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Tuesday, April 18, 2006

Are We All Transnationalists Now? Should we be?

I want to thank Dan for inviting me to guest blog at PrawfsBlawfg for a week or so.  My usual perch is as part of the team over at Opinio Juris -- a blog so dedicated to international law that we named ourselves after an element of customary international law.  I will be cross-posting both here and at OJ while guest blogging, making up for some lost time at OJ during a writing-induced “bloggatical.” (Dan, does that count for annoying “blawg speak?”)  It is from the perspective of an international law professor that I raise the questions in my title.  Is all legal education heading toward transnational approaches across the curriculum?  Should it be?

At the AALS meeting back in January (yes, I am late catching up), Peter Strauss of Columbia Law School gave an interesting talk to kick-off the discussion of transnational legal education.  Strauss compared the current discussions about the place of international and transnational law in the curriculum to the "Langdellian moment" when Christopher Langdell introduced the case method to the Harvard Law School.  By focusing on method ratehr than learning state law out of hornbooks, HLS became the first truly national law school and, according the Strauss account, replaced Columbia as the go-to school for recruitment to the Wall Street firms.  Columbia, responding to market forces, only caught up some years later – after Langdell had raided some of its best faculty members.  Law schools are now experiencing the "trans-systemic" moment.

In the post-Langdell world, Strauss notes, all law subjects are taught in a way that lends them to relatively easy transition from being purely “American” law courses, to being transnational, comparative or “trans-systemic.”  When we teach cases, we teach through comparative methods, e.g., majority versus dissenting opinions.  When we teach the common law, we teach comparatively (N.Y. versus California in contracts or torts, for example).  The subject matter of some courses lend themselves quite easily to the notion of trans-systemic approaches (admiralty, conflicts, secured transactions).  Given that trans-systemic law is what we are all already doing, Strauss sees it as a logical and not terribly radical step for law schools to embrace trans-systemic approaches to law that encompass international, regional and foreign state legal systems.

The AALS has been engaged for some time in the valuable project of shifting curriculums and programs at law schools to prepare American lawyers for “transnational challenges.”   The question at many lower tier and more traditional regional law schools  --and I include my home institution, the University of Missouri, in that group – is how much transnational law do our students need?  Several prominent law schools have emerged to lead the way in transnational or global legal education.  At the top of the heap are NYU, Columbia, Michigan (the latter being the only U.S. school to require transnational law in the first year – soon to be joined by Hofstra).  Others have sought to fill a transnational niche (e.g., McGeorge).  I agree with Strauss that, at the end of the day, the shift from purely national to transnational legal education will be market driven.  We are already living in a world of three tiers of law schools in the U.S. :  International law schools, national law schools, and regional law schools.  Do the national and regional schools need to present themselves as “international” in order to survive? 

Strauss’s approach seems to suggest that what is needed in the first year is not necessarily an introduction to public international law or even the traditional private international law, but something that reflects a problem-based approach to inter-systemic lawyering. (This is apparently already de rigeur at McGill –for reasons of  being situated in a province governed by a civil code within a national legal system grounded in the common law.)  In my own paper submitted at a 2004 AALS meeting on transnational legal education, I suggested that the incorporation into the core curriculum (torts, contracts, tax, bus org) is one way to make transnational legal problems relevant to students at the regional schools.  Many faculty are reluctant to introduce international conventions or customary international law principles or comparative case law into their classes either because they think they are not qualified to teach from that perspective or they think it adds too much complexity for students struggling with the basic doctrine.  Strauss has provided a nice framework from which to argue to the reluctant faculty that they are, in fact, already teaching trans-systemically.

I am not completely convinced (as my co-blogger Julian Ku has argued) that transnational law needs to be required at all law schools (for many of the reasons raised in the comments to Julian’s post).  But all lawyers need the tools for approaching transnational problems.  Perhaps a flexible approach to trans-systemic law through the pervasive method may be helpful.  What do the non-internationalists think? 

Posted by McguinnessM on April 18, 2006 at 06:57 PM in Teaching Law | Permalink | Comments (3) | TrackBack

Witchcraft & Statecraft

I want to thank Dan for inviting me to visit.  I have enjoyed following the conversation so far and I am happy to have the opportunity to chime in.

Most recently, I have been thinking and writing about witchcraft in South Africa.  My review of a new ethnography of witchcraft practices in Soweto is forthcoming in the University of Chicago’s Journal of Religion and is available here.  I also have a work in progress on the subject.  What interests me most is that the government there recently passed a law that purports to regulate occult practices in one critical respect.  Whether that law is defensible is a serious question for the young democracy.

Belief in witchcraft is widespread in South Africa and has only intensified since the transition to democracy.   Witchcraft can be defined as a practice in which a human being uses occult powers in order to harm another person.  It is different from American Wicca (where witches gather periodically in covens to cast spells and the like) in at least two respects: first, African witchcraft is virtually always malicious, and second, it is practiced in secret.  The word witch is a second-order term of accusation and not a first-order term of identification.

For many Africans, witchcraft presents a problem of justice. 

People in places like Soweto and Khayelitsha worry that their neighbors are secretly bewitching them and causing misfortune in their lives.  Any hardship could be the result of enchantment, including unemployment, death of a loved one, or unexplained illness (think of AIDS).  When troubles like these are attributed to the occult, they entail not only suffering but also harm.  While suffering can be the product of impersonal forces like viruses or bad weather, harm is always caused by meaningful human action.  And for many Africans, spiritual harm constitutes an injustice in the same way as physical harm.  They feel that the government ought to be protecting them from witchcraft in the same way that it punishes physical aggression using the criminal justice system.

In the absence of government protection, citizens have taken matters into their own hands.  During the 1990s, hundreds of suspected witches were killed, usually by mobs of young people.  Although there is some evidence that witch hunts have eased, newspapers still report them with disturbing regularity.  Here is one example. Even absent outright violence, ordinary Africans continue to fear witches in their daily lives.

Parliament recently took an important step toward regulating the occult.  In 2005, a law came into effect that establishes a national agency empowered to license and regulate traditional healers.  These healers, also known as sangomas or inyangas, use the same occult powers that witches do, only for good—in order to protect people against witchcraft.  According to the Department of Health, some 80% of the population consults traditional healers. The Traditional Health Practitioners Act purports to bring them within the ambit of state power, giving ordinary citizens a state-sanctioned defense against enchantment for the first time.

Of course the Act raises deep concerns.  Chief among them is how the government will be able to distinguish between legitimate and illegitimate traditional healers when the criteria for legitimacy include factors such as whether the applicant has been called by the ancestors.  One worry that raises is whether a liberal democracy ought to be drafting laws that apply only to certain religious or cultural groups.  Doing so flouts the ideal of treating all individual citizens in the same way regardless of membership in particular groups.  Another concern is that the state will not be able to differentiate between authentic healers and charlatans in a non-arbitrary or principled way.  Aspiring sangomas who are denied licenses will complain that a secular state cannot fairly determine who is spiritually qualified to be a traditional healer.  Arbitrariness like that weakens the central democratic commitment to the rule of law.  There are other difficulties with the Act, but those two are among the most serious.

In the working paper, I develop an analytic framework for understanding and assessing the regulation of occult practices.  Ultimately I defend the Act despite the dangers that I identify.  My sense is that the norms and institutions of liberal democracy ought to be capacious enough to accommodate deeply-held beliefs that are central to African nations.  Tensions between democracy and African traditions are not going to be resolved on the level of first-best political theory, but instead in modus vivendi experiments like this one.  And on balance, the benefits of the Act outweigh its drawbacks.  However, I warn against going further and trying witches themselves in state courts, a solution that has been proposed in South Africa and has actually been adopted in Cameroon.  Jailing accused witches on the basis of potentially arbitrary criteria is too great a price to pay for reassuring a citizenry that is terrified of witchcraft.

Posted by NTebbe on April 18, 2006 at 12:36 AM in Religion | Permalink | Comments (7) | TrackBack

Monday, April 17, 2006

A couple more guests lurking

We're very fortunate to have a couple more guests to join our April ranks of visitors.  First is Nelson Tebbe, who teaches professional responsibility, as well as law and religion, at St. Johns's in the NY area.  We also have another blogger in the form of Peggy McGuinness, who you may recognize from either Opinio Juris or from U. of Missouri-Columbia, where she teaches in subjects related to international law.  Our other guests are still helping to hold the fort down for the next couple weeks.

By the way, today was my last "official" class of the semester for criminal law.  One of the pieces of advice I left them with, which I should also follow, was that they should try to avoid allowing too many of the habits of mind -- picking apart others' arguments, contentiousness, etc. -- we inculcate in the classroom from penetrating too deeply into their social relations.  I mention this because I see how hard it is to drop parts of the legal lingo sometimes.  Just this evening I wrote my mother-in-law, who is not a lawyer, to send me a copy of her son's K for me to review.  Seeing this notation, my brother-in-law (the plastic surgeon cum MTV artist) wrote: "I like the fact that you refer to a contract by the letter "K."  Tons of street cred.  I suggest totally pimping out the word by changing it to "kontrax,"   and when you write the word, draw the "K" backwards."  Sigh... First prawf. Now Kontrax.  What other idiot-words will I help generate?  Wait, don't answer that.
 

Posted by Dan Markel on April 17, 2006 at 10:27 PM in Housekeeping | Permalink | Comments (2) | TrackBack

The First Amendment and Foreign Criminal Terrorist Organizations

The Ninth Circuit's been busy.

First, Jespersen. Then, the L.A. homeless case. Now, late today [hat tip: HJB] comes the denial of rehearing en banc in United States v. Afshari [original (amended) panel opinion here], along with yet another powerful dissent by what might fairly be seen as an increasingly frustrated Judge Kozinski.

Afshari is about a problem well documented in law & terrorism circles, but little recognized elsewhere: Because Title 18 prohibits the provision of material support to a "foreign terrorist organization" ("FTO"), much turns on the designation of such by the Secretary of State, as set out in 8 U.S.C. [sec.] 1189. In short, giving money to a foreign charity may or may not be a federal offense, depending on whether the charity has been designated an FTO.

The problem, as Judge Kozinski identifies, is that to the extent that the designation process itself raises constitutional concerns, the donation is entitled to First Amendment protection. As he puts it:

The crux of the case—the issue the panel has elided in each iteration of its opinion—is the process by which the designation was made. If the designation process does not comply with constitutional standards, then the designation is invalid and Rahmani’s donations are protected by the First Amendment. In order to determine whether that process was constitutional, we must rely on the guidance of Freedman v. Maryland, 380 U.S. 51 (1965), and McKinney v. Alabama, 424 U.S. 669 (1976).

Moreover, as the dissent highlights, the D.C. Circuit itself held that the Secretary's designation of the relevant organization in Afshari's case was unconstitutional. In Judge Kozinski's words:

The procedural history of this case perfectly illustrates the patent unconstitutionality of the terrorist organization designation process: Rahmani was indicted for sending money to MEK from 1997 to 2001, the very years during which the designation was admittedly unconstitutional. Had the D.C. Circuit followed the letter of the statute, it would have struck down the designation, see 8 U.S.C. § 1189(b)(3)(B), and Rahmani could not have been charged with a crime. The State Department could, of course, have re-designated MEK in 2001 using constitutional procedures, but it could not have retroactively designated it to criminalize Rahmani’s donations. See U.S. Const. art. I, § 9, cl. 3 (Ex Post Facto Clause).

That is, had the D.C. Circuit done what it should have, a new indictment would have violated the Ex Post Facto Clause.

[More below the fold.]

The actual mechanics of Judge Kozinski's analysis are worth reading yourself, and I'd be hard-pressed to quickly summarize them here. But his post-analysis discussion bears quoting in full:

I can understand the panel’s reticence to interfere with matters of national security, but the entire purpose of the terrorist designation process is to determine whether an organization poses a threat to national security. Under the Constitution, the State Department does not have carte blanche to label any organization it chooses a foreign terrorist organization and make a criminal out of anyone who donates money to it. Far too much political activity could be suppressed under such a regime.

In any event, our task in this case was simple. The D.C. Circuit had already done all of the hard work, examining MEK’s designation and finding it to be constitutionally inadequate. All we had to do was take the next logical step and hold that this inadequate designation could not form the basis for a criminal prosecution. The Supreme Court hasn’t hesitated to take a close look at the constitutionality of certain war on terror-related procedures—especially procedures that are still being tested and developed. See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 537-38 (2004). We should be no less vigilant.

As the author of the Ninth Circuit's important 2000 decision in Humanitarian Law Project v. Reno, where the court upheld the constitutionality of banning contributions to FTOs, it's difficult to underestimate the significance of Judge Kozinski so forcefully dissenting here, and I think he's absolutely right.

Yes, part of the problem was with the D.C. Circuit's decision to remand a designation it held unconstitutional back to the Secretary, but only part of it. Criminal prosecutions are, and always should be, different. The notion that an individual can be prosecuted for making a contribution to an FTO the designation of which has been held to be unconstitutional (for the relevant time period, anyway) is patently offensive to the First Amendment, irrespective of the constitutional infirmities in the designation itself.

More to the point, the whole reason why the material support/designation framework was upheld in the first place was the assurance that the D.C. Circuit's review of the designations would be meaningful and effective. If it isn't, well... there's a remedy for that, too.

Posted by Steve Vladeck on April 17, 2006 at 07:30 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (0) | TrackBack

Orin Kerr on Blogs and the Legal Academy

Orin Kerr, one of the finest of the law-bloggers, has posted his paper for the Harvard symposium on bloggership.  Read it while it's hot.  Here's the abstract:

This brief essay is a contribution to a symposium on “How Blogs Are Transforming Legal Scholarship.” It considers whether blogs have an important role in furthering serious legal scholarship, as well as how blogs can help legal academics contribute to public debates on law and politics. It suggests that the blogging format is not well-suited to advance scholarship, but that it offers promising possibilities for reaching a broader audience interested in law and public affairs.

It's a nice, short and sweet paper.  A couple of comments:  First, Kerr starts his paper by suggesting that the contributions to the symposium will likely have "a slightly self-congratulatory flavor.  When asked to opine on blogs and legal scholarship, law professors who blog will tend to present a rosy picture.  Call it self-selection, or maybe just self-interest."  He may be right, although if so it may be more a function of the conference conveners' selections rather than self-selection.  But it's a slightly riskier bet as an opener to the paper, I think, than Kerr suggests.  In legal scholarship, the race is often not to be right, but to be novel.  (Dan Farber has discussed this point quite well in looking specifically at constitutional law scholarship.)  Take a gaggle of lawprofs invited to a conference, and some number of them are sure to say, "OK, what novel and/or counterintuitive thing can I say about this subject?"  Kerr is still likely right, but I'm not sure I'd lead with my chin so much; maybe everyone will show up with papers that begin, "I'm sure the rest of you will be triumphalist, but here are my second thoughts...."

Second, I think there is a difference between asking whether blogs can advance legal scholarship, which is how Kerr puts it, and whether blog posts are themselves legal scholarship.  Maybe he is right that the format of blogs is not well-suited to the task of presenting legal scholarship, but that does not mean blogging may not advance legal scholarship.*  Let's say I write about the Religious Test Clause, or about covering -- both topics on which I have published blog posts, and which gave rise to forthcoming scholarly papers I have written or am currently writing.  Nothing prevents me from developing those thoughts on my blog rather than on scratch-paper.  Indeed, given that Kerr writes that scholarship is an iterative process of thinking and rethinking, writing and rewriting, and that he writes that commentary on one's drafts (from colleagues or at workshops) is a useful part of that process, he should appreciate that blogging is an excellent place to develop scholarly thoughts and receive instant commentary while working toward a final, fully integrated piece of scholarship.  Since many professors increasingly treat the workshop process (and SSRN posting) as a place to present only fully polished pieces, blogging may actually be an excellent means of serving the developmental purposes for which workshops and the SSRN were initially intended.  (And the early commentary may save us from costly errors that would otherwise only be spotted much later in the process.) 

Thus, even if my posts on covering are not a final work of "legal scholarship, the suggestions I receive in response to those posts (especially citations to other work I might want to read) will advance me in my work toward a final piece that is legal scholarship.  Moreover, while some scholars are skilled at retaining little ideas and cites along the way as different things occur to them, many of us are more organizationally challenged.  A blog post allows us to record a brief insight that we may call on more readily in completing a work of scholarship.

There is another way that blogging can advance legal scholarship, and that is by restraining one's scholarly agenda.  A legal scholar might want to write about issues both within and beyond her area of specialization; our muses may call us in all sorts of directions.  The opportunity to blog about issues that deeply interest us, but at shorter length, helps us to scratch the itch in question while leaving more of our time for the issues that lie more squarely within our respective fields.  (I personally think some of those posts come quite close to being real "legal scholarship," and in any event may represent a very significant advance in the forms of writing available to legal scholars -- why write a 40-page law review when you have precisely 1,000 words worth of interest and insight to offer? -- but I respect Kerr's more demanding definition.  I wonder, though, on which side of the line he would put the Harvard Law Review Commentaries and the Yale Law Journal Pocket Part pieces.)    

[A little more after the jump.]

Finally, I wonder whether Kerr does not fall prey, to some degree, to the tyranny of form.  Certainly the blog format as generally practiced does not easily accommodate legal scholarship format as generally practiced.  But just as many have challenged the latter format, so the former format is not a prison.  If I wanted to publish longer-form posts on the blog, I could.  Perhaps fewer people would read it, but nothing prevents me from doing so.  If I wanted, for that matter, to daily post new iterations of drafts of my papers, I could.  Nothing about blogs inherently prevents us from publishing long-form scholarship on the web, any more than anything in the print nature of law reviews prevents us from putting out a journal that only published pithy little 250-word rants with occasional mispelings.  (Flowers for Algernon, anyone?)  I think Larry Solum, in particular, has written some very long pieces on his blog that are suitable for publication in law reviews, or would be if he was willing to lard them with footnotes.  So I think Kerr may be right that what we generally like to do on blogs is not the same as what he means by the classic form of legal scholarship; but nothing formally prevents us from using the medium for that purpose.

I'm still thinking about what I think about his thoughts on the public-intellectual side of law-blogging, but I'll leave it at that.  Needless to say, I enjoyed the paper, as I enjoy all his work. 

* Kerr refers later in the paper to the ways in which blogs may "influence" legal scholarship, but I think he means something different than what I am discussing above.

Posted by Paul Horwitz on April 17, 2006 at 05:29 PM in Blogging | Permalink | Comments (1) | TrackBack

"Campaigning from the Pulpit"

Shameless self-promotion time:  I have an op-ed in today's USA Today, discussing the constraints and considerations that should apply to "political" expression by religious ministers.  Here is a bit:

It is the regulation of the churches' expression, and not their expression itself, that should raise constitutional red flags. Religious institutions are not above the law, but a government that respects the separation of church and state should be extremely wary of telling churches and religious believers whether they are being appropriately "religious" or excessively "political" or partisan. Churches and congregants, not bureaucrats and courts, must define the perimeter of religion's challenges. It should not be for the state to label as electioneering, endorsement, or lobbying what a religious community considers evangelism, worship or witness.

Of course, there are good reasons — religious reasons — for clergy to be cautious and prudent when addressing campaigns, issues and candidates.

Reasonable people with shared religious commitments still can disagree about many, even most, policy and political matters. It compromises religion to not only confine its messages to the Sabbath but also to pretend that it speaks clearly to every policy question. A hasty endorsement, or a clumsy or uncharitable political charge, has no place in a house of worship or during a time of prayer — not because religion does not speak to politics, but because it is about more, and is more important, than politics.

Posted by Rick Garnett on April 17, 2006 at 02:43 PM | Permalink | Comments (3) | TrackBack

Is Homelessness a Crime?

In all the hubub over the en banc Ninth Circuit's decision in Jespersen on Friday, as thoroughly recounted here by Gowri, I didn't notice that my favorite court of appeals also decided the L.A. homelessness case, Jones v. City of Los Angeles.

In short, Judge Wardlaw, writing for a divided panel, held that the Eighth Amendment, on the limited facts of the case, prohibited the imposition of criminal punishment based merely on the fact that someone is "homeless." [The L.A. ordinance at issue provides that "No person shall sit, lie or sleep in or upon any street, sidewalk or other public way."]

In her words:

just as the Eighth Amendment prohibits the infliction of criminal punishment on an individual for being a drug addict; or for involuntary public drunkenness that is an unavoidable consequence of being a chronic alcoholic without a home; the Eighth Amendment prohibits the City from punishing involuntary sitting, lying, or sleeping on public sidewalks that is an unavoidable consequence of being human and homeless without shelter in the City of Los Angeles.

We do not suggest that Los Angeles adopt any particular social policy, plan, or law to care for the homeless. We do not desire to encroach on the legislative and executive functions reserved to the City Council and the Mayor of Los Angeles. There is obviously a “homeless problem” in the City of Los Angeles, which the City is free to address in any way that it sees fit, consistent with the constitutional principles we have articulated. See id. By our decision, we in no way dictate to the City that it must provide sufficient shelter for the homeless, or allow anyone who wishes to sit, lie, or sleep on the streets of Los Angeles at any time and at any place within the City. All we hold is that, so long as there is a greater number of homeless individuals in Los Angeles than the number of available beds, the City may not enforce section 41.18(d) at all times and places throughout the City against homeless individuals for involuntarily sitting, lying, and sleeping in public. Appellants are entitled at a minimum to a narrowly tailored injunction against the City’s enforcement of section 41.18(d) at certain times and/or places.

In a fairly angry dissent, Judge Rymer argued that the plaintiffs both lacked standing and a substantive claim on the merits, at least partially because "Los Angeles Municipal Code (LAMC) § 41.18(d) does not punish people simply because they are homeless. It targets conduct – sitting, lying or sleeping on city sidewalks – that can be committed by those with homes as well as those without."

There's a lot that's interesting here, not the least of which is the role of Judge Wardlaw, who is closely interconnected with the L.A. political scene. But the deeper issue is what I take to be the negative implication of the majority's holding: If there were enough beds for the homeless in L.A., then the L.A. ordinance would not violate the Eighth Amendment. In other words, the state can force homeless people into shelters simply by (a) providing enough beds, regardless of the conditions at the shelter; and (b) criminalizing public sleeping.

Maybe that's how the law should be (I'm not so sure, myself), but this seems to totally sidestep the real question: Can cities force homeless people into shelters?

An interesting read, either way, but only the beginning of the debate, methinks.

Update: To give credit where credit's due, I should note that both Orin and Doug beat me to the punch, and have their own interesting thoughts. [Spend one weekend away from blog-land, and this is what happens!]

Posted by Steve Vladeck on April 17, 2006 at 11:31 AM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (2) | TrackBack

Friday, April 14, 2006

Initial thoughts on Jespersen v. Harrah’s Casino, Inc. (9th Cir. en banc)

Almost a year after the en banc argument on June 22, 2005, the decision in this Ninth Circuit Title VII sex discrimination case has finally issued, affirming, 7-4, the grant of summary judgment to Harrah's, with dissents from Judge Pregerson, joined by Judges Kozinski, W. Fletcher, and Graber, as well as a very eloquent dissent by Judge Kozinski, joined by Judges W. Fletcher and Graber.

I have written elsewhere about issues relating to this case, here and here.

Harrah's fired Darlene Jespersen, who had worked for the casino in Reno for over 20 years, and was a bartender at a sports bar there. She was fired for her refusal to comply with Harrah's grooming policy, which required women beverage servers to wear a "uniform" of makeup, and forbade men from wearing makeup. The policy required women to wear foundation and/or powder, lipstick, mascara, and blush. After receiving a makeover by image consultants,  photographs of male and female employees were taken, called their "Personal Best" photos, and were used by supervisors as an "appearance measurement tool," so that the employees could be held accountable to looking their "Personal Best," as shown in the photo, on a daily basis.  Lipcolor had to remain on "at all times."

Jespersen sued under Title VII, on two separate theories: 1. the sex differentiated makeup requirement imposes unequal burdens on men and women, and 2. the sex differentiated makeup requirement amoutns to requiring employees to conform to sex stereotypes, which violates Title VII under Price Waterhouse v. Hopkins (a Supreme Court case) and Nichols v. Azteca Restaurant (a Ninth Circuit case).

I love to wear makeup, as well as put makeup on others, so it would really upset me if I were told I couldn't wear makeup to work. But I would also feel incredibly degraded, as Jespersen did, if I were forced to wear it.

Now, to the opinions:

As an initial matter, I think people of all political persuasions can agree the majority en banc's basis for affirmance is far more coherent than the original panel majority’s was.  The original panel opinion tried to limit all Hopkins sex stereotyping claims to sexual harassment cases. (With no articulated principle behind the distinction, and despite the fact that Hopkins itself was not a sexual harassment case.)

So though I disagree with the result, it’s good that the en banc panel opinion rests on a more coherent basis. Instead, the en banc decision explicitly holds that sex differentiated grooming codes can be challenged on the theory that they are the result of sex stereotyping, as well as on the theory that they impose unequal burdens on men and women. However, the majority holds that Jespersen did not raise a triable issue of fact as to whether either of these were the case with respect to the Harrah's grooming code. This is of course incredibly sad for Jespersen, but given the conservative makeup of the en banc panel, I'm relieved that the door is not completely closed on victims of sex discrimination by employers who choose appearance as the medium through which they will put men and women workers in their respective places.

Instead, the case seems to me to represent yet another instance of the evidentiary burdens on Title VII plaintiffs being raised to ridiculous heights. I'm pretty sure we don't need expert witnesses to tell us that a rule that women should wear makeup and men should not stems from a sex stereotype about how men and women should look. (For those interested in how this custom evolved, a short history of the meaning of cosmetics in America is included in this draft, drawing heavily on excellent work done by sociologist Kathy Peiss.) But I especially don’t think we need expert witnesses to tell us that having to wear powder and/or foundation, mascara, blush, and lipstick, with lipcolor remaining on “at all times,” costs a lot of time and money that men who serve drinks at Harrah’s don’t have to spend.

In any case, as it relates to how the law should approach employer dress and grooming codes, I contend elsewhere that it is more often as a worker rights issue than an antidiscrimination law issue. (The two of course go together quite often.) So I love that in his dissent, Judge Kozinski recognizes that part of what’s at issue in this case is worker degradation. He notes that makeup "touches delicate parts of the anatomy," such as the eyes and lips. Nobody likes to be told what to wear, or not wear, on their face, and Harrah’s dictated such personal matters to Jespersen without good reason: Jespersen performed fantastically without makeup, receiving incredibly high reviews from customers, who even wrote that they liked her company as a bartender so much she made them want to come back to the casino and spend money.

As much as I am used to playing around with makeup, I still find it physically uncomfortable, and I know many others do, too. Here is one of my favorite bits of Colette's The Vagabond:

Me.  As that word came into my head, I involuntarily looked in the mirror.  There’s no getting away from it, it really is me there behind that mask of purplish rouge, my eyes ringed with a halo of blue grease-paint beginning to melt.  Can the rest of my face be going to melt also?  What if nothing were to remain from my whole reflection but a streak of dyed colour stuck to the glass like a long, muddy tear?

Posted by Gowri on April 14, 2006 at 07:29 PM | Permalink | Comments (4) | TrackBack

More on Synder's "Late Night Thoughts"

Let me belatedly add my voice to Orin Kerr and Rick in recommending Franklin Synder's "Late Night Thoughts on Blogging While Reading Duncan Kennedy's Legal Education and the Reproduction of Hierarchy in an Arkansas Motel Room."  It's available here and has already received an enviously high number of downloads.  Franklin's article, and my own, will be published in the upcoming issue of the Nexus Law Journal on blogging and the law, and I had the pleasure of meeting him at the panel discussion devoted to the subject.  His paper is a wonderful read.  Orin already excerpted a key paragraph.  Here are some more snippets I quite like:

As it happens, LERH came out the same year I graduated from law school.  I was unaware of it until I entered legal academia in 1997.  This is perhaps just as well, since it might have led me to conclude that my law practice was dull and soul-killing work, when in reality I found it challenging and enjoyable.  Nor did I read it during my early years in academia.  When one is brutally clawing one's way up a soul-killing hierarchy, busily sacrificing everything that is best about oneself in the process, it is probably counterproductive to be told that it will all be dust and ashes when one gets there.  If I had realized just how much of my humanity I would have to give up to reach my own modest niche in the hierarchy, I might not have tried.  Which would be too bad, since I enjoy it very much.

* * * [W]hat starts to wear me down [in reading LERH] is the apparent conviction that his own experiences and feelings are true and universal, and that mine, to the extent they differ from his, are either the result of bad faith or denial.

* * * [On Kennedy's closing admonition to "Resist!"]  This is not terribly helpful.  After all, the students who are most likely to be irritated by the modern elite law school, and most likely to speak up about it in class, are probably those that Kennedy calls "cocky conservative women" and "right-wing econ jocks," whom he would just as soon see shut up, and who probably like hierarchies anyway.  They are almost certainly in Kennedy's classroom because Harvard is the most prestigious law school in the world.  Even the left-wing students -- more intelligent, sensitive, and better educated (they have read more Foucault than Coase) -- are probably there because Harvard is the most prestigious law school in the world.  After all, if they really wanted public service more than prestige they could have gone to, say, Northeastern, Texas Southern, the City University of New York, Howard, the University of the District of Columbia, the New College of California, or any number of other places with a strong commitment to social justice.

* * * Kennedy's focus is relentlessly on what is going on inside the elite law schools.  Utterly absent from LERH is the notion that the hierarchy might be changed by something outside itself.  Kennedy casts this narrow focus in a positive light by saying that he is calling for "insterstitial" revolution, within the institution, not from above or below.  However, he does not explain why an interstitial revolution is better than revolution from above or below.  Perhaps it is because he feels interstitial revolutions are more democratic than revolutions from below?  It is hard to say.  A cynic might note that the chief advantage of an interstitial revolution is that the current cast of characters gets to keep their jobs.  [para.]  But that would be uncharitable and probably untrue.  I suspect the real reason for Kennedy's myopia is that those who have invested their entire lives in an institution naturally assume that what goes on inside that institution is vitally important.

My apologies, Frank, for hogging some of your best lines.  Reader, there are plenty more.  The last two paragraphs, in particular, are to my mind eloquent and devastating.  More on the piece after the jump.

There's a lot to like about this piece.  One thing Synder has to say is that while all this reproduction of hierarchy was going on, there was a world outside the ivied walls -- of which blogging is one exemplar -- that was undermining and opening up the closed system of the elites.  In an email, Snyder expanded on the point, suggesting that blogging in the law helps make hierarchies more open, without making them more egalitarian -- people will still rise and fall, and there will still be disparities between and among schools, but they will be more closely linked to the ability of a person, wherever they are writing from, to "dominate scholarly discussions." 

Maybe so.  But I'd add two caveats.  The first is that to some extent, those hierarchies can colonize the blogosphere too.  At least for a good long while, a Chicago faculty blog will get more readers, and get taken more seriously, than a blog of faculty members from the Podunk Law School, regardless of the quality of argument presented.  I doubt it is an accident that the cast of characters at the Harvard bloggership conference is top-weighted with bloggers from first-rank schools; although it must be said in fairness that they are also good bloggers and that one or two of them might have acquired prominence and advancement through blogging.  Nevertheless, I think the general point -- that closed hierarchies can enjoy at least temporary, if not entrenched, advantages in the blogosphere too -- is true.  Second, much depends on how much we bloggers ourselves internalize the idea of hierarchy (in its closed sense, not in the sense of meritocracy).  After all, we write in part to advance ourselves within the established hierarchy -- not just to challenge it.

But there is a broader point about Snyder's argument that fascinates me here, that is not tied to blogging, and that is difficult to fully and fairly capture and discuss, although I'll make a tentative start on it here.   Snyder's observation that Kennedy is fundamentally, and only, concerned with life inside the elite law schools seems to me quite right.  And it helps cast some light on something I've remarked on from time to time: the volume, public nature, and seriousness -- not to put to fine a point on it, the self-seriousness -- with which students and faculty alike at many of these law schools loudly and lengthily pore over, deliberate on, hold speeches and protests over, etc., various issues that arise at their schools.  Of course, many of these involve hot-button issues like race.  But not all of them do, leading one commentator quoted by Snyder to point out that at such institutions it sometimes seems as if the "issue of the 'no hassle pass'" is "the issue upon which the fate of capitalism depended."

Such displays are rare, in my experience, outside these elite schools.  Not non-existent, to be sure, but certainly less prevalent.  I had to laugh upon reading a story about one such brouhaha at Harvard Law School, leading to yet another town hall meeting, in which some students apparently said that it was "rare to have [public] discussions at Harvard about issues of race and gender."  An outsider might observe that it seems as if nothing else goes on there.  Such incidents, with all the panoply of incident, charge, counter-charge, and so on, seem far less common at the law schools where I have taught.  At those schools, even the provoking incidents seem far less common -- leading me to wonder whether we know something the big guys don't, or whether Harvard et al. might be inclined to modify their admissions criteria to select for wisdom and civility as well as test scores.  But even where such occasions arise at other schools, whether on hot-button issues or on less apocalyptic matters -- say, grading policies -- what is generally missing is the sense of the profound importance of the issue, the sense that it should be important to everyone, not just those currently attending or working at the school, the sense of high stakes, and the self-importance of the speakers.

What is it that causes the sense of many of the participants at these institutions -- or at least this is the impression they sometimes convey -- that they are always and everywhere on the public stage?  (I also want to acknowledge that not everyone participates vocally and actively in these controversies; perhaps only a few students and faculty really are involved in the final analysis.)  Is it an unqualified good?  An unqualified bad?  It seems to me one argument in support of such public displays is that the participants in these debates are taking responsibility for civic life within their own institution.  If so -- if these debates were an example of a strongly felt sense of stewardship within these law school communities -- I would applaud it more or less unreservedly; would that all law students were so vocal and participatory.  But that explanation falls short, I think; it does not explain the high sense of drama and high stakes that always seems to accompany these occasions,  or the graven-in-stone pomposity of the speakers (just go back and check out the article about the Yale controversy linked to above).

I don't know, really, and I welcome comments (and, naturally, disagreements) on the question.  But I do get the sense that the answer is not because the participants in these debates are especially deeply concerned about issues of social injustice, inequity, etc.  As Snyder writes, for those who actually want to do something in a hands-on way about those issues, there are better places to be than a "law and" seminar at Yale; and even if the elite law schools are a good place to get one's start, because of all the skills and opportunities such schools are said to offer, is the best place to "continua" the "lucha" against oppression really a corporate law firm -- where the vast majority of graduates soon go after graduation?  Or even a law school, where some go as teachers?

My more tragic and hopefully not too cynical sense is that Snyder has it basically right: these debates are about life within elite institutions, and they get so heated because many of the debaters, having lived in them for so long, begin to assume that the elite institutions are the whole world

To put it differently, although these discussions ostensibly are about race, or gender, or grading policies, the underlying subject is that most universal and fascinating of topics: me.  (Not "me, Paul Horwitz," but -- well, you get it.)  Specifically, what it is like to be "me" at Harvard, or Columbia, or Yale.  Sandra Tsing Loh's terrific book reviews in the Atlantic point out how much, and how obliviously, most books about the "mommy wars" and related subjects are ultimately about what it's like to be affluent -- just how gosh-darn hard it is.  The lives of immigrant nannies are decidedly less interesting to these authors.  The nannies could speak for themselves, but they are busy at more pressing tasks, and anyways, they don't know how to obtain a book agent.  I think a similar description could apply equally well to much of what passes for controversy in the elite law schools. 

Loh's sense, I think, and certainly mine, is that there's nothing intrinsically wrong with that.  I'm reasonably affluent and well-educated, and naturally I'm interested in those subjects that characterize or interest people like me.  "Affluenza" may be a phony illness, but when I'm the one suffering the "flu," naturally I'm going to be interested in it.  My suffering, and that of other members of my class, may be trivial in a global sense, but it's still my suffering and it will be important to me.  The problem is the mixture of seriousness and obliviousness with which these discussions take place -- their willful divorce from the reality of the world outside the institutions, and inflated sense of drama about the importance of the debates inside the institutions. 

Please feel free to challenge my diagnosis.  It's tentatively and humbly offered.  Two more thoughts, both of which are equally subject to challenge.  First, if we could remove the blinders I've described, the results might be interesting.  Perhaps some would continue the same debates but with a renewed sense of perspective.  Perhaps others would decide that there are other issues more worth fighting, and other places more worth fighting them -- that, if one is not inclined to move to Iraq or Darfur, one at least should go to Northeastern as a student, or at least teach there, rather than fighting for a tenured perch at the most prestigious possible law school, there to continue playing "epater le bourgeois."  (If I suspect most people would readily go for option number two here -- Columbia over Northeastern -- I do so gently, since I would too.)  Or perhaps folks would come to terms with the real scope of their interests.  Perhaps they would respond, "Naturally I'm discussing life within elite institutions -- what other kind of institution did you think would interest me?"

The second and final point is that I can't help but wonder what these observations say about a host of things that have been discussed on this blog and elsewhere, often though not necessarily having to do with issues of gender, race, and sexuality, but almost never with issues of social class.  I think the observations I've made above raise questions about the kinds of efforts we've seen discussed by professors here and elsewhere: deliberate ambiguity about one's partners in book acknowledgments, thoughtful disclosure of one's orientation in class, various Ayresian proposals, discussions of and responses to covering, and so on. 

I know this risks becoming personal, so let me say emphatically that I'm not saying that these responses are unimportant to the people who engage in them, or that they do no good.  Perhaps a little bit of good is enough to warrant the amount of time and concern we spend on such issues.  Rather, I'm suggesting that it is possible to take such issues too seriously, or to fail to recognize just how small the ground of contestation is, and how privileged all the contestants on the field are.  We ought to approach such issues with a reasonable sense of perspective, a sense of how low the stakes generally are, perhaps even a soupcon of levity -- and always with a sense that although it may feel like we're engaged in working toward progressive social change, what we're mostly engaged in is a debate about how we affluent, well-educated people should order our own lives.  (Nor does what I'm saying apply only to issues that concern political progressives: although I believe strongly that faculties should hire people from all ideological stripes, one does well to recognize the difference between the failure to do so and actual tyranny.) 

Social class, as always, seems to mark the real demarcation between those issues we count as important and those we don't.  As long as we openly acknowledge that most of our issues about race, gender, power, etc., within the legal academy are unlikely to be meaningful outside it -- as long as we recognize that we are arguing about the terms of life within the enclave, and that we're just not as concerned with life outside it -- we can, I think, continue to hold such debates, although I suspect they would be considerably chastened.  In doing so, though, I think we  in the academy might occasionally question the subject, and stakes, of our debates altogether.  We might recognize, as I wrote a while back, that writing a book on covering whose every page is full of markers of social class but that fails to address class issues is, in some ways, itself an act of covering.  Similarly, to quote Snyder again, we might think about the ways in which writing a book about the reproduction of legal hierarchy from a position at Harvard Law School, punctiliously designed to look as if the author is "some hunted Spanish anarchist who is just one step ahead of Franco's secret police," and that is then sold exclusively at "that haven of oppressed outsiders, the Harvard Book Coop in Cambridge," suggest that "legal education and the reproduction of hierarchy" is not only the subject of Kennedy's book.  It is also its object.

Posted by Paul Horwitz on April 14, 2006 at 03:26 PM in Article Spotlight | Permalink | Comments (3) | TrackBack

The Other War on Terrorism Cases

Of the various court decisions that Bush administration policies done in the name of national security have spawned, AFGE v. Rumsfeld, 2006 WL 456725 (D.D.C. Feb. 27, 2006) and NTEU v. Chertoff, 385 F.Supp.2d 1 (D.D.C. 2005) have received relatively little attention.  This is a shame, as both cases are interesting in their own right and also are examples of the administration’s disturbing willingness to use national tragedies to undercut legal protections for workers.  I’ll talk about Rumsfeld and Chertoff today.

Chertoff struck down new personnel rules for the Department of Homeland Security (DHS) and Rumsfeld struck down similar rules at the Department of Defense.  As some will recall, in the aftermath of 9/11, the Bush administration demanded, as a condition of creating the DHS, the power to write new personnel rules that would greatly limit existing bargaining and civil service protections for DHS workers – even though  48,000 of these workers had enjoyed bargaining rights in predecessor agencies.  This stance delayed the creation of the DHS for months.

    In the Congressional debates on the DHS, there were no examples of how collective bargaining had led to any problems contributing to 9/11 or how union rights had created any safety or security issues period.  There was no evidence that unions generally impeded productivity or efficiency (in fact, some studies have found that unions can improve productivity and efficiency).  Indeed, experiences around 9/11 itself were to the contrary:  unionized police, fire, EMT, air traffic controllers, and other workers responded effectively and heroically.  Still, the Bush administration eventually won a statute authorizing the DHS to reduce bargaining and other rights.

The administration kept pushing to reduce already limited bargaining rights.  Under pre-existing law, federal workers could not bargain over compensation, hours, and other items negotiated in the private sector, nor could they legally strike.  The DHS law allowed for even greater restrictions. 

    But the regulations the administration promulgated violated even the minimal bargaining rights the DHS law required, judge Rosemary Collyer held in Chertoff.  Notably, the regulations did not allow enforcement of union contracts.  Judge Collyer had previously been the General Counsel for the National Labor Relations Board under Ronald Reagan, and thus was not known to be overly solicitous of union concerns.

    The regulations also intentionally weakened civil service “merit” protections.  In 2001, the Heritage Foundation's Taking Charge of Federal Personnel, influential in administration circles, called for increased politicization in the federal service and rejected the merit ideal.  The “whole governmental apparatus must be managed” on the principle of “loyalty first and expertise second.”  “Picking appointees who are ‘best for the job’ merely in terms of expert qualifications can be disastrous” because “the best qualified are . . . part of the status quo.”  How should we judge this policy in the wake of what we know about the leadership of FEMA (part of the DHS)?
Chertoff also rejected the weakened civil service protections. 

    The recent Rumsfeld case essentially came to the same conclusions about the same provisions for the Department of Defense.   Chertoff is being appealed, and one presumes Rumsfeld will be also.  But the administration should stop wasting time and energy on union-busting, and instead should focus on how to form a competent, effective federal workforce.

Posted by JosephSlater on April 14, 2006 at 09:58 AM in Law and Politics | Permalink | Comments (1) | TrackBack

Moussaoui and the death penalty

Over at the "Mirror of Justice" blog, Steve Bainbridge, Robert George, and I have posted some thoughts about the morality of executing Zacarias Moussaoui.

Posted by Rick Garnett on April 14, 2006 at 09:11 AM | Permalink | Comments (5) | TrackBack

Two Totally Unrelated Points

After defeating the Nationals today 14-3, the New York Mets, also known as my religion, my obsession, and, at alternate times, the bane of my existence, are 7-1. It's their best start since going 8-1 to open 1985, when, oh by the way, I was 5... I know it's only April, but, I'm a Mets fan. This is frickin' cool!

In unrelated news, via Slate, Emily Bazelon has an important piece from earlier this week about the case of Ali Saleh Kalah al-Marri, the one person still held as an "enemy combatant" within the United States. [Here is the district court opinion upholding the government's authority to hold him.] Bazelon's story covers all the highlights, including the dangerous evidentiary issues that, just like Hamdi's and Padilla's cases, this case implicates.

I wanted to flag it, though, both for its own points, and to reiterate a point that's just slightly less than explicit in her piece -- Just because the government released Yaser Hamdi and charged Jose Padilla doesn't mean that they're done holding people stateside as enemy combatants...

Keith Olbermann ends his "Countdown" show each night by noting the number of days since the declaration of "Mission Accomplished" in Iraq (yesterday was day 1,078, by the way). Maybe it's time to start the "al-Marri count" as well.

Posted by Steve Vladeck on April 14, 2006 at 03:14 AM in Steve Vladeck | Permalink | Comments (5) | TrackBack

Why Do Lawyers Believe in Technological Solutions?

As an academic writing in the area of law and technology I often find myself in meetings including both technological designers and lawyers. In these gatherings I have noticed an interesting phenomenon: The technologists in the group often put their faith in the power of legal solutions, while legal academics frequently demonstrate a strong preference for technological answers.

What is the cause of this reciprocal self-depreciation? Why does each group downplay its own tools? I have been thinking about this paradox in the context of a symposium piece I am finishing for a privacy symposium at Villanova. I cannot answer for the technologists in the group, but I would like to pose a hypothesis that may explain the lawyers’ reactions.

Application of technological means or legal regulation to shape the use of a new technology often comprises early intervention. It is early intervention in the sense that decisions and choices are made before the full potential and effects of the technology are realized. We are intuitively averse to early intervention as many of us share the belief that technology is synonymous to progress and well being. Yet, our aversion to early intervention seems to apply only when it takes the form legal regulation, and not when it is in the form of technological design. Linguistically, we refer to legal regulation of new technologies as “intervention” while we address technological measures as “design.” Legal measures are perceived to be cruder due to their visibility, while the technological design’s stealthy character appears as a natural shaping of the technology. I wonder if the technologists who do not reject legal measures do so because they comprehend the falsity of this dichotomy.

Posted by Gaia Bernstein on April 14, 2006 at 12:04 AM | Permalink | Comments (4) | TrackBack

Thursday, April 13, 2006

Electives during first year

Does it make sense to set up the first-year curriculum so that students can take an elective?  If so, should the menu of choices be limited?  How?  What do people think?

Posted by Rick Garnett on April 13, 2006 at 04:55 PM in Life of Law Schools | Permalink | Comments (9) | TrackBack

Somin on Nagel on precedent

Over at the Volokh Conspiracy, Ilya Somin has this post, discussing this recent magazine essay, ""Bowing to Precedent," by Robert Nagel.  Here is a bit from the Nagel piece:

Respect for precedent means not only that the justices should follow the specific outcomes of prior cases but also that they must follow their logic. The logic of legions of cases demands that judges second-guess legislative and executive decisions on the most sensitive moral and political issues and that judges decide for themselves on the appropriate means for achieving preferred policies. The simple fact is that constitutional law as set out in the cases now requires judges to legislate from the bench. Nominees to the Court can repeat endlessly that judges should interpret, not make, law. But unless they are willing, once on the Court, to rethink the logic of prior cases, they will have to make law.

This displacement of political decision-making has had deeply harmful consequences for our society. It has led Americans to lose political self-confidence and to depend pathetically on the judiciary to resolve the most pressing public issues. At the same time, since judicial resolutions tend to be couched in the language of high principle, the Court's role has reduced the opportunity for political compromise and thus has inflamed passions and distrust.

In response, Somin writes:

. . . Robert Nagel makes a strong argument that the Supreme Court's rhetoric (if not its practice) gives too much respect to its own precedent and not enough to the Constitution that the precedents are supposed to be expounding. After all, Judges swear an oath to uphold the Constitution, not the Court's prior precedents. At least in principle, when the precedent conflicts with the Constitution, it is the precedent which should give way.

I agree with many of Nagel's points. But like most other commentators, Nagel does not give a fully satisfactory account of when a flawed precedent should be maintained because reversing it would be too disruptive of settled expectations ("reliance interests," as lawyers call it). Nagel argues that the expectations created by Roe v. Wade are not enough to justify keeping it in place. But he fails to articulate any kind of general theory of how strong reliance on a flawed precedent has to be in order to justify not overruling it.. . .

The lack of such a theory makes it easier for partisans of all stripes to claim that their preferred precedents should be untouchable because they protect major reliance interests, while arguing that the other side's are ripe for overruling.

Thoughts?

Posted by Rick Garnett on April 13, 2006 at 04:50 PM | Permalink | Comments (1) | TrackBack

The Modular Curriculum

Unlike most of the regular bloggers here at Prawfsblawg, I've been doing this Law Professor gig for several years. But this semester, I'm doing a first-time prep for a new course, Professional Responsibility. This is a blast!  It's a course that has something to interest every law professor. I could imagine a dean asking the faculty to create some overcapacity for this course, developing 10-12 people who are all part of a rotation to teach 3-4 sections each year. 

More generally, I think there are real gains available for a law school that adopts a "modular curriculum" strategy.  Instead of every faculty member developing 4-5 courses and repeating them each year (let's call this the "stability model"), everyone develops 6-8 courses and rotates to different parts of the curriculum each year. The start-up costs for faculty are nothing to discount, but once you've got the full collection of courses in the portfolio (maybe this takes 7-8 years to develop, with some years thrown in for light loads,etc.), the teaching prep from year to year is nothing out of the ordinary. The modular curriculum offers some freshness and flexibility, with benefits for faculty, deans, and students.

Does anyone know of any law schools that currently follow this model, which is pretty common for an arts and sciences faculty?   

Posted by Ron Wright on April 13, 2006 at 11:56 AM in Life of Law Schools | Permalink | Comments (5) | TrackBack

Wednesday, April 12, 2006

Political Protests, Broader Norms, and The Law

Yesterday's NYT features headline articles on two different mass political protests designed to change legal rules, and a smaller, arguably quite related piece.  First, in response to protests, the French government withdrew its proposal to waive the otherwise general rule requiring “just cause” for firing younger workers for two years after hiring.  Second, huge rallies were held in many cities in the U.S. regarding changes to immigration and related employment laws.  Finally, a smaller article noted that Roger Toussaint, the head of Transit Workers Union Local 100, had been sentenced to 10 days in jail for the (illegal) strike of his union earlier this year. 

There are all complicated issues on the merits, and decent arguments can be made on various sides of each (although one would have to look hard in the American media to find discussions of the French law that go beyond a smug and almost prideful ignorance of the way much of the world works).  But these issues interest me not only because they involve worker rights (my thing); they also involve using political protests to change the law in accordance with the protestors’ beliefs in broader norms.

Whatever one thinks of the merits of just cause protection in employment, it is widely accepted throughout the industrialized world.  Practically every other democracy has rejected the “at will” rule.  Even in the U.S., “just cause” protection exists in significant parts of the economy:  union contracts usually have “just cause” provisions; many-most public employees are covered by civil service laws that provide “just cause” protection; and the state of Montana has abolished at-will by statute (and yet the U.S. press didn't call Montana “socialist”).  The feeling that this is a human right runs deep in many places, such feelings promote protest, and such protests changed the law.

Immigration is not solely a labor/employment issue, but debates on immigration law often focus on the impact on labor markets and the rights of workers of differing immigration status.  It is also an issue fraught with deeply held normative beliefs about how society should organize itself.  While media coverage has not been as snide as coverage of the French protests, significant sections of the U.S. media has been disturbed to nearly apoplectic about these rallies.   Yet these protests too have seemed to have been effective, at least so far.

Finally, Toussaint will serve his sentence for the Local 100 strike.  Here again, U.S. law is quite different from the law in other industrialized democracies: the U.S. allows individual states to make strikes by all public sector workers illegal (and indeed, all but 11-12 states have done so).  In Europe and elsewhere, strikes by transit workers and most other public employees are legal.  I have argued elsewhere that public sector strikes are not an inevitable consequence of public sector unionization, but perhaps some feeling that workers have an inalienable right to strike was part of the motivation for the TWU job action.

I would caution that liberals and the left often over-estimate the ability of protest rallies and marches to create legal change.  But I wonder if we will see more mass protests for such goals, especially in the area of worker rights.  There is a tradition of such things, even in the U.S.

Posted by JosephSlater on April 12, 2006 at 08:30 AM in Law and Politics | Permalink | Comments (4) | TrackBack

Tuesday, April 11, 2006

Passover and the Law

I'll be away for the next few days celebrating Passover.  As is traditional, my father will be expecting me to make some remarks at the Seder.  If my readers have any good ideas about how to tie any law-related topic in with Passover, I'm all ears.  When I was in law school, Jack Balkin made an effort to see American redemption after the abolition of slavery as analogous to the redemption of the people of Israel after the Exodus; both were important constitutional "moments."  If you've got anything less tenuous, please let me know; it will make my father so proud.

Posted by Ethan Leib on April 11, 2006 at 09:26 PM in Current Affairs | Permalink | Comments (7) | TrackBack

The Great Park Slope Hat Controversy

I can't resist passing this on, courtesy of Gawker -- a discussion on an email list of parents in Park Slope.  It's here.  The whole thing begins when a parent writes to announce that she has found a "boy's hat" on the street, and is looking for its rightful owner.  Another poster responds by asking, "what makes this a 'boy's hat'?  . . . . It's innocent little comments like this that I find the most hurtful. . . . What does this comment imply about the girl who chooses to wear just such a hat (or something like it)?"  And so on.  The whole conversation pretty well devolves from there, to hilarious effect.  Well worth reading all the way to the end, at which point someone, tongue firmly in cheek, problematizes our urge to categorize the thing as a hat: why, it might simply be a "very soft, porous bowl."

I suppose I have to be a little careful in mocking the whole thing, given the valuable conversation folks on this blog have been having about challenging assumptions about settled categories.  All true and valid and important enough, I emphatically say; and yet I feel sure that readers from across the political and identity spectrum will find some humor value in this.  It's found poetry, I tell you.

P.S.: I must say the whole email-list conversation also reminds me somewhat of the ways that conversations about similar issues (Kiki Camara, anyone?) develop at elite law schools -- from valid objection to pitched battle in about five keystrokes.  More among students than faculty, I think; I have longed to witness a faculty meeting in this vein but thus far have longed in vain.

Posted by Paul Horwitz on April 11, 2006 at 05:33 PM in Culture | Permalink | Comments (6) | TrackBack

Josh Wright on the Abortion-Crime Empirical Debate

Josh Wright has a thoughtful post up over at the Truth on the debate over the effects of abortion on crime.  The debate has been triggered by the famous empirical study by John Donohue and Steven Levitt, which found that the legalization of abortion contributed significantly to the decrease in crime in the 1990s.   (You can add to the paper's 15,000 downloads by accessing it here.)  Wright does a nice job of breaking down the debate, including several subsequent studies which have criticized Donohue and Levitt and/or examined other effects relating to abortion.

Wright's post is a follow-up to an earlier mention he made here about an AEI panel debate on the issue.  The debate's web page is here, and there's a video link in the top-right corner.  The video is worth watching, especially for the Donohue-Lott exchanges toward the end.

Posted by Matt Bodie on April 11, 2006 at 11:28 AM in Blogging | Permalink | Comments (0) | TrackBack

Monday, April 10, 2006

The Unbearable Lightness of Being a U.S. News Voter

The U.S. News rankings are out, and for the first time, I was complicit in the process.  That’s because I controlled not just one but two ballots ranking all schools on their academic reputation.  Every school gets four ballots, and among these, one goes to the most recently tenured faculty member and one to the chair of the school’s faculty appointments committee.  I was both those things for Toledo last year (and I probably will be next year also).  Thus, I got twice the “law porn,” because many schools apparently have separate lists of who occupies these slots, and they don’t cross-reference.

I understand that.  What I don’t understand is how anybody could even try to do this ranking job even semi-competently.  Are voters really expected to read and compare the glossy brochures we get from well over 100 schools?  Go to websites and check out the scholarship of a significant percentage of the faculties of a significant number of schools?  Survey multiple colleagues and friends at other schools as to how they think the University of X compares to Y College of Law in their areas?  Making even a serious attempt at any of this would be a part-time job in itself.

Of course schools ranked in the top 20 have better reputations than schools in the middle of the pack, which have better reputations than schools at the bottom of the rankings.  But the important part is not confirming what we’re all already supposed to know, it’s distinguishing among schools that are reasonably close in the rankings.

What I suspect actually happens is this:

People get positive or negative feelings about individuals in their own field.  They know a few folks outside their field from conferences, the odd article people read in some other field, the occasional guest speaker, and maybe even those they encounter on blogs.  But that is in no way representative.  People also give higher votes, at the margins, to higher ranked or more famous universities (independent of the quality of the law school); places where they have friends, where they or their friends went to school; favored parts of the country, etc.

Also, I suspect there is probably a lot of strategic voting: at the margins:  give lower votes to schools ranked right around where your school is ranked. 

None of these methods would yield results that are, in any overall sense, fair or accurate.  But I can’t think of a way to do this job well.  Suggestions?

Posted by JosephSlater on April 10, 2006 at 10:22 AM in Life of Law Schools | Permalink | Comments (6) | TrackBack

Disney and Executive Compensation

Over at Ideoblog Larry Ribstein is predicting that the Delaware Supreme Court will overturn Chancellor Chandler's opinion in the Disney-Ovitz litigation.  For those of you who have not followed this saga, Disney hired Michael Ovitz in 1995 to be Disney's President and heir apparent to Michael Eisner, the Disney CEO.  Ovitz resigned under pressure fourteen months later and, thanks to a stock options vesting provision, pocketed $140 million for his work.  For doing a bad job, Ovitz made $10 million a month, or over $320,000 a day.

The Disney litigation has a fascinating history, going back to Chancellor Chandler's original 1998 decision dismissing the suit with prejudice.  In 2000, the Delaware Supreme Court agreed with most of the chancellor's analysis but remanded to have portions of the complaint dismissed without prejudice.  The plaintiffs refiled, using evidence from the Disney board's minutes about the transaction.  In 2003 Chancellor Chandler handed down a scathing denial of the new motion to dismiss, finding that the plaintiffs' allegations supported a claim against the board for failing to act in good faith.  After a chancery trial in Georgetown, Delaware, the Chancellor found for defendants on all counts.

Larry Ribstein believes that the Court will overturn the Chancellor's decision on narrow grounds.  Part of the controversy surrounded the decision to let Ovitz go under the "wrongful discharge" clause in his contract.  This clause let Ovitz collect on all of his stock options at the time of his dismissal, and these options formed the bulk of his compensation.  However, plaintiffs argued that Ovitz should have simply been terminated for poor performance, which would not have triggered the options.  In his decision, Chancellor Chandler found that Eisner made this decision, he was empowered to make this decision, and thus the Disney board had no duty to consider the issue.

Ribstein believes this conclusion is the most likely grounds for overruling:

The supreme court might hold that this was wrong -- the ceo's technical power does not limit the board's duty. This holding would satisfy the need to tell the board to do more, yet on a sufficiently narrow ground that the court can distinguish it in the future. So by taking this tack, the court will have satisfied its need to preserve V[an] G[orkom] without too great an expansion of the board's duties.

The result of all this would be a remand to apply Van Gorkom in light of the court's holding.

Note that all of this concerns application of the b[usiness] j[udgment] r[ule], and might well be mooted eventually by application of good faith on the "back end" of [Delaware GCL Sec.] 102(b)(7).  Obviously this would be a lot of running around to get to the same result.  However, as I noted before, the court's interested in making a point, not getting to a result.

Gordon Smith agrees, noting that this issue was "unquestionably the weakest part of Chancellor Chandler's opinion."

Ribstein also notes that the Court might reverse on the board's initial decision to hire Ovitz under the troublesome terms.  As he notes:

This would fit in with all the public agitation on executive compensation and the performance of executives and the need for active board supervision of these matters. But such a holding would be problematic because it seems to deny the need for perspective and judgment – just what the feds have lost with the obsession with trivia in the SOX internal controls rule.

The good Professor Bainbridge agrees, stating: "I don't see how the Delaware Supreme Court could reverse without creating new law."

Even if they affirm Chancellor Chandler's opinion on Ovitz's initial hiring, the Supreme Court justices would do well to further elucidate more specific requirements for compensation committees when negotiating compensation for top officers and directors.  The Disney case serves as a nice example of the lower end of what might be considered "reasoned deliberation."  The compensation committee spent an hour on the issue of Ovitz's compensation, along with discussing five other agenda issues.  An actual draft of Ovitz's contract was not distributed.  Although some discussion ensued, the minutes do not reflect the discussion, and the committee members did not recall the discussion in any substantive detail.  Prior to this meeting, members had had only brief phone discussions about the contract -- discussions that at least one member did not remember at the time of his deposition.  (See note 64 of the 2005 opinion.)  It is true that much of the work in developing Ovitz's contract was done by two (out of four) of the members of the committee working on their own with an executive compensation consultant.  But no one detected the potential loophole that ended up paying Ovitz so well for poor performance.

Today's New York Times has an article by Gretchen Morgenson about executive compensation consultants.  Her upshot: these consultants, while called on to provide independent expert advice, have powerful reasons to provide generous recommendations to the boards that hire them.  It is a symbiotic relationship: executives needs independent and expert justifications for their lucrative salaries, and the consultants need work.  Neither party has an interest in keeping salaries manageable.  As a result, boards can point to an expert and disclaim responsibility for what are exteremly subjective and value-laden decisions.

I hope the Court reexamines the relationship between boards and experts in the compensation arena.  Even if it affirms Chancellor Chandler's opinion, it could set new standards for the processes that compensation committees use in setting executive salaries.  Perhaps such standards will largely be hortatory, much like Chancellor Chandler's rhetoric.  ("As I will explain in painful detail hereafter, there are many aspects of defendants' conduct that fell significantly short of the best practices of ideal corporate governance. ")  But the Court would do a real service in setting some standards in this increasingly contentious area.

Posted by Matt Bodie on April 10, 2006 at 09:18 AM in Corporate | Permalink | Comments (1) | TrackBack

Anonymous Female Academic Blogging: A Parallel Blogosphere?

There has been discussion, here and here about the relative scarcity of blogging by female academics. I accepted this premise until about two months ago when I encountered an anonymous blog written by a female academic. The blog was very different from all academic blogging I have read to that point: It addressed the personal life of an academic. As I scrolled down the blogroll I realized that the blog was not unique. It appeared to belong to a parallel universe of academic blogging. All these blogs were highly personal, extremely frank, brazenly discussing irritations with students, colleagues and dissertation advisers. Many of them regularly posted to-do lists including the mundane tasks of everyday academic life. They were written by tenured professors, most often junior professors on the tenure track and also doctoral students on the job market. Particularly striking were the features shared by all of them: they were all women academics and they all wrote anonymously. For a glimpse at some of these blogs, see here, here, and here.

Whether these blogs are authored by legal female academics is hard to tell. Subject matter descriptions are purposefully vague. The blogs are not subject matter oriented and are rarely political. One of their primary functions appears to be community building. The authors refer to each other's blogs, they describe their blog-reading and catching up as part of their daily routine, and they serve as a support group for each other. The comments on the blogs are extremely supportive regardless of the content of the entry. As many of these women academics find themselves starting academic careers in isolated places, they appear to have found a virtual community to support them.

Are women academics really greatly under-represented in the blogosphere or do many of them elect to operate in a separate blogosphere of their own? Do they use the blogosphere to address different needs resulting in two parallel academic blogsphers: One academic blogosphere being the highly visible, political and subject matter oriented and relatively male dominated sphere and the other academic blogsphere being the personal, anonymous and supportive female dominated one?

Posted by Gaia Bernstein on April 10, 2006 at 12:03 AM in Blogging | Permalink | Comments (25) | TrackBack

Sunday, April 09, 2006

Balkin on Wills on JC

An interesting post by Jack Balkin today, itself referring to an op-ed by Garry Wills in the New York Times.  Wills argues against the institutionalization of Jesus in politics -- against the tendency to recruit him as "a campaign aide."  He argues that doing so -- whether the party in question is the Republican or the Democratic Party -- domesticates and dilutes the richness of the Jesus who appears in the Gospels. 

As far as Wills's piece goes, I think the basic idea I've summarized above is true enough.  But it is not quite the same thing to say, as Wills does, that "[t]here is no such thing as a 'Christian politics,'" or to elide, as Wills does, the difference between a "Christian politics" and a politics built around the invocation of Christ.  The two are not quite the same thing, and in either case I am not sure we can or should erect a firm rule against either.  All the follows from the core proposition above, I think, is that we should never rush to strip the mystery from religion, that we should recognize the dangers of domesticating it too lightly, that we should approach religion as we approach much else in life -- in humility and with a full appreciation of the limits of our understanding.  But in a sense these points are especially important for those -- especially religious intellectuals -- for whom religious life has a substantial intellectual and/or mystical aspect.  Many people, however, are less interested in those aspects of religion than they are in simply trying to live their faith in practice -- and as long as that is true, of course religion will (and should) be a part of our political and public dialogues.  We should be wary of simplistic efforts by the political parties to enlist Jesus for their own ends (for both secular and, as Stephen Carter points out in his book God's Name in Vain, religious reasons), and we should seek a richer form of discussion of religion than the thin gruel we so often see; but we should not take from this idea the further conclusion that religious arguments or even invocations of Jesus are best left out of public debate altogether.

More on Balkin's end of the argument below. 

Two more things on Balkin's contribution to the discussion.  Balkin writes, correctly in my view, that it's one thing to say that Jesus is beyond politics, and "quite another to say that your religious views have no necessary connection to the pressing political issues of the day."  But I have a bone to pick with two of his later statements.  He writes:

People want to quote Jesus precisely because we live in a world of profound moral and political disagreement; tying our arguments to widely acknowledged moral symbols or authorities is a good way to persuade others, or, at the very least, to shame them in front of others.

Balkin may not mean it that way, but it seems to me he's suggesting that people invoke Jesus in politics strictly for strategic reasons, to "tie" our arguments to him, and not because Jesus' words actually speak to those issues that are the subject of profound moral and political disagreement.  That seems to me overbroad.  There is nothing inherently wrong, let along cynical and dishonest, about trying to discern as best as one can what Jesus' teachings demand of us as we approach various contemporary political and moral dilemmas.  While I would rather that people did not conclude with certitude that Jesus necessarily would come down on one side of many issues or another, and so would again hope that his name would be invoked with humility, those invocations are not necessarily a matter of mere rhetorical strategy.

Second, Balkin writes:

The best way to make the argument that Wills wants to make is not to insist that Jesus is otherworldly and therefore beyond politics; it is, rather, to point out that not everyone in the United States is a Christian, and that, even among Christians, not everyone agrees about what Christianity requires. Therefore, in a world of pervasive moral disagreement and sectarian division, it is probably not a good idea to base public policy-- under which all Americans must live-- on a particular interpretation of Christian scriptures. People are free to argue about what Jesus meant and what religion demands in the public square, and government is free to recognize the important and powerful influence that religion plays in people's lives. But government officials should not make laws that are binding for all Americans on the basis of the religious views of a single religious group, even a dominant one. You don't need to have a particular view of what Jesus meant to believe this principle of politics. You only have to believe that there are good reasons, in a democracy with many different peoples and cultures, to keep the life of politics separate from any one religious orthodoxy.

Well, it may be that that is the argument "Wills wants to make," although I'm not sure.  But I think there are a couple of tricky moves here.  Balkin moves quickly from the idea that one should not enlist Jesus casually as a member of one political party, or as a participant in politics altogether, to the view that religion can be invoked in public politics (which I think is what Wills really is upset about, so Balkin is not making the argument Wills wants to make), to the view that although religion can be invoked, the views of any one faith cannot form the basis for "laws that are binding for all Americans."  These moves come too fast and furious, I think.  Moreover, I'm not sure, notwithstanding what he writes, that what Balkin is saying doesn't ultimately come down to the idea that one ought not invoke religion in politics; since a single faith's view might win out in the political contest, how does one "keep the life of politics separate from any one religious orthodoxy" without eliminating religion from public debate?

There are a variety of problems with the views in the paragraph by Balkin that I quote above, I think, besides the way in which he hastens to tie together a number of disparate conclusions.  I'll stick with one: why is the best argument for the position he takes that not everyone is a Christian, and even Christians disagree?  In particular, why is this the best argument to make to a Christian?  If one is compelled by one's understanding of one's own faith to seek to make this a just society through law, why should it be convincing to tell this person that he might be wrong, and that in any event others don't share his faith?  It seems to me Balkin makes a liberal argument for his position, but that the liberal argument is only convincing to those who buy into its premises.  It seems to me entirely appropriate that a Christian (or Jew or etc.) who deeply believes God requires the state to do or not do something should seek to enact those views.  The Bill of Rights blunts many of these impulses, or channels them in ways that may counteract some of the dangers of these impulses.  But the impulse is not illegitimate.  And it seems to me that if I wanted to argue against such impulses, if I wanted to convince people not to seek to enact their religious views into law -- as opposed to simply trying to coerce them into abandoning such projects through the power of the state -- I would have to seek a religious argument against them, not a practical, prudential, liberal argument against them. 

Posted by Paul Horwitz on April 9, 2006 at 02:57 PM in Religion | Permalink | Comments (11) | TrackBack

Coming Out as a Bisexual Woman When You're Dating a Man

I'm certainly not the only person in the world to have thoughts on this problem, but in the spirit of discussing issues that junior faculty face, as well as having a meta-conversation, here goes:   Very few of my colleagues or students know that I'm bisexual.  Is it because I believe in keeping my "private" life "private"?   Not at all.

 

The problem is that I do reference my personal life in casual conversation, and I have a boyfriend.   As a result, people around me tend to assume that I'm hetero.  As an extension, many tend to assume that I'm straight: not just hetero, but planning to get married, have children, raise them in a particular way, etc.   (For anyone confused by this, I use "queer" to mean those who are nonconformist with respect to the realms of sexual activity, family structure, and gender performance.   I use "straight" to mean those who are conformist in these realms.  Thus, straight/queer does not map precisely onto hetero/lgb.) If I want to disabuse anyone of the notion that I'm hetero, I must, apropos of nothing at all, advertise my sexual orientation, which I am sure most people would deem to be at best self-important and irrelevant, at worst inappropriate and "too personal."

 

I could avoid mentioning my boyfriend, but that's not only misleading, I think it's the wrong way to treat someone you care for. The option of calling him my "partner" is one I tried briefly, but it grates on me: The gender of my boyfriend isn't universally irrelevant: It's just not a reason to presume I'm hetero. In any case, many people would just assume I am a lesbian, and if they met my boyfriend, revert to assuming I'm hetero. So, I call my boyfriend my boyfriend, and allow others to assume I am hetero, and straight. But given the false distinction between inaction and action, this makes me feel as if I'm closeting myself.

 

On the other hand, I never feel as if I can be very indignant about this. I chose to date a man, and we are currently monogamous, so at the end of the day, my life is a whole lot easier than it is for many lgb people. Thus, to proactively remind those around me that I'm bi feels, well, a little like posing.

 

Why does it matter for people to know that I'm bi?  Of course, nobody likes to spend years of their life fighting for queer rights, only to go in the closet. But it's not just personal irritation and vexation at stake. It is clear to me that my colleagues and students care, sometimes, about the facts that I am not white and am a woman. They have the good sense to know that racism, sexism, and even benign cultural differences produce a variety of experiences and perspectives that are often relevant and interesting. They would similarly care to know, I think, that I have been discriminated against and harassed because of my sexual orientation.

 

Even more importantly, I suspect that if they knew I'm bi, they would also be more likely to entertain the possibility that I'm queer in other ways, too (and that maybe some of the heterosexual people in the room are, too!).   The more we are reminded of the presence of queers in the room, the more likely we are to interrogate the numerous anti-queer assumptions pervading the law, such as the assumption that everyone wants to, or should, ape the model of the nuclear family.   (Bravo to co-bloggers Ethan, Dan, and Jennifer for doing their part.)

 

So, what are some creative ways, not just for professors, but for professionals more broadly, to negotiate this and other problems of heterosexism? I seem to have found my way, in the form of this post.

Posted by Gowri on April 9, 2006 at 12:38 AM in Deliberation and voices | Permalink | Comments (32) | TrackBack

Saturday, April 08, 2006

Slouching Toward Greatness

As undergrads across the country weigh law school admission offers and ask themselves, "how did it come to this?," and as law students across the land prep for exams and ask roughly the same question, I thought these quotes from profiles of some of the century's more important American jurists might be a little reassuring.  The first is from Gerald Gunther's great biography, Learned Hand: The Man and the Judge, at page 42.  Describing his decision to go to law school as one that resulted from his "weakness...[his] great and almost, as it seems, unconquerable nervousness and lack of confidence," Hand goes on to recount how, after abandoning his thoughts of graduate study in philosophy, he came to the decision, if we can call it that, to attend law school:

You see, the family had all been lawyers . . . . And there it was.  Law has always been a kind of slop box for boys who don't know what else they want to do anyway.  It's decent and it may lead to something or it may not.  So I found myself in the law school.  And there were a lot of men I knew who had gone in for the same reason -- they didn't know what else to do.

The second is from a profile of Justice Brennan published in the New Yorker in 1990, and the subject is a little different -- it's about the choices young lawyers are faced with between the prestigious and well-trodden path of life at a big law firm, and the many other, often riskier, jobs they might take.  Here's how the profile describes Brennan's decision to take an appointment on the Superior Court of New Jersey, from which he would ultimately sit on the New Jersey Supreme Court and eventually the big enchilada:  "The appointment meant a considerable cut in income, and the reason Brennan decided to take it was that his large and growing law practice seemed to be affecting his health and didn't leave him enough time for his family."

I've always liked the Hand quote, and I would offer it even if only for the sheer fun of it.  I suppose, though, that the moral of the two excerpts is, take heart in your choices -- whether to attend law school, even out of pure default, or to make some of those riskier choices later on in your career.  Some seek out greatness, some have it thrust upon them, and, apparently, some land in greatness accidentally (although it is fair to say both Hand and Brennan, having found themselves in a particular line of work, took responsibility for living out that commitment passionately and well -- another moral one would do well to heed).

Posted by Paul Horwitz on April 8, 2006 at 04:02 PM in Life of Law Schools | Permalink | Comments (1) | TrackBack

Yet Another New Guest Blogger: Gowri Ramachandran

Thanks to all the permaprawfs for inviting me on for a guest visit!  I’m a visiting professor at FSU with Dan, and in the fall, will be joining Paul at Southwestern.  Add to that my friendships from law school with Ethan and Steve, and I have to admit feeling like some kind of privileged crony, albeit only in the context of Prawfsblawg.

My academic focus is on employment discrimination, constitutional law, federal jurisdiction, and queer/postfeminist theory.  But I’m also an avid follower (and very occasional producer) of film, television, fashion, and other elements of popular culture, in ways that aren’t always separate from my academic work.  So peppered among my thoughts on how to avoid identity politics, without reducing one’s beliefs to what Steven Seidman calls a “politics against identity,” you may occasionally see my passionate response to the latest front page of Sunday Styles—the portion of the New York Times I most love to hate.

So here's hoping my perspective contributes to the diversity of the views presented here, not just along the axes for which I am typically thought of as “different” in the legal academy, but along some other ones, too.

Posted by Gowri on April 8, 2006 at 02:18 PM in Housekeeping | Permalink | Comments (0) | TrackBack

Snyder on Duncan Kennedy, Hierarchy, and Blogging

Frank Snyder (Texas Wesleyan / Notre Dame) has posted on SSRN an engaging and provocative essay, "Late Night Thoughts on Blogging While Reading Duncan Kennedy's Legal Education and the Reproduction of Hierarchy in an Arkansas Motel Room."  Here is the abstract:

 
It has been more than twenty years since Duncan Kennedy published his seminal 'Legal Education and the Reproduction of Hierarchy'. In it he called for a radical assault on the hierarchies embedded in American law schools. But that assault failed. Over the past two decades, the hierarchies of legal education have, if anything, become even more fixed, insular, and status-driven, even while the elites of the practicing bar have changed dramatically and become more open to outsiders. It is vastly easier for the graduate of a fourth-tier law school to become a partner at an elite law firm than it is to be hired as a tenure-track assistant professor at even a non-elite American law school.

But law school hierarchies may be changing. Not as the result of a critical assault, but because vast changes in communications technologies have seriously eroded the control of information that is necessary for the survival of any non-functional hierarchy. In this paper, written for a symposium on blogging by lawyers and law professors, I revisit the insider world of Kennedy’s 'LERH' and contrast it with the outsider-dominated changes being wrought by the Internet.

Posted by Rick Garnett on April 8, 2006 at 01:43 PM in Blogging | Permalink | Comments (2) | TrackBack

Meirsheimer & Walt

I have finally read the LRB version of "The Israel Lobby," the paper by Meirsheimer & Walt about why America's unflagging support for Israel and its questionable foreign policy choices are traceable to a powerful lobbying effort on behalf of Israel.  I know I'm late to this story -- but the article is long and I actually wanted to read the thing before commenting on it.

I confess that I was not as offended by it as some bloggers (see, e.g., Bernstein at Volokh; Schwartzschild at The Right Coast), though there were a few very insensitively written paragraphs that gave me pause.  I usually think trying to label people "anti-semites" is a way to avoid having a real discussion; but I can't help thinking that certain sentences crossed the line into lame conspiracy theory that drew upon certain caricatures/stereotypes of Jews.  My reaction was much more similar to Dan Drezner's replies (though you wouldn't know Drezner had a nuanced response if you read Bernstein on Drezner).  There were some really rather absurd claims about the Iraq War and Al Qaeda, claims that I don't think can be taken seriously.  And the "thesis" -- to the extent that the article really aimed to make a single coherent argument -- that the Israel Lobby accounts (monocausally) for all US missteps in foreign policy doesn't hold up for reasons Noam Chomsky (of all people!) quickly summarizes.

Still, I think the paper's missteps in logic and sensitivity do not entitle us to ignore the seriousness of the narrative in the paper -- and its kernal of truth that many really do need to hear.  I say this as a moderate Zionist, who would be very depressed if Israel ceased to exist.  But there is no way around the fact that AIPAC is too powerful in America -- and that there is a very strong pro-Israel lobby that prevents honest debate about Israel in this country.  Even worse, America probably does take some positions in its foreign policy that may be at odds with its own self-interest -- and might not do so as often if it weren't so committed to appeasing the Israel Lobby (a lobby, it should be noted, is not just composed of Jews).  As I said, I don't believe Meirsheimer & Walt's suggestion that we can trace all American foreign policy -- and all its mistakes -- (the Iraq war, etc.) to the Lobby.  And they make some pretty headstrong leaps in logic to weave their just-so story.  But that story remains an important one to hear -- and I think it is getting dismissed far too quickly for lacking "academic rigor".  It isn't, after all, trying to make an academic point.  Take a look at this Gladwell review of Charles Tilly's latest for explanation about why narrative reasoning should get its day in the sun.

Christopher Hitchens writes in Slate that "Everybody knows that the American Israel Public Affairs Committee and other Jewish organizations exert a vast influence over Middle East policy, especially on Capitol Hil.  The influence is not as total, perhaps, as that exerted by Cuban exiles over Cuba policy, but it is an impressive demonstration of strength by an ethnic minority."  Hitchens doesn't get what the big deal is about the Meirsheimer & Walt paper because he thinks the central point therein is unoriginal and that "everybody knows [it]." Hitchens also thinks that "[a]lmost everybody also concedes that the Israeli occupation has been a moral and political catastrophe and has implicated the United States in a sordid and costly morass."  Does he really think nearly everybody knows that?  He may not get out much in the US. 

Not everyone knows these things and not everyone who knows them think they are bad.  I suspect Bernstein and some folks at The Right Coast know that AIPAC and related organization and publications are extremely powerful and can sometimes get the US to take positions against its self-interest; they just don't care -- even if it means the U.S. will sacrifice some standing in the world community to defend Israel.  To the extent that Meirsheimer & Walt want to spread the word more broadly (though I suspect it is at least true that LRB readers know it well) and explain why it is a bad thing, it is a worthwhile effort.  Their execution leaves much to be desired, I confess.  But they are entitled to their opinion -- and help us all see with better clarity a powerful force in our foreign policy, a force that should be questioned more often than it is.

Dershowitz has some important responses that helpfully show a few areas where Meirsheimer & Walt should have furnished fuller quotation (in particular, some Ben-Gurion quotes used in the LRB piece are a bit selective and misleading).  But Dershowitz also spends a fair bit of his paper in reply mischaracterizing the original paper -- and really aims to discredit Meirsheimer & Walt by association: since these kind of arguments are made by "Jew-haters" and "America-haters", Meirsheimer & Walt are guilty by association.  That is just as faulty logic as Meirsheimer & Walt are accused of.  And Dershowitz is too quick to see the paper as charging American Jews as unpatriotic; that really isn't the point and the paper concedes that many non-Jews are part of the Israel Lobby -- and many American Jews have little sympathy with it.

Posted by Ethan Leib on April 8, 2006 at 01:34 PM | Permalink | Comments (2) | TrackBack

"When is a War not a War?"

My colleague, Mary Ellen O'Connell, has a new paper up on SSRN, "When is a War not a War?  The Myth of the Global War on Terror."  Here is the abstract:

It is essential to correctly classify situations in the world as ones of war or peace: human lives depend on the distinction, but so do liberty, property, and the integrity of the natural environment. President Bush’s “war on terror” finds war where suspected members of al Qaeda are found. By contrast, war under international law exists where hostilities are on-going. To the extent there is ambiguity, the United States should err on the side of pursuing terrorists within the peacetime criminal law enforcement paradigm, not a wartime one. Not only does the criminal law better protect important human rights and other interests, it avoids elevating terrorists to the status of combatants in a war with the world’s only superpower.

It seems sound to emphasize the importance of care and (to the extent possible) precision when using the term or invoking the state of "war."  And, it seems right to say that the "criminal law better protect[s] important human rights" than does the law of war.  That said, couldn't one reasonably worry that criminal-law methods, procedures, and normative premises (not to mention discovery practices) might not protect national-security interests particularly well?  Is it possible (or desirable), I wonder, to construct a "kind of" criminal-law regime, for a defined category of national-security cases, that (a) avoids "elevating terrorists to the status of combatants in a war with the world’s only superpower"; (b) "protect[s] important human rights" and the environment; but (c) stops short of requiring the full panoply of constitutional protections to the accused or constraints on the investigation process?

Posted by Rick Garnett on April 8, 2006 at 01:31 PM in Criminal Law | Permalink | Comments (0) | TrackBack

The Board of Supervisors, the Archbishop, and the First Amendment

A few weeks ago, the San Francisco Board of Supervisors passed a non-binding resolution "urging Cardinal William Levada, in his capacity has head of the Congregation for the Doctrine of the Faith at the Vatican, to withdraw his discriminatory and defamatory directive that Catholic Charities of the Archdiocese of San Francisco stop placing children in need of adoption with homosexual households."  The resolution observed, among other things, that "[i]t is a insult to all San Franciscans when a foreign country, like the Vatican, meddles with and attempts to negatively influence this great City's existing and established customs and traditions such as the right of same-sex couples to adopt and care for children in need." 

Eugene Volokh has a post on the subject.  After noting that "[t]he San Francisco city government . . . is quite entitled to express its views on gay rights questions, and to condemn groups that, in its view, express 'hateful' ideas[,]" he writes:

It's possible that expressing views on a religious group's purely theological claims (as opposed to claims related to worldly conduct that affects other people) might violate the Establishment Clause. There is even some language in the Court's opinions, which condemn "endorsement or disapproval of religion," that suggests that any condemnation of a religious organization by name would be unconstitutional. But it seems to me that the right rule is that government officials must be able to comment on religious groups when their actions touch on secular matters, for instance arguing that terrorism is antithetical to the proper understanding of Islam, or that the Catholic Church's views on adoption by homosexual couples are wrong.

This seems right to me.  That said, and no surprise, a lawsuit has been filed, contending that the "anti-Catholic resolution sends a clear message to [Catholics] ... that they are outsiders, not full members of the political community and an accompanying message that those who oppose Catholic religious beliefs . . . are insiders, favored members of the political community."

On the other hand, even if it is true -- and, again, I think it is -- that "government officials must be able to comment on religious groups when their actions touch on secular matters," we might still regard differently (a) statements by government officials that express views about the theological correctness of religious claims (e.g., "terrorism is contrary to true Islam") and (b) statements that criticize religious claims in light of "secular" values (e.g., "the Catholic Church's position on same-sex marriage is an insult to equality values").

Posted by Rick Garnett on April 8, 2006 at 11:26 AM | Permalink | Comments (3) | TrackBack

Friday, April 07, 2006

Another New Guest Blogger: Joe Slater

Thanks to Dan and the other Prawfsblawg folks for inviting me to guest-blog for a couple of weeks.  I’m one of those J.D. (Michigan) - PhD (Georgetown, history) types.  At U-Toledo, I teach torts, but my main area of scholarship and most of my teaching is in labor and employment law.  Not that I view this as an opportunity to shamelessly plug my own work, but if any of you felt a hankering to know more about the (fascinating and important) history of public sector labor unions, you could do worse than checking out my book, Public Workers: Government Employee Unions, the Law and the State, 1900-62 (Cornell University Press, 2004).

Aside from an eye toward labor and employment issues and whatever else I talk about substantively, I hope to bring a somewhat different perspective based on age and tenure.  I’m a bit more senior (just became a tenured full prof. last year) and more than a bit older (I practiced for a while before entering academia) than the typical young Turks that run this place so well.  I still remember the first few years of teaching, but I hope that among other things I can give some hints about what you young’uns can expect a few years down the road.

Posted by JosephSlater on April 7, 2006 at 03:05 PM | Permalink | Comments (0) | TrackBack

Kolber Bids Farewell For Now

With the new round of guest bloggers making their way on stage, I'm going to bid you farewell for now.  I will continue to post on issues related to law and the brain at the Neuroethics & Law Blog.  I'm also pleased to report that my article on memory-dampening drugs has been accepted for publication in the Vanderbilt Law Review.

My most-commented post concerned the surprise quiz paradox, followed by my thoughts on whether it takes a theory to beat a theory.  I also wrote on neuroenhancement, encouraging organ donation, the incredible life span of tortoises, those glossy brochures, secret passagewaysEternal Sunshine of the Memory-Dampened Mind,  and a few other topics.

My thanks to Dan, Ethan, and the whole Prawfsblawg team for the opportunity to participate!

Posted by Adam Kolber on April 7, 2006 at 10:53 AM | Permalink | Comments (0) | TrackBack

New Guest Blogger: Gaia Bernstein

I am very happy to be here and would like to thank Dan for giving me this opportunity to convert from a devoted blog reader to an active participator on the blogsphere. As a researcher of the culture of technology I am excited for the opportunity to experience blogging first-hand.

A bit about myself. I am just finishing my second year as a professor at Seton Hall Law School, where I teach Law and Genetics, Information Privacy and Property. My teaching and research interests span both communication and medical technologies. As a result, at Seton Hall I wear two hats, being part of both the Intellectual Property Program and the Health Law Pogram.

My work looks at the interactions between technology, law and society, focusing on diffusion -the stage that follows the innovation of a new technology. Diffusion issues arise after intellectual property debates end. Diffusion is about the socio-legal acceptance process of a technology – what happens to a technology once it enters society and individuals start using it. For example, how does the use of genetic testing and the Internet affect our identities? I hope during my time here to highlight some of the ways in which the study of the diffusion process can enrich the technology policy debate, blog a bit about genetics technology and also join the conversation about blogging as a cultural phenomenon.

Posted by Gaia Bernstein on April 7, 2006 at 09:30 AM in Information and Technology | Permalink | Comments (0) | TrackBack

Ackerman and the Article II Bandwagon

YLS prawf Bruce Ackerman has been one of the more prolific writers on emergencies post-9/11, and his latest, a piece for Slate that was posted on Wednesday, echoes many of the themes Ackerman first suggested in his Yale Law Journal Essay, "The Emergency Constitution," and expanded upon in his new book, "Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism."

One of Ackerman's central points, which comes through emphatically in his new Slate piece, is that Congress (or the People, through Article V) needs to create an emergency framework so that, after the "next" attack, the President doesn't fall back on his Article II powers.

There's lots to be said in response on the baseline point -- that the response to overreaching is to codify authority that one might previously have thought the Constitution could not countenance. There's all the more to say about this today, since this Congress's response seems to be that the best thing to do is to strip jurisdiction from the courts to actually police the lines between the two political branches.

But there's one passage of the Slate piece that particularly stands out to me:

According to the Washington Post, the American military has "devised its first-ever war plans for guarding against and responding to terrorist attacks in the United States, envisioning 15 potential crisis scenarios and anticipating several simultaneous strikes around the country." When asked about the legal basis for such military intervention, Pentagon authorities have told Congress they see no need to change the law. According to military lawyers here, the dispatch of ground troops would most likely be justified on the basis of the president's authority under Article 2 of the Constitution to serve as commander in chief and protect the nation. "That would be the place we would start from" in making the legal case, said Col. John Gereski, a senior [military] lawyer.

This strikes me as very off the mark, and a particularly bad place from which to launch a proposal for a framework emergency statute as a "response."

As I've written [and mentioned here before], the Constitution was explicit in vesting emergency power to respond to domestic attacks in the Congress. The idea, as early statutes (and the actions of President Washington in quelling the Whiskey Rebellion) demonstrated, was that Congress would delineate the circumstances wherein the President could call out the military on the home front (so long as it was "to execute the laws of the union, suppress insurrections and repel invasions"), and that the President was limited to the terms of the statutory grant. It was this constitutional provision (the "First Militia Clause") to which Justice Jackson was referring in Youngstown in concluding that "Such a limitation on the command power, written at a time when the militia rather than a standing army was contemplated as the military weapon of the Republic, underscores the Constitution's policy that Congress, not the Executive, should control utilization of the war power as an instrument of domestic policy." [my emphasis.]

The early Congresses, to their credit, understood that there would be emergencies that they could not foresee, and so also delegated a more general emergency power to the President when Congress was out of session, and for 30 days after the beginning of the next legislative session (back when Congress could not possibly act expeditiously when it was out of town). Moreover, although the Constitution only spoke to calling forth "the militia," Congress, in 1807, expanded its early framework statutes to include the federal regulars (with one important exception -- repelling invaders -- that's wholly unexplained in the legislative history).

In other words, at least with respect to domestic emergencies, there's a pretty strong textual argument that the absence of statutory authority leaves the President very little room to use the military on the homefront except to repel invaders -- that the "martial law" power, to whatever degree it is countenanced by the Constitution, is primarily legislative.

And so, I think Professor Ackerman is dangerously near-sighted when he suggests that the justification for a new legislative framework is the appeal that the Article II argument would necessarily have after the next attack. He may be right as a matter of realpolitik, but as a matter of constitutional law, I fear he is not just wrong, but dangerously so. That is to say, the "Congress should authorize it because the President would do it anyway" theory strikes me as a remarkably irresponsible position to take vis-a-vis the separation of powers during crisis times. If one really believes Justice Davis's line from Milligan -- that martial law should never prevail so long as the civilian courts are open and their processes unobstructed -- then one should stand up for that principle, and not encourage Congress to abrogate the independent and coordinate role that the plain text of the Constitution clearly contemplates for it.

Posted by Steve Vladeck on April 7, 2006 at 05:45 AM in Article Spotlight, Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (4) | TrackBack

Blawging

Dan graciously asked me to come back for a guest spot to celebrate the anniversary of Prawfsblawg, and I am delighted to do so.  Rather than write about tax (I know, you really are glad about that one), I thought I'd step back and write about why I blog about tax. I have chosen to write A Taxing Matter as a personal exploration of tax and fiscal policy ideas, not a broader blog with multiple authors and multiple themes like Prawfsblawg.

Words are terribly important.  How we formulate the goals of the rule of law, and how we conceptualize justice, are inextricably wrapped in language.   Blogging about the law and in particular about the tax system and fiscal policy allows me to select one idea out of the many that come across my desk each day that I think is worth focusing on.  I can look into the sources behind the news item, come to my own conclusions, and then share that with my readers.  I will at the least have more firmly fixed my own views around the idea discussed by finding the words to write about it.  Perhaps I will also have provided a service, in that readers will have in one place an assortment of news articles about the idea, the study or report that triggered the original news story, and other commentary about the idea as well as my own "take" on it.   If a dialogue is begun, with comments on the blog or email exchanges with readers, then we can all gain through new perspectives.

Ultimately, I blog because I think it is important that ideas about tax get discussed from more perspectives than efficiency.  Just as justice theories generally haven't yet adequately accounted for our aspirations for both  liberty and equality, normative tax theories fall short of explaining the foundational principles that should determine the components of the tax system.   We need to have a deeper dialogue than the one currently undertaken in Congress that offers tax cuts (especially on investment income) as an economic panacea and refuses to consider the impact of increasing income and wealth inequality.

Blogging as a process is a curious combination of stream of consciousness and careful editing.  What is written can't be erased once it becomes part of the blogosphere, captured by Google, or linked by some other website.   It forces the writer to be brutally honest, to avoid overreaching in making a claim, to recognize the limits of the approach considered.  But it also offers an opportunity to sound out an idea in incomplete form, to invite comments that will shed more light on the subject than the author alone can manage.  That combination of care and experimentation is the innovative core of the medium.

Posted by LindaMBeale on April 7, 2006 at 02:53 AM | Permalink | Comments (0) | TrackBack

Thursday, April 06, 2006

Career counseling and the public interest

Thanks to Prawfsblawg for having me back as a guest blogger!  As Dan mentioned in a previous post, I am currently visiting at Hofstra for the year and will be joining Willamette this fall.   So I've gotten an interesting look at the workings of law schools this year--being a visitor is very much like being a fly on the wall, of the school but not totally enmeshed in it.

In any case,  April has finally arrived (springtime is a-cumin in), and with it, a lawprof's thoughts turn to exams and grading, and a 3L's thoughts turn to graduation and future employment.  To that end, I've met with a variety of 3L students these past few weeks, all of them with one key question:  what's the best way to go about getting a public interest job?  To a one, each student has expressed frustration with the law school's OCI office, grumbling that all the resources are focused on channeling students to the corporate law world.

I don't think anyone can take issue with that complaint, no matter what school you might attend.  By their very nature, most law school career counseling offices are set up to best handle the streamlined process of law firm recruitment, and since many (if not most) law students want to practice in a firm for a while, it makes some sense to focus the resources in that area.

This reality leaves public interest devotees somewhat at a loss, however.  Now, granted, there are no centralized mechanisms for obtaining a public interest job--as a former crim. app. defender, I can tell you that the search is haphazard and often by word of mouth.    Sure,  D.A.s, Legal Aid, and the DOJ have regulated recruitment, and there are a variety of public interest job fairs,  but what about the more eclectic public interest jobs?  How is a student supposed to learn about these, besides blind luck and copious internet searching?

In a nutshell, what I'd like to see is a more concerted effort by law schools to assist and support those  interested in the public interest.  I think this could be done in a variety of ways:
1) create a really strong public interest alumni network, with mentoring and interning options;
2) designate one OCI counselor to spend at least half of her time devoted solely to public interest;
3) have workshops explaining to students how it's possible to earn a public interest salary and still pay your rent, loans, and eat;
4) visits and meetings from local public interest attorneys;
5)  continued assistance *after* graduation, since often it takes a little longer to find p.i. jobs;  and
6) at least some form of loan-repayment schemes for eligible grads.

Further suggestions welcomed!

Posted by Laura Appleman on April 6, 2006 at 12:40 PM in Life of Law Schools | Permalink | Comments (2) | TrackBack

Neuroenhancement

You probably remember the television show, "The Six Million Dollar Man," featuring Lee Majors as Col. Steve Austin, the bionic man.  I always found it puzzling that, in order to suggest that Austin was moving extremely rapidly, they would show him moving in slow motion.  While six million dollars apparently doesn't buy what it used to, researchers have made surprising advances in developing, to name a few,  artificial limbs controlled by the brain, exoskeletons to help people with limited mobility, and artificial retinas.

The field of neuroethics addresses ethical issues that may arise when we enhance our abilities to control our bodies and brains through machinery.  I think that many of the concerns expressed by ethicists about human enhancement are overstated.  As is frequently noted, we have long been using technology to enhance our bodies, and these technologies can radically improve our opportunities to interact with the world without creating some dystopic, dehumanized future.

An acquaintance of mine, Caroline Benn, had virtually no hearing for most of her life. Though she is a remarkably good lip-reader, about a year ago, she received a cochlear implant to enable her to hear much better.  Six months later, she wrote, "Then there are the sounds... WOW. Just mind blowing. So I always used to think a sound was a sound and nothing else. I now realise it totally ain't that simple... sounds are now having a distinct emotional component for me."  After six more months, she reports:

In 3 weeks, it's going to be the one year anniversary of when I had a hole drilled into my head!!! Now that I am coming up to my one-year point, I am so, so happy that I went ahead with this huge step and the whole experience. Definitely one of the better decisions in my life. There haven't been any huge drastic improvements over the last 4-5 months or so - it's been slow and steady. Having said that, I am still on the up and up. One thing that I like the most is that occasionally, I'll pick out words or sentences without lipreading them. . . .  It's still hit-and-miss and I seriously doubt that I could have a phone conversation unless I was feeling like it was a good day, but it's definitely there. The other MAJOR thing is that I am now seriously addicted to "American Idol" - which is kind of equivalent to the British "X-factor". For the first time in my life, I am enjoying listening to people sing... and during the auditions I was hugely entertained by the people who really couldn't sing! I am just blown away by the fact that I can tell the difference between them and that I can tell whether I enjoy someone's voice or not. Wicked awesome!

Of course, going from having almost no hearing to having limited hearing is typically described as "therapy," rather than "enhancement."  Why this line is thought to be morally significant, though, is often quite puzzling.

Posted by Adam Kolber on April 6, 2006 at 11:14 AM | Permalink | Comments (3) | TrackBack

Piling on GM

It's en vogue to bash GM for its overpaid workers and its supposedly kowtowing management.  Holman Jenkins at the WSJ ($) blamed the UAW and the Wagner Act for GM's implosion, citing "a job security program that means laid-off workers are still carried on the books at full pay and benefits no matter how few cars GM churns out."  Indeed, the GM Job Bank has come under a lot of fire -- those people are being paid not to work!!!  Can you imagine anything so wasteful?  (Gordon Smith notes: "And you thought academic tenure was cushy!")  Larry Ribstein blames Michael Moore for adding to "a rich vein of populism that has hampered the 'creative destruction' necessary to adapt in a global economy and, along the way, kept these perverse labor policies in place."  (Ribstein expands on this in a follow-up post; not surprisingly, SOX is also part of the problem.)  Over at Business Law Prof Blog, Dale Oesterle writes:

GM overpaid labor, buying peace for managers, at the expense of shareholder profit (and share price) for years.  Now GM's survivability is at stake; employees themselves would be better off it the GM board had been more careful of shareholder profits.  Railroads situation is similar to GM (they have special legislation that protects their unions). Compare GM's (or the railroad's) situation to that of Caterpillar's.  Caterpillar went through some tough strikes to hold the line on labor costs;  Caterpillar is now doing very well and is an international success story.

The good Professor Bainbridge reproduces Oesterle's argument and simply adds, "Ditto."

Oddly enough, many of these same folks believe in shareholder primacy based on the notion that the poor, defenseless shareholders have very soft contractual entitlements: they get dividends if and when the board decides to give them out.  Other corporate constituencies have the ability to negotiate for much more specific contractual returns.  Thus, if corporations maximize returns to shareholders, they will by necessity have satisified all other constituents, who get paid before shareholders.

So why are employees and their representatives to blame for maximizing their contractual returns?  Isn't that what they were supposed to do?  I guess they were supposed to do what the employees at Caterpillar did, and work with management to make sure that their wages were "reasonable."  But wait a minute -- Caterpillar got its employees' wages down to a "reasonable" state only after more than a decade of bare-knuckles labor strife, which included a passel of unfair labor practices as found by the NLRB.  (Prior Prawfsblawg posts on Caterpillar can be found here and here.)  Caterpillar may be an "international success story" for its shareholders, but ask its employees if they'd agree.

The notion that GM employees are complicit in their company's demise conflicts with the general model of shareholder primacy.  Employees are no more to blame for being overpaid than, say, raw material suppliers are to be blamed for charging too much.  Do you see shareholders being blamed for failing to make sure that talented employees were sufficiently compensated?  Under the shareholder primacy model, only management is to blame -- and that failure of judgment, like millions of others across the history of our economy, was well within management's eminent "business judgment."

Of course, management can't be blamed for taking too much, even though they essentially pay themselves.  Larry Ribstein contrasts GM's management with CEO success stories like GE's Jack Welch and AIG's Hank Greenberg, and says:

We know what’s happened to them – in disgrace because they supposedly took too much from their companies. Jensen’s essay [Modern Industrial Revolution, Exit, and the Failure of Internal Control Systems] shows why the important problem is not what folks like this are getting paid, but how they and their colleagues are running their companies. We're not going to get to that result by making sure that the geniuses and mediocrities alike are incentivized like bureaucrats.

I still think, as I wrote earlier, that the notion of blue-collar workers get paid well and even getting paid for not working is simply anathema to many people.  Yet some of those same people defend the rights of companies to provide managers with options, pension plans, and golden parachutes that allow executives to retire well before the GM Job Bank employees will.  Assembly-line workers, like CEOs, are getting paid for their contributions to the company.  Maybe GM can't afford its high wages any more, but employees were not morally wrong to fight for those wages.  And perhaps, just perhaps, management rationally believed that its employees deserved them.

Posted by Matt Bodie on April 6, 2006 at 11:04 AM in Corporate | Permalink | Comments (2) | TrackBack

Erica Jong

Erica Jong, one of my favourite American writers, has just published a sort of literary memoir, Seducing the Demon.  I got hooked on Jong when I was a teenager; I remember reading her debut novel, Fear of Flying, in the plane to Europe, my first journey there without my parentsIt fit my own mood and hopes perfectly. Fear of Flying is an exuberant--I would say Mozartean--story about letting go, breaking away and finding your own voice.   It also captures the mood of the sixties and is an extraordinary work of social observation.  And did I mention that it is hilariously funny? 

Well, Fear of Flying became a bestseller in paperback.  A bestseller on a huge scale.  Jong's wit included obscenity and scatology; not very much of it, but back then a female writer doing those things was a big novelty, or so it seems.    The book got a reputation as erotica and sold millions of copies on that reputation.  Others saw it as a manifesto of womens' sexual freedom, an ideological tract.  If you read it looking for either item, especially today, you will be very disappointed.   But if, as I do, you like the Bildungsroman as a genre then you will find here a masterpiece; in postwar American literature only Bellow's Adventures of Augie March rivals it.   

Erica Jong reads very differently from Bellow (about whom I've posted before on PrawfsBlawg).   There is an ease, a lightness, to her style that makes it seem unworked, whereas Bellow-until the beautiful writing of his late period-is overworked.     

After the popular success of Fear of Flying, Erica Jong struggled with her public image as a novelist and with the inner direction of her career.  These struggles are recounted in a delightful way in Seducing the Demon-with spunk and humor and without self-pity (or largely without it).    

Of Jong's later novels, two stand out as particularly powerful and successful.  Serenissima is a historical novel set in Venice.  It reflects Jong's extraordinary feel for the city and illustrates the many ways in which it has adorned her imagination.   A very different work is Any Woman's Blues, a tale with moments of real darkness, which tells many deep truths about the experience of middle age and the way in which it can make the longing and intensity of a passionate soul go off the rails. 

But even Any Woman's Blues, Jong's darkest work, keeps a certain Mozartean--or 18th century--distance from the abyss, the Neant.    In Seducing the Demon, when Jong writes about Sylvia Plath's suicide, she resists the simple explanations, such as the infidelity and mental cruelty of Plath's husband.   At the same time, one has the feeling she doesn't quite "get" the kind of inner pain and desperation that can lead to such an outcome; there is an enormous life-affirming, survivalist force within Jong.   She has had long battles with substance abuse, among other problems, but her will to live and to move on appears unbreakable. 

There is also an ironic self-consciousness of experience in the telling of her own story (Goethe, Truth and Poetic Art?) that makes some of the tawdrier moments in the book forgivable or even, in a certain way, delightful.  That's how I think of her tale about breaking up Martha Stewart's marriage (!) and her weird sexual fantasies of Bill Clinton. 

Jong says that she started out Seducing the Demon with the idea of writing a book of advice to young writers.  For many months, I participated in an on-line forum she hosted for writers-in-training.  Many of the thoughts posted there and the writing exercises were helpful to me as someone trying to learn to write fiction.  But Jong came to the conclusion that writing is an almost impossible career to succeed at these days and that anyone who needs encouragement probably doesn't have what it takes.  And while hosting the site was an act of generosity, her occasional appearances on it weren't particularly nurturing; she seemed to lurk mostly in the background, as if she were a therapist in a self-help group.   You should only become a writer, she says, if you have no choice.  There is truth in this but it still strikes me as unduly harsh.   She herself--albeit at a young age--made a choice for writing over the visual arts.  And among the most interesting and touching parts of Seducing the Demon are those that talk about her friendship with Henry Miller; Miller's encouragement and interest meant the world to Jong in the early stages of her career.   He was her "mentor."      I have the impression that Jong is still too immersed in struggles about her own identity to display toward new writers the spontaneous maganimity that Henry Miller showed towards her.  In fact, Jong--very honest--says as much in Seducing the Demon.   The liberation sought by Jong's heroine, Isadora Wing, in Fear of Flying has turned into a lifelong struggle for Isadora's creator.   

Posted by howse on April 6, 2006 at 07:45 AM in Books | Permalink | Comments (1) | TrackBack

Kennedy and Thomas as Representative of the "Cerebral Branch"

Choice quotation from this article about Justices Kennedy and Thomas's pleading with the House Appropriations Subcommittee to keep television cameras out of the Supreme Court:

One member of the subcommittee, Representative John W. Olver, Democrat of Massachusetts, appeared taken aback by Justice Kennedy's fervor. "You've made it clear that you are part of the cerebral branch," Mr. Olver said.

This was in response to Kennedy's arguments for why cameras shouldn't be allowed:

"We teach that our branch has a different dynamic," he said. "We teach that we are judged by what we write."

UPDATE:  WSJ's blog and The Right Coast also have discussions going about the issue.

Posted by Ethan Leib on April 6, 2006 at 01:15 AM in Constitutional thoughts | Permalink | Comments (13) | TrackBack

Wednesday, April 05, 2006

Curricular changes

While we're all in an anniversary-reflections mood, I'd like to get prawfs' and readers' views on this question:  If you had one more unit to teach (or take) a course -- let's say Criminal Law -- what would you add or study?  I ask because we just adopted a new curriculum, in which Criminal Law is going from 3 to 4 units (to get this done, we dropped Procedure from 5 to 4).  I'm sure that, come late November, I'll miss the 3-credit days.  For now, though, I'm really excited to flesh out the syllabus, and add new topics.  So, what would you like to do? 

Posted by Rick Garnett on April 5, 2006 at 05:17 PM | Permalink | Comments (12) | TrackBack

If I Knew Then ... (Part 2)

Paul asks, "what three things do you wish you knew when you 1) went on the job market; 2) started teaching law in the classroom; and 3) started in on your scholarship?" That's nine things, I guess, and I'll only mention one idea with two applications.

When I started teaching law and when I started on my scholarship, I wish I had known about the power of stockpiling. It used to irk me to complete my class prep notes, teach the class, and realize that my most brilliant insights never came out during the discussion. Or even worse, during the drafting of an article I realized in November that most of Section III, drafted in October, no longer fit comfortably in the piece.

What I didn't realize at the time is that these ideas will all get their chance to shine. You will teach classes on related topics (or the same topic next year). You will write additional pieces on the same general topic, either by design or because of unexpected invitations to make speeches or contribute chapters or what have you. If you have a decent filing system or a superb memory, those ideas that landed on the cutting room floor will surely find their way into one of your future films.

This idea inspires me, in teaching and in writing, to message discipline. I can create those wonderful tangents, trim them from the article (or the class) with no regrets, and put them aside for the inevitable day when I'll find their best uses.

Posted by Ron Wright on April 5, 2006 at 02:23 PM in Life of Law Schools | Permalink | Comments (5) | TrackBack

If I Knew Then...

Happy anniversary to all, and many thanks to Dan, Ethan, and the rest of the crew for making this such a welcoming place.  I, too, think this blog has aged very well, and I'm proud that it is generally a place for such reasoned and thoughtful posts.  This has meant I've had fewer chances to post about House, or Neil Peart, than I might have wished to at first, but those minor sacrifices, noble as they are, have been worth it.

One of the strengths of this blog, I think, one of our niche specialties, has been writing about the job market and the early years of teaching and scholarship -- understandable, since we are mostly junior professors here.  I wonder if I can ask our usual crew of bloggers, plus any past guest-bloggers or anyone more senior who wishes to comment, for a list of "three things I wish I knew when...."  Specifically, what three things do you wish you knew when you 1) went on the job market; 2) started teaching law in the classroom; and 3) started in on your scholarship?  Many of our readers are either considering going on the market, on the verge of starting teaching, or just a few years in.  I think this dialogue would be a useful one.

I don't have three items at present for each of these questions (I wish I knew when I started blogging this morning that I'd have to run off to teach my class!), but let me offer a couple of starters. 

I wish I knew, when I went on the market, that it is a very good idea to have your paper ridiculously polished by the time you show up at the Marriott.  I think many people assume they can take some time off the summer before, or write in their offices late at night, and have something ready to generalize about in the meat market interviews that will be even readier by their job talks.  I think a better expectation would be that your paper is utterly written by Labor Day, and that you've had at least three or four meaningful rehearsals of discussing it by the time the meat market rolls around.  I wish I had known, the very first day I started teaching, how much trust and goodwill students are willing to offer professors from the very second they walk into the room, and how much students assume the professor's authority.  I wouldn't have done much differently if I'd known (although the tie and the fake grey hair could have been eliminated), but I would have been a lot less anxious.  Finally, I wish I'd known that prepping seminars is far more work than prepping lecture courses, and that it is very difficult -- not impossible, but it takes a certain amount of revising and revamping -- simply to recreate your favorite seminar from Columbia, or Harvard, or like places when you don't teach at Columbia, Harvard, or similar schools.    

I leave the floor open to others.  Cheers.

Posted by Paul Horwitz on April 5, 2006 at 12:40 PM in Life of Law Schools | Permalink | Comments (3) | TrackBack

Another Anniversary

If Prawfs has been around for a year, then we are also close to the third anniversary of the bombing of Yale Law School.  I was there when the bomb went off (studying for my Fed Courts exam)-- and I was just telling my current Con Law students the tale yesterday.  Why, you ask?  Because it drives me nuts that there are never any garbage cans in Hastings classrooms -- and I produce tons of garbage during class chewing on things, drinking things, playing with tape, and the like.  My students told me that it was for our protection because people put bombs in garbage cans.  And then I remembered one particular bomb in one particular garbage.

And I remembered the FBI being suspicious of Federalist Society people.  Maybe conservatives really do have a tough time in elite law schools.

And I remember that a classmate of mine called his Crim Pro professor to help him while the FBI asked him hours of questions (incidentally, the classmate with whom I was studying for Fed Courts when the bomb went off). 

Does anyone know if anyone ever caught the person/s responsible?

Posted by Ethan Leib on April 5, 2006 at 12:15 PM in Life of Law Schools | Permalink | Comments (5) | TrackBack

Happy Anniversary Prawfs!

I'll have something more to say later today, but I wanted to make available an open-thread to begin the celebrations.  Wednesday April 5th marks our one year anniversary from when we posted this welcome and just a day later I posted this first reflection on the problems of expressive politics in the context of urinal fragrance devices.  Shortly thereafter, Ethan came aboard, then Hillel and we were off to the races.  I'm very grateful to Ethan and the rest of the gang  (writers and readers) for having helped make this space such an enjoyable and instructive one for me, and I hope for others.  As for those of you who wonder how PrawfsBlawg got its name, it's short for raw law professor blogging.  Raw in that most of us aren't tenured and our ideas are usually not yet fully baked...

Some of our former and future guestprawfs will be offering their thoughts today, in posts and comments on this thread.  Enjoy!

Posted by Dan Markel on April 5, 2006 at 12:38 AM in Housekeeping | Permalink | Comments (20) | TrackBack

Tuesday, April 04, 2006

More on the Pod(cast) People

Further to Dan's post, one of the AALS podcasts that is available is one of the two panels held by the Law & Religion Section.  This one is on "Religion, Division, and the Constition" (catchy title -- someone ought to write an article about it!), and features its convener, our own Rick Garnett, along with a modest presentation, immodestly promoted here for your listening pleasure, by yours truly.  FYI, it's not just available to listen to on your Ipod, although certainly it would be wonderful accompaniment for a workout at your local gym; it can be listened to online.  The panel podcast can be found about two thirds of the way down the page here

Posted by Paul Horwitz on April 4, 2006 at 06:09 PM in Life of Law Schools | Permalink | Comments (0) | TrackBack

Nerdfest Available Online

Thanks to an email from the AALS wunderkinder, I've discovered that podcasts of various panels from the 2006 AALS Annual Meeting are now available.  I'm listening to Noah Feldman's dulcet tones right now.  Check them out.

Posted by Dan Markel on April 4, 2006 at 03:57 PM in Life of Law Schools | Permalink | Comments (0) | TrackBack

Cincinnatus, Where Art Thou?

I usually avoid the political posts, but I can't help asking: Does anyone leave Washington?  A great many politicians spend a substantial amount of their time making clear that they're just in this town temporarily; that they're in it, not of it; that the great evil of politics is the "Washington politician" and the menagerie of hangers-on in and out of government that surround him or her.  And when the time comes to retire from electoral politics, is it back to the plough, a la Cincinnatus, or for that matter a la George Washington?  No: it's time to "relocate to Virginia, living closer to Washington to help make a 'successful transition' from public to private life," and to "open 'new chapters' and to 'engage in the important cultural and political battles of our day from outside the arena of the United States House of Representatives'" -- a chapter that I am ready to assume will involve a decent salary hike.  This from a man whose wife once called Washington a "mean town" and said she hated the culture of the city.

Three caveats: 1) Not everyone who is in politics in Washington criticizes "Washington politicians."  I object less to one position or the other than I do to the screaming inconsistency of hating the town and hating to leave it.  2) I don't have some great DeLay quote criticizing Washington and saying he longs to get back to Texas; I didn't feel like the kind of Nexis time that would yield one.  (Feel free to supply one in the comments section, if you like.)  Yet, although DeLay is a consummate Washingtonian, a lover of the political industry, the opposite of a regular guy living a regular life, I feel secure in saying that populism and anti-Washington rhetoric have been central aspects of his public political approach.  3) Some folks leave.  I'm thinking, for example's sake, of Senator Boren, who returned to Oklahoma to head the university, if I remember correctly. 

Perhaps more people should.  As I've observed before, the tragic dilemma, for some (and only some) federalists, champions of smaller central government and an increased role for local democracy centered around the states, is that it entails actually living in them -- and there is no doubt that many of them would quietly agree, to paraphrase Underneath Their Robes, that the states are "ghetto."  Anyone who has ever coped with the DFW airport knows that, if you want to connect quickly to flights to a variety of top-ranked golf courses, you're better off flying through Reagan or Dulles.  In any event, add Mr. DeLay to the ranks of folks who came to Washington vowing to change its ways, and ended up changing only their addresses.      

Posted by Paul Horwitz on April 4, 2006 at 12:24 PM in Current Affairs | Permalink | Comments (1) | TrackBack

Cruel Hypo for Con Law and Fed Courts Students

Those of you studying the intricacies of standing doctrine wondering just how cruel your professors might be on upcoming exams would do well to read my colleague Vik Amar's analysis of a standing claim by Jim Zeigler, a lawyer from Mobile, Alabama, who wishes to challenge the Deficit Reduction Act of 2005.  If you think taxpayer standing is limited to the Establishment Clause, read Vik's more nuanced account of taxpayer standing at FindLaw.

Posted by Ethan Leib on April 4, 2006 at 01:33 AM | Permalink | Comments (0) | TrackBack