.
And one of the four (Kennedy) authored the Casey opinion, affirming that abortion is protected by the Constitution.
Doesn't seem like a unified stance against abortion to me.
Now if Bainbridge's argument is "any litmus test would keep out Catholics whose views I like, such as Scalia and Thomas, while letting in Catholics whose views I don't like, such as Brennan and Kennedy" -- well, that may indeed be the case. An abortion litmus test, if applied, would keep out some Catholics, and allow in others. After all, Catholics, like members of most groups, are divided over the issue of abortion.
Professor Bainbridge may be recognizing this, when he asserts that the group being discriminated against is "devout Catholics." But even that seems overbroad. For one, while I'm not Catholic myself (and perhaps my outsider opinion is incorrect), I'm not convinced that Professor Bainbridge can accurately assess a particular Catholic's devoutness based on her beliefs on the legal status of abortion. (Would Bainbridge question the devoutness of Mario Cuomo, for example?). Secondly, I'm suspicious of any rhetorical move that defines "devout Catholics" as "pro-life Catholics" because that seems to create a tautology. "Does a litmus test for pro-life beliefs keep out pro-lifers?" Of course it does.
But this distorts the fact that there are many Catholics who are less strongly in favor of legal restriction on abortion, and whose service would not be barred at all by this test. And that group includes, as noted above, fully half of the Catholic Justices who have ever ruled on the issue.
New Miami Beach Sex Offender Laws
My first thought was "I wonder what Dan Filler thinks of this?" Filler has argued that sex offender laws are often constructed through a narrative about white children being abducted by strangers for sexual abuse. In fact, the brunt of these statutes falls on African-Americans who are registered as sex offenders, many for convictions unrelated to sexual abuse of strangers. I suspect that the Miami Beach law will have similar effects, skewed along racial lines and only loosely related to the perceived problem it sets out to address.
Filler's piece is at 89 Iowa L Rev 1535 (2004), and the SSRN version is available here.
The Fighting Faith of Liberalism?
The article notes:
Adultery is forbidden in the Muslim country and under Islamic sharia law the penalty can range from flogging to stoning to death.
Several women and men were given such punishments in Badakhshan, a remote northeastern province, during the government of the Mujahideen (holy warriors) in the 1990s.
The practice became common during the rule of hardline Taliban who controlled most of Afghanistan till late 2001 when they were ousted from power by U.S.-led forces.
A witness, Mujibur Rahman, told Reuters that [the stonee] Amina was dragged out of her parent's house by local officials and her husband who stoned her to death while the man was flogged, whipped 100 times and then freed.
I was biting at the chomp to get blustery about why this is atrocious. But I want to try to figure out what's the underlying wrong here, at least from liberal principles.
First, theocratic principles (whether sharia, halakha, canon law) are not principles that states should uncritically apply, and thus, the fact that sharia dictates stoning for adultery is insufficient as a reason for the state to do it. But that goes to the conduct prohibited. The second point goes to the method of punishment. Stoning and whipping violate liberal principles that a) punishment should be consonant with human dignity rather than evidence of its denigration, ie., not cruel as measured against our best understanding of what that means; b) punishment should not be more severe than is necessary to condemn the severity of the crime's wrongness. The second point however raises the question of how wrong, if at all, adultery is.
The correctness of a ban on adultery is a more complex question, I think, though I recognize that I may be an outlier (among readers here? everywhere?) in thinking this. It doesn't seem illiberal to ban adultery in the same way that it does to ban gay sex, because there are often third party harms in the former and even where there are not, democratic states may have a compelling interest in protecting the sanctity of marriage as the consecration of vows between two individuals who take on a commitment to each other (and I assume without arguing that permitting gay marriage is normatively correct because the social recognition of marriage should not be deprived on the basis of sexual orientation).
Of course there are many good reasons to not criminalize adultery (especially as against the opportunity cost of not enforcing other more pressing crimes,) and perhaps it should remain something that we penalize through measures not involving the state: social shunning for example. But I suppose liberalism should be able to accomodate a democratic law that wishes to outlaw adultery. Am I wrong on this issue?
How about the others? Can one claim to be a liberal and still support, under the rubric of liberal-communitarianism, a right for other societies to engage in a practice that allows women (or men for that matter) to be stoned for adultery?
Also, without knowing more about what happened than what the article said, I wonder whether we're particularly worried because it was a woman who got stoned, while the male adulterer got a 100 lashes and was then freed. Would it matter if the genders were reversed?
Assuming it is consensual sex, how important is it for moral (or normatively legal) purposes that both persons know that at least one of them is in a marriage (strict liability or negligence or IT)? Should the presence of children matter in our moral assessment? Can a couple morally agree to swing in a liberal state? Can a liberal state prohibit swingers, even if it decides not to spend a lot of time prosecuting it?
I should note that one of the reasons why I wanted to post on this issue is to highlight for liberals that much as we want to be tolerant, there are certain things we ought not witness and stand by idly. We have not spent a lot of time addressing foreign policy issues on this blog, largely for reasons of institutional competence, but I don't think we can shirk our moral obligations of outrage. Putting an end to cruelty first, to paraphrase Dita Shklar's phrase, is a good starting point to unite the center-left, and I submit that preventing the subjugation of women abroad (whether through stoning or sex-trafficking) is and ought to be at the forefront of any decent foreign policy. We should take note that the neocons have been at least as alert to this as anyone else. And we need more Nick Kristoffs, one of the few MSM pundits to highlight these issues with clarity and fervor.
Update: I meant to include a link to Beinart's piece with a similar title from a few months ago.
Article Spotlight: Bell and Parchomovsky's Theory of Property
Gideon Parchomovsky (Penn) and Avi Bell (Fordham/Bar-Ilan) are among the most exciting property law scholars writing today. They've previously co-authored some very interesting articles on the Takings Clause, at 87 VA L. REV. 277 (2001) and 111 YALE L. J. 547 (2001). They've also written, individually and together, on several other topics, property-related, and non-property-related, and their articles are always well done.
So it's no surprise that their latest, A Theory of Property, 90 Cornell L. Rev. 531, is very good. In their new article, Bell and Parchomovsky survey the somewhat scattered theoretical discussion of property, and then set out a framework for analyzing property theories. From there, they set out and defend a "value theory of property," which is, they propose, the conceptual linchpin that allows for the discussion of property as a theoretically coherent field of law.
The article is available online here, and is highly recommended.
On Being a Happy Lawyer
It's not new, but it's something that every practicing lawyer should take a few minutes to read: Patrick Schiltz's article On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession.
Tuesday, April 26, 2005
Just because I don't think the filibuster is itself unconstitutional (leaving aside whether it is constitutional to entrench rule changes), by the way, does not mean I am entirely happy with the status quo, for reasons that may resonate with the deliberation experts on this blog. As it stands, because no one actually wishes to be inconvenienced, personally or politically, by an actual, Mr. Smith-type, phone-book-reading-at-3am-style filibuster, the threat to filibuster now substitutes for any actual filibuster. I think that's unfortunate, and would be perfectly happy to see an insistence by the Senate on actual filibusters. Requiring someone to stand on his or her feet for as long as it takes more effectively publicizes the issue for which someone thinks a filibuster is necessary; it achieves the genuine interruption of Senate business that the filibuster is supposed to accomplish, thus making the majority question whether their commitment to the issue is genuine; and, more importantly, it requires one or more members of the minority to personify that interruption of Senate business, and so bear any political costs (or benefits) involved in the decision to hold up the majority. The Senate is in many respects a counter-majoritarian body, and the filibuster may contribute usefully to that quality of the body. But if is to be a counter-majoritarian deliberative body, the filibuster ought to have some deliberative character, and not merely serve as an additional, silent vetogate.
The Uneasy Case for the US News Law School Rankings
Everybody loves to bash the US News rankings. Especially Brian Leiter. There is evidence that schools "game the system." There are absurd results -- precipitous drops for University of Washington and University of Kansas. There was even that dark time when the rankings placed NYU above Columbia -- sacrilege by any standards, and irrefutable proof of flawed methodology. But even with all of its warts -- and they are many -- the US News list serves a valuable purpose. It's cheap, accessible, and easily digestible, and it's right more often than not. And frankly, it would be pretty ridiculous to expect much more from a $3.50 magazine. With U.S. News, the reader gets exactly what she pays for.
First, let's talk price. The cover price of U.S. News and World Reports is $3.50 per issue. Like many news magazines, it's often sold at a huge discount. In fact, through the magazine's own website, it's as simple as a click to subscribe to it for about 50 cents an issue.
And the reality is that 50 cents doesn't buy a whole lot. Thus, U.S. News is not a scholarly journal. Like the other news magazines, it specializes in taking complex national and global issues and boiling them down into 3-page stories with lots of glossy photos.
In fact, you're not even really paying 50 cents. After all, in its "Best Graduate Schools" issue, US News is also assessing business schools, medical schools, engineering schools. Plus it's running its usual array of little stories about national events, health, the Middle East, etc.
So in the end, you are paying about ten cents for US News's opinion of law schools. And your ten cents won't buy you a double-blind, gold-plated, Brian-Leiter-stamp-of-approval study. It just won't. You pay your ten cents to US News, and you get the tabloid version.
Now, a corollary is that no sane person should base the decision about where to go to law school solely on US News. That would be like reading their one-page blurb on some new cancer treatment, and immediately signing up for that treatment. You just wouldn't do it. You would talk to your doctor first, get some opinions, and so forth.
On the other hand, tabloids have their uses. Like I said earlier, they're easily digestible, and some of them are mostly right, and they serve as a good starting point. (They're an awful lot like the Drudge Report, in fact). And so, you put down your ten cents for the tabloid. You read about the new cancer treatment, and maybe it piques your curiosity, and you follow up and ask your doctor about it. And you proceed, not based on the tabloid, but based on what your doctor says.
US News law school rankings serve exactly that same purpose. And it's useful, and necessary. After all, it may be hard for legal academics to recall that knowledge of top law schools is not universal, and so to excoriate US News for its shallowness. But the fact is that knowledge about law schools is often not accessible, and the ten-cent version is a great starting point.
And I can say this as someone who used US News as a starting point.
I worked hard in undergrad, took Honors classes, wrote a thesis. I also didn't know the first thing about law schools. I didn't really know many attorneys; I didn't have any family members who were attorneys; I'm the first from my family to attend law school. And if you had asked me to pick out top law schools, I wouldn't have known where to start. I probably would have picked a few Ivies, and Stanford; I'm certain I wouldn't have picked Michigan, NYU, Chicago, Virginia. It just wasn't within my limited sphere of learning.
And there were a number of rankings available. I quickly found some -- the Princeton Review is widely available, and so is US News, and so are some others. The differences were immediately visible. I don't recall all of the details, but as I recall, Princeton Review ranked Yale #1 and Virginia #2. (That outfit hasn't gotten any better -- check out the latest rankings, which lists the schools with the "best faculty" as Washington & Lee, BU, and Kentucky. Inconceivable.) Many others were equally problematic.
And then there was US News. As I did my research, US News looked more and more like a good assessment. I concluded that Princeton was wrong to list Virginia as #2. I concluded that, by and large, the US News list looked pretty accurate. I used it as a starting point, and I drew up a list of schools that I wanted to investigate further. I investigate these schools further, of course. I read other material, and I made some decisions, and I sent out my applications. And I think I did pretty well.
Since then, as I've become more immersed in legal academia, I've had moments where I've chuckled at a particular US News ranking. But is it generally accurate? My impression as an applicant was that it was very helpful. And I don't think I've changed my views all that much.
Compare the US News list to Leiter's list. Leiter's top 5 (6, actually) are all accounted for within the first 6 spots of the US News list. In the top 15 (16, actually, because of ties), there is a single school on Leiter's list not on the US News list, USC. Skip down to the top 18, and again every school listed in the Leiter 18 is accounted for in the US News 18.
There are differences, to be sure. US News lists Texas as 15th, while Leiter ranks it 8th; US News ranks Northwestern 10th while Leiter ranks it 14th. But on a whole, the US News list seems to have gotten most of its data right. It's not without individual anomalies -- see, e.g., Washington and Kansas. It's also not without manipulability. (But any ranking system is subject to manipulation; indeed, schools interested in improving their score in Leiter's own survey could try to manipulate the data by mass sending out lists of faculty publications to other leading law faculty who may be considered likely candidates for inclusion in Leiter's data pool). But it's clear that the US News list is quite similar to Leiter's. And the other tabloids are not, not even close.
As I've suggested earlier, I think that a 90% or 80% hit rate, is more than acceptable for a general-interest newsmag like US News. Cheap access to a mostly-right chart is a good thing; US News is more of a positive force than not. And yes, the list has flaws. But let's face it -- if a law student is using US News as a sole data point for decisionmaking, then she has bigger problems than US News' methodology. She is being spectacularly negligent in doing her homework.
Therefore, assume that every competent law student does more than simply say "Northwestern is #10 US News? That decides it!" Assume that all competent law students are doing their homework; some of them using US News as a starting point -- and hey, it's a hell of a lot better than some other starting points available (e.g., Princeton Review) -- but all ultimately doing serious reading and research of schools.
Now that we remove the red herring of US News sending poor unwitting law students to their doom, we see that this is a non-issue. The only person who takes US News seriously as a final arbiter is your aunt Hilda, who gets her magazine and then proudly tells her friends that her nephew is going to Columbia, and "they're the #5 law school in the country!" (The dean at your law school knows this too, and she knows that sometimes Aunt Hilda pays the tuition bill, which is why she sometimes remarks about rankings. But that's all her remarks mean -- they aren't directed at practitioners or academics, but at Aunt Hildas).
Could the US News rankings be improved? Of course they could. But even as is, are they providing a useful benefit to the general public? Yes, they are.
And certainly worth every penny of the ten cents you'll pay for them.
Interesting essay in the Chronicle today
about juggling motherhood and academia. (It can be found here.)
Worth a look.
The Death of New York and Boston
I liked the NYT's obituary for New York (and Boston) this weekend. As I'm about to leave this city, I'm pleased that the paper of record is finally acknowledging that New York is not as intellectually alive as so many insist.
Rob Howse Reviews Francine Prose's A Changed Man
Restorative Justice Lite: A Review of Francine Prose, A Changed Man
By Rob Howse
Vincent, the hero of Francine Prose’s new novel, decides one day that he’s had it with being a neo-Nazi. How to make amends and reintegrate into society? There don’t appear to be any recovery programs for members of extreme right-wing organizations, so Vincent throws himself on the mercy of Meyer Maslow, Holocaust survivor and revered leader of a major human rights NGO. Maslow gives Vincent a job and insists that the NGO’s fundraiser provide Vincent with shelter at her home (he claims to be in danger from members of his former cell none to happy about his defection). Maslow uses Vincent as an example, to prove a point, not just about people being able to change for the better, but also about the need to reach out to those who seem to be beyond the pale. Maslow believes that human rights advocates need not only to find a way of helping victims, but to reach perpetrators, or potential perpetrators, as well.
There are doubts from the beginning about Vincent’s motives for leaving the neo-Nazis; when he decamped, he stole drugs and money from Raymond, his uncle, who was responsible for getting Vincent involved in the right wing cell in the first place. Vincent is neither forthcoming nor particularly consistent on the occasions where he’s required to give an explanation of his change of heart. Could it all be a publicity stunt, or a way of getting out of what is a dead end from the strictly self-interested point of view?
These are the kind of doubts that fuel skepticism about the possibility of restorative justice—has any perpetrator really made amends and changed their ways, except on account of carrots or sticks? What really matters, Prose seems to suggest, is that Vincent has changed in his actions and attitudes: we see him gain in self-respect and at the same time treat others more respectfully. He doesn’t become pure or perfect, but when he does something wrong—like stealing a joint of marijuana from the son of the woman who has given him shelter on Maslow’s orders—he now accepts responsibility for his actions, rather than blaming them on a scapegoat (Jews, gays, African-Americans, etc.)
As Maslow explains in a speech at a fundraising dinner where Vincent is featured, the idea of human rights doesn’t make sense unless we make a leap of faith—a gamble on human goodness. But it is a real gamble: “even we sometimes wonder if such change can really occur.” Maslow’s well-healed society audience applauds wildly his endorsement of hope in human goodness; but they somehow don’t hear the disclaimer that this hope is accompanied by the shadow of doubt and the sense of a moral wager.
There is a persistent theme of gender politics in A Changed Man, which Prose weaves into the story about Vincent’s transformation. Vincent is sexually attractive, strongly so to Bonnie Kalen, the NGO fundraiser who provides him with shelter. Bonnie is a divorcee raising two sons. She is not alone in finding Vincent sexy; other women in the novel expect that Bonnie is sleeping with Vincent (she isn’t; he refuses her advances at one point) and envy her for it. At first, when the theme of Vincent’s sexiness was introduced, I thought Prose was going to be exploring the relation between fascism and eroticism, a rather dangerous and difficult theme. But the source of the spark between Bonne and Vincent turns out to be rather different. Vincent, like many others, joined the neo-Nazis from a sense of disempowerment: his father shoots himself due to tax troubles; later on, as a result of the anger that this episode almost hardwired into him, Vincent bursts out (he throws a difficult customer in the swimming pool he is servicing for her) and loses his job and wife. Bonnie and the other women in A Changed Man experience a similar cycle of anger and disempowerment in their own lives, in relation to men. Their husbands or ex-husbands or employers (Maslow) are high-performers taken seriously in the real world; in the presence of such men women like Bonnie feel a combination of inferiority on the one hand and resentment on the other. In the case of Bonnie’s relationship to Maslow, the resentment is at least blunted by a sense of Maslow’s genuine idealism and the obstacles he has overcome in his own life. But one gets the sense that Bonnie connects to Vincent because he’s been there, felt what it is like to think you are nothing in a world where others appear to have all the power. In refusing Bonnie’s advances, Vincent may have an inkling of just this—now that things have changed for him, he doesn’t want to join Bonnie in (self-)disempowerment.
The novel’s ending begins with a parody of the public confrontation between victim and perpetrator that occurs in truth commissions: on a popular TV talk show, Maslow and Vincent are both to appear, the Holocaust survivor and the ex-neo-Nazi. The show’s host will encourage them each to show their tattoos, Vincent’s SS tattoos, and Maslow’s Auschwitz
After this, Vincent disappears. But he soon shows up again, to make a planned appearance at an event at Bonnie’s sons’ school, where he is supposed to be the center of attention. Does Vincent’s return signify that he is now responsible, and willing and able to face the music for the incident on the show (partly self-defense, but partly gratuitous use of force)? Or does it mean that he is now ready to start a relationship with Bonnie, to accept an alliance in ordinary disempowerment? To me at least, the answers to these questions are less than clear. But throughout the novel Prose is honest about the complexities, avoids moral simplifications, and rightly gives us a sense that we are in a realm where those who always want clear answers will necessarily end up either as useless cynics or useless dreamers. She can be faulted, I believe, for only one distortion: there are no powerful, self-confident, non-neurotic women in A Changed Man (there’s a young journalist who is confident enough but that comes from her sense of her—real—sex appeal). If Prose were a male author, she could—and probably would—be charged with misogyny.
Robert Howse’s first novel, Mozart, is available at Amazon.Com and Barnes and Noble online.
Monday, April 25, 2005
More on the Filibuster
As always, events are in the saddle and ride mankind, not vice versa. After I wrote my filibuster piece, but before it was posted, the Vice President again publicly pronounced his willingness to cast his vote to end the filibuster of judicial nominees. Cheney's statement, as reported in The New York Times, does not give us adequate evidence as to whether he sees his vote as being based on the practical merits, or on the constitutional question that would necessarily be presented by such a ruling. But, as I said in my previous post, the procedural posture is such that Cheney would be ruling on a constitutional question, not on whether or not such filibusters are a good idea. And so my views stand. The comments to my previous post have raised interesting questions about whether filibusters are a good idea. But the question Cheney must be asked is whether they are constitutional or unconstitutional, for that must be the basis for his vote as presiding officer. And for that vote to be understood with any consistency, we must ask him what understanding of the Constitution would underlie any such vote, and what implications that vote would have for any other uses of the filibuster. I say again: Constitutional officers take a vote to defend the Constitution, and that should mean that any constitutional votes they cast are made in a principled, thoughtful way. I see no evidence yet that this is so in the case of the judicial filibuster -- a sub-category that is not itself constitutionally meaningful.
Let me also add
a quote from a later story that I think speaks to my earlier post. It's Senator Arlen Spector speaking:
"I think it is really necessary for Democrats not to follow a straight party line on voting for filibusters and Republicans not to follow a straight party line on voting for the so-called constitutional nuclear option," he said on CNN. "I think, if we voted our consciences, we wouldn't have filibusters, and we wouldn't have a nuclear option."
I don't know whether that final sentence is right. But the first sentence surely is: legislators casting votes on constitutional matters are obliged to follow what one might call their constitutional consciences, and an insincere vote on either side is an abdication of duty. Still, my focus has been on the Vice President, and I think the fact that he has not been pressed on the constitutional issues suggests just how much we have all taken for granted the politicization of the Constitution outside the courts.
Extolling the Virtues of the Web
Has anyone mentioned that this internet thingie is totally cool?
Last week I ordered a couple of books from amazon. According to UPS tracking, the book arrived at my house on Saturday. Well, here's the deal: I live at my house, and the book didn't show up.
So I decide to call amazon. Alas, the customer service number is not easy to find. But then I remember that slate.com previously found and posted the number as a public service. So I search slate, and sure enough, here it is:
Chatterbox is pleased to announce that the customer service line for Amazon.com is:
Chatterbox tracked it down by scrolling to the bottom of Amazon's home page, clicking on "Investor Relations," clicking (in the left-hand column) on "SEC filings," and then clicking on Amazon's last quarterly filing, dated Oct. 24. Here Chatterbox found Amazon's corporate address and phone number in Seattle. Chatterbox dialed the number, asked for the customer service number, and was given it. (Only after going through this exercise did it occur to Chatterbox to search Google for "Amazon.com customer service phone number." That turned up a few non-Amazon sites that give away its customer service number. See, for example, this and this.)
That number, again, is
Chatterbox urges Amazon shoppers to bookmark this page and refer to it next time there's a problem that can't be solved without a human voice. That number, one last time, is
Tell 'em Chatterbox sent ya!
Sure enough, they are sending the books again with upgraded shipping, gratis. Thank you Tim Noah!
AA1 on Constitutional Precedent
What is the value and meaning of "precedent" for the Supreme Court? This is a question that comes up at least once a term, and each Justice has
his/her hir own view.
In what is generally thought to be Justice Souter's Casey opinion, three Justices waxed poetic about the importance of constitutional precedent and relied on it to reaffirm Roe. By contrast, Justice Thomas appears to completely reject the bindingness of constitutional precedent. The remaining Justices seem to fall somewhere in the middle.
From a strict doctrinal and legal position, I lean towards Thomas. As Akhil Amar has said, we should not preference doctrine over document, Court over Constitution. If a Justice believes that a previous Court got a constitutional question wrong,
he/she heesh should not be bound by it. A bad legal argument is not buttressed merely by its adoption by a previous Court.
From an institutional standpoint, however, Stare Decisis is an extraordinarily important principle. The Court has little institutional strength: it cannot enforce its own decisions, and it is always subject to back-seat punditry. The only thing it has going for it is that The People seem to accept the Court's decisions as to the meaning of the Constitution. The People trust the nine people in robes, not individually, but institutionally. Overturning precedent, particularly if it becomes regular practice, stands to undermine this trust. When Justice Thomas votes to undo the entire body of Establishment Clause doctrine, he is really saying "Don't trust the judges of the past; trust me." But Thomas is just a man; and it is not the man we trust, it is the Court. If the Court regularly junks precedent, the rest of us may wonder why it is that we ought to follow this Court rather than a previous one, or the next one.
I am not staking a position here about what the Court should do in any given situation. My point is only that we face an odd conundrum. Stare decisis does not protect the Constitution; it protects the Court. But if we believe that the Court is the branch of government best situated to protect the Constitution, perhaps we need some measure of Stare Decisis in order to allow it to function.
The Filibuster, the Constitution Outside the Courts, and the Press's Failure
Not enough attention has been given to this article, suggesting that Vice President Cheney is willing to cast the deciding vote, as President of the Senate, in favor of the view that filibusters of judicial nominees are unconstitutional. The relative silence on this declaration, I think, is telling, on a variety of points. It says much about views on the filibuster/nuclear option debate, about our views on the interpretation of the Constitution by elected officials as compared to judges, and about the failure of the press to take this latter point seriously and engage in adequate scrutiny.
A little background: the governing assumption concerning GOP threats to end the filibuster of judicial nominees is that it will follow something like the following process. The Majority Leader would seek a ruling from the presiding officer that it is unconstitutional to filibuster judicial nominees. In order to guard against a slim majority, the occupant of the chair would be the President of the Senate -- the Vice President. This vote would likely be followed by a pro forma appeal by the Majority Leader, who would have the right to be recognized first, and an equally swift motion to table debate, which would be subject to a majority vote. (Proceduralists are free to correct me. Would a motion to table be necessary to move to a majority vote, or only an appeal of the ruling?) This expedient would get around two problems: the supermajority needed to end a filibuster itself, and the two-thirds majority needed to effect changes to the Senate rules.
What I find curious about all this is that, under this model, the Vice President is likely to make the decisive ruling that the filibuster is unconstitutional as applied to judicial nominees -- yet no one has really attempted to probe the Vice President on this position. Indeed, at least until this recent article, I'd seen no serious effort to ask him at all. To be sure, Cheney had suggested during the campaign that he opposed Democratic filibusters of judicial nominees -- it was a favorite applause line of his. But when asked about the nuclear option, he turned surprisingly coy, simply saying, "Some of us think there's a certain appeal to that kind of approach." Well, at least now he's spoken more clearly on the matter. It's about time.
Still, there's lots more to ask him.
Think back to the the first Gulf War, when Cheney was the secretary of defense and Congress was debating whether to authorize the use of force against Iraq. Faced with a close vote, Senate Republicans intimated that they would launch a filibuster rather than lose a vote in the whole Senate. Quizzed on the subject on the MacNeil/Lehrer Newshour, Cheney made it clear that he had no problem with a filibuster, saying that it would be better to have no vote at all than have a defeat.
Proponents of the death of judicial filibusters, apparently including the Majority Leader and the Vice President, could argue that the vote was different there. The Senate is required to give its advice and consent to judicial nominees, and that means the whole Senate. By contrast, the Constitution doesn't use the same words when dealing with "ordinary" legislation. But voting to authorize the use of force is hardly "ordinary" legislation by any common use of the terms. Even if it is a term of art distinguishing majority votes from supermajority votes, a parallel question can be asked: if the Constitution gives only Congress the power to declare war, why does it not mean that only the whole Congress can make this decision? Why would Cheney think that a majority of the Senate may obstruct the legislative process when it comes to placing troops in harm's way, but is barred from doing so when it comes to confirming judges?
One could ask other questions. The Constitution also requires the Senate's advice and consent for ambassadors and other executive branch officers. Does that mean that it is equally unconstitutional to filibuster such nominees? Does that in turn mean that past Republican filibusters of ambassadorial nominees like Bill Weld were lawless acts? And what about bottling up a nominee in committee, as the Republican members of the Judiciary Committee did during President Clinton's term on several occasions? Was this, too, unconstitutional?
Let me be clear that there may be sound answers to these questions. My own view is that filibusters -- including filibusters of judicial nominees -- are permitted under the Constitution. Moreover, if any argument could be made against their constitutionality, it would at a minimum have to apply to all advice-and-consent nominees; there is no principled distinction between judges and other advice-and-consent officers. I also would question whether there is any sound textual reason to conclude that filibusters of advice-and-consent nominees are unconstitutional, but not filibusters of so-called ordinary legislation. The Majority Leader apparently thinks otherwise. But just as the President can only confirm nominees with the advice of the Senate -- which, the constitutional argument against filibusters runs, means the whole Senate -- so a bill only becomes law when it "shall have passed the ...Senate," which could just as easily be read to require a vote by the whole Senate and prohibit a minority from preventing such a vote. (There are interesting arguments, made by Michael Rappaport among others, that filibusters themselves are constitutional, but entrenching them against rule changes by a simple majority is not. These arguments do not directly impact the Vice President's apparent view, signaled by his willingness to so rule on the Senate floor, that the filibuster itself is the problem.) But I am content to hear out further arguments on these questions.
There's a lot to ask, in short. What is disappointing is that Cheney has, essentially, been allowed to maintain near perfect silence on the question of whether and why it is unconstitutional to filibuster judicial nominees. Nor, for reasons I hope I have demonstrated, is it enough to stop there? What constitutional conclusions has he reached on all these other questions? The failure of the press to push for answers on these questions is really disappointing -- inexcusable, in fact. It is also disappointing that the Democratic Senate caucus has not pressed him, or anyone, on these points in a sustained and public way.
What accounts for this silence? I don't think it is simply that this level of detail is reserved for law geeks. I think it says something about how we think about the Constitution as applied outside the courts. The prevailing assumption from day one, I think, has been that the Vice President would simply come to the aid of his party. Thus, the Majority Leader assumed the rule change could happen, the press assumed the same thing, and the Democrats didn't fight hard on the constitutional point but focused instead on the nucelar option specter.
But a vote by the presiding officer of the Senate (who, it is generally assumed, will also be the Vice President) is not a political vote. At least it is not supposed to be. It decides a constitutional question -- and one that, at that, would likely be insulated from judicial review. The Vice President, along with the members of the Senate, takes an oath to "support this Constitution," and we ought to assume he takes it seriously. That means that, finally, only his views will matter -- not those of Senator Frist, or his lawyers, or the public, or even the President. Whether liberal or conservative, most lawyers (and citizens) assume that a judge who cast a vote on a constitutional question purely as a matter of expediency would be dishonoring his office: that judge must decide what the Constitution means, and vote accordingly, without regard to his personal preferences. Is the same any less true of any other government officer faced with the duty of interpreting the Constitution? In short, the failure to press Cheney for a principled explanation of his position on the constitutionality of the filibuster of judicial nominees, and of all other filibusters, is inexcusable. It speaks to an unbecoming cynicism about the role of the legislator or parliamentary officer. These officials, just as much as judges, can be oathbreakers, and that ought to mean something. At the very least, by acting as if these questions mean something, we attempt to ensure that they do. (Republicans should note a corollary point: any Democratic Senators who think that the filibuster is unconstitutional may have a duty to speak up as well.)
Let me make one last point about why all this matters, at least in a society that takes oaths seriously. What if the Vice President concluded, after further deliberation, that judicial filibusters are constitutional, but the President or the Majority Leader pressed him to rule that they are unconstitutional anyway? For once, the Vice President has spoken clearly enough on this point. Here's what he said more than a decade agao when discussing what should happen when an official who has taken the constitutional oath is faced with a strong conflict between his views and the President's orders: "In the end, if the disagreement is big enough, then you ought to resign, as a matter of principle."
Now are the stakes big enough to start asking meaningful questions? And if not, is it time for us to start redefining the words oath and principle?
What casebooks do you use?
I'm a 0th (zero-th) year law professor, and I'm looking at case books. I'm getting them by the cart from publishers. This is kind of nice, but at some point I have to decide what actually to use.
I'm teaching Wills and Securities Regs this fall, and Bus Orgs and something-else in the spring. Does anyone (student or professor) have any recommendations on case books in those areas? And any substantive commentary is also very welcome. (You know, "I use book X because it has lots of modern cases, but I do wish it would have more doctrinal discussion" kind of comments).
Sunday, April 24, 2005
Legal Academia and Un-Family Friendly Policies
One comment on my post about the difficulty summer break poses for faculty members with young children highlighted this can be a problem for both male and female law profs, and I wholeheartedly agree (although in general, and I repeat this is a big overgeneralization, my female colleagues seem to agonize about it more). The poster also raised the important point about legal academia being un-family friendly in general, and I certainly think that's worth some more discussion. Brian Leiter had a very interesting discussion on his blog a few weeks back about how the practice of requiring a look-see visit before extending a lateral offer makes it very difficult for faculty members with either young children or a partner with his or her own career to move up. One other practice that leaps to my mind is the increasing use of exploding offers. One terrific school in which I was very interested extended me an offer with a 48 hour deadline for a response. It was simply impossible for me to commit my lawyer husband and 3 young children to move across the country on that short a timetable. I'd like to open this up for a discussion about other un-family friendly policies that people have encountered, either on the market or after entering teaching.
Friday, April 22, 2005
One Further Thought on Canada
One addendum. US papers have begun paying attention to the ongoing scandal involving alleged kickbacks to the governing Liberal Party through the administration of civic programs aimed at Quebec. Here's an op-ed on the subject by David Frum. Tom Smith, at the Right Coast, has riffed on the subject a few times. (I taught at USD last year and found the faculty as engaging and entertaining and smart as they appear on the blog, although I think I tend to disagree at least somewhat, and often much more, with just everything Tom posts, with the possible exception of definite articles and the word "jujitsu.") If you're so inclined, it's a good opportunity to get in a few good licks at us northern folk. (Although, Tom, the question is not what kind of surgery you and I can afford, but whether everyone can and does get high-quality surgery. The answer, of course, is no, and the question then becomes what level of trade-off between quality and accessibility you're willing to make. I'm a two-tier fan myself, and don't care for the Candian government's unwillingness even to consider such approaches, but there you go -- I'm an emigre.)
What I want to say here is that the Liberal party scandal does speak to a Canadian problem. It's not one of political orientation, but of the dangers of consensus. As Tom Smith notes,
the country is run out of the center, from Toronto and Ottawa. Many values are widely shared in this part of the country. This leads to a kind of complacency and inability to see beyond your own perspectives and those of your class, no matter how eminently reasonable they may be. Canada in this sense, no matter how racially and culturally diverse its leadership caste may be, now strikes me as being kind of like France's government class, which typically attended precisely the same schools and shared precisely the same values. I think this is problematic for my former country, and this regardless of how much of the social consensus I may agree with. It makes the leadership unreceptive to new ideas. It leads to oily self-satisfaction. It leads to rule by technocracy and bureaucracy. It ignores vast sections of the country that don't share the views of the leadership caste. And, yes, it has been very well exploited by the Liberal Party, whose cynical ability over time to seize the entire center in order to hold office indefinitely (wherever the center may be at a particular moment -- this is not a party that I would consider to have anything approaching a set of ideas, other than the idea that Canadians are better off if the Liberals are in power) naturally has allowed it to rot like fish offals in the sun. I miss the old Progressive Conservative Party, in the same way I miss the Rockefeller Republicans. But I am not upset by the possibility that the new Canadian conservatives may be able to take advantage of the Liberal Party's current misfortunes.
May I add, though, that the problems upstairs are not about Canadian PC-ness or authoritarianism. They're the usual problems that apply where a single party becomes permanently encsonsed in goverment. And they are equally applicable to Democrats here (see, e.g., the House scandals of the 1990s) and Republicans, too (see, e.g., Tom DeLay, with special reference to the K Street project.)
A few days ago on my post soliciting names of model law teachers, Dan asked in a comment why it is that Canadian emigres to the US often seem to find this a more energetic society. Of course, there is a selection bias involved here; those of us who emigrate may simply be inclined to find it so. And a confirmation bias: to justify our choice to emigrate, we may be doubly inclined so to think. Then, we often emigrate at the beginning of our productive careers. Perhaps we would have had the same energetic experiences had we stayed back in Canada.
I do think that's part of it, but not all of it. A few other explanations come to mind:
1) A disproportionate number of the emigres I know are Torontonians. We grew up in a fairly energetic Canadian city, and nevertheless chose to move to still more dynamic American cities. We have not experienced a common trait in the US: mobility -- the tendency of people to move to different parts of the country, not once but frequently; the American genius of reinvention. Perhaps if I had grown up in Kelowna or Moose Jaw and then moved to Toronto, I would have a different take on the subject.
2) That's not all of it, either. I grew up in a vibrant Canadian city, but heck, I found Long Island (and I'm talking Suffolk County here, not the Joel-Rifkin-ish Nassau County) more dynamic in some ways than Canada. And part of it has to do with the standard Canadian/American stereotypical distinction between politeness and friendliness. My equally stereotyped description of this phenomenon is that in the US, perfect strangers are more likely to say hello to you on the street, though also somewhat more likely to stab you to death. It is a stereotype, as I say, but it captures something about the interpersonal energy that is often present in this country; Canadians can sometimes be polite and friendly but not as warm.
3) Other traits: Ambition. Forcefulness. Directness. The national mythos of income and class mobility. I think these things all contribute to the traits I so love in this country. They are not unqualified goods. But we emigres clearly have sought them out. That is why I think the brain drain, so-called, is valid cause for Canadian concern. There are lots of ways to retain the smartest Canadians. But it will be more difficult, all things considered, to retain the most ambitious. (Note that these are only overlapping categories, not identical categories!) Why stay for socialized medicine, when you are coming to the States to seek professional jobs that provide health benefits anyway?
Why are German Cars Different From All Other Cars?
This raises the question for me: why do some Jewish communities build a presumption against buying German cars? Most taxis in Israel are made by Mercedes, right? And last time I checked, Hugo Boss suits are never subject to the same boycott, even though the company seems to have supplied Nazi uniforms. (While we are on the subject, may I recommend "Fascist Fashions" in the current issue of the LRB?) And I think these same people that are squeamish about BMWs sometimes use Braun products to shave and make coffee. What gives?
Do bring up these issues at your Seders and have a happy Passover.
Summer break and the life of Moms
Classes here end tomorrow, which leads me to one observation about how the lives of men and women differ in the legal academy (I recognize this is a bit of an overgeneralization, but bear with me). My male colleagues are all delighted at the prospect of a long, leisurely summer stretching out before them that can be devoted to research and writing. My female colleagues, on the other hand, are all filled with an impending sense of doom, because the end of school means the beginning of a summer-long child care nightmare. It's tough to get an article done while you're trying to patch together 12 weeks worth of summer camps and babysitters (let alone some downtime for the kids). I've always wondered if any law schools offer on-site child care facilities. They would probably have faculty candidates beating down the doors.
Judge Ed Carnes: Judicial Iconoclast
Here's an interesting post to an article about a recent opinion by Judge Ed Carnes of the 11th Circuit, in which Judge Carnes, defending an opinion holding that a person sentenced under the sentencing guidelines, when they were mandatory, could not challenge the sentence post-Booker absent a showing of a reasonable probability that the sentence would have been different if the guidelines were advisory, takes on Judges Barkett and Tjoflat from his own circuit and Judge Posner (my own American Idol). Strong language.
I haven't read the opinions and am not a crim pro expert, so I express no opinion. But I clerked for Judge Carnes, for whom I have great personal and professional regard, and think it a nice time to point out a pleasant irony about judicial appointment that has been noted at least since TR appointed Holmes. Judge Carnes's confirmation was fiercely opposed by the Senate Democrats, on the assumption that he would be a fierce ideological judicial conservative. And he is generally conservative (to apply an imperfectly fitting phrase) on criminal law issues. Yet he is now as likely to go down in history as the judge
who affirmed an order removing the Ten Commandments from the Alabama Supreme Court building, in very strong terms; and who served on the appellate panel in the Schiavo case. For both of these reasons, I assume he is one of the judges who fell within the category of Tom DeLay's threats. This suggests yet again that, where lifetime tenure is concerned, the issues you think will encapsulate a judge's career may not be the issues that actually shape his career, and the invective you launch at a nominee may not reflect how that person actually serves as a judge.
I fear, though, that too many such events have taught judicial appointers the wrong lesson -- don't just appoint someone who has been congenial to your side on some issues, but appoint someone who has more or less promised they will be congenial on all issues, come what may. For my own part, I would rather see the bench made up of a substantial number of good, smart, non-ideological technocrats, who will follow precedent loyally if unimaginatively, and a smaller but crucial number of pure geniuses, regardless of their ideological stripe, to add the necessary catalytic element that conduces to the sensible growth of the law. Be willing to be surprised. Take a few chances. As always, this applies with equal opportunity to both parties. The Democrats should be willing to nominate a Kozinski, and the Republicans a Calabresi. (As a rule of thumb, I think this boils down to a rule of "more Posners -- but for God's sake, not too many.")
Thursday, April 21, 2005
The "CSI Effect"
US News & World Report has a very interesting story this week (no, not on the law school rankings) about the impact of TV shows like CSI and Law & Order on jury verdicts in criminal cases. As a former prosecutor I found it to be right on the money. Juries increasingly expect forensic evidence in cases, and prosecutors are having to spend more time in their case in chief explaining, for example, that in reality people almost never leave a fingerprint on a gun and that shooting and killing someone from across the street will not leave any DNA to be analyzed. The article also makes some good points about the problems associated with different forensic tests in general and with crime labs in particular. It's worth a look.
Update: Dan notes also this interesting paper by Tom Miles (rising prawf at Chicago) in JLE about the effect of America's Most Wanted on apprehension rates for fugitives.
Leiter on which law schools produce professors
Brian Leiter posts an informative chart showing where recently hired law professors went to law school. Not surprisingly, Harvard and Yale clock in at numbers 1 and 2; my own alma mater (Columbia) is tied with Stanford for the number 3 slot, which isn't so bad. And Leiter is of course correct that the school that is most unexpected is Kansas, which placed four graduates in legal academia over the past two years. They're obviously doing something right over there. (I happen to know one of the KU grads, my former co-worker Stephan Padfield, who has a quick mind along with a very friendly demeanor. Congrats, Stephan!)
The Courtroom as a Hall of Triangles?
Ian Ayres, at Balkinization, is thinking through whether criminal juries should be prevented from seeing non-testifying defendants. Presumably, without being able to see the defendant, a jury would be unable to use information about what s/he looks like to render a verdict. Why this fabulously bizarre idea wouldn't apply to civil cases too isn't made clear.
This seems like an uncommonly silly proposal -- and the further applications Ian envisions would, quite simply, make a courtroom look like a funhouse, defying the aesthetics of openness so critical to our system of justice. Most basically, the premise -- supposedly based in Malcolm Gladwell's new book -- seems plainly wrong: Ian claims that "[t]here is no reason in the world that the jurors need to see a non-testifying defendant," and that "Gladwell is clearly right that there is no reason why jury should see defendant." I would think that the information a jury could glean from watching a defendant shift in his seat during testimony about him/her and the crime would be at least as useful to a jury as a defendant's testimony.
Prof petitions -- A Hopelessly Unscientific Survey
At the Volokh Conspiracy, Juan Non-Volokh comments about the latest letter sent around the law school community for joining signatures. The letter opposes the Republican threat to trigger the "nuclear option" by ending filibusters of judicial nominees. I have an extensive post forthcoming on the subject in this here space, and I oppose ending them, at least on the basis advanced by the Senate Republicans. But I have not signed the letter, because I dislike signing on to every proposition in such a letter, including those assertions on which I have no considered judgment, simply because I agree with its gist.
Non-Volokh suggests that because the letter contains a host of debatable constitutional assertions of no little complexity, it cannot be the case that everyone has really reached a considered conclusion on the points raised therein. "In other words, they [the signers] are asserting their academic expertise and reputational capital in an area about which they have no particular academic expertise."
This is a debate that has been ongoing since the Clinton impeachment and the 2000 election dispute. What obligations do academic signatories have to satisfy themselves they agree with the assertions contained in such a letter or petition? Since the debate has been ongoing (and well-canvassed by Posner, Ward Farnsworth, Cass Sunstein, and others), I thought it might be worthwhile asking any academic readers (or prospective academics) whether that debate has changed anyone's minds.
Are you now less likely to sign such letters? To give them more considered attention before signing them? To quibble with the drafting but sign on regardless of the outcome of those discussions about content? Or ...
are you as likely to sign one as you ever were? And why? Do you believe yourself to be asserting academic expertise, or just exercising your right as a citizen to engage in the political process? If the latter, why associate as a group of law professors for the purpose, and include your academic affiliation? If the latter, why take such a letter any more seriously than a letter with the same content, signed by plumbers?
My own sense is that this debate will make only a marginal difference. A few more potential signers will have been sensitized to the issues by the discussion that has taken place in the law reviews and on blogs in the past few years. They will read such letters more carefully before signing them. But my brief survey of the signers on this letter suggests that many of the same old folks will happily continue to sign such letters where they are compatible with their political views. That certainly includes a number of folks who I know don't teach in constitutional law, and will have no more expertise as to the assertions made in these letters than would any reasonably intelligent person who makes a habit of reading op-eds. (In the interests of candor, I see on the signatory list a number of non-con-law colleagues from my own fine institution, whom I respect a great deal on a personal and professional level.)
To the extent this continues to be the case, I think the scholars are welcome to sign the letters, and the Senate should do what it always should do in such cases: consider the truth of the claims made in the letter and simply ignore the names of the people who have signed it. You can't demand deference to an expertise you can't fairly claim. Or they can ignore the claims in the letter and count the names of the signers, simply to see how many potential voters they are losing -- which in this case is, in comparison to the whole population and the past votes of these signers, a number at or approaching zero.
Judicial Memos and Real Injustice -- A Hypothetical
The world (or at least, small portions of the blogosphere) is shocked at the revelations of Blackmun's papers. Legal Affairs has its exposé; bloggers weigh in on either side (see, e.g., here, here, here, here, here). But on the whole, the charges -- Justice Blackmun let his clerks do too much of the work for him -- are pretty blasé. Let's take a moment to discuss a much more interesting hypothetical: What would happen if a Supreme Court Justice's private memoranda showed an egregious miscarriage of justice in one or more cases?
For example, imagine that a future Justice X's papers are published and that they reveal egregiously unjust bases for decisions. Let's posit that there are memos, from the Justice X to his clerk, that state:
"Another habeas? I hate those. They're all brought by Blacks anyway, and I think that all Blacks are criminals. Write me an order denying it."
"The plaintiff's attorney sure looks great in that black skirt. Plus, she flirts with me when I see her around the court. Write me an opinion in favor of plaintiffs."
"I just talked to my buddy who's the CEO of XYZ Corp. He said that upholding the lower court in Smith would have a bad effect on the economy. Write me an opinion reversing Smith."
"I'm tired of dealing with these cases. I'll tell you what -- everything with an odd-numbered docket, just deny. That will make life easier around here."
Of course, this is not to say that any of these sorts of shenanigans actually take place on the Court. And if they did, one hopes that other Court observers would realize the problem, and it would be addressed sooner rather than later. But let's assume that our Justice X's problems do go unnoticed, until after his death and the publication of his papers. What then? What are the res judicata and stare decisis effects of Justice X's decisions?
I suspect that the result would depend very much on the individual cases. For example, perhaps a habeas applicant who could show that Justice X denied his habeas petition because of overt racial prejudice could be entitled to a new hearing. (But this raises a lot of questions itself. Are judicial memos admissible evidence? What do they show? What if it's harmless error? What if it's someone who was executed? What if it's an alien who was deported? Can the alien reenter the country now?)
Denial of cert is a whole lot trickier. Perhaps Justice X originally denied cert because he didn't like African Americans, or because he wanted to clear his docket and so he ordered all odd-numbered cert petitions summarily denied. But it's not at all certain that cert would have been granted in any individual case, even absent the wrongful factors. (Perhaps the correct remedy would be a de novo cert decision, which could itself be a denial if appropriate). There is the added question of who exactly can hear a claim of wrongful denial of cert.
Still trickier would be cases in which Justice X participated, and which have led to further case law development. For example, say that Justice X voted with the majority in an important 5-4 criminal procedure case -- a case like Miranda or Apprendi or Booker, leading to broad changes in procedures. If the other four Justices participated in the decision in good faith, should the case nevertheless be considered suspect if it can be shown that Justice X's vote was due to wrongful reasons? And if so, what is the proper remedy? A rehearing? A new decision? A new circuit split and eventual de novo resolution of the issue? And what happens to cases that are further developments of the original case -- the Ring to an Apprendi, so to speak -- are they also suspect? What if Justice X did not himself constitute the decisive vote in some of those cases? And finally, how much Casey-style deference ought to be given to decisions, even if they were wrongly decided by at least one Justice?
Is there law on this? (I suspect that there is probably some case law dealing with problems at the lower court level; I don't know that case law is, and I'm also not sure to what extent, if any, it would translate to the Supreme Court). It's a fun issue to play with.
And it does show one thing -- however bad people may think Justice Blackmun's memos were, they could have been much, much worse.
Ruchira Paul on Adler
Ruchira Paul writes in on the Libby Adler article we highlighted earlier today. It was insightful enough that I thought I should reproduce it as a post of its own. Ruchira lived in Germany for some time -- and now is in Texas. She grew up in India, which experienced tragedies of its own that remain implanted in the memories of its citizens:
Thanks for sharing Libby Adler's moving article. I think it is always the peculiar burden of subsequent generations to feel more helpless, more enraged and more emotionally bereft in trying to imagine and recreate the sufferings of their elders. The victims themselves, who actually lived the terror and the humiliation, remember their experiences with much more aloofness and perhaps even triumph, looking at them as discrete incidents which in the end, they managed to survive against all odds.
I recognize Adler's emotions somewhat, as a descendant of parents and parents in-law, who lost their homes and ancestral roots in the partition of India in 1947 to what was later to be Pakistan (east & west). Although the carnage in India was widespread and very bloody, it was not state sponsored and erupted over a short period fueled by mob frenzy. It also did not involve the cold, calculating humiliation that was an integral part of the Nazi modus operandi. I made this point in my post on Dissemination about Holocaust Exceptionalism.
But it was traumatic nonetheless for the uprooted people because of the bloodshed and the betrayal by friends and neighbors. My own parents, came from the eastern half of partitioned India which saw far less violence than the western half, from which my husband's family comes. I noticed that my side of the family felt less torn about the partition and their loss than does my husband's father. My parents, were able to make reasonable lives for themselves in India and went about their business more or less in a forward looking manner. They talked to us about the partition in terms of history, politics and mostly the perfidy of the British in bringing it about. But my father in law, who too did well for himself but had seen incredible violence while escaping with his family, is much more sentimental about his erstwhile home and bears a far greater sense of betrayal. His account of the loss vacillates between regret, fear and doubt. He is an acclaimed author and most of his work relates to the partition experience - sometimes critical , sometimes sad and always nostalgic. Unlike my family, my husband's family also has gone back several times to Pakistan to visit the old home, neighborhood, college and friends. I think victims and witnesses of extreme violence tend to react in this bipolar manner.
You asked me once to elaborate on what I saw and learnt in Germany about the Holocaust. My experience is more than twenty years old and many issues have been clarified since then. The understanding of the Holocaust came about slowly, through numerous conversations with young and older Germans. The meager library in the University Guest Apartment building where we lived had just a handful of English books, most of them about WWII. Starved of English books to read, I devoured these in my spare time. Also Channel III of German TV, somewhat akin to PBS, used to regularly carry documentaries, commentaries and discussions of the Nazi era and the Holocaust. Participants included German Jews as well as ex officers of the Third Reich. I will not give you details but just the gist of what I gathered.
From younger Germans:
1. Our parents were seduced by Hitler into believing that he would restore German honor after the humiliation of WWI - it was not their fault. Or. Our parents were prejudiced and close minded - it was their fault.
2. Our parents betrayed us - we have to bear their shame. Or. Our parents, not we, are responsible for the Holocaust - why should we have to pay for it?
From older Germans:
1. It was a mistake - Hitler seduced us. Or. There was no Holocaust. Extermination camps were labor camps for the war effort - after all it did say on the gates, "Arbeit macht frei".
2. Jews were like all other Germans - in fact, some were so nice that you could not tell that they were Jews. Or. Jews were not Germans but had their own agenda. ( During one literary discussion it was said that Heinrich Heine was not German).
3. The most common: I swear, we did not know that a Holocaust was under way.
My own conclusion about all atrocities is that they cannot happen without the complicity of common folks - friends, neighbors and businessmen. Also, there is always someone who makes a quick buck from the misfortunes of others.
I want to say thanks to Dan, Ethan, and Rob for allowing me to visit here for the next couple of weeks -- I've really enjoyed the blog and look forward to being a part of it. As a relatively new law prof (I'm finishing up my second year of teaching), I hope to do some blogging about my experiences on the market and as a new law teacher. In particular, I'm hoping I can add a little female perspective to the very interesting discussions that have gone on here recently about women and the academy. Dan already gave me a very nice introduction; I'll just add that I'm also the mom of three young children so I am indeed constantly thinking about issues related to balancing work and family. Thanks for the chance to be here.
FSU's Crossley to Pitt
According to this article, Mary Crossley, an expert on health and disability law at FSU Law, who also used to teach at Hastings, has just been named the dean of the law school at U Pitt. Congratulations Mary and best of luck--I'm sorry we didn't get to overlap in Tally. Hat tip: Marshall at www.jd2b.com.
As the Left part of our Center-Left (i.e., TNR neo-con apologist) blog, I have the pleasure to announce the publication of Unbound: Harvard Journal of the Legal Left. In particular, I'd like to recommend this article by Libby Adler. It is the story of her study of the Holocaust reparation cases and settlements with a German man. It is an extremely thoughtful, personal, and beautiful article, something that can rarely be said of law journal articles.
When she first met the German man that was to become her collaborator, he told her she was beautiful, despite this self-description:
I’m your average-looking Ashkenazi Jew: thick, curly, short, brown hair, dark eyes and eyebrows; my skin is a little bit blemished and my nose could have been a contender; and I’m short, just about five feet.
In thinking about his aesthetic further, she had this to say:
Where I come from, Jewish women are not exotic. Asian women, as I suspect most Americans have not failed to notice, have the allure of the "other." Latin-American women have it. Not Jews. Where Conrad comes from, though, a German academic teaching abroad brought a series of Jewish girlfriends back home with him to show off at parties, and non-Jews wear the Star of David in the same way that I suppose white American kids wear the yin yang—for its exotic appeal. I could not help but imagine that what made me seem beautiful to Conrad was the history of Jewish expulsion and extermination in his home country, and as this possibility dawned on me over sandwiches in the Back Bay, it jolted me out of our lunchtime camaraderie.
Perhaps the most interesting moment comes when she and her collaborator are in Germany, discussing how they plan to teach their seminar:
"How will we handle it," Conrad asked me, "when a student says that we cannot judge the perpetrators, since we did not live when they did and cannot know what it was like?" "Do you really think someone will say that?" I asked, surprised. "Someone will, of course," he answered. "We’ve all wondered what we would have done, whether we would have participated, if we had been alive then, haven’t we? Are you telling me you’ve never asked yourself that question?"
I felt my temperature climb and our alliance evaporate. "No," I said, the muscles in my abdomen tightening, "I haven’t." My God, I thought, of course that’s not what I wonder! I wonder whether I would have survived! How could he not know that? I wonder whether I would have had the resolve to endure the suffering and the humiliation. I wonder whether I would have turned on other Jews for a piece of bread. I do not wonder whether I would have been a Nazi. More cold than bewildered then: "It never seemed like an option."
We sat in silence, against the music and chatter of the restaurant, for I’m not sure how long. In my solitude I became aware of how hot it was in there, and how smoky. I was exhausted, flushed, and on the verge of tears. I turned my gaze up from the plate in front of me to meet his and managed to utter the words I’d been holding inside for weeks: "I don’t think you understand what it means for me to be here."
"Tell me" he replied softly, his face open, his eyes squarely on mine.
Time to Focus Attention
FOP Stuart Buck has an important post entitled While We Were Distracted up about Darfur. Why is Michael Jackson's trial receiving endlessly more attention than the wholesale slaughter of innocents in Africa? One of the comments there raises an interesting question about where the Europeans are on this issue, since the US is currently underwriting the Iraq reconstruction in large measure. I think this misses the point, in several dimensions. First, while there are limits to American governmental resources, we've barely begun to exhaust them in light of the social wealth available in this country. There can be no question that American involvement in Darfur is feasibly compatible with our excursions in Iraq and Afghanistan. It might mean slightly higher taxes, it might mean fewer agricultural subsidies to sugar cane farmers in the US.
Second, the issue is less what is the US gov't doing right now than what are the media and the People of these Several States doing in focusing (or misdirecting) attention on the unfolding tragedy. At some level, the story of Darfur needs to be told so that the images of wretched and mangled children are seared on our collective conscience. That's not happened yet.
Go to savedarfur.org and do something. Give money. Talk to your friends and colleagues. Change the focus. Now.
Update: Stuart tells me that the post he has comes from the Coalition for Darfur.
Wednesday, April 20, 2005
More die of heartbreak
Another problem in expressive politics. An Illinois high school has battling t-shirt-wearing alliances. Students supporting the gay-straight alliance wear "gay? fine by me." Some of their opponents meanwhile, inspired by the Good Book, don garb stating "Crimes committed against God."
Jacques Jacobs, youth pastor at Family Harvest Church in Orland Park, seized the opportunity to oppose the movement this year and gave away shirts with "Crimes committed against God" slogan to students. 'Many people feel that the most discriminated group of all is the Christian student in the public high school,' Jacobs said.'
Homewood-Flossmoor High School spokesman David Thieman said administrators allowed the students to wear shirts promoting and opposing gays on the same day. He said no disruptions were reported to the administration. "It was a normal day," he said. "Business as usual."
But organizer Myka Held said she reported two boys for taunting her by saying "gays would burn in hell." She said her dean made one boy apologize and promised to speak with the second boy today. Students also claimed teachers were reprimanded for distributing shirts with Christian messages.
If I recall, my Fried con law issue-spotter exam question involved issues of t-shirts at schools. Uniforms anyone?
Shtreimel tip: Romanesko
Google + CraigsList = Croogle?
Vic Fleischer (UCLA Law) has resuscitated A Taxing Blog, a blog on tax and business law and policy, which I admit is not really my cup of tea. Still, Vic's a zippy writer with a sharp eye. And one of his amazing posts includes this link to a website that unites Google's incredible maps function with Craigslist real estate listings. Where is this Croogle for Tallahassee??
Hey all. We're going to have a couple guest bloggers start in the next few days, which will be a relief (to you as well as us?) since some of the regular crowd here will be less available at different times over the next week--Happy Passover!
Our guests will both be blogging for two week stints (give or take a few days).
Jennifer Collins is a prof at Wake Forest, where she teaches a bunch of crim-law type courses. She's a former prosecutor in DC, went to HLS and clerked for the spritely and wonderful Judge Dorothy Nelson (go 9th Cir.!). She has a very cool article, Crime and Parenthood: The Uneasey Case for Prosecution of Negligent Parents, available here, which is forthcoming in Northwestern LR.
Kaimi Wenger will also be joining us for two weeks or so. Kaimi's a lawyer in NYC about to move to San Diego, where I imagine he'll be teaching property-related classes at Thomas Jefferson. He went to Columbia Law, clerked for the legendary Judge Jack Weinstein, and now practices at a schmancy firm. Kaimi wrote a great piece with my buddy Dave Hoffman (Temple prawf) entitled Nullificatory Juries, and he has a slew of other things out or in the hopper. He used to blog at Tutissima with Nate Oman and another friend of mine, Chad Flanders. He remains part of the bloggernacle at Time and Seasons, which is a site that bills itself as "quite possibly the most genteel, yet hip, onymous Mormon group blog in history." (Onymous, I just discovered, somewhat unsurprisingly, means "bearing a name.")
Welcome Jennifer and Kaimi!!
A few weeks back, AA1 and I tried to dissect Jim Lindgren's attack on our Gerontocracy by poking holes in the substance of his proposal. But I failed at the time to deflate some of his rhetoric. He wrote:
The current Court is nothing less than a gerontocracy—like the leadership cadre of the Chinese Communist Party.
Preying on some Americans' sense that the Chinese live in a completely repressive and autocratic society, Lindgren hopes to use the CCP as codeword for political evil.
As some of our readers know, I have an interest in how the CCP is doing its business these days (and have written on my recent exposure to the CCP here). In the service of educating people about the CCP's interesting experiments in real (deliberative) democracy, I offer this article from Time/Asia. Let's not jump to conclusions too quickly about that one-party authoritarian regime.
Most important law-related articles of all time?
If we had to choose 25 law-related articles of all time, what would they be? What should every law student and legal thinker read?
For the purposes of this exercise, law-related articles include anything published in a legal journal or anything from a non-legal journal that has strongly impacted legal academia and the legal profession.
To start, I nominate a classic: Coase's The Problem of Social Cost.
Please post your nominations in the comments section, and I will collect, edit, and post excerpts later.
And please, serious nominations only. In other words, don't nominate your friend Sandy's 1L Note, no matter how good it is.
Ariela in Defense of Bowdlerized DVDs
The Washington Post had an article the other day about the popular new "sanitized" DVD versions of popular movies. The sanitizers allow you to
watch Titanic without having to confront Kate Winslet's breast, and so
on. As far as I can tell from the article, no court has yet weighed
in as to whether the editing falls within the fair use exception or is
otherwise legal (although several court cases are pending). The
sanitizers think that they are covered because they buy, edit, and
resell each DVD, so they are not engaging in piracy.
Personally, I'm more interested in the cultural conflict than the
legal one. The directors are outraged at the idea that people will be
able to watch only the parts of their films that the viewers deem
acceptable. They want to be able to control how their art is seen
after they create and release it. I'm not so sure they have much of a
claim. Why shouldn't I, the viewer, get to decide what I want to
see? Right now, it's often an all-or-nothing choice. Because I'm
disgusted by so much of what comes across the airwaves, I've struck
back by getting rid of my TV altogether. This works, but it's a very
crude tool. True, my daughter is not bombarded with commercials
glamorizing rape, murder, and sugar cereal, but we have to go over to
other peoples' houses to watch the World Series or the Olympics. TiVo
can help solve the problem by editing out the commercials. And I
suppose people who really care about viewing certain kinds of shows or
movies can pay for cable and only watch, say, the sports channel or C-
As a viewer, I tend to favor products and services that give the
viewer control over what he or she watches. The sanitizers seem to
fit within that rubrick. Obviously, the director has the right to put
a gory scene in a movie, but don't I have just as much of a (moral) right to
skip that scene or, better yet, pay someone else to cut that scene out
altogether so I don't have to fast-forward through it? I really
resist the idea that I have to be a captive audience for someone
else's vision, with no right to alter the artistic product once it's
been shrink-wrapped. Yet I have the feeling many on this
(purportedly?) "center-left" blog will disagree and leap to the
defense of the directors. So, bring it on.... As Justice Breyer
likes to say at the end of a long speech from the bench -- "Now! Tell
me why I'm wrong."
Law Review Article Length: Meet the New Boss?
I'm late to the party in blogging about the recent shift in law review article length policies, as described, for example, here. In a nutshell, after endless doorstop articles, some of the top journals have agreed (where is antitrust policy when you need it?) that they will from now on presumptively favor articles of no more than 25,000 words in length, including footnotes (which is where all scores are settled, wit is unleashed, etc.), and will only publish articles of more than 35,000 words in extraordinary circumstances.
I've got no special problem with that as a rule of thumb. Granted, my forthcoming article is over 100 pages, and even my freaking blog entries are so long they need a concordance and a super-computer to process all the information. But generally, asking legal scholars to cut to the chase is almost certainly a good thing. It will be particularly interesting to see whether this actually cuts the length of submissions, which it is likely to do, and if so whether scholars publish more, and more direct, pieces. It also creates an interesting secondary market competition for longer pieces, which competing law reviews would do well to keep in mind.
What strikes me about as odd, though, is that the rule fundamentally serves the same purpose as the old "rule" -- the tendency to accept and publish overlong articles. Rules can, at a minimum, serve two purposes: they can be a proxy for considered judgments based on experience that has already accumulated, or they can be a proxy for considered judgments that the decision-maker lacks the knowledge to make.
I think this new policy tends toward the second. Why were long articles published?
Because, in the absence of expertise in the area -- which law review editors, by dint of inexperience, often lack -- editors assumed that "more" meant "more impressive." Why do they now insist on publishing shorter pieces? Because they still lack the tools to distinguish between good and bad long pieces (except in "extraordinary circumstances," which is a way of saying that the article is self-evidently terrific or the author is self-evidently famous), so they asked the experts what they preferred. As Family Feud's Richard Dawson would say, Survey Said: shorter articles! And the law reviews said: Make it so.
In either case, however, I think a presumptive policy for or against long articles is really a kind of confession of uncertainty. If you could faithfully and expertly evaluate the quality of articles, you wouldn't need this kind of presumption at all. And so I am left thinking the policy shift is probably a good one, but also kind of an acknowledgement of the continuing question:
Why let law students run law reviews in the first place?
I mean this gently. I edited a law review, and found the experience very rewarding. But note that it was in Canada, where students don't run most law reviews (thus my review published student pieces only, although I think of a very high quality), where most faculty reviews involve the peer-review process common to other disciplines. And because, unlike the American law review system, there was a more tenuous link between law review editorship and future employment prospects, pretty well the only people who stuck with it really wanted to do so, without regard to career prospects. (Which may explain why so many former editors of the U of T student law review went on to academic careers.)
Of course, none of this touches the fundamental proxy for quality that remains, I think, quietly in effect at many law reviews: publish the most famous people you can get. At least this is what one top-tier law review editor, then a summer associate at my firm, not just admitted but bragged. This, too, is rational, but it raises questions about the whole enterprise.
Update: Orin at TVC is doing a survey on the matter.
Garrow, Blackmun, High Stakes, and Low Language
Dan's comments on the Garrow/Blackmun kerfuffle are interesting and eloquent. I have separate comments posted on the blog already, having to do more with the question of clerk's sometimes unduly loving views of their judges. A couple of responses to Dan's observations:
1) I think Dan is right that there is lots of back-and-forth between clerks and judges. I'm not sure I see an abdication by Blackmun here -- or at least a significant one that falls outside the increasingly corporate character of judicial chambers. (Or is that chamberses?)
2) I am interested in the question of whether intemperate language was more excusable because the stakes were high. First, would one accept as an argument in defense of a bad judicial opinion, "Well, we were pretty lawless here, but the stakes were high?" I'm not sure I would. It may be true as a practical matter, and I don't mind the infusion of more than a dollop of Posnerian pragmatism into a judicial opinion, which presumably involves taking the stakes into account. But Posnerian pragmatism also assumes that formalism may have pragmatic virtues to the extent it restrains result-orientation in high-stakes case, and avoids the error costs inherent in attempting to predict future consequences, as well as the error costs involved in imposing an imperfect rule, good for one case, that may distort future cases. Now all of this is far from intemperate language in a memo. But here we get to the idea of clerk self-dramatization discussed in my separate post. Were the stakes high? Yes, if you put it in terms of "the fate of constitutionally protected abortion rights." Less so, if you consider that it was one in a series of cases (albeit a central one), capable of revisiting by future Courts (but not while these clerks were serving -- hence the clerk's tendency to overdramatize one's own Term and insufficiently acknowledge that the Court is a continuing body), and of course that abortion rights are capable of legislative protection as well. Still less so if you consider that some of the intemperate language came after it was clear the core abortion rights would be upheld. And the stakes are still lower when you consider that it was a memo, not an opinion or a vote.
The point also seems to resonate with me because it raises a point that has been noted by other critics of the Court's docket -- that it has, at times, been filled with the dramatic, "high stakes" material and less so with the quotidian problems on which lower courts sometimes cry out for judgment, and which in the aggregate affect millions of lives. Is the tendency to get heated about the high stakes cases also a tendency to be muted, or dismissive, about "low stakes" cases? And are "dog cases," like tax or Indian law decisions, so considered by the subjects of the cases? Would we be equally sanguine if a clerk were to quip in a memo, "This case involves a minor question of tax liability. The stakes were relatively low, so I flipped a coin." Judge Kozinski wrote recently that the tendency to give short shrift to such cases can be thought of as a hidden ethical dilemma for judges. This is moving somewhat far afield, but I guess the point is that part of the ideal of equal justice under law is that we give the high- and low-stake cases equal respect. Far afield, as I say. But I did find some of the language intemperate, and don't think the high stakes excuse the writers. More to the point, none of the intemperate language actually moves the analysis forward, and I should think that the higher the stakes, the more the times call for careful, thoughtful analysis. We may all be legal realists now, but I sometimes wonder, as I read histories of the Court based on the public record, whether the Clerk selection process in some way favors clerk applicants who are too politically committed. This is an empirical question that I raise but cannot answer.
3) Finally, there is a difference in any event between getting heated up, but still staying well within the judicial role, and recommending that the Court act fairly explicitly as a political institution. Maybe it's a sausage-factory thing -- I think the fact that all the Justices signed Cooper v. Aaron makes a strong statement, but maybe I wouldn't have liked to watch the process of gathering the signatures -- but I am disquietened by the suggestion by Prof. Karlan, in a memo dealing with Bowers, that the Justice ensure that the opinion's release be handed down for maximum press effect. And I am doubly concerned by the suggestion in the McUsic and Dangel memos that the Justice time events according to the election cycle. I wonder whether it is possible to think such statements justifiable, a reasonable part of voting strategy particularly given the high stakes, without rethinking the level of rhetorical fire aimed at Bush v. Gore.
4) I said "finally." My mistake. Posner (clearly, a personal favorite of mine) once lampooned the Court's statement in the Casey case that, as he put, "American's 'very belief in themselves' as 'people who aspire to live according to the rule of law' is 'not readily separable from their understanding of the Court.'" And here we have the Dangel memo saying that "[t]he people of American need someone to tell them the truth. And, as the author of Roe, I think you're the only person who can do it." Really? Not one other? Not a candidate for President, in the very election that was ongoing at the time? Only a septuagenarian Minnesotan with a necessarily isolated lifestyle? This is surely too grand a view of the role of the Court.
Tuesday, April 19, 2005
I had privately promised Dan to lower the IQ on this blog with trashy pop cultural references, but sadly, for the most part, if I have lowered the IQ here it has been inadvertent. May I recommend a fairly non-trashy cultural gem? The band is Hem, a Brooklyn-based band whose sound I can only imperfectly describe as country/folk with a significant bit of string arrangements, and the music is really lovely. Superb singer. Here is the requisite link.