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Friday, March 31, 2006

Family Ties: More Juicy Stuff.

Forgive my tardiness on following up with more excerpts of our Family Ties piece. You'll recall that we (Ethan, Jennifer Collins and I) posted the introduction and the first few sections of part I last week here and  here.  We now offer the next part of our analytic survey of where the state extends subsidies, privileges and benefits to the family through the criminal justice system here.  This section includes discussion about the use of familial evidentiary privileges, the consideration of family in the context of sentencing practices in the federal and state systems, and the way family ties and responsibilities play a role during the administration of prison time.  There's also a brief "meta-section" discussing the difficulty of isolating what should count as a subsidy or privilege to the family.  We invite constructive comments here or by private email.  Many thanks for your continued interest.

Posted by Dan Markel on March 31, 2006 at 04:46 PM in Article Spotlight, Criminal Law, Dan Markel, Ethan Leib | Permalink | Comments (0) | TrackBack

How to Design a PhD in Law

PhDs in Law? – yes, they basically exist in every place other than the U.S. PhDs for as the leading degree for teaching? – yes, that is the standard in every discipline (including professional disciplines, like Business and Medical Schools) other than law.

So is there a justification for its absence in the legal academy? Less and less so. Most people recognize that law schools are a central place within the academy of serious intellectual endeavors. They attract strong academic minds and legal scholarship requires sophisticated, deep training. There is also an increasing understanding that the best predictor for later academic success is a substantial showing of commitment to writing at the early stages before tracking the desired tenure. Of course, increasingly there are substitutes to the fact that the JD is the degree that is expected and available for law practice and academia (as opposed to, for example, the very clear distinction which exists in every respectable B-school, between the MBA and the PhD). Here are the three main substitutes:

1)      The other-discipline PhD.

2)      The no-doc Post-Doc (Olin fellowships; “Associates in law”; visiting lecturers; and also increasingly the pre-(or during-)market visiting assistant prawfs.)

3)      The “foreigner’s” route: the SJD. [that would be me…]

These are all viable alternatives. I think they can each offer a lot and could continue to be a possible model for the legal academic track [except for the third one, which could simply be replaced by the granting of a PhD, once that becomes a serious option.] The handful of top schools offering an S.J.D. degree are to one extent or another successfully emulating the model of a doctoral degree in other disciplines. The Harvard S.J.D., the best one in my mind, far more structured and vibrant from say, the Yale S.J.D., includes:

Stage (1) the course work stage (usually first in the form of an LLM, and then following the year, in the form of courses all around campus);

Stage (2) the oral exams prep stage, in which the student designs together with her committee of 3 or 4 advisors [often 2 or 3 law profs and one or two external advisors, who teach in other fields] reading lists in several fields of study [e.g., “law and society canons”; “behavioral law and economics”; “local government theory and practice”; “history of IP”; “theories in comparative law scholarship”].

Stage (3) The post-orals, pre-defense stage: the writing and fellowship stage. At this stage, S.J.D. students at Harvard write their thesis, which can be broken down to 3 substantial articles and are required to make two colloquium presentations prior to their final defense presentation. The first colloquium happens at the earlier stages of the thesis development and the second is a fuller presentation, similar to a job talk. Both are open to all grad students; advisors; visitors. Most grad students at this second stage of their writing are, very similarly to other doctoral students around the campus, engaged in various teaching/thinking/organizing fellowships, such as being active in one of the law school’s centers—the human rights program/the Berkman center for internet and society/the Olin center/the program on negotiations; or other doctoral fellowships, such as at the amazing Weatherhead Center for International Affairs and the superb Center for Ethics and the Professions. Many become Clark Byse teaching fellows, which is the unique opportunity to teach your own mini-seminar at HLS, wholly designed around your thesis. Others often TA in other parts of the university, gaining teaching experience and networking opportunities.

The main weakness of the SJD is its perceived inferiority to other doctoral programs, precisely because it inhabits mostly non-Americans and is not considered a necessary step for becoming a great job market candidate. Because of this, it is also under-funded, especially compared to the great payoff from sending out very successful teaching candidates on the market, year after year, both at AALS and around the world (what about some cost/benefit analysis, funding folks?)

But what if we were to have a real PhD degree offered in many more American law schools; one that was designed to carry people into a lifetime of scholarship and teaching in a law school? How would it look like? What would it do to the legal academy?

I would argue that it could have transformative effects on legal academia. I think it would mean that the law school itself as an academic institution (as opposed to other disciplines+JD; clerkships and one year fellowships) would have to be taken much more seriously. It might even begin to challenge a few other anomalies of the law school, compared to other academic schools: A) the fact that it is not formally departmentalized, and B) the fact that rankings have been virtually entrenched for over a hundred years. Taking the notion of academic mentorship as the path to academic careers more seriously would have to mean more structured debates about fields of study and methodology; particular strengths of various law schools; variations in rankings according to fields and offerings. Because doctoral programs would have concentrations, a cross of both substantive areas and methodological fields, areas of research would be debated, defined and redefined as programs and scholarship developed. Prawfs would actively seek out outstanding candidates and push them to become interested in their fields and competition for doctoral candidates would be based largely on who might become one's advisors—that is, which school has the star mentors in your prospective areas. Inner-breading, and let’s say it, quasi-exclusive breading by two schools, would be challenged and the free flow of ideas via the next generation would become more dynamic and multi-directional.

And wouldn’t be great to have doctoral students around that can imagine themselves following in your paths, that are interested in ideas, and that challenge you on your grounds?

Posted by Orly Lobel on March 31, 2006 at 04:43 PM | Permalink | Comments (22) | TrackBack

Rotations

A super big thanks to Adam, Orly and Jeremy for their guest stints this past month.  They will be signing off in the next few days, though I'm hopeful they will be back with us again soon.

And for April, we have a handful of guests starting soon, including returning guest-Prawfs Ron Wright (WFU, crim law) and Laura Appleman (Hofstra Law VAP, frawsh at Willamette starting this summer). We also have Gaia Bernstein from Seton Hall, Joe Slater from Toledo, and my colleague Gowri Ramachandran visiting us for the next few weeks.  Gowri will be joining permaprawf Paul Horwitz at Southwestern in LA this summer.  Please give them all a hearty welcome.

Also, I'm excited to note that next Wednesday April 5 marks our 1 year anniversary.  Prawfs will be hosting a "prawfs-in" where we invite all former, current, and future prawfs to weigh in, though we don't quite yet know on what we will do.  We're taking suggestions...

Posted by Dan Markel on March 31, 2006 at 04:16 PM in Housekeeping | Permalink | Comments (0) | TrackBack

S. 2468 -- A New Kind of Schiavo Statute

I've written here before on how the 109th Congress is unusually obsessed with federal jurisdiction. Comes now the latest salvo, which, although it has nothing to do with Terri Schiavo (who died one year ago today), has everything to do, methinks, with Public Law 109-3 -- the statute Congress passed to provide for federal jurisdiction in the last round of the Schiavo litigation.

The bill is S.2468, introduced on Wednesday by Senator Chuck Schumer. And its most important provision is as follows:

STANDING.—A United States citizen who has refrained or will refrain from wire communications because of a reasonable fear that such communications will be the subject of electronic surveillance conducted without an order issued in accordance with title I of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) under a claim of Presidential authority under either the Constitution of the United States or the Authorization for Use of Military Force (Public Law 107–40; 115 Stat. 224; 15 50 U.S.C. 1541 note) shall have a cause of action and shall be entitled to declaratory or injunctive relief with respect to such electronic surveillance.

Any lawsuit filed in accordance with the bill must be filed in D.D.C., where it will be heard by a three-judge district court, with the concomitant mandatory appeal to the U.S. Supreme Court, which itself must be expedited.

Although the bill is interesting on a number of levels, what's perhaps most striking to me is that this seems a direct result of the Schiavo statute. For, although Public Law 109-3 explicitly noted that it would not serve as a precedent for subsequent legislation, this kind of case-by-case regulation of federal standing and jurisdiction is exactly what that statute portended, when it was enacted a little over one year ago.

Moreover, leaving aside the constitutionality of such case-by-case congressional involvement in the federal courts, this, just as the Schiavo statute, strikes me as very bad policy. It seems just as pernicious, to me, for Congress to effectively tell the Supreme Court that it needs to quickly decide a specific legal question as it is for Congress to effectively tell the Supreme Court that it can't decide a specific legal question. The key point, overly simplistic though it may be, is that the Court's authority over its own docket serves as an important institutional check on Congress's ability to control the Court, and bills such as this seem a big step backwards.

Don't get me wrong -- I do not object, in principle, to the remaining substantive legal fields where the three-judge district courts (and the Supreme Court's mandatory appellate jurisdiction) are extant, e.g., voting rights and redistricting cases and campaign finance challenges. There's a reason why we had them in the first place, and there's a reason why we've kept them around even in these limited circumstances.

But it strikes me as a potentially dangerous abuse for Congress to use its power in this area (three-judge district courts and mandatory appeals) to force expedited Supreme Court review of those individual legal questions that Congress, and Congress alone, has decided are important. I didn't like it when it was the conservatives and Terri Schiavo (and even they didn't use this procedure), and I like it even less when it's Chuck Schumer and Snoopgate. Congressional overinvolvement in the scope of federal jurisdiction strikes me as inherently dangerous, regardless of the politics behind it.

Posted by Steve Vladeck on March 31, 2006 at 04:30 AM in Constitutional thoughts, Steve Vladeck | Permalink | Comments (11) | TrackBack

Junior Prof Speaking Her Mind

We had a conversation here last week about the way junior faculty should behave in "political" interactions at one's own home institution.  Assistant Professor Imani Perry at Rutgers' Camden Law School has taken a very public shot at some rather incendiary comments offered by one of her tenured colleagues.  Ballsy and beautiful.

Posted by Ethan Leib on March 31, 2006 at 03:00 AM in Life of Law Schools | Permalink | Comments (4) | TrackBack

Thursday, March 30, 2006

Right Coast Moves to Typepad

A number of my colleagues at the University of San Diego blog at "The Right Coast."  They have moved to Typepad, and their blog can now be found here.  You can find their old posts here

Posted by Adam Kolber on March 30, 2006 at 06:28 PM | Permalink | Comments (0) | TrackBack

Economic Success and Labor Flexibility

Via David Zaring, I saw Monday's Sebastian Mallaby column on "Why U.S. Business is Winning."  Mallaby asserts that U.S. businesses are having significantly greater success than their overseas counterparts, and the reason is that "America's business culture is peculiarly well-suited to contemporary challenges."  Mallaby says:

American business is not especially good at coaxing productivity out of factory workers: The era when this was all-important was the heyday of Germany and Japan. But American business excels at managing service workers and knowledge workers: at equipping these people with technology, empowering them with the right level of independence and paying for performance. So the era of decentralized "network" businesses is the American era.

Despite this success, Mallaby ends his article by noting that "in the midst of American prosperity, rising inequality has prevented American workers from sharing in the success of American firms."

Assuming Mallaby is correct about the success of U.S. business, isn't that success related to the rising inequality he laments?  Over at Daniel Drezner's blog, commenters have pointed out that Mallaby wants to have it both ways.  As commenter Bithead noted:

The corporations that are doing well, both here in the U.S. and around the world, have significantly less in the way of union representation. The big fly in the ointment, here in the US, is the auto industry, which of course is union dominated.

I find it interesting, and somewhat annoying, the Maltby finds it necessary to dance around that particular issue.

Isn't this part of Mallaby's story?  U.S. businesses can have flexible, decentralized workforces because they don't have to negotiate with unions over job changes, layoffs, terminations, restructurings, and outsourcing.  As Larry Ribstein has argued about GM (here and here), that company's failure is related to the Wagner Act, unions, economic populism, and Michael Moore.

There are real empirical questions about Mallaby's argument, but let's assume that it's true.  If so, is there any way to solve Mallaby's dilemma: namely, helping American workers to share in the success of U.S. firms?  Are more flexible unions the answer?  Stock or stock options for all workers?  Higher progressive taxation and then redistribution?  Or -- is there no answer?  Is growing economic inequality a necessary component of U.S. economic success?

Posted by Matt Bodie on March 30, 2006 at 08:20 AM in Corporate | Permalink | Comments (7) | TrackBack

Wednesday, March 29, 2006

Blogging vs. Scholarship (Sort Of...)

I won't actually weigh in much on the topic that the title of my post would suggest.  But I will say I am one of those who believes blogging can contribute to scholarship in at least two ways: 1) It gives you a chance to develop ideas that will turn into articles; and 2) it sometimes gives you a public profile that leads to articles.  (There's actually a third important way blogging contributes to scholarship: it allows you to engage in "mini-scholarship," writing out an idea that you find worth some time, but for various reasons don't think is worth the time it would take to write a full article, and thus participating in a debate without overcommitting your time and resources.  This is a very important feature of bloggership but outside my point here.)

All of which is to apologize to my faithful readers (which pretty well means...hi, Mom!) for my relative lack of blogging in the last two weeks.  Some thoughts I wrote here on the Religious Test Clause led (or may have led) to an invitation to give a talk that turned into a paper, which I've been busy drafting in the past couple of weeks.  I'll post it on SSRN soon and welcome comments.

My blogging here also led to an invitation to contribute to a symposium on blogs and the law in NEXUS, a journal at Chapman Law School, kickin' it in the OC; the paper is available here in close to final form.  I want to thank Professor Hugh Hewitt and the journal staff for organizing a wonderful panel on "The Blogosphere and the Law," on which I spoke last Thursday.  It was a fascinating discussion and I hope those who attended enjoyed, or tolerated anyway, my humble and halting remarks.  (Thanks, too, oh kindly students, for the Chapman mug!  As those who have seen Larry Solum's sweatshirt collection know, we law profs will go anywhere and do anything for law school gelt.)  The published product should be out in May or thereabouts, and it will also be available on the Web.

I'll try to beat back the blog block and post more.  (Incidentally, anything happen while I was gone?)     

Posted by Paul Horwitz on March 29, 2006 at 05:34 PM in Blogging | Permalink | Comments (0) | TrackBack

Credit and the Internet

Dave Hoffman at the Co-Op is hosting an interesting discussion about giving credit where it's due on the internet.  The discussion was sparked by the controversy here yesterday surrounding the "leaking" of the new US Rankings.  As background, we were forced to close comments on a post about those rankings when a group wanting credit for having leaked them started spamming this site.  I'm directing traffic to the Co-Op and am hoping they get better treatment at the hands of the anonymous people who want credit for the leak.

Posted by Ethan Leib on March 29, 2006 at 02:07 PM in Current Affairs | Permalink | Comments (0) | TrackBack

Parish closings, "Bowling Alone," and Civil Society

The New York Times has this report on the recent announcement that about 30 Catholic parishes and 15 Catholic schools would be closing (and several new parishes opened) in the New York metropolitan area.  (Click here for detailed coverage of the parish-closing process -- and fights -- in Boston.)

I wonder what Prawfsblawg readers and contributors think of this thesis:   Whatever Catholics in New York and elsewhere might think and feel about these closings, they should (at least) raise questions and red flags for everyone concerned -- think Robert Putnam -- about the connection between the health of democracy and good citizenship, on the one hand, and a rich civil society, thick with strong "mediating institutions", on the other.   Thoughts?

Posted by Rick Garnett on March 29, 2006 at 11:48 AM | Permalink | Comments (11) | TrackBack

Writing With Students

When I was in grad school, my advisor encouraged me always to write (seminar paper, brief research project, lit review) with the goal of publication - to plan on working it up for submission at some point.  I try to encourage my law school seminar and other students to think the same way, though most of them clearly have other goals than academic publication or careers.  Grad school and law school are of course different that way.

But when a student does write something good, I think it should be developed further and, ultimately, submitted for publication.  Which raises my question - who’s the author?  Student X writes a good seminar paper, with Professor Y’s feedback from beginning to end.  Is it appropriate for Professor Y to appear as an author?  Even as first?  There’s a range, of course: student comes up with the idea and writes the paper with feedback; professor provides the idea and student writes the paper with feedback; student and professor clearly collaborate; student writes the paper and leaves it and professor develops it further into a publishable piece; etc.

Apart from practical considerations such as changing the likelihood of a law review accepting (or even considering) such a piece, do you have thoughts on the propriety of such co-authorship?  I’m in part prompted by grad school norms, in which it is hardly atypical for advisors, other lab members, etc. to appear as collaborators.  But I’m at least a little more chary in this context.

Posted by jeremy_blumenthal on March 29, 2006 at 11:14 AM in Life of Law Schools | Permalink | Comments (9) | TrackBack

Tuesday, March 28, 2006

US News law school rankings for 2007

Update: As I mentioned elsewhere, I think there's a good claim of fair use for the amount that we initially reproduced of USNews' rankings.  That said, we're not interested in staking a claim on this issue; I recently had a conversation with the nice folks in the General Counsel's office of USNews and I'm complying with their polite request to take the materials down in exchange for their assurances not to pursue the matter further with us.

Take a look at the rankings on USNews' site.

I'll forbear from making too many comments right now about the relative merits of USNEWs judgments.  Obviously the kinds of things important to junior faculty may be different from those of significance to applicants and employers.  My own sense is that FSU's 3-level rise is a good success, though not quite as dramatic as last year's eleven-place elevation; it's 53 ranking seems inaccurate as an indicator of the quality of intellectual life among its faculty.  Of course, other schools--Chicago-Kent; Miami; USD; and Cardozo--could make similar complaints.  But as flawed or misplaced as the rankings are on various levels, they do help keep the deans from falling asleep at the wheel.

Posted by Dan Markel on March 28, 2006 at 05:48 PM in Life of Law Schools | Permalink | TrackBack

The "National Surveillance State"

Professor Jack Balkin has a preview of the paper that he and Professor Sandy Levinson will be presenting later this week at the Fordham conference, "The New Constitutional Order."  Here is a clip:

In our paper we describe the rise of what we call a National Surveillance State which occurs in response to the felt needs of warfare and foreign policy in the 21st century. Philip Bobbitt has pointed out that the geopolitical demands of war and foreign policy often provide the impetus for changes in domestic political arrangements, because the way that the state faces the world outside it is often reflected in the way that it faces its citizens. This National Surveillance State involves a significant increase in bureaucracies devoted to promoting domestic security and (as its name implies) gathering of intelligence and surveillance using all of the devices that the digital revolution allows. . . .

The National Surveillance State arises from a real concern: the enhanced need for processing information about the outside world and reacting appropriately to it given the changes in foreign affairs and warfare. The danger is that the concentration of power in this new state will prove particularly inept at processing the relevant information. The intelligence failures in the run-up to the Iraq war are an obvious and worrisome example.

The need for the National Surveillance State arises from war and foreign policy, but its consequences will reverberate throughout domestic politics. Courts will play a role in determining the boundaries of this emerging constitutional construction, but for the most part, we predict, they will legitimate and bless it, much as they legitimated and blessed the administrative state, the welfare state, and the national security state in previous years.

I have not looked at Discipline and Punish since law school, but I wonder if there is a connection ("Panopticism"?) here . . .

Posted by Rick Garnett on March 28, 2006 at 04:02 PM in Constitutional thoughts | Permalink | Comments (1) | TrackBack

Law Reviews, Part 92

There is a set of reflections in the comments to this post at Caron's Blog Empire.  The post provides evidence for what everyone knows: that student law review editors use proxies (some better, some worse) to help them select articles to fill their volumes.  (Frankly, Dan, Jennifer Collins and I are hoping that blogging helps placement, as we have an article currently in circulation: editors contact me if you want it!)

A former NYU Law Review editor responds in the comments, as follows:

Perhaps it is just anecdotal, but in the year that I've been involved, of the 18 pieces that we've selected, 9 are authored by non-tenured professors (most with few publications), 2 by practitioners, and 7 by tenured professors.

The 16 professors come from the following schools: Loyola Law School (LA), UC Davis, Vanderbilt/Texas (co-authored), Pepperdine, NYU, Washington & Lee, UCLA, Washington University-St. Louis, Berkeley, Iowa, Brooklyn Law (2), Penn (2), and one piece by someone currently seeking employment.

And I feel fairly confident in asserting that though we may not have selected every great article that came through our doors, the ones we did take are all excellent. (Given how few articles are actually selected, I think that it is rare that we take something that isn't very strong, though I am sure we pass on many outstanding pieces.) And the fact that we didn't take anything from someone at Harvard, Yale, Stanford, Chicago, Michigan, Georgetown, etc., certainly isn't because we didn't see pieces from people at those places. It just reflects how difficult it is to get something through our super-super-super majoritarian selection process.

If we are the 'prestige hounds' that these surveys suggest we are, it is not evident from what we've actually selected: pieces from a broad range of folks, at a broad range of schools.

The limited usefulness of this anecdote is obvious.  What we really need to know is how the selections were made -- and who turned down the original offers.  If NYU went first to those from "Harvard, Yale, Stanford, Chicago, Michigan, Georgetown," but lost those articles to "better" placements, that would only help confirm the empirical evidence cited in the original post.  More, most of the affiliations of those with accepted articles come from Top 30 schools -- hardly people lacking in prestige.  The people are from Penn and UCLA and Texas and NYU and Berkeley.  Not that there is anything wrong with that, of course.  This just isn't the kind of counter-example the commenter seems to think it is.

Posted by Ethan Leib on March 28, 2006 at 01:48 PM in Life of Law Schools | Permalink | Comments (3) | TrackBack

11 million (plus family & friends) criminals

They work hard, they build houses, clean homes and offices, cook and farm. In some states, they consist of the majority of low-wage workers in many sectors. Yet their existence is outlawed and their rights are non-existent. Granting a safe harbor of guest worker status is a positive but only partial move in the right direction.

Posted by Orly Lobel on March 28, 2006 at 12:58 PM | Permalink | Comments (0) | TrackBack

Monday, March 27, 2006

"Is it Live or is it Memorex?"

Some of you may be old enough to remember the old ads referenced in the title to this post.  Not precisely le mot juste, but I'm just getting back into blogging after an enforced absence, so be patient.

That lead-in is really just by way of linking to this very interesting piece from Emily Bazelon on Slate.  Usually I'm not nuts about her stuff, but if she is right about this, it's gold.  Bazelon writes to note that Senators Graham and Kyl have filed an amicus brief in the Hamdan case, which will be argued tomorrow, citing a floor colloquy that the two allegedly engaged in during debate over the Detainee Treatment Act as evidence of their view that the Act strips the Court of jurisdiction over the appeal.  Bazelon suggests that the two leave the impression that the colloquy was live, when it was not -- when, in fact, it was inserted into the Record at the last minute, and certainly with little time for other members to notice it and object on the floor.  Bazelon suggests that the two make some effort in the colloquy itself to give the colloquy the appearance of having been delivered on the floor, and says that Senate officials confirm the colloquy was inserted, not live. 

I don't know whether it's true, but would like to hear more about this.  Note that the brief itself does not say that the two Senators engaged in the colloquy on the floor, but it certainly does nothing to dispel the impression, saying only, and somewhat cagily, that "the Congressional Record is presumed to reflect live debate except when the statements therein are followed by a bullet . . . or are underlined."  That is what we older folk call a "non-denial denial."      

So, were they or weren't they engaging in a live colloquy?  I can't say.  If Bazelon's article is correct -- and I can't warrant that it is -- score one for the opponents of the use of legislative history as an interpretive tool.  Although I might add that one needn't oppose legislative history to think it improper and undignified for two Senators to (if, again, they actually did so) mislead the Court in a filed brief on the question of whether they were or were not engaged in an actual floor colloquy. 

(I must also say that I'm not student of Graham or Kyl's jurisprudence, but wonder whether they have stated any views about how to go about interpreting statutes.  I would have thought Graham, at least, would have paid lip service to textualism as an approach to judicial work.  Has he?  Of course, the same "interpret the history, not the statute" approach was at work in the Schiavo case, too, albeit from different members.)

Posted by Paul Horwitz on March 27, 2006 at 10:15 PM | Permalink | Comments (2) | TrackBack

Increasing Organ Donations

In a recent Second Circuit decision, Colavito v. New York Organ Donor Network, the court certified several questions to the New York Court of Appeals concerning, among other things, whether state statutes vest "the intended recipient of a directed organ donation with rights that can be vindicated in a private party's lawsuit." (See here for more).   

Typically, one directs an organ donation by specifying a particular individual who should receive a particular bodily organ.  The provisions of the Uniform Anatomical Gift Act allowing for directed donation have also been used to create an incentivized pool of organ donors.  Here is a brief description of how LifeSharers incentivizes donation through a kind of mutual insurance:

LifeSharers is a non-profit voluntary network of organ donors.  LifeSharers members promise to donate upon their death, and they give fellow members first access to their organs.  As LifeSharers members, you and your loved ones will have access to organs that otherwise may not be available to you.  As the LifeSharers network grows, more and more organs may become available to you -- if you are a member. . . .

By joining LifeSharers you will also make the organ transplant system fairer by helping registered organ donors get their fair share of organs.  Most organs transplanted in the United States go to people who have not agreed to donate their own organs when they die.  That's not fair, and it's one of the reasons there is such a large organ shortage.

By joining LifeSharers you will help reduce the deadly organ shortage.  By offering your organs first to other organ donors you create an incentive for non-donors to become donors.  As more people register as organ donors, fewer people will die waiting for transplants.

You may not know that April is "Donate Life Month".  Whether you need such excuses or not, I encourage you to become an organ donor and to explore the LifeSharers website.  And here's my take on how to reduce the crushing shortage of organs available for transplant.

Posted by Adam Kolber on March 27, 2006 at 12:21 PM | Permalink | Comments (3) | TrackBack

Is it "Insane" to "Embrace" Martyrdom?

Ann Althouse has an interesting post (check out the comments, too) on the Abdul Rahman case, and on what appears to have been the Afghan court's solution, i.e., dismissing the case on the ground that Rahman is mentally unfit.  At the end of her post, Professor Althouse identifies as a "useful idea" the idea that "anyone who embraces martyrdom for religion is insane."  Is this idea "useful"?  I suppose a lot depends on whether "embrac[ing] martyrdom" includes "refusing to abandon one's religion, even if one knows that the refusal will result in death."  Or, do we think that this is, actually, "insane" also?

Posted by Rick Garnett on March 27, 2006 at 12:00 PM in Religion | Permalink | Comments (7) | TrackBack

YouTube and the New Economics of Entertainment

You have probably seen "Lazy Sunday," the Saturday Night Live rap video starring Andy Samberg and Chris Parnell.  (There has been a follow-up rap with Natalie Portman, with somewhat more profanity and perhaps less success.)  The video really hit it big on the Internet via YouTube, a video-sharing site.  YouTube allows the posting of copyrighted works but removes them once the copyright holder objects.  "Lazy Sunday" was up on YouTube for quite a while until NBC ultimately objected.  As the folks at boingboing pointed out, NBC should have been sending flowers, rather than objections, since YouTube gave the video a ton of additional exposure.  (The video is now at the SNL site.)

There are two "Lazy Sunday" follow-up videos: "Lazy Monday," a video about two guys in L.A. during a MLK holiday, and "Lazy Muncie," a story of two guys defending the street cred of Muncie, Indiana.  Both are non-SNL videos put up on YouTube by independent producers.  Although the Muncie guys are not the midwestern amateurs they appear to be (see here), they certainly had no network or cable platform from which to launch their video.  Instead, YouTube gave them a free launching pad.  They make no money, but they do get links and exposure.

Folks like Mickey Kaus and Rob Long of Martini Shot have written about the implications of this new phenomenon.  Kaus believes it validates Glenn Reynolds' thesis in An Army of Davids.  Long believes it will up-end the entertainment industry, since it will draw comedic talent from across the country in a way that SNL, with its limited number of cast members, cannot do.

Cynics might point out that "Lazy Monday" and "Lazy Muncie" were parodies of a commercial product that were made by folks arguably looking to make it big in Hollywood or New York themselves.  And that's true.  But it's also true that people are open to watching entertainment from any source -- as long as it's entertaining.  The Muncie guys may need a reference point like "Lazy Sunday" to get their foot in the door.  But maybe their next video won't be a parody -- and their "Muncie" exposure will get people to watch it.

Open-source software has shown that freely produced software can create a sizeable market niche for itself, despite the lack of monetary market incentives.  Yochai Benkler has written about the many ways peer production has changed and will change the economy.  There are lots of ways peer production could change our methods of creation (including casebooks).  But entertainment has its own appeal.  Perhaps in the future you or your kids will achieve national fame from a rap video about what you do on a typical afternoon.

Posted by Matt Bodie on March 27, 2006 at 09:59 AM in Culture | Permalink | Comments (2) | TrackBack

Congrats to the GMU Patriots . . .

who have now gone about four games further in the NCAA tournament than anyone predicted.  Folks (like me) argued that George Mason should not have even been in the tournament.  Now they've beaten MSU, UNC, Wichita State, and UConn to get to the Final Four.  (Gary Moore had a nice post before yesterday's game about GMU's chances against UConn.)  Josh Wright over at the Truth pointed out before the tourney that GMU had a "signature win" over the WSU Shockers, and both teams turned out to have nice tournaments.  But the Patriots are two wins away from the whole she-bang.  I wonder if Josh and Gary now have them winning the tourney?

Posted by Matt Bodie on March 27, 2006 at 09:45 AM in Culture | Permalink | Comments (0) | TrackBack

Money Rules

Suppose you think it is unfair to pay more for a soft drink on a hot day than on a cold day. And suppose you get more out of the experience of drinking your favorite chilled soft drink in a hot sunny day? Is your personal rule - that you shouldn't pay more for the same product under different circumstances - rational? Will you follow it despite your contextual preferences? Behavioral economists Dan Ariely and On Amir have new insights into how people follow personal rules they set for themselves, even when following those rules conflict with the direct utility they will derive from a different choice. Here the abstract:

Since the emergence of neoclassical economics, individual decision making has been viewed largely from an outcome-maximizing perspective. Building on previous work, the authors suggest that when people make payment decisions, they consider not only their preferences for different alternatives but also guiding principles and behavioral rules. The authors describe and test two characteristics pertaining to one specific rule that dictates consumers should not pay for delays, even if they are beneficial: rule invocation and rule override. The results show that money can function as the invoking cue for this rule, that the reliance on this rule can undermine utility maximization, and that this rule may be used as a first response to the decision problem but can be overridden. The article ends with a discussion of more general applications of such rules, which may explain some of the seemingly systematic inconsistencies in the ways consumers behave.  (Amir & Ariely, Decisions by Rules: The Case of Unwillingness to Pay for Beneficial Delays, forthcoming in the Journal of Marketing Research).

The article brings together analysis of  'following rules' from psychology, decision-making theory and even legal thought. Highly Recommended Download! A shorter book chapter, Making Consumption Decisions by Following Personal Rules, in which yours truely is the third co-author appears here.

Posted by Orly Lobel on March 27, 2006 at 12:35 AM | Permalink | Comments (0) | TrackBack

Sunday, March 26, 2006

FMLA of a different kind

I was thinking that it may be time for a Friends Medical Leave Act.  Why should we only get time off for having babies and taking care of our sick relatives?  Shouldn't society also encourage us to take some unpaid leave to take care of our sick friends as well?  Obviously, it wouldn't really be possible for Congress to abrogate state sovereign immunity for a newly-conceived FMLA to apply against the states -- but such a law could be permissible against private employers through the Commerce Clause.  If unnecessary exercise of congressional power is your pet peeve, I'm happy to propose such a law on the state level too.  Either way, I'm ready for the status of friend to carry some real legal protection.  Thoughts like these will contribute to my big article project this summer, "Friendship and the Law."  I'll post a precis as we get closer to the summer for comments....

Posted by Ethan Leib on March 26, 2006 at 06:03 PM in Current Affairs | Permalink | Comments (7) | TrackBack

The FEC, political activity, and the Internet

Here is a story, from yesterday's Washington Post, about proposed FEC rules that would "leave almost all Internet political activity unregulated except for the purchase of campaign ads on Web sites."  Rick Hasen has analysis and links.  This seems like good news, particularly for blogs and bloggers.  Any thoughts?

Posted by Rick Garnett on March 26, 2006 at 04:55 PM in Blogging | Permalink | Comments (0) | TrackBack

Friday, March 24, 2006

Friends with Low Wages

This music video is one of the more clever (and amusing) anti-Walmart campaigns. A Cartooned Garth Brooks parodies his song, "I got friends in high places".

Posted by Orly Lobel on March 24, 2006 at 11:59 PM in Law and Politics | Permalink | Comments (2) | TrackBack

Leo Strauss-Man of War?

I'm sure some bloggers have followed the controversy over whether the intellectual inspiration for the Iraq war was the German-Jewish philosopher Leo Strauss.  This began with the  contentions of New Yorker investigative journalist Seymour Hersh that such figures as Paul Wolfowitz had been inspired by Strauss's teachings about war, peace, and the role of deception in politics (the alleged deception here being the Weapons of Mass Destruction).   I've just completed a paper, which I expect will be the core of a short book, where I try to disentangle Strauss's own ideas from the political projects of his disciples, some of which include prominent neocons.   I think this is the first time that anyone has gone back to Strauss's own writings and evaluated them in this light--most other commentary has focused on the views of his students and disciples, with little sustained attention to Strauss's books.    My conclusion is that there is nothing in Strauss's own views that supports the case for war made by the neocons or figures in the Adminstration such as Wolfowitz.  But it remains to be analysed whether Strauss's teaching lended itself to being distorted or misused by such people (just as, for example, Nietzsche's lent itself to being misused by the Nazis).  Still some bloggers may be interested in the question of what Strauss himself really has to do with all this.  I would be happy to send you the paper if you email me at rhowse@umich.edu.  I'll be presenting it at a conference on Leo Strauss next week in the UK.

Rob Howse

Posted by howse on March 24, 2006 at 06:05 PM | Permalink | Comments (8) | TrackBack

RIP 250-Year-Old Tortoise

According to the AP, "One of the world's oldest creatures, a giant tortoise believed to have been about 250 years old, has died in the Calcutta zoo where it spent more than half its long life."  I'm not sure how much creedence to put in the age estimate, but the tortoise has apparently been at the zoo since 1875, and a comparatively sprightly tortoise in Australia is documented at 176 years old. 

Given their expected life spans, wise tortoises should save lots of assets for old age and take advantage of the miracle of compound interest.  Someday, of course, we will be able to cryogenically preserve tortoises the way we can for humans.

Posted by Adam Kolber on March 24, 2006 at 10:16 AM | Permalink | Comments (1) | TrackBack

The Ninth Circuit (Most of It, Anyway) Fires Back

Over at How Appealing, Howard links to a fascinating piece in the latest issue of Engage concerning the proposed split of the Ninth Circuit. What's particularly unusual are its authors: Thirty-three current Ninth Circuit judges. [ACSBlog also has coverage of the piece here.]

The piece is remarkable on a number of levels, and is worth a read no matter one's political persuasion or personal feelings about the size of the Ninth Circuit. Although the piece offers a point-by-point response to Judge O'Scannlain, who had earlier written in support of the split in Engage [see page 60 of this PDF] and elsewhere, it reads as if it's meant not just as a response to one of their colleagues, but as an open letter to the legal community.

From worrying about the steadily increasing size of the federal docket, to the budgetary crunch that every federal court is currently undergoing, to the extent to which increasing the number of circuits will make life harder on the U.S. Supreme Court, and so on, to call the essay by the "Gang of Thirty Three" a response to Judge O'Scannlain is to undersell what it really is -- this is a mission statement a la Jerry Maguire on the state (and, as importantly, the future) of the federal judiciary.

Two consecutive paragraphs, toward the end of the essay, stand out in particular:

We do not dispute that the increase in the federal caseload, and the appellate caseload in particular, presents a serious challenge to the orderly administration of justice. We do disagree, however, with those who would answer this challenge by breaking up what we consider to be an effective, well-organized and efficiently-run organization. Splitting the Ninth Circuit would be a costly enterprise, estimated by the Administrative Office of the United States Courts at some $96 million, plus additional costs of $16 million a year for operating two circuits rather than one. At a time of budget austerity, it seems wasteful and counterproductive to spend that ` kind of money for a net loss in efficiency.

There are, indeed, measures Congress might consider to deal with our caseload problem. In addition to adequately staffing our court by filling vacancies, Congress might look to the reasons for the increase in appellate caseloads. For example, we and the Second Circuit have suffered a huge number of filings (some six thousand cases in our court) in immigration cases. This has come as a direct result of what is known as “streamlining” on the part of the Board of Immigration Appeals, which has recently released thousands of cases from its docket after giving them only cursory review. These cases have found their way into the federal courts of appeals, and our court and the Second Circuit are the ones most directly affected by this practice. While this problem may be only temporary, Congress may well want to consider providing a more effective administrative appeal process.

In short, what I take the essay to be arguing is that there are huge problems confronting the federal courts (and the appellate courts, especially), but that these problems are not of the courts' own making, and splitting those courts that have become, in the eyes of some, "too [insert adjective here]," is not even the beginning of a solution. I couldn't agree more.

Don't get me wrong -- I've never disguised my admiration for the Ninth Circuit, or for most of its judges. But what the essay makes clear is that the fight over splitting the Ninth Circuit is about much more than just the perceived political leanings of one appellate court. What's been beneath the surface from the outset, and is now far more apparent thanks to this essay, is that under cover of the split-the-circuit issue are far more vexing and troubling questions concerning the future of federal courts. And questions, mind you, the answers to which will have ramifications for every circuit, even the one -- the First -- with fewer than ten judges. Splitting the Ninth Circuit really is a national issue, not because there actually need be national debate about the merits, but because there should be national debate about the remarkably changing relationship between the political branches and the courts, of which this is just one prominent (and partisan) symptom.

P.S. Just because I was curious (and so you may be too), here's a list of the judges, besides Judge O'Scannlain, who didn't sign on: Sneed, Alarcon, Beezer, Hall, Leavy, Trott, Fernandez, Rymer, Nelson (T.G.), Kleinfeld, Gould, Tallman, and Bybee. I'm not sure that any of these come as a surprise, although the identities of some who did join the statement sure does.

Posted by Steve Vladeck on March 24, 2006 at 03:02 AM in Steve Vladeck | Permalink | Comments (15) | TrackBack

Thursday, March 23, 2006

Those Glossy Brochures

I frequently receive glossy brochures or postcards about a conference in legal academia a few days before the conference begins (and sometimes a few days after).  Schools do these mailings, not to attract attendance, but rather to advertise the interesting speakers they have assembled.  Perhaps they hope to influence reputational scores for U.S. News voters.   In a world where information has become increasingly easy to spread, however, it seems decidely out of line with good academic values to widely publicize a conference only after it is too late for most academics to attend.

I think the issue is particularly pertinent to new law professors (see Dan Markel's recent post on advice for new prawfs).  When you first get started in academia, it can take a while to discover the interesting conferences and academic societies in one's field.  This is particularly true in law where a given subject matter may be covered at a school by only one or two faculty members (if it's covered at all).  So, I suppose I'd add the following to Dan's advice: Ask someone in your field (at your school or elsewhere) about the important recurring and non-recurring conferences that are going on in your field, along with the publications, blogs, and learned societies that you need to connect to in order to stay in the loop.

Posted by Adam Kolber on March 23, 2006 at 10:18 PM | Permalink | Comments (0) | TrackBack

"A New Constitutional Order?"

The Fordham Law School is hosting, on March 24-25, what looks to be a remarkable Centennial Conference, entitled "A New Constitutional Order?"  (More info here).  The conference features nine different panels of speakers, on subjects like:  "The Rehnquist Court and Beyond:  Revolution, Counter-Revolution, or Mere Chastening of Constitutional Ambitions?", "Constitutions in Exile:  Is the Constitution a Charter of Negative Liberties or a Charter of Positive Benefits?"; and "Subnational Norms in the New Constitutional Order."

Posted by Rick Garnett on March 23, 2006 at 11:58 AM | Permalink | Comments (1) | TrackBack

Family Ties: Overview of Intersection between families and criminal justice systems

Following up from yesterday, when Jennifer, Ethan and I posted our introduction to our new paper entitled "Criminal Justice and the Antigone Problem: Should Family Ties Matter?," today we're posting a good chunk of Part I, where we discuss the various intersections between family and criminal justice issues.  It was taking quite a while to copy the Word doc with formatting into the typepad software so I've decided to post today's excerpt here as a Word document.  I've deleted most footnotes.  Constructive comments are welcome on the blog or via private email to us. (Our contact info appears through links on the sidebar.) 

Posted by Dan Markel on March 23, 2006 at 09:18 AM in Article Spotlight, Criminal Law, Dan Markel, Ethan Leib | Permalink | Comments (0) | TrackBack

Starting off: Advice for a Junior Prawf

A virtual acquaintance of mine is transitioning from a "jolly good fellow" into a prawf this summer.  She asked:  "what are some of the pitfalls that await junior faculty (and what advice do you have to avoid them)?  Are there things you wish you'd done differently?"

This is, I think, the best question to ask of others who have been in the biz, even for a short time, and it's worth soliciting a cluster of opinions from readers.  Here are a couple of my own suggestions.  First, chances are one will be tempted to overprepare for teaching at the cost of writing the first year.  I recommend setting aside maybe a week or two over the summer before your first year teaching to choose wisely regarding which casebook you use, developing a good syllabus, and trying to get as many people's materials for notes, etc.  But I wouldn't spend much more time than that.  You'll forget a lot of the material you expect to teach later and you can instead spend time reading and writing scholarship or attending conferences over the summer like Law and Society or ALEA, etc.  Second, try to stay on the good side of the deans too, especially by asking them if they have "local" advice about the institutino, and find out what their expectations are for you this first year, if possible in writing.   You may also want to find out what events or programs they expect or hope for you to be at so there's no misunderstandings of comparative priorities.  You might think your writing and teaching obligations should supervene on all other aspects of the job your first year, and strangely, you might find yourself being asked: how come you weren't at X event?  So, try to avoid that.  For more sources on academic advice to junior prawfs, you might also want to check out the links at this site.

Posted by Dan Markel on March 23, 2006 at 08:48 AM in Life of Law Schools | Permalink | Comments (14) | TrackBack

Wednesday, March 22, 2006

Ruling in GA v. Randolph

The Court just handed down its ruling in Georgia v. Randolph, affirming the Georgia Supreme Court’s ruling that one co-tenant may not grant permission to police to search a shared residence over the express objection of the other, physically present, co-tenant (or, more precisely, that such permission was not valid in the face of the objection).  Justice Souter wrote the majority opinion; Justices Stevens and Breyer each concurred; Chief Justice Roberts, Justice Scalia, and Justice Thomas each dissented.  Back in November Dalia Lithwick had an entertaining summary of the issues and the arguments.

I’ve only skimmed the opinion and C.J. Roberts’s dissent – but what gets raised as between them is the (to me) very interesting argument about “lay perceptions” versus “the law.”  Justice Souter devotes time to discussing whether one might “reasonably expect a [young] child to be in a position to authorize anyone to rummage through his parents’ bedroom” and what the behavior of a “social guest” might be in response to one tenant inviting him in while another seeks to exclude him.  The Chief Justice objects to what he sees as Souter “creat[ing] constitutional law by surmising what is typical when a social guest encounters an entirely atypical situation,” and focuses, unsurprisingly, primarily on doctrines addressing expectations of privacy.

So far, I think I think that Justice Souter had the right outcome but for the wrong reasons (he does, of course, rely on Fourth Amendment doctrine, too).  What interests me, as someone doing empirical research on public perceptions of the law—and as someone who wonders whether such perceptions matter—is the explicit recourse to assumptions about what some hypothetical social guest might think as one basis for constitutional decision-making.  We’re not talking Eighth Amendment cruel and unusual punishment criteria here, but rather Justice Souter’s perception of some hypothetical social guest’s reaction.

Obviously I’m painting with very broad strokes here, without, I confess, even reading the rest of the opinions—but I think it’s an important, interesting decision, and thought a quick heads-up would be useful.  More, I hope, after a more thoughtful reading.

Posted by jeremy_blumenthal on March 22, 2006 at 03:55 PM | Permalink | Comments (3) | TrackBack

"Roe v. Wade for Men"

In this FindLaw column, Professor Joanna Grossman characterizes as a "farfetched claim for avoidance of child support" the argument that "a court order directing [an unwilling father][ to pay $500 per month in child support" violates the father's constitutionally protected reproductive rights.  Professor Sherry Colb also addressed Matt Dubay's lawsuit yesterday, in her own FindLaw column, "Should Men Have the Right to a 'Financial Abortion?'"  (Both Grossman and Colb are skeptical about Dubay's claims).   In Colb's view, Dubay's case and arguments reflect, in part, "men's anger:  why should women have all the control?"  She writes:

Many men are quite angry about how little control they currently exercise over their reproductive lives.  When a man decides to have consensual sexual intercourse with a woman, he risks unwanted fatherhood:  If the woman conceives, it is she, and she alone, who decides whether to terminate her pregnancy.  And that is true even if the woman falsely claimed that she was using birth control, that she had been told by a doctor that she could not conceive, or that if she did conceive, she intended to get an abortion.

In short, the argument goes, a woman has the ability forcibly to place her unwitting partner or ex-partner in a position he never wanted to occupy - that of a father - with all of the financial and emotional baggage that the status carries.

Ethan has, of course, blogged, written, and thought a lot (and, more particularly, a lot more than I have) and carefully about this issue.    In his view:

That point is this: when a couple is saddled with an unwanted pregnancy, the woman ought to listen to the man’s desires before jumping to her claim that she can do whatever she wants with her body.  The legal “right to choose” has confused the moral terrain—and has blinded us, I think, to how these decisions should be made in the first instance.

Now, I am convinced that abortion is immoral and also that Constitution, correctly understood, permits governments reasonably to regulate abortion.  I wonder, how should someone with these views think about Dubay's claim, or Ethan's arguments?  Certainly, I agree with Ethan that "the legal 'right to choose' has confused the moral terrain" in this difficult area.  Like Ethan, I do not believe that the best arguments in favor of a legal right to obtain abortions  -- arguments that owe little to high-flown claims about the mystery of life and one's place in the universe -- categorically preclude legal mechanisms for recognizing fathers' moral right to participate in decisions about obtaining abortions.  But what about Dubay's equal-treatment arguments for "financial abortion"? 

It seems to me that, even if I were "pro-choice" with respect to abortion, I would be reluctant to move to the conclusion that men should have some kind of analogous "right to avoid paternity and the responsibilities that attend it."  Maybe this is because, in my view, men and women alike have a moral obligation to care for the children they produce -- this is true even if it is also true that the law should, for a variety of reasons, permit women to obtain abortions in many cases.  This obligation does not depend on whether procreation is willed, nor is it erased or diminished by the facts that women are differently situated (in that they carry and support children inside their bodies for the first 40 weeks or so of the child's life) and so have the legal right to end that obligation by preventing the birth of the one to whom it is owed.  To borrow Professor Colb's words, it is not clear to me that the perceived need to protect and enhance men's "control" (or lack of it) over their "reproductive lives" (i.e., over the question whether children they produce are born, and entitled to financial support) is one that outweighs -- even in a context in which women have the legal right to abortion -- the obligation to one's children, even those one did not expect or want.   (The "Men's Bill of Rights" recently proposed -- in good fun -- by Will Saletan on Slate seems to reflect a different view!).

Posted by Rick Garnett on March 22, 2006 at 11:49 AM | Permalink | Comments (14) | TrackBack

Family Ties, etc.

So, there's been a surfeit of good news lately.  Nearly four weeks back I got married.  Upon return from the honeymoon, I discovered to my great delight that I'd been offered a job at Washington University in St. Louis (the Osita and I go this weekend to visit and we're very curious to hear recommendations about St. Louis points of interest).  And last night, WFU prawf (and erstwhile PB guest) Jennifer Collins, Ethan and I sent off to the law reviews our draft of "Criminal Justice and the Antigone Problem:  Should Family Ties Matter?"

In anticipation of lots of interesting things said about bloggership at the HLS symposium next month, we thought it would be a good idea to serialize our argument on the blog (before we post it on SSRN). The paper is still very much a draft and who knows if it will get picked up where we sent it, so there's plenty of time for revisions. We will leave out most footnotes in the blog excerpts.  We look forward to your feedback.  Here's the abstract:

This Article asks two basic questions: when does, and when should, the state use the criminal justice apparatus to accommodate family ties, responsibilities, and interests? We address these questions by first revealing a variety of laws that together form a string of “family ties subsidies” pervading the criminal justice system. Notwithstanding our recognition of the important role family plays in securing the conditions for human flourishing, we then explain the basis for erecting a “Spartan” presumption against these family ties subsidies within the criminal justice system. We delineate the scope and rationale for the presumption and under what circumstances it might be overcome.

The introduction is after the jump.

           Few people envied David Kaczynski.  In 1996, he found some old writings by his brother Ted that were similar in tone and content to a manifesto submitted to newspapers in 1995 by a feared terrorist, known to law enforcement agents as the Unabomber.  David was then faced with an agonizing choice about whether to disclose his discovery to federal investigators.  He ultimately revealed Ted’s name, believing that he had assurances from federal authorities that they would not pursue the death penalty against his brother, whom David believed to be mentally ill.  When Attorney General Janet Reno decided, nonetheless, to pursue a capital case, David was devastated.  Later, Ted Kaczynski pled guilty to charges that carried a life sentence.  Subsequently, David Kaczynski became an anti-death penalty advocate. 

David Kaczynski is perhaps the best-known example of a family member in recent years who provided law enforcement officials with the critical information that led to the arrest of a loved one.    Unsurprisingly, many family members confronted with a dilemma like David Kaczynski’s make an entirely different choice.

Consider the Sheinbein family, for example.  In 1997, a high school senior named Samuel Sheinbein was charged with murder after police found the burned and dismembered body of an acquaintance in the garage of a vacant house in Maryland.  But Sheinbein was never brought to trial in Maryland because he fled to Israel within days of the murder and Israel subsequently refused to extradite him.

So how was a 17 year old able to get to Israel so quickly?  Prosecutors alleged that after learning that his son was a murder suspect, Samuel’s father, Sol Sheinbein, brought Samuel, who was then hiding in New York, his passport, some clothing, and a ticket to Israel.  Sol also drove his son to the airport.  Sol Sheinbein then flew to Israel a few days after his son and continues to live and work there.  Prosecutors in Maryland subsequently filed a misdemeanor charge against him for obstructing a police investigation.  But because of the nature of the charge and his status as an Israeli citizen, Sol could not be extradited. After Samuel Sheinbein eventually pled guilty before an Israeli court and was sentenced to spend 24 years in prison, Sol Sheinbein gave his first interview to an Israeli newspaper. 

In defending his actions, Sheinbein, a practicing lawyer, stated that “I did some simple soul-searching.  And I came to the conclusion that with all due respect to the law, I am first of all a father and only after that a citizen.”Samuel Sheinbein’s mother, in an earlier statement, claimed “any parents would go and would do what we are doing.”

The choices David Kaczynski and Sol Sheinbein made arise virtually every day in every jurisdiction, where family members have the critical opportunity to facilitate or obstruct enforcement of the criminal law.  Indeed, in recent months, the media reported stories about fugitives whose family members create alibis (including reporting the death of the fugitive) for them; criminals who perpetrate their frauds with the assistance of family members; and, white-collar criminals whose spouses offer testimony or other evidence in exchange for a reduction of the criminal liability they themselves face.

Though the conflict between duties as citizens and loyalties as family members has long been explored in literature – most prominently in Antigone, Sophocles’ play about a young woman’s decision to defy the ruler Creon in favor of affording her brother a proper burial – it is a relatively uncharted area in legal scholarship – especially with respect to how this classic tension manifests itself in the criminal justice system.  The conflict of loyalty at the heart of Antigone is just one of the various challenges a modern criminal justice system faces regarding the proper treatment of family ties.[xiv]  That’s because the state does not always impinge upon family members in the course of investigating or prosecuting all the crimes it knows about; indeed, sometimes the law defers to the decision of family members to prioritize their duties to family over their duties as citizens.  We characterize state policies that seem to defer to family interests as “family ties subsidies” (or family ties privileges or benefits) in this Article.[xv] 

At the core of this Article stand two basic questions: when does, and when should, the state use the criminal justice apparatus to accommodate, protect, or subsidize family interests? The Article answers these descriptive and normative questions separately.  In Part I, we provide an overview of the multiple sites in which family life intersects with the criminal justice system.  We trace these intersections from the initial decision by family members to engage in criminal activity through the entirety of the eventual intervention by the criminal justice system.  For example, Part I focuses on efforts by some states to expressly shield from prosecution family members who harbor fugitives or conceal relevant information from law enforcement officials.  We also explore how jurisdictions offer evidentiary privileges and other exemptions affecting evidence-gathering that constrain the state from intruding into the familial relationship.  We then turn to matters of pre-trial release, sentencing, and prison administration, where many jurisdictions expressly permit consideration of family ties when making decisions in these areas.  In closing Part I, we specify which aspects of these intersections between criminal law and the family are properly characterized as family ties subsidies, and which ones are likely not. 

Part II then takes a normative turn and offers a framework for assessing family ties subsidies within the criminal justice system: we assess the costs they are likely to exact from society and explore why they should generally be rejected absent an overriding interest.

We begin with an appreciation of the important role families play in securing the conditions for human flourishing. We also note the ambivalent relationship the state has with the family: on the one hand, the state depends on the family in part to prepare individuals for their role as citizens; on the other hand, the state must compete with the family for the loyalty of individual members.  That discussion serves as a springboard for our critique of family ties subsidies in the realm of criminal justice and the arguments made in support of such subsidies.   

Part II articulates four distinct normative concerns that may arise when extending special recognition of family ties in the criminal justice system.[xviii] First, the historical context in which the family’s relationship to the criminal law has evolved reveals that many family ties subsidies often served (and in some cases, continue to serve) to perpetuate patriarchy, gender hierarchy and/or domestic domination.  Our second concern is that accommodations to families might impede the realization of criminal justice understood as the effective and accurate prosecution of the guilty and the exoneration of the innocent.  Our third reservation stems from the way that family ties preferences can disrupt norms of equality that should otherwise prevail in an attractive regime of liberal governance.  On this view, criminal investigations and prosecutions should treat citizens’ interests with equal concern, and without fear or favor.  The extension of special privileges to persons simply because of their family situation bears an onus of justification, especially since the policy that extends such privileges will have a negative and discriminatory effect on those without family ties – some of whom never made actual choices to avoid family ties.  Fourth, we note that some family ties subsidies can have the undesirable effect of incentivizing more criminal activity – and more successful criminal activity at that.  To the extent the law effectively signals messages to the public, some family ties subsidies encourage family members to keep their criminal enterprises in the family.  If sentencing policies serve to create a class of persons that are immune from incarceration or that receive heavy discounts in their prison terms, then those persons will be the most sought after to serve in criminal enterprises – or they themselves might seek out criminal activity. 

We think these four considerations, taken together, suffice to create a “Spartan presumption” against family ties subsidies in the criminal justice system.[xix] Of course, erecting a presumption does not entail eliminating all subsidies or accommodations of family ties; instead, we propose that such subsidies undergo a searching set of inquiries.  First, to what extent does the family benefit contribute to patriarchy, inaccuracy,[xx] inequality, or heightened risk of crime, the normative costs regularly associated with family ties subsidies?  Second, assuming the benefit implicates one or more of these concerns, to what extent is the benefit vindicating an overriding interest that justifies the use of the benefit in the criminal justice system?  Finally, are other less troubling means available to protect the interest underlying the benefit?  To be sure, this kind of scrutiny will not resolve all questions: we will inevitably have disputes about the strength of competing claims.  But it will do some important work in helping us think more clearly about the problem before us, and, in close cases, will alert us to some of the potentially hidden costs of family ties benefits and subsidies.[xxi] 

In Part III, we apply the normative framework developed in Part II to assess many of the subsidies we identified in Part I.  Some we find good reason for eliminating – evidentiary privileges, exemptions from prosecutions, and sentencing discounts in most cases. In other instances, we argue that the Spartan presumption is rebutted because the normative costs of the subsidies are relatively low and an overriding interest justifies the use of the benefit – for example, the placement of prisons in locations adjacent and accessible to large population centers and the placement of inmates near their families.  In some cases – child-sensitive arrest practices, in particular – the normative costs are so low or non-existent that even without an overriding interest, the presumption can be rebutted.  Finally, there are some instances where less normatively troubling means are available to protect the family interests at stake without encroaching on the core values of the criminal justice system – and we demonstrate how that could work.


[xiv] Of course, we are led to be more sympathetic to Antigone’s plight by Sophocles because the laws she was flouting were unreasonable and oppressive, and an especial affront to the social norms of Greek times, which required proper burial for the dead lest their souls wander forever after. 

[xv] When we say the state extends a benefit (or a subsidy) because of family ties, we are using those terms in an expansive manner, for what we are really referring to are situations where the state extends a privilege to (or forbears from requiring something from) a family member on account of his or her being a family member with someone else.  (We tend not to use the word “privilege” to help avoid confusion; evidentiary privileges are just one example of these family ties benefits.)  Some might think these benefits merely “respect” family ties rather than subsidize or benefit them, but we think that because these benefits have real consequences (as opposed to simply conveying attitudes of respect), it is better to characterize them as actual benefits or subsidies. 

[xviii] We recognize that not each family ties subsidy will implicate these concerns.  We therefore begin with only a presumption against family ties subsidies, rather than wholesale hostility.

[xix] We utilize the term “Spartan” presumption simply to refer to one well-known regime’s decision to emphasize loyalty to the state over loyalty to the individual nuclear family unit.  The regimented manner of family life in Sparta served that state’s primary purpose, which was the cultivation of state-devoted warriors. See, e.g., Sanford Levinson, Testimonial Privileges and the Preferences of Friendship, 1984 Duke L.J. 631, 632 (“Who… can ever forget the Spartan mother who berates the messenger for first telling her that her five sons have died before indicating that the Spartans indeed had won the battle?”); William A. Galston, The Legal and Political Implications of Moral Pluralism,  57 Md. L. Rev. 236, 245 n. 45 (1998) (describing ancient Sparta as a place “where family life, education, and public resources were all directed toward the cultivation of military virtues.”).

[xx] When we use the term inaccuracy, we are using that term to refer to the idea that justice is not being accurately realized (in terms of effective prosecution of the guilty and exoneration of the innocent).  In this sense, inaccuracy might also indicate an unjustified leniency (or harshness).

[xxi] For the most part, our discussion centers on legal policy issues, which are usually and, in many cases, more appropriately developed by legislatures; however, our argument does address the issue of new intra-familial privileges, as well as the use of some common law defenses, which are typically addressed in the courts in the first instance. 

Posted by Dan Markel on March 22, 2006 at 09:05 AM in Article Spotlight, Blogging, Criminal Law, Dan Markel, Ethan Leib | Permalink | Comments (7) | TrackBack

Tuesday, March 21, 2006

The (Internal) Political Life of the Pre-tenured Prawf

There has been some conversation here and in other blogs over the question of politically controversial scholarship and its possible risks for landing a tenure-track job/getting tenured later on. To me, scholarship by definition is at least in part a political act, as is any intellectual engagement, and I don’t see any reason why someone would spend time and energy on scholarly thinking if they were not committed to the underlying values and meanings of their work. I also believe that as long as your work is good and you write and act with integrity, the risks of adversity are mild.

I have however a different question to pose to fellow blawgers. Now that our dean search here at USD has successfully ended, I would like to take the time to reflect on the advisability of a pre-tenured prawf in engaging in internal/institutional house politics. That is, should assistant professors speak out during faculty meetings on contested issues, such as hiring processes, resource allocation, institutional choices and directions of the law school? Do pre-tenured prawfs have interests that are different than those that are tenured, and should they aim to discuss some issues among themselves in order to have impact? Should we have a vote on most things or are we still mostly at the phase of learning from wiser, more experienced members? Moreover, is it ethical to lobby the pre-tenured gang on voting issues when they are subject to future evaluations by those who lobby them? Should all voting be anonymous to protect the pre-tenured?

Reactions?

Posted by Orly Lobel on March 21, 2006 at 01:25 PM | Permalink | Comments (10) | TrackBack

Monday, March 20, 2006

Executing converts in Afghanistan

Apparently, a man is on trial in Afghanistan for converting to Christianity, and is facing the death sentence.  (Here is another story about the case).  And this is after the ouster of the Taliban! 

A question:  My impression (which could be inaccurate) is that most people -- including those who believe that the military intervention in Iraq was illegal and / or immoral -- believe that the invasion of Afghanistan and overthrow of the Taliban was both legal and morally justifiable.  If it is the case, though, that the (not-intended) result of that invasion is a legal regime that executes people for converting from Islam (or any other religion) to Christianity (or any other religion), then is the case for legal and moral justification weakened?  How do international lawyers and law-of-war experts approach this question?

Posted by Rick Garnett on March 20, 2006 at 04:13 PM | Permalink | Comments (11) | TrackBack

Balkin on FAIR

Professor Jack Balkin has a detailed and thoughtful post, here, analyzing the FAIR decision and explaining his reasons for participating in the case, despite his doubts about the theory advanced.

Among other things, Professor Balkin proposes that one of the things that the decision "does" is "read[] Dale quite narrowly, in ways, I think, that may limit some future First Amendment attacks on antidiscrimination laws.  [Chief Justice Roberts] reads Dale as simply a case about membership and about laws that burden the right of an organization to choose their members or make membership in the organization less valuable and desirable to its members[.]"  He continues, "[t[hus, if a group seeks to discriminate against those who do not seek to become members of the group, Dale does not apply.  This makes Dale essentially irrelevant to a large number of antidiscrimination laws."

I'd be surprised if this turn out to be right.  It seems to me that Dale is distinguishable not only because the state action at issue did not really compel "association", but also because the state action at issue did not really burden the law schools' freedom of expressive association.  That is, the state action at issue did not threaten to hijack, distort, or undermine the schools' own (constitutionally protected) expression (i.e., "We oppose discrimination.").  So, I would think that, even after FAIR, Dale can stand for something like the more general proposition that "expressive associations' decisions about the content of their 'messages' are protected (not absolutely, but to some degree) against state actions or requirements (including antidiscrimination requirements) that burden the associations' free-speech rights by altering their 'messages.'"  How do others read the decision?

Posted by Rick Garnett on March 20, 2006 at 03:51 PM in Constitutional thoughts | Permalink | Comments (10) | TrackBack

Disabilities and the Social Contract

I'm in the middle of Martha Nussbaum's new book, Frontiers of Justice : Disability, Nationality, Species Membership.  One of its central claims is that the social contractarian tradition of political theory is inadequate to the task of devising principles of social justice because the theory necessarily excludes certain classes of individuals who clearly deserve considerations of justice.  In particular, she argues that because the disabled do not participate in the original social contract (on either Locke's, Gauthier's, or Rawls's versions), we should prefer a "capabilities" approach to political theory, ensuring that we furnish substantive justice to each individual (as a sort of natural law) before we worry about procedural justice of the form contractarians aim to provide.   

Admittedly, contemporary contractarians do tend to insist that the members of the community who participate in the fictional "Original Position" where principles of justice are devised must be equal and, for the most part, rational.  (There is some debate about whether the contractarians think mutual advantage is the exclusive motivation of the "actors" leaving the state of nature.)  And Nussbaum is surely right that the severly mentally disabled (though probably not the  physically disabled) cannot be imagined to  participate usefully in this fictional moment of principle-generation.

But does this mean the contractarian tradition must be abandoned?  Although I have many problems with the contractarian methodology (and think the "capabilities" approach has a lot going for it), I fail to see the challenge Nussbaum adumbrates as a substantial inadequacy.  In short, it seems to me that contractarians have recourse to a few rejoinders.  The most important of which is that the methodology is complete fiction.  No actual disabled persons have been excluded from anything real; the contractarians merely insist that at the level of principle-generation for a polity, it is useful to imagine the deliberating entities as ones who are capable of reasoning as adults.  I can see how it might be viewed as insensitive or, perhaps, unfortunate to think about constraining deliberation in this way.  But is it any more a challenge to social contractarianism that children seem to be excluded from the "Original Position"?  Perhaps.  But I don't see how the disabled, then, present a unique problem in this regard.  One can disagree with the paternalism implicit in contractarianism but I think there is a coherence to the idea that in devising the major constitutional structure of liberal political society, it makes sense to imagine a group of equal, rational, and reasonable people.

Let me be clear: contractarianism has many holes.  But charging it with "excluding" the disabled seems to be a bit of a cheap shot.

Posted by Ethan Leib on March 20, 2006 at 01:43 PM in Books | Permalink | Comments (8) | TrackBack

Phillips, Brinkley, and "Theocracy"

Sunday's New York Times featured this review, by Columbia historian, Alan Brinkley, of Kevin Phillips's new book, American Theocracy.  Now, I have not (and, I admit, probably will not) read American Theocracy.  That said, I found Brinkley's review -- and Phillips's claims, as Brinkley describes them -- tiresome and insular.  "Radical Christianity" . . . "Theocracy" . . .  "Harrowing picture of national danger" . . . etc.  Whatever. 

In my view -- "V for Vendetta" (link), "The Handmaid's Tale" (link), and even Roy Moore & Co. notwithstanding --  the idea that so-called "Christian Reconstructionists" (i.e., people who are said to believe that governments and policy ought to be constructed and implemented in strict accordance with certain versions of Protestant Christianity) do or ever will pose any threat of "theocracy" in the United States is not to be taken seriously.  The same is true, I think, of the idea that there is anything particularly "radical" about evangelical Christianity, as it is actually lived and believed in the United States today.  Brinkley is, I realize, an accomplished scholar, but it is not clear to me that he really has any idea who evangelical Christians are, or what they believe, do, and want.  (If one wants to know, read Christian Smith's, Christian America:  What Evangelicals Really Want). 

Now, obviously, there is plenty of room -- and there are plenty of good reasons -- to criticize, object to, and resist the religious claims and the policy / political agenda of politically conservative evangelical Christians.  But the "radical Christians are taking over the government and setting things up for the Rapture" line does not strike me as particularly helpful.

Here, by the way, are Martin Marty's (U. Chicago) thoughts on the Brinkley review:

In his new book, Baptizing America, Rabbi James Rudin speaks of a developing American "Christocracy."  Kevin Phillips, in American Theocracy, writes about a developing "theocracy."  Rudin is a moderate and Phillips has carefully detailed his own odyssey.  Reviews of Phillips are coming in furiously fast, so we will concentrate on the "Radical Religion" theme of his subtitle, which is linked with two others, "Oil" and "Borrowed Money."  Not swimming in oil or debt money, but recognizing that Phillips interweaves "theocracy" inextricably with these other two themes, I have to specialize on Sightings ground.

Phillips, once a Republican strategist and speech-writer, has read widely and well in the historical records and the political and social scientific works of our decades, and documents his work thoroughly.  Would that there were space to quote or even outline his case, which I hope our readers will "sight," sometimes if only to argue with the author.  My advance copy of the book is all highlighted and scribbled up with quotations and judgments, graphs and charts, that I will not be alone in using.  But here we have to hurry to a set of questions about "theocracy."

For whatever light it sheds on the subject, let me say that I tend, or try, to dampen hyperbole on subjects of this sort.  In the sixties and seventies, when it was the fashion among radicals to call America "Amerika," implying that European-style fascism was developing, my kind and I stepped back, contending that one can make a case about repression and its styles without invoking the extreme, even an often demonic aura of "the other."  The same goes for "theocracy."  Why give people a name they might savor and favor, or apply the term to near-miss phenomena?  Phillips quotes many leaders of far-right and near-far-right Christian groups who want Christianity to have privilege, status, and even a monopoly on the spiritual front of a lame pluralist society, and sees -- yes -- theocracy in their goals.

Advice to myself, after reading Phillips's counsel: 1) Don't assign to people a label and a position they don't exactly hold; 2) Don't lump all people called "conservative" or "born again" into the mix of the theocracy-minded; 3) Don't label anyone "theocrat" who does not bear most of the marks of the theocrat; 4) Thus remember that, for people of faith on left or right, to try to influence foreign or domestic policy is not by itself a mark of theocracy -- not by any means; 5) Do urge fellow citizens to be Madisonian (Federalist Papers X and LI), to work for the republic, against favor or privilege or establishment for particular religions (e.g., "Christianity" or "the biblical worldview"); 6) If you must blame, blame fairly, including the Republicans-not-on-the-right or Democrats-wherever-they-are for leaving a moral vacuum that exploiters can invade and exploit; 7) Make the point that theocracies have always corrupted communities of faith that favor them, noting that such polities are bad for religion; 8) Read and profit from Rudin and especially Phillips as they make their cases; 9) Be ready to link up with others, to see if at this late date the republic can be invigorated and survive; 10) Arrange with people you can trust to help you live with new strategies and old hopes, as you try to find a means of sleeping peacefully after you've read this unsettling script -- and then awaken, for thought and action.

Posted by Rick Garnett on March 20, 2006 at 11:42 AM in Religion | Permalink | Comments (1) | TrackBack

The Future of the Prawf Blawger: A Skeptical View of the Solove Census

Over at Concurring Opinions, Dan Solove continues his number-crunching work and has revised his census of law professors who blog.   Solove counts about 235 law professors who blog now, noting a 16% increase over the last five months in the number of profs who blog now.  He also notes that women are roughly 25% of the prawf blawging population. 

To my mind, these stats seem inflated on a couple dimensions.  Don't get me wrong: I'm certain they are accurate in that Dan S. has dutifully reported all the information reasonably available to him. But I fear they are misleading in that various people (men and women) who are listed as bloggers are barely blogging, and certain blogs have relatively very few posts, and usually those blogs, and many others on the list, have very few readers.  So what?  I don't state these points as complaints against anyone in particular, and certainly not Dan S, whose census is a useful service.  After all, I hardly think that everyone who wants to blog must blog consistently and deserves to continue only if they can generate an audience of N-readers. Let a thousand flowers bloom, no?  Some will blog more, some will blog less, pass the peanut butter.

I make this (dangerous?) statement only to point out that  to the extent we're trying to divine trends about participation and/or the future of blawgership, we should be cautious and not try to overstate the amount of enthusiasm out there for prawf blawging.  It's a wonderful thing that more people are writing for audiences beyond law reviews and opeds.  And for the most part, I am bullish on prawf blawging's future.  But the growth of blogging by law profs is not, I submit, as robust as an uncritical view of the Solove Census suggests.  (One might wonder why such a point is dangerous or self-defeating. It's conceivable that those prawfs who do blog regularly have a stake in puffery of the numbers, so that it looks like we're leaders/vanguard/the tip of the spear, etc.  I'm not sure this is the case, but perhaps others have thoughts on what's at stake here--if anything at all.)

Let me add one more related point.  If the "true" numbers of vigorous prawf blawgers increase, then it obviously becomes more difficult to prevent fragmentation.  Isn't there a loss to our profession and academic community if so much blogging occurs that not everyone in our guild can follow the same daily conversations? Or am I talking like an old oligopolist?

Posted by Dan Markel on March 20, 2006 at 03:45 AM in Blogging, Dan Markel | Permalink | Comments (0) | TrackBack

Sunday, March 19, 2006

Women in Law Firms

Another discouraging account in today's NYT, with something interesting graphic demonstrations:

Unequal Partners

Posted by Orly Lobel on March 19, 2006 at 11:26 PM | Permalink | Comments (5) | TrackBack

Friday, March 17, 2006

Parisian Discontent

16france Whether or not you agree with their cause, you’ve got to hand it to the French revolutionaries – they are young and they are committed to their sense of economic and social justice: that employment should not be at-will. The liberty-equality-fraternity promised trio never fails to move French workers into protest and action. In a concerted national effort, students, unions, educators and other social movements have swept the streets of greater Paris to resist the adoption of new legislation “the first job contract law”, which would make it easier to fire younger workers. From the NYT: “‘this contract is like living beneath a guillotine,’ said Charlotte Billaud, 21, a political science student in the third year of her five-year program at the Sorbonne. ‘When you can be fired without reason, you do not dare criticize your boss or join a union.’”

Posted by Orly Lobel on March 17, 2006 at 05:21 PM | Permalink | Comments (27) | TrackBack

Wieseltier again . . . on Stanley Fish

Leon Wieseltier has the "Washington Diarist" feature in the latest issue of The New Republic.  He has moved on from Daniel Dennett to Stanley Fish, who -- in Wieseltier's view -- published an op-ed ("Our Faith in Letting it all Hang Out") in the Times recently that "compared liberals unfavorably to fundamentalist mobs."  Wieseltier writes:

Fish is the author of a book called The Trouble With Principle--now there's a danger!--and has made a handsome career as a cheap button-pusher; he is one of those intellectuals who prefers any kind of radicalism to any kind of liberalism. (The flourishing of such intellectuals is itself a great tribute to liberalism.) In this particular prank, the kind of radicalism that Fish preferred was the Islamist kind. He lauded the "strong, insistent form" in which the rioters maintained their convictions. They believed that there are ideas "worth fighting over to the death." This, he declared, "is to the credit of the Muslim protesters and to the discredit of the liberal editors." Liberals, by contrast, believe only in such "abstract" principles as free speech, which makes them contemptibly indifferent to "the content of what is expressed." He adduced as his example of this timidity the culture editor of the Danish newspaper, for whom what seemed to matter was not the substance of what his paper said but its right to say it. In the liberal "religion of letting it all hang out," Fish sneered, "everything (at least in the realm of expression and ideas) is to be permitted, but nothing is to be taken seriously."

This is an ancient slander against liberalism. "I'm liberal," declares a character in one of Frost's poems, and explains: "I mean so altruistically moral / I never take my own side in a quarrel."

Wieseltier continues:

It is certainly true, as Fish worries, that a liberal order exasperates certain types of "strongly held faiths." The believers in an open society always have some adjusting to do. Yet not all strongly held faiths are alike. Often the aforesaid adjustments are made, for the sake of principle or social peace. And a faith held so strongly that it acknowledges no legitimacy to other strongly held faiths, so that it seeks to suppress or to destroy them--surely such faiths must not be allowed to hide their depredation behind our toleration. They deserve all the exasperation that we can visit upon them. Moreover, not all strongly held faiths are held for reasons worthy of respect. (I mean intellectual respect. About political respect, there must be no doubt; but political respect is not a promise of intellectual respect.) Usually they are just the unexamined promptings of tribe and tradition. But then Fish is not exercised by the intellectual quality of the bellicose dogmatisms that he wishes upon us. Quite the contrary. What excites Fish about fervent belief is the fervor, not the belief.

For another dimension to the Wieseltier / Fish disagreement, check out this essay, published in First Things by Fish ten years ago, called "Why We Can't All Just Get Along."

Posted by Rick Garnett on March 17, 2006 at 03:08 PM in Law and Politics | Permalink | Comments (3) | TrackBack

"Paternal parental choice" and "margin[s] of appreciation"

Check out this post, over at Opinion Juris, about "paternal parental choice" and a recent decision, Evans v. United Kingdom, by the European Court of Human Rights.  In particular, the way the ECHR uses the "margin of appreciation" idea to allow for local variation on questions regarding the beginning of life and the protection of unborn children is interesting.  Roger Alford asks:

The ECHR's decision in Evans is a significant application of the margin of appreciation doctrine under the European Convention. Can you imagine the possible ramifications for constitutional comparativists in the United States? Would it mean each state should be free to decide when life begins? Would it allow states to grant greater rights to fathers than they currently enjoy on issues involving abortion, embryology, fertilization and birth? If the European Convention gives Member States wide discretion to regulate on such matters, should our constitutional approach implement a similar approach of legislative deference?

I am no fan of constitutional comparativism, but if advocates are going to warmly embrace ECHR decisions in other constitutional contexts (i.e., Lawrence), should they not do so here? As Justice Ginsburg said last year at the ASIL annual meeting we should look abroad for "negative examples" on matters such as abortion. Here is one such example available for comparative reference.

Posted by Rick Garnett on March 17, 2006 at 02:55 PM in Constitutional thoughts | Permalink | Comments (2) | TrackBack

Thursday, March 16, 2006

Noam Scheiber

gets it just right on John Tierney in the New Republic.  I stopped reading him a while back, I confess -- and reported as much in my most intemperate post to date.  Quite a walk down memory lane . . .

update: spelling updated

Posted by Ethan Leib on March 16, 2006 at 09:13 PM in Article Spotlight | Permalink | Comments (3) | TrackBack

Alexander on "Academic Freedom"

Larry Alexander (San Diego) has a new paper, called "Academic Freedom."  Here is the SSRN abstract:

In this essay I take up the question of who is entitled to "academic freedom." By academic freedom I do not mean whatever first amendment rights professors and students possess with regard to the content of published research, class discussion, and informal remarks. That is a nettlesome topic, to be sure, but it is not mine, primarily because academic freedom is thought to extend to professors at private universities that are beyond the reach of the first amendment. Rather, by academic freedom I mean that freedom from job reprisals that is due academics when functioning as academics. And I argue that only when academics are so functioning is academic freedom their due.

On many campuses today there is a sizeable number of academics who are not so functioning in their publications or in their classrooms. Rather, they are engaging in crude political polemics. That is because disciplinary standards have vanished from many departments, especially in the humanities and social sciences, largely due to the confluence of identity politics and crude postmodernism, and abetted by the overwhelming political orthodoxy of the academy. If faculty are not faithful to arguments and evidence, assessed by traditional disciplinary standards, but are engaging in political polemics undisciplined by such standards, then actual politicians have as much claim to control the academy as do these politicized ersatz academics. For academic freedom is not their due.

Discuss.

Posted by Rick Garnett on March 16, 2006 at 03:30 PM in Law and Politics | Permalink | Comments (9) | TrackBack

Theory v. Theory

The maxim "It takes a theory to beat a theory," is frequently heard in legal academic circles.  (See, e.g., Justice Scalia's assertion of the maxim discussed here and here.)  The maxim is motivated by the idea that merely poking holes in some Theory X (be it scientific, legal, philosophical, etc.) is not enough to destroy it.  All or virtually all theories have weak spots.  Rather, one must construct an affirmative theory that is superior to Theory X in order to supplant it.  Thus, one might say, even if the Newtonian worldview failed to explain all of our observations, it was appropriate to adopt that worldview until a new theory (e.g., relativity) came along.  The new theory may be as elegant as the old theory, but it replaces it with some additional virtues, like improved comprehensivness or explanatory adequacy.

But does it take a theory to beat a theory?  As a general matter, the answer is "no".  We may decide that no extant theory warrants our belief.  Suppose I travel in a foreign country and discover that all ten people I spoke to on a given day were wearing the color green.  Several explanations may come to mind: (1) People in this country like to wear green; (2) People in this country who work in the tourism industry (or speak English) like to wear green; (3) it was a coincidence, etc.  Surely, I might determine that none of these explanations warrants my belief.  (Perhaps I should be more precise in distinguishing between a theory and an explanation derived from a theory, but I think I've illustrated the basic point.)

The same may be true of constitutional interpretation, though I think the matter is more complicated.  As a random citizen, one need not have a theory of constitutional interpretation and can withhold belief.  Federal judges, however, are often called upon to interpret the Constitution and, unless all plausible interpretations give the same result, federal judges must have at least a partial theory of constitutional interpretation (and, at least, a partial theory of interpretation more generally).  If, however, we can only infer a judge's theory implicitly from the judge's behavior (because the opinion is undertheorized), it is not at all clear that the judge has adopted some theory rather than none at all.  In the case of Theory v. Theory, I suspect that there are sometimes no winners.

Posted by Adam Kolber on March 16, 2006 at 01:43 PM in Legal Theory | Permalink | Comments (9) | TrackBack

Religiously Affiliated Law Schools conference

Some Prawfsblawg readers might be interested in this conference, "The 6th Conference of Religiously Affiliated Law Schools," to be held in late-March at Baylor.  Here's a promo blurb: 

At our best, religiously-affiliated law schools provide our students not only with knowledge of the law, but also with a place to confront the idea of justice. The purpose of this conference is to renew the bonds among our schools, celebrate the diversity of faiths we practice, and contemplate the meaning of justice within these many traditions and the practice of law.

The conference will be hosted by Baylor Law School, in our beautiful new Sheila & Walter Umphrey Law Center on the banks of the Brazos River in Waco, Texas. We have scheduled the conference for the most enjoyable time of the year in Texas, when the weather is warm but not hot and the bluebonnets are blooming throughout the area.

Several exciting panels, examining different aspects of the idea of justice and featuring panelists from many member schools, will be presented. In addition, two sessions will offer broader participation. One will be an "open discussion," in which any participant who signs up while space is available will be allowed four minutes to comment on the topic of "Seeing Injustice." This topic is intentionally vague, to promote a broad discussion of justice issues within society and the academy.

Posted by Rick Garnett on March 16, 2006 at 01:32 PM in Life of Law Schools | Permalink | Comments (0) | TrackBack

Access to Knowledge (A2K)

I thought it might be useful to announce a very exciting conference about the "Access to Knowledge" movement, scheduled for April 21 through April 23 at Yale Law School.  More than just an academic conference, this huge event promises to be movement-building.  Here's the agenda:

In the digital era, most multinational corporations and policymakers are of the view that the current trend characterised by increasing intellectual property rights and corporate control over knowledge best serve society's interests. At the same time, however, a growing number of commentators believe that widespread access to knowledge (A2K) and the preservation of a healthy knowledge commons are the real basis for sustainable human development. Nonetheless, intellectual property-based approaches continue to singlehandedly dictate global legal norms and shape national legal infrastructures.

The first goal of the Yale A2K Initiative is to come up with a new analytic framework for analysing the possibly distortive effects of public policies relying exclusively on intellectual property rights. Beyond this aim, the A2K initiative seeks to support the adoption and development of alternative ways to foster greater access to knowledge in the digitally connected environment.

Check it out and join the 400 participants and 100 speakers from 35 countries.  Alas, I will be in Chicago, giving a paper ("Citizen Representation and the American Jury") at the Midwest Political Science Association's annual meeting.  But what's your excuse?

Posted by Ethan Leib on March 16, 2006 at 11:19 AM in Current Affairs | Permalink | Comments (0) | TrackBack

The Simpsons and constitutional knowledge

A recent poll, conducted by the McCormick-Tribune Freedom Museum, revealed that Americans apparently know more about the television cartoon series “The Simpsons” than about the First Amendment to the United States Constitution.  Only one in four respondents could name more than one of the rights protected by the First Amendment; only one in 1,000 could name all of them. Yet more than half of the respondents could name two members of the Simpson family, and 22 percent could name all five.  Here is an op-ed, by Prawfsblawg alum Nicole Stelle Garnett, commenting on the "tongue clucking in certain circles" set off by the poll results.

Posted by Rick Garnett on March 16, 2006 at 10:23 AM | Permalink | Comments (1) | TrackBack