Monday, July 31, 2006
A (goodbye) call for a (tweaked) blogger census
It is time to sign off with thanks to the Prawfs gang for giving me another outlet for musings. And I will conclude my month of sporadic guest blogging by expressing the hope that Daniel Solove, now of Concurring Opinions, will soon update his terrific law professor law blogger census. Dan's latest version, version 4.3, is now more than four month old; a lot of notable new professor blogs (examples here and here) and notable new professor guest bloggers (examples at CO and on this blog) have come on-line since March.
And while I am giving Dan work, let me express my interest in seeing the census include info about the blogger status (i.e., tenured, untenured, unaffiliated) when she/he started active blogging. There has been much discussion about the possible perils of pre-tenure blogging, but I think most concerns are overstated. It might be interesting (and comforting to some) to see if numerous bloggers began while untenured.
Of course, all this blogger data may be a lot of work to collect. Perhaps, to aid Dan's efforts, folks can note new law prof bloggers in the comments here.
The Cross at the Top of the Mountain
Every other day, my husband and I -- him pushing a double SUS (sports utility stroller seating two girls) -- run up Mt. Soledad, circle around the cross, admire the 360 degrees of breathtaking views and run back down. The 43-foot cross was erected atop the mountain in La Jolla 50 years ago as a veterans memorial. In 1989, a Vietnam War veteran and atheist filed a lawsuit over the mountain’s cross. In 1991, a court ordered to remove the cross from this stunning national park. But the litigation and political saga has since been going strong. Most recently, on May 3, 2006 a Federal DistrictJudge ordered the removal of the Cross in accordance with the order issued in 1991. According to the district court’s decision, beginning tomorrow, the City must remove the cross within 90 days or face fines of $5,000 per day of violation. But on July 7, Supreme Court Justice Anthony M. Kennedy placed the decision on hold until the city exhausts appeals in both state and federal court. Then, two weeks ago, the House passed a bill that would preserve the by giving the land title to the federal government through eminent domain and having it administered by the Defense Department. The Senate is expected to vote on the bill before Aug. 7. The White House released a statement supporting the bill: “In the face of legal action threatening the continued existence of the current Memorial, the people of San Diegohave clearly expressed their desire to keep the Mt. Soledad Veterans Memorial in its present form. Judicial activism should not stand in the way of the people … The Administration supports the important goal of preserving the integrity of war memorials."
If the bill is approved, and the attorneys litigating the cross’s removal will petition the legality of imminent domain in this case, as they have stated they will do, the new U.S. Supreme Court is predicted to be more comfortable with the public display of religious symbols. As a Jewish runner who frequents the cross, my feelings are mixed about this debate. I grew up with a very different idea of state/religion separation than Americans. I think that because faith reflects the realities of so many in our society, the prohibition of any public expression of this reality can actually be rather oppressive. On the other hand, I believe that a cross as a symbol of the sacrifices of men and women sacrificing their lives for the homeland does not capture everyone’s beliefs and can indeed be experienced as excluding the many non-Christians who gave so much to their nation. The argument constructed by some supporters, that because the cross has come to symbolize the memorial it ceases to be a religious symbol, strikes me as wrong. A cross remains a cross and this one is highly visible. From a different perspective, the removal of the cross after so many years could raise more religious tensions and antagonism than necessary. A county referendum resulted in a 76 percent support of preserving the cross and the idea of removing a monument after it has become a landmark in the city can be highly disruptive. A pragmatic approach might be to leave the cross and allow other faiths to erect their own monuments nearby. Or, perhaps that is not practical at all.
Goodbye and Thanks!
I, too, am signing off as a guest blogger. I'd like to thank the prawfsblawg leadership for having me, and all the folks who actually bothered to read what I have to say (and even respond!) Personally, I have found blogging rather daunting -- I find it hard to write confidently and quickly with little time for editing, proofing, rethinking, and the like. And, the few things I could blog confidently and quickly about -- e.g., reality tv and home improvement (I know how to write a check to just about anyone!) -- aren't perhaps the things that prawfsblawg, at least, is targeted to (and it's hard to justify not doing real work to blog about one's kitchen cabinets). In any event, just a long winded way of saying how much I respect those folks who consistently blog -- it's hard work! Thanks again; see you outside the blogosphere!
A Farewell Challenge
Well, on this last day of July, and last day of what I tend to think of as "deep break" (since August brings the start of another round of pesky classes), I must sign off as a guest blogger. Like the summer generally, my opining stint went by all too fast. I wish to thank Dan and the other Prawfsblawg hosts for running this blog so seamlessly.
My closing challenge: This past summer, we have witnessed an unprecedented spate of doping scandals and allegations, from the Tour de France, to the world of track and field, to the ongoing sleazy revelations of the boys of summer. There has been much finger pointing, but perhaps it's time for us to take a close look in the mirror. No one yet has begun investigating lawprof doping (Starbucks after lunch? Prozac to publish?), but perhaps the superhuman output of a few members of our profession should, like Barry Bonds' 73 home run season, trigger some red lights. Any candidates if Congress decides to take up this brewing problem? I will start off the finger-pointing by nominating the perennial production king, Cass Sunstein, who to my count appears to have 12 new papers posted to SSRN so far in 2006 (and the year is only half over). Could be a Bonds-like year. But perhaps I'm missing some even bigger heavy-hitters?
And with that, adieu.
An End Run Around the Line Item Veto Ban?
Walter Dellinger claims in today's New York Times that there is nothing problematic about a president who signs a law and then refuses to enforce parts of it, claiming that certain parts are unconstitutional.
I can see that when a president "inherits" a law that he thinks has troublesome provisions, perhaps he should be allowed to decline to execute unconstitutional provisions. But does the same logic apply when the president has a chance to veto the law and send it back to Congress for reconsideration? I think there is something to the binary choice that he should sign it and execute it (all) or veto it. Giving the president the right to enforce the law selectivelyrisks furnishing him with a line item veto. Of course, if you think the president should have a line item veto (something the Court has ruled unconstitutional!), giving him this right seems to follow. But if you are against the line item veto, can you really sign onto Dellinger's thesis? Even if you have a relatively functionalist and anti-formalist reading of the I.7 game, I can imagine very good reasons (democratic and acountability-forcing reasons) to give the president only a binary choice; perhaps he shouldn't be able to mess up the equilibrium Congress reaches in a given bill.
As should be obvious, this debate is only somewhat related to the issue of whether the president should offer signing statements to explain his actions, a fairly uncontroversial activity.
Charisma and Trial Practice
In a comment to my earlier post on charisma, Paul Gowder raised an interesting point. Paul wondered how much charisma is dependent on the context of, and proximity between, charisma source and charisma object. He also observes there must be research on this. To quote another great Brian Sullivan line, that won't stop me from proceeding with all the confidence that comes from complete ignorance of the subject.
There must be research on this issue in the context of jury practice. I was thinking about the Law & Order episode (from the Abby Carmichael days) in which the young woman juror is bamboozled by the serial killer defendant, hangs the jury (and ends up stabbing him post-trial). The relationship between counsel and the jury, particularly in extended trials, is artificial and odd. You are physically close to the jury, particularly if you have the plaintiffs' counsel table next to the jury box. You can look at each other, but you can't talk to each other, verbally or non-verbally (other than everybody says "good morning" first thing). But stuff is going on that has to resemble charisma-output. Certainly as counsel you start to attribute personalities to the jurors, even though they never say a word! (You don't get that watching Law and Order, by the way. All you see are the occasional jury reactions to colorful testimony by the witnesses.)
A couple anecdotes and thoughts below the break.
1. Irving Younger, in his classic video taped lectures on trial practice, talks about both verbal and non-verbal control of the courtroom. One of my colleagues used to quote his line about keeping the counsel table neat: "all you should have is a single bound notebook and a pencil, and the pencil should be pointed at the jury."
2. You never quite know what is going to cement a non-verbal relationship. In 1983, we were trying a securities class action (we represented plaintiffs) in the USDC in Grand Rapids, Michigan. My job was to be document-meister (remember this was before micro-computers, much less laptops, were around). We rolled a filing cabinet into the courtroom. When the senior partner needed an exhibit we hadn't already pulled out for the witness examination, I would get up from the counsel table near the jury box, go to the cabinet, pull it out, walk back, and hand it to him. On the second day of trial, somehow I managed to pull the wrong one. Don, our senior partner, gave a big charming smile (Don's regard for his own trial charisma is another story entirely), and said, "no, Jeff, that's not it." So I went back and pulled the right one. The next day we settled the case and the jury was dismissed. The judge let us interview the jurors. One young woman said to me, "oh, when you pulled the wrong document and Mr. Young said something to you, your little cheeks got all red. It was so cute."
3. We had an extended trial (eight weeks, maybe?) two years later in the USDC in Cheyenne, Wyoming. After the trial was over, the same partner received a letter from a juror with a lengthy poem about the case, including the fact that apparently in the privacy of the jury room, the same partner (Don Young) was referred to as "Captain Energy."
4. When I was in high school, F. Lee Bailey was defending some alleged mobsters in the USDC in Detroit. Several of us went down to watch the trial one afternoon. The man had charisma. It enveloped the courtroom.
5. To Paul's multiple points, there must be research on this. Mine are also, no doubt, worthless data points. Systematic research might well explain part of it; whether you could use it to teach lawyers charisma power in the trial setting is another question. Where are the psychologists?
The Truly Unpublished Opinion
I had a fun time this weekend at the Manuscript Division of the U.S. Library of Congress, finishing the research for a soon-to-be-SSRNed paper in which the Supreme Court's 1948 decision in Hirota v. MacArthur (which I've previously blogged about here) figures prominently.
Anyway, I found lots of cool nuggets about the case in the papers of various of the Justices, including one gem -- an unpublished opinion by Justice Rutledge that is both interesting and useful in contributing to my thesis about the case (more on that later). It got me thinking, though, about the role of such "unpublished" ("unfiled"?) opinions in legal scholarship. Indeed, my own cursory count finds three fascinating law review pieces in the last four years on unpublished opinions by Justice Jackson alone (viz., my colleague Patrick Gudridge's 2003 essay on Ex parte Endo in the Harvard Law Review [not publicly available, but see here], Jack Goldsmith's recent Green Bag essay on Jackson's unpublished opinion in Ex parte Quirin, and Dennis Hutchinson's wonderful look at Jackson's role in the internment cases in the 2002 Supreme Court Review [not publicly available, but see here]).
There's something both immediately appealing and unsettling about scholarship relying on these opinions. They're appealing because the opinions are usually under- (if not un-) studied, and especially for scholars who know that particular case inside and out, they'll certainly add insight and perhaps intrigue to the decision. It's always good to be first. But what kind of insight? Is it necessarily true that the insight will be correct?
Consider the following example: Justice X is unhappy with the majority's resolution of a specific issue, and drafts a concurrence explaining how s/he would resolve the question. The author of the majority opinion removes an offending sentence, or otherwise tweaks the draft to alleviate the Justice's concerns, and Justice X withdraws the draft. In that case, if the issue is whether the majority decision resolved an issue, and the draft concurrence says "I do not view the majority as reaching this question," the fact that it was withdrawn might prove the opposite of what it says.
Don't get me wrong -- I have no problem with how Jackson's work was used in the three pieces noted above. And I think that such opinions are certainly fun to know about. But I'm struggling with where the line is between a useful piece of anecdotal evidence and a counterfactual and misleading piece of ahistorical writing... That is to say, in hard cases, might scholars perhaps go to far in using these unpublished opinions to animate our understanding about particular cases and/or Justices?
The Rutledge opinion I came across this weekend provides an example of what is, to me, an easy case. Briefly: The opinion is drafted as a dissent from the Court's refusal to set the case for argument and its otherwise summary denial of review. Rutledge argues, rather vehemently, why he thinks the case deserved to be heard. But, thanks to Justice Jackson, who resolved what had been a debilitating 4-4 tie in the "war crimes cases," the Court voted to hear Hirota, rendering Justice Rutledge's dissent moot (and yet validating his underlying point).
Anyway, to me, the Rutledge opinion provides an interesting window into what was going on at the Court vis-a-vis the case, and perhaps into the motivation for Justice Jackson's tiebreaking vote to set the case for argument. But, as I said, this strikes me as an easy case, for there is an entirely obvious explanation for why the opinion was withheld, and one that doesn't call what the opinion says into any question.
But what about hard cases? Are there examples out there of scholarship reaching differing conclusions about the significance of un-filed opinions in particular cases? Are there other cases where unfiled opinions have figured prominently in the historical study of the decision? Or am I making a mountain out of an interesting, but entirely footnote-able, molehill?
[And how the heck do you handle the Bluebook side of this?] :-)
Sunday, July 30, 2006
Homage to Brian Sullivan (or, Thoughts on Personal Force)
What makes charismatic people exude their personal power? I have heard stories about people (of all political persuasions) encountering Bill Clinton in person - is it size? looks? the fact he is/was the President? (On the latter point, perhaps "is" counts, but a recent personal experience suggests mere "was" does not. I was in New York in May for my daughter's college graduation, and was walking down Lexington Avenue early on a Saturday morning to get a Starbucks. A group of people were coming up the street in kind of a funny formation, with two small older people - a man and a woman - in the middle. I recognized the man as somebody I knew - in fact, in the first instant, I thought he knew me too, because he made eye contact and smiled at me. Then I realized it was Jimmy and Rosalyn Carter, walking up Lex (holding hands, by the way, it was cute) , neither of whom I know, and the odd formation was the Secret Service contingent. It was cool, but it was not charismatic.)
Two people in my career with whom I've had more than passing contact have exuded such personal force as to make me wonder how it happens. One is Larry Bossidy, the former chairman of Honeywell/Allied Signal. Bossidy is a public figure and best-selling business author, so I don't need to comment on him. Instead, I want to consider Brian Sullivan, who from 1981 to 1990 (the "Wonder Years," three through twelve, of my law career) was the Executive Partner of the Dykema Gossett law firm based in Detroit. (In creating the link to its web site, I had a Brian Leiter " wild hyperbole" moment. Its motto now, I guess, is "A Law Firm Unlike Any Other." That is either (a) an unremarkable statement of the obvious, unless they are cloning firms now, or (b) the law firm version of what Brian would call Sextonism. Brian Leiter, that is. But I can imagine Brian Sullivan having a similar view of the slogan - see below.)
Some of Brian's more memorable exhibitions of personal force, and some speculation on the nature of charisma and personal power, continue below the break.
I have not seen Brian in many years (he pretty much retired cold turkey). He was about 5'11, a Harvard Law School grad, jut-jawed, square-faced, with white hair slicked back straight from an even and not very receded hairline. His voice was very deep and he spoke loudly. Supposedly he had been a boxer in college. He had a legendary Irish temper, known to recede as quickly as it flaired up. He had a stable of high-powered clients, many of whom hired him after having seen him perform on the other side in a negotiation. When he laughed, it was kind of a bark, but I don't think he had much of a sense of humor. In 1984, I was asked by one of the other senior partners to organize an associates' skit/roast (in which now-Professor Lee Pizzimenti of the University of Toledo Law School played a leading role). My best friend (in the law firm and life), Alan Greene, played our administrative partner, a non-descript bureaucratic fellow with the unlikely name of Henry Clay (known as The Great Compromisor), who, among the associates, was best-known for being Brian's lackey and wearing his pants belted somewhere around his armpits. Alan, wearing a pair of pants belted around his armpits, began his part of the skit (an announcement by Henry of new administrative cost saving measures, like conserving on paper clips) by walking out on stage and unrolling posters of Marx, Lenin, and Brian. We also asked a black associate by the name of Avery Williams to play Brian in a white George Washington wig. It was the last associates' skit for almost seven years.
One partner told a story of Brian getting mad because a dictaphone wouldn't work, and throwing it against the wall, whereupon it began working perfectly. The partner watching this said, "well, Brian, you just scared it into working."
Despite his lack of appreciation of others' humor, he had a dry and deflating wit. I personally have many times quoted his description of his main job as the leader of a law firm partnership: "keeping the troops sullen but not mutinous." (I recommend that to deans. ) A young lawyer was bragging about having billed twenty-two hours in a single day. Brian's response: "I wouldn't want to be the client paying for the last eight or ten of them."
I encountered his direct management style once. I was - how should we say this? - a bit brash, even a little cocky, as a young lawyer. It didn't help that I looked about nineteen when I was twenty-seven. I was trying to get reimbursed for a trip and getting frustrated and I was probably just a little too abrupt on the phone with his secretary. About an hour later, I was summoned to his office, where Brian, face beet-red, threw a one-paragraph memo at me, and said "Read this." It was a fairly accurate description of my conversation with his secretary. Brian asked, "Is it true?" I said, "yes, and I'm really sorry. I will apologize to Carol." He replied, "you are a really smart guy and a fine lawyer, but if you can't get along with the staff, you have no future with us."
But I have always wondered about that personal force. Was it the voice? The temper? The white hair? I speculated that it was a combination of two things: (a) despite the temper, amazing self-control and calculation, and (b) just not caring what other people thought of him. As to the first, another partner told the story of Brian just reaming an opposing lawyer in the hallway of the Wayne County Circuit Court, and in the midst of the tirade, winking at the Dykema associate standing behind the unfortunate victim. As to the second, I once speculated that personal power arose because there was an imbalance between two people in terms of how much each other cared what the other one thought. I cared a lot about what Brian thought of me; Brian didn't seem to care what ANYONE thought of him. Consistent with that was something Brian told me about negotiating style. He thought you gained an advantage if the other side thought you were just a little bit irrational and needed to be placated; he once told me it wasn't really a negotiation if he hadn't walked out at least once.
That never worked for me; I always wanted to be loved more than I wanted to be feared.
Saturday, July 29, 2006
Most over- and under-litigated important issues?
In posts this week at my home blog, I lamented the excessive amount of litigation about lethal injection protocols these days and the persistently insufficient amount of litigation about confinement conditions in Supermax prisons. As explained more fully in my posts here and here, I see much greater affronts to human dignity from caging thousands of inmates for many years under conditions of extreme deprivation than from the possibility that a few convicted murderers might suffer pain in the execution process minutes before they die.
It dawns on me that folks working in other legal fields might likewise be peeved about some issues getting too much litigation attention while other issues receive too little. So, dear readers, I encourage you to use the comments to identify (and vent frustration about) what you view as the most over-litigated and/or under-litigated issues in your field.
As a related follow up, I would be grateful to hear ideas about what a lawyer might do to rectify perceived litigation imbalances (other than to blog about them).
Friday, July 28, 2006
I can't say that I don't like prepping for a new class, because when I'm into it, it's always pretty interesting. But it does take a psychic commitment to buckle down, and I find myself easily distracted (like today) by blogging, e-mail (because I take notes on my laptop), and anything else going on around me.
Recognizing that this is a matter of personal style, I'm still curious how new professors most effectively prepare for a new class. Last summer, I did extensive class notes (even to the point of inserting reminders for good one-liners) through the summer, and found from time to time either that I was a little stale, or I was redoing everything anyway just before class. This summer, I am reading and briefing the cases, but not doing class notes until a couple weeks before. The other alternative is not to do anything over the summer but research and write, and do all the class prep during the school year, something that would significantly raise my anxiety level.
Any thoughts out there? Please don't respond if it would distract you from class prep.
Scholarship: When Should We Face Facts and When Should We Indulge Fantasy?
There are many different types of scholarship and many different goals that one might have. I want to talk about one discrete problem -- Assume statutes or doctrines exist that you find indefensible, and these doctrines also have discrete problems within them. So, for example, you may think the felony murder rule is completely unjustified, but the current treatment of merger within felony murder is nonsensical. – [For the non crim types out there I’ll explain felony murder and merger after the jump]
Now, if you don't believe that there should be a felony murder rule, is it a worthwhile goal to try to fix merger? -- I may actually need to decide this. After serving as a commentator at a conference where I critiqued Claire Finkelstein’s approach to merger (my critique is here), I’ve formed some potential solutions of my own. But I don’t support felony-murder liability…. Should one attempt to bring principles to the unprincipled? Or just write something else?
(The felony murder doctrine, at its broadest, allows a defendant to be prosecuted for the crime of murder for any death that is proximately caused by his (or his accomplices') commission of a felony. Jurisdictions have exceptions to the rule, including that the felony has to be inherently dangerous. Merger is another exception. The best way to explain merger is through an example -- If the defendant intentionally kills his victim, he must first point the gun at the victim to accomplish this feat. This action, assault with a deadly weapon, is itself a felony. If this crime could serve as the underlying felony for felony murder, the prosecution would never have to prove that the defendant intentionally killed the victim. Rather, the prosecutor could simply bootstrap from the assault charge to a felony murder charge. To prevent such a result, courts have held that some felonies merge into the homicidal act and cannot support felony murder liability. The problem is that there don't seem to be any good rules for when a felony should and should not merge.)
Being Right and Radical Skepticism
This may be sucking up to my hosts, but I wanted to explain why I so much like the PrawfsBlawg "one line bio": "Just some friends trying to get the arguments right."
I will post something later in my guest tenure on being right (based on a talk I gave once, the sub-title of which was "Being Right is Not All It's Cracked Up to Be.") There's clearly something unnerving about an encounter with someone who knows without question, to a God-like certainty, with no doubt whatsoever, precisely what is right. (I believe some things are right almost to a certainty, but I don't know them; but that's epistemology for another day.) The opposite extreme is the kind of post-modern radical skepticism of a Richard Rorty or, as Frank Snyder skewered in his wonderful essay on blogging, Duncan Kennedy. I liked Charles Fried's response to the radical skepticism or cynicism of Posner's pragmatics, which linked it back to rightness: "As so often happens, the skeptic here is a disappointed absolutist, taking his revenge on the world for depriving him of all the right answers at once." ("Philosophy Matters," 111 Harv. L. Rev. 1739, 1750 (1998)).
My recommendation to Kim's reading list request reminded me that I prefer to take the example of another Harvard-educated lawyer who lived through turbulent and heady times of change, revolution and learning, here in an excerpt from David McCullough's biography. John Adams believed he lived in "the greatest of times...the eighteenth century." But:
Human nature had not changed, however, for all the improvements. Nor would it, he was sure. Nor did he love life any the less for its pain and terrible uncertainties. He remained as he had been, clear-eyed about the paradoxes of life and in his own nature. Once, in a letter to his old friend Francis van der Kemp, he had written, 'Griefs upon griefs! Disappointments upon disappointments. What then? This is a gay, merry world notwithstanding.'"
It is a world in which Adams would have, I think, treasured the democratization of information through the Internet. At the same time he would have understood the paradox - that the wisdom, not randomly distributed, to sort through it all, or to teach others how, was an even more valuable commodity on account of it. And that the right way to approach the task is somewhere between radical certainty and radical skepticism ("trying to get the arguments right") with a touch of humility ("just") and in a mode of civil, or more than civil, discourse ("some friends").
Looking for a few good books
Because my husband and I work on opposite ends of New Jersey, we live in the middle and I have to drive 1 hr each way to work. After a couple weeks of singing in the car, it got pretty old and I turned to books on tape. This was a great discovery for me. Before, I never could justify reading fiction when there were good crim books out there to read. But until OUP starts putting its books on tape, I get to do some pleasure listening.
In any event, as fall is fast approaching, I'd love some good book recommendations. My quid pro quo is that I'll offer a few thoughts on some of the books I "read" last year in Dan Markel/Ruth Franklin style (or maybe a teeny bit more...).
The Kiterunner - Clearly the best book I read. Gripping. I arrived at school weeping some days. No joke. (even the couple contrived plot twists couldn't hurt it).
Memoirs of a Geisha - Boring. Lame ending. The only redeeming thing was learning what to value in a kimono, but I'm not shopping for one.
Angels and Demons/Da Vinci Code - Okay, so I was a little late to read these. Absolutely entertaining for the car, but not much literary value.
Life of Pi - I liked this. Dogma meets Regina v. Dudley and Stevens meets Sigfried and Roy. Or how to live when you are stranded on a boat with a tiger.
Saturday - I didn't like it, though I know I should have. And the crim prof in me couldn't stand the ending. But I'm "reading" Atonement now which, so far, I like much better.
All recs appreciated!
What Happened to Harold Reynolds?
I was stunned to learn from a friend at dinner last night that, apparently, ESPN fired the enormously popular baseball analyst Harold Reynolds on Monday. (Stunned both that he was fired and that I hadn't heard anything about it.)
The New York Post notes that "The reason was not immediately known. 'We are not going to comment,' ESPN VP Josh Krulewitz said." Here's the USA Today story, and here's ESPN's statement.
The predominant rumor about why Reynolds was fired is that there were serious allegations of sexual harrassment, but there are also whispers that it was because of his continued criticism of the Yankees' Alex Rodriguez. Either way, it seems extremely curious that no one is talking about why... If it's the former, you'd think ESPN would leak it, to show that they're in the right; if it's the latter, you'd think Reynolds wouldn't be so complacent about it.
A shocker, to be sure, and with the wonderful Peter Gammons ("But...") still recuperating from a brain aneurysm, BBTN is without its two best analysts. Very sad.
Some (Belated) Reflections on SEALS
Now that it's been almost a week since the end of the annual junket--er, conference of the Southeastern Association of Law Schools (SEALS, for you people from other parts of the country), I thought I'd share a few thoughts I had about the conference, the utility of going to events such as SEALS, and, well, The Breakers (this year's venue). So, in no particular order:
- $22 for a cheeseburger? Really??
- What is perhaps best about conferences like SEALS is the focus on young scholars. SEALS, through its "emerging scholars" program, does a great job of promoting scholarship by newbies, and, perhaps more importantly, providing a means for lots of junior faculty types to get to know each other, including bloggers and non-bloggers alike. (Who knew, for example, that Missouri was in the Southeast?) These are both Very Good Things. Junior prawfs get to work out the kinks in their scholarship, and get to find friends both in and outside of their fields (we all have at least something in common--students!). The more conferences target at least some of their programming toward junior scholars, the better, methinks.
- Although the emerging scholars panels are great (see supra n.2), having the panels at 8:00 a.m., every day, is just mean. I mean, sure, I went to 2 of the 8 a.m. panels, but I wasn't happy about it! Really -- would it be so hard to start at 9?
- Free ice cream novelties, every day at 3:00 p.m., should be a must for every conference.
- General conference problem: People need to wear their nametages a little higher. I feel awkward staring at someone's midriff trying to figure out their name. (And as akward as I feel, it looks even weirder, especially for me--Mr. 5'20"). Seriously--nametages on hats; who's with me??
- SEALS had a pizza party for the teenage attendes. Along similar lines, there should be dance parties for attendees under the age of 40 (and select others).
- There really is no such thing as a free lunch. Those of you who were with me for the free lunches, you know what I mean.
- My one real critique--SEALS could be a bit shorter. I mean, I know that we don't have to go for the whole week, but it would be more fun, I think, if everyone were there at the same time; if SEALS ran three or four panels at once, instead of two, and was four or five days, instead of seven.
- Okay, I can't get over this -- $22 for a cheesburger?
- I hope to see everyone I met (or saw again) at SEALS sooner, rather than later. AALS, anyone?
I've never been the biggest fan of conferences. I find them awkwards at times, hard to navigate if you're there without many of your colleagues, and not necessarily worth the effort of traveling and dropping off the grid for a few days. That being said, for at least most of the reasons outlined above, SEALS is a must-attend, especially for junior folk. Even if you don't actually teach in the Southeast. As my people say, "Next Year in [Amelia Island]."
Thursday, July 27, 2006
Nice post from Orin Kerr (are there any other kinds?) on the use of "we" in district court opinions. I prefer to focus on the last part of his post, where he writes:
I think it’s also worth noting that a lot of legal scholars try to avoid the first-person altogether on the ground that it seems less authoritative. So where you might write “In this article, I argue that the moon is made of green cheese,” some authors (and lots and lots of law review editors) will want to change that to “This article argues that the moon is made of green cheese.” I usually try to resist this, as I prefer my writing to be as direct and honest as possible. The truth is, my articles are not entities that make arguments on their own; it’s always me pulling the strings behind the scenes. So I would rather just say “I.” But I’m probably in the minority. Er, rather, the view stated in the preceding sentences is probably in the minority.
I'm with Orin. Why turn somersaults deadening your prose, all in the effort to pretend you're not venturing an opinion? What he doesn't say here is that keeping the vertical pronoun in your legal scholarship can entail battling it out with law review editors (some of them -- not all of them!) who have absorbed a view, mistaken in my opinion, that professional writing must aspire toward the impersonal. One can even face pressure from colleagues, who have internalized a similar view or are offering well-meaning strategic advice. I do try to prune the "I's" from my writing at the end of the day -- too much of anything, including "me," can be a bad thing -- but there is nothing wrong with acknowledging that there is an actual person writing a law review article.
Deeper down still, I think, the reason why "I" is often disfavored by law reviews and courts is an anxiety of authority that is so often present in the law: a desire to paper over the fact that one is advancing an argument as to which reasonable people can differ, by making it look as if one is doing nothing more than stating what is obviously true.
EV and PS on Foreign Law Clerks
Eugene Volokh has an interesting post on whether foreign citizens can serve as law clerks. It is of special interest to some of us here at Prawfsblawg. One of us is a Canadian with a US law degree who clerked for a federal judge; the other has a mixed Canadian-US legal education and likewise clerked in the States. As I note somewhere in the comments section to Eugene's post, it's not just an import question; many graduates of US law schools have clerked for foreign courts, such as the Supreme Court of Canada and the Israeli Supreme Court. I don't know whether all of those individuals were citizens of those countries. Other examples, with reference to citizenship, are welcome in the comments. Other commenters to Eugene's post have added various cautions about things would-be clerks in this situation should keep in mind; to those cautions I add my own in my comment on that page, about bar eligibility for foreign lawyers.
Peter Spiro adds his own two cents at Opinio Juris, tying it to his description of the erosion of domestic "citizen eligibility requirements." He also says:
There is something odd about this, perhaps, at least in historical perspective. Why should someone with no necessary tie to the community be influencing U.S. constitutional law on an issue like abortion (and why is it relevant that the country in which the person holds citizenship has a defense treaty with the US)?
The second question in that paragraph is interesting, since most clerks hardly gain access to information that is especially closely tied to defense and so on. Maybe someone else has an answer. But isn't his first question somewhat overstated? (I understand that it's tied to his broader point about citizen eligibility requirements, but still.) First, if we're talking about US law degree holders, is it really accurate to characterize such individuals, who at the least have spent three years living in the US and steeping themselves in the US legal tradition, as having "no necessary tie to the community?" Perhaps the word "necessary" is doing all the work here -- but should it? Hasn't such a person voluntarily tied him- or herself to the community? Aren't such deliberate commitments to a country other than the country of one's birth often as meaningful, or more so, than the sometimes passive commitments of citizens by birth?
Moreover, doesn't the validity of his question depend at least in part on what we mean when we say that the foreign law clerk may "influenc[e] U.S. constitutional law?" Most judges are sufficiently independently minded, at least with regard to their law clerks, that they are not subject to serious influences of this sort. The kinds of influences to which they are subject are both wholly proper and largely internal to the local interpretive community; that is, a law clerk may offer influential arguments, from within standard forms of U.S. legal reasoning, that a judge's reading of a particular case or line of cases is unsound, or that another line of doctrine is relevant to a case, and so on. Although I appreciate Prof. Spiro's broader point, and one might ask why foreigners should be able to serve the United States in any capacity, I think the concern of "influence" is not that great.
Incidentally, the question Prof. Spiro asks has nothing to do with the ongoing debate over the use by US judges of foreign legal materials, although some might be tempted to draw a connection between the two. A U.S. judge might instruct his American law clerks to consult foreign law; conversely, a U.S. judge might instruct his foreign law clerks only to consult American law. Although the foreign law-clerk issue and the foreign law issue both sound in deeper questions of sovereignty, they are nevertheless distinct.
Banning Laptops from the Classroom
A good friend who teaches at a great east coast law school recently told me she had her very best class this year. She has been teaching law students for many years and always had good evaluations, but had felt that it was difficult to keep second and third year students engaged in her upper level elective. This year, she decided laptops had a great deal to do with her students distractions. She made them the following offer – they would begin the semester with two weeks of a no-laptop policy. She would in turn post her teaching notes on TWEN. After the first two weeks, the students would take an anonymous vote on whether the no-laptop policy should remain for the rest of the semester. The results: the students loved it. They found themselves more engaged, more involved in the class discussions, and the course evaluations were the best of all years. My friend told me however she would be worried about trying out this classroom policy as a non-tenured new prawf, because there are some students who were, at least initially, resistant.
My understanding is that in business schools there is a trend of banning laptops. According to the Chicago Tribune, at the University of Michigan Law School, a computer system has been installed to block students accessing the Internet during their scheduled class times: “Some students get around the system by borrowing the account names and passwords of students who aren't in class at the same time. “One of my jokes is that I'm willing to compete with Minesweeper, but not with the entire Internet," said Michigan law professor Don Herzog, who initiated the faculty discussion that led to the Internet ban. Herzog said that when he first suspected students were checking the Internet during class, he sat in the back of his colleagues' classes as an experiment and saw that about 85 to 90 percent of students were surfing. Even a special lecture by a popular faculty member didn't stop students from getting distracted.” The Tribune also reports that Harvard University law professor Bruce Hay, along with another handful of HLS prawfs, banned computers from his wireless-enabled lecture hall this past year. "Frankly, if I was in their position, I would be tempted to check my e-mail. I understand it," said Hay, who teaches civil procedure and law and psychology. "But when a lot of people do it, it becomes demoralizing and distracting."
Finally, on the other side of the debate is the University of Chicago Law School, professor Randy Picker, who reportedly “has no intention of banning laptops or Internet access. About 90 percent of his students bring computers to class, and he encourages them to use the university's wireless connection to pull up his PowerPoint slides or research a topic raised during class discussion. "Obviously the Web is something of a distraction, but there are a lot of distractions," Picker said. "My job is to make them want to pay more attention to me than what is on the screen."
I am wondering how much do prawfs in other schools find laptops to be a distraction to quality classroom learning and whether there is a broader trend in various schools.
Solum on Reasons
Larry Solum calls Doug Berman's post on "reason or no reason at all" "nifty" and weighs in with his usual well-considered thoughts here.
Making lawyers (and law professors) look good on The Colbert Report
Thanks to How Appealing, I saw through YouTube the appearance of Hamdan's lawyer, Professor Neal Katyal, on The Colbert Report. You can view the video here. The segment is great, and Neal does himself and our profession proud. But Neal should not expect an invitation to the White House anytime soon.
On a related aside, why shouldn't the winning lawyers in major Supreme Court cases sometimes get invited to the White House? Victorious sports team are always showing up at the White House, and I would like to see victorious legal teams get some love, too.
Wednesday, July 26, 2006
Deliberation and Social Science
This will be my last post. Thanks again to the Prawfs, especially Dan Markel, and to all those who graciously and generously discussed the ideas of my new book.
Just a final point of clarification. Some commentators in this blog have challenged our claim (my co-author is Guido Pincione, a brilliant Argentine philosopher) that political deliberation fails because it overlooks reliable social science. These critics have suggested that social science is not reliable. But if this is true, those who advance political positions in deliberation are knowingly deceiving their audiences. For in that case a defender of the minimum wage (to continue with that example) should say "I support the minimum wage because I want to help the poor, but I don't have the slightest idea whether the minimum wage will do that." That most people who support the MW in the political arena perpetrate discourse failure --that is, that that their reasons for supporting the MW are not truth-sensitive-- is shown by the fact that they conceal their supposed belief in the unreliability of social science, since if they didn't, their own view wouldn't make sense and, most important, they would fail to gain adepts. They are not epistemic skeptics; on the contrary, their statement pressuposes an economic theory according to which the MW does not produce significant unemployment.
Now suppose that the effects of the MW on employment are controversial, according to the most reliable literature on the subject. In that case, the supporter of the MW should acknowledge that. She should say "I support the MW, but I must warn you that, while the issue is controversial, it is just possible that the MW will cause unemployment." That supporters of the MW virtually never say this reinforces our suspicion that we are in the presence of discourse failure (that is, that the defense of the MW can be traced to truth-insensitive processes such as rational ignorance or posturing.)
And again, our view is not that the public is stupid.
Take tax cuts. We all like to display our progressive credentials by blasting Bush's tax cuts with clichés such as "they are giveaways to the rich". But have we done a conscientious study on the effects of these tax cuts on economic growth or on the poor? Of course not. As we all know, tax economics is particularly complex. In many instances, lowering taxes stimulates the economy; in other instances, it doesn't. I don't have the slightest idea (and I am too lazy to find out) whether the Bush tax cuts will help or hurt the economy or the poor. And if I may say so, I doubt that many of the readers of this blog have undertaken the study that is needed to overcome rational ignorance before pronouncing on the wisdom of the tax cuts. And we are law professors!
Again, thanks to all. I look forward to discussing ideas in this excellent forum.
Of Reasons and Causes (And Beating a Dead Horse?)
I will take the bait dangled by Doug, Russell and one of the commenters to offer up the philosophical interpretation of "for any reason or no reason at all," and suggest it appears in Joe Slater's explanation of the cause of action for harm caused by the actions of a mentally disturbed person. (Joe, you are a lawyer worthy of your bar card in scurrying away from metaphysics as quickly as you can, as pointed out here.)
One way of looking at why things happen in the world is to distinguish causes from reasons. Here's a demonstration of the difference:
Of all [intentional] actions the question can be asked: Why do that? This question asks not for a cause or explanation, but for a reason. Suppose someone asks me why I struck an old man in the street. The answer "Because electrical impulses from my brain precipitated muscular contractions, and this resulted in my hand making contact with his head" would be absurd and impertinent, however accurate as a causal explanation. The answer "Because he annoyed me" may be inadequate in that it gives no good reason, but it is certainly not absurd. Reasons are designed to justify action, and not primarily to explain it. They refer to the grounds of an action, the premises from which an agent may conclude what to do.
(Roger Scruton, "Kant" in German Philosophers (1982), 69-70.)
A Kantian invokes the concept of personal autonomy and will, versus heteronomy and physical cause. What makes me a person is my ability to act out of duty or compulsion (including the compulsions of hunger, passions, emotions, etc.), and my freedom to will the choice - obey a duty or succumb to impulse. Reasons, if they exist, justify action. I may do something for a reason (I choose duty or passion) or no reason (I don't bother choosing; I just do). If the legal standard says "for any reason or no reason," I am simply given the choice whether to justify or not to justify. Moreover, to pick up on Joe's point about the absence of at will liability for the actions of a mentally ill person, if I am not a rational person, and hence do not have will in the matter (a mental defect), then the explanation is by cause not reason, and we do not ascribe blame or liability to the mere cause and effect of unwilled activity in the physical world (except strict liability, but that invokes the corrective justice debate in torts and I don't want to go there).
The key, though, is to see the answer to the question "why did that happen" as different in calling for a reason (justification of the action by a rational being) versus a cause (why the action occurred in the physical world).
On No Reasons and Mixed Reasons
Per Doug's query below, I think that "no reason" really means "any reason", but can include reasons like: I was forced to choose and so I chose X, not because I really prefer X, but because I preferred some choice to no choice (think Sophie’s Choice). Of course, the “for any reason or no reason” formula was most famously deployed to describe the traditional understanding of peremptory strikes in jury selection. Since the formula permitted prosecutors to strike potential jurors on the basis of illegitimate criteria, the Batson doctrine was developed to place some safeguards on what previously had been unconstrained discretion, essentially modifying the phrase to “for any reason, except an impermissible reason.” Ungainly, but perhaps not unworkable. In the Batson context, an interesting problem (about which I’ve written) has arisen in which the proponent of a strike will state both a neutral reason and an impermissible reason in the attempt to defend the strike. Courts have tended to treat this instance as a causation problem, evaluating the permissibility of the strike based on an analysis of whether the impermissible reason was the “but-for” cause of the strike. Since we are talking about trying to get into the head of the proponent to sort out the “true” mixture of motivations, this whole line of inquiry is pretty dubious, to say the least. In the context in which Doug’s question arises -- prosecutorial discretion -- there is no comparable limiting procedure to ensure that prosecutorial declinations are not the product of race discrimination or some other illegitimate consideration. Maybe there should be. Maybe victims of alleged crimes, or others, should be entitled to a reason for a declination, at least in cases in which the victim could make out a prima facie case of racial discrimination in the declination. (Might be tough.) Pretend we had such a mechanism. What do you do with the case in which the prosecutor then admits that he declined to prosecute X because he was a) white, and b) a first-time offender, and he always gives first-time offenders a break? Should we demand some showing that racial bias actually "caused" the declination? Doesn't that really seem beyond silly, given the evidence of racial bias already adduced?
The stem-cell veto and the Constitution
Following up (sort of) on Paul's very thoughtful recent post on the role of religious reasons for public officials' actions, I am interested in people's reactions to this piece, from Jurist, by Professor Elizabeth Price Foley. She contends that, because "[t]he Constitution, as interpreted by the U.S. Supreme Court for the last thirty-three years, does not recognize pre-viable embryos as 'human life'"; and because, given Casey and Roe, "under the Constitution of the United States, parental liberty trumps any interest government might have in protecting pre-viable human embryos"; it is therefore the case that "when President Bush justified the use of his veto power to prevent 'the taking of human life,' he was using Executive power to effectuate a personal moral view that is fundamentally antithetical to the law as declared by the Constitution and interpreted by the U.S. Supreme Court. He was defeating a legislative act – thwarting the will of 'We the People' – to pursue an agenda contrary to our declared Constitution."
Is this argument -- I hope I have stated it fairly -- persuasive, or even plausible? Put aside, for now, doubts about whether the Roe line of cases in fact stands for a constitutional-law rule that pre-viable embryos are not "human life" (as opposed to a rule that, because such embryos are not "persons" protected by the Fourteenth Amendment, before viability, a woman's privacy and liberty interests outweigh whatever interests the state might have in protecting them). Is it likely that the President's duty to “preserve, protect and defend the Constitution of the United States" precludes him from vetoing a bill for moral reasons that are in tension with the premises and implications of a particular line of Supreme Court decisions? I would not have thought that even the strongest judicial-supremacy positions entailed such a result.
Can a decision be made "for no reason at all"?
A draft article I read about prosecutorial discretion noted that courts are disinclined to scrutinize choices not to prosecute. One court was quoted as declaring that prosecutors could decline to prosecute "for any reason or for no reason at all." This phrase rang a bell; I recall other areas in which courts say some decision may be made "for any reason or for no reason at all." This phrase also led me to ponder a (silly?) metaphysical question: is it really possible to make a decision for no reason at all?
Obviously, one can make decisions for no good reason or no clear reason or no articulable reason or no sensible reason or no identifiable reason. Indeed, lots of mundane decisions --- which gas station to stop at, what size coffee to order, which plumber to select from the yellow pages --- are surely the product of hard to explain feelings or instincts. Still, if pressed, I can always give some account of why I made even the most mundane of decisions.
Because I cannot fully grasp the notion of a decision made for no reason at all, I am wondering if such a decision is even possible. And if it isn't, should courts in the future just say that certain decisions can be made "for any reason"?
Tuesday, July 25, 2006
A Thought Experiment on Norms
There are a number of theses out there on why we obey social norms, including those that have achieved the status of law. (My interest in this arose out of many years of attending public company board meetings, in which non-legal norms seemed to me to be far more important than legal norms.) My scholarly introduction to the subject included Eric Posner's Law and Social Norms, and Lisa Bernstein's work on dispute resolution in the New York diamond district. Without giving either piece its just due, it seemed to me there was something out there about norm-following that was beyond the rational calculation implicit in the game theoretical approach taken by those writers.
There are some approaches that seem to try to bridge the gap between the fully consequential and the wholly deontological. Several weeks ago, Larry Solum highlighted Tom R. Tyler's new book Why People Obey the Law. Tyler's study claims, based on empirical research, that people obey the law because they are inclined to respect legitimate authority. But why do they respect legitimate authority? I thought about a short essay John Mikhail has recently posted, The Poverty of the Moral Stimulus. He does empirical work on the idea that there is "poverty" in the stimulus to which we have a moral response suggesting that our reactions (akin to the poverty of the stimulus in Chomsky's linguistic theory) are innate.
How do we explain our need for order? Below the break, I offer a thought experiment and some theoretical propositions based on that most quotidian of experiences, changing one's driver's license.
Because we are moving, I had to change my address at the Indiana Bureau of Motor Vehicles. I know from experience that I can hedge my bet on the wait time by showing up at 8 am, thirty minutes before it opens, to be among the first in line (i.e., I have to commit 30 minutes, but I know I will avoid the 2-3 hour horror show wait).
In fact, this morning I am the first one there. I sit down (with my iPod and my BA casebook to read a couple partnership cases in prep for the fall class) on the curb. People begin to show up, and they all seem to respect the norm that you line up, and by 8:25 or so there are about thirty people in line, waiting for the door to be unlocked.
At about 8:26, a tall thin sort of Mick Jagger/Tim Curry looking guy, smoking a cigarette, and appearing somewhat agitated, walks up to the door (close to me) looks at the posting of the hours of operation, peers into the storefront window, and parks himself as though he is going to cut into line before everyone. I am leaning up against the door next to him, and wait a minute or two so as not to prejudge his intentions. I can see from others in line that we are on the same page: cutting in line is not right. I say to him: "do you realize that there are about thirty people in line?" He replies: "do you realize this is America? what is your problem?" (a non-sequitur I decide not to try to interpret). As the BMV employee opens the door he kind of jostles his way into the queue now walking in, and a fellow just behind says, "hey, bro, you aren't cutting in front of me." But Mick just races to the front, and the rest of us all look at each other. I cough loudly the word "a------!" and try to organize a cheer in which all thirty people say "a------!" on the count of three. (Maturity was never my strong suit.)
(This thought experiment can be replicated in the taxicab line at LaGuardia at 6:30 pm on any Friday if somebody tries to cut in.)
Now here are the theoretical propositions:
1. There was a breach of the social norm, but it was almost entirely without consequence (a minute or two difference). Nevertheless, there was a palpable communal sense that a norm had been breached.
2. The breach was significant enough to cause at least two members of the group to say something, and I am pretty sure the "hey bro" guy at least thought about a physical response (he was bigger than me!).
3. For others, it clearly had a "disruption in the force" kind of effect.
4. Accepting the blurb as a working thesis of his book, "Tyler suggests that lawmakers and law enforcers would do much better to make legal systems worthy of respect than to try to instill fear of punishment. He finds that people obey law primarily because they believe in respecting legitimate authority." I want to suggest this may be true, but want to posit a second order proposition, based on the little thought experiment at the BMV. We respect legitimate authority because of an innate sense of order, the disruption of which is offensive to us, even if there is no consequence to the disruption.
5. The sense of order is a priori. When the particular emanation of the sense of order conflicts with the real world, it can be the source of pure ideological disputes, like my rabbi getting really cheesed off when I don't wear a yarmulke into the sanctuary.
6. The a priori sense of order is at least as important to the establishment of social norms as a posteriori consequences of their breach (say, as studied in Lisa Bernstein's work), because the sense of breach occurs even when there is no consequence. The a priori sense of order is at the heart of Rules of Recognition (my discussion of Kelsen's Pure Theory of Law is here.)
“Teachin the MPC and Lovin Every Minute of It” or “The Content of a Criminal Law Course”
I’m not joining an anti-MPC movement. But I do think that underlying the critique of the MPC is a broader critique about the focus of criminal law courses, specifically, the focus on the general part of the criminal law.
First, a brief defense of the MPC. The MPC has its pedagogical purposes. If you are teaching the current general part focused standard crim law course, you are going to teach actus reus, mens rea, homicide, conspiracy, attempt, etc. Now, I think there are just some common law approaches out there that are either 1) stupid or 2) unfair. Stupid = not allowing an honest mistake to negate a subjective mental state (e.g., Pa. Cons. Stat. tit. 18 section 304). Unfair = Felony murder and Pinkerton. What the MPC does is to provide a thoughtful, logical, and fair approach to criminal liability. So when a student says, “this rule makes no sense” I get to say “that’s right, and the MPC fixes it.” Of course, the MPC isn’t perfect (e.g., not allowing a duress defense for natural threats) but it certainly is progress.
The problem, for those who have a problem, is not with the MPC, but with the fact that we don’t teach much of anything about 1) criminalization and 2) the special part of the criminal law. So, if you don’t talk about what to punish, you never talk about whether punishing drug offenses is permissible, and if you spend all your time on the building blocks of crimes (e.g., the general part), you never get to the crimes that folks are actually prosecuted for.
So, should we reorient the criminal law curriculum? Or, to put the challenge differently, what should I stop teaching so that I can start teaching criminalization and more special part crimes?
The start of a "let's stop obsessing over the MPC" movement?
Arlo Guthrie in Alice's Restaurant famously sang that three people expressing the same view make an organization and fifty amount to a movement. Thus, with Russell Covey and Dan Markel here both joining me on the "let's not keep obsessing over the MPC" bandwagon, we have an organization. Will others make it a movement?
A few years ago, I wrote a very short article for the Ohio State Journal of Criminal Law that argued the MPC should be revised in order to better reflect modern criminal justice realities for teachers and students of criminal law. My article was part of a commentary symposium on revising the MPC in the first issue of the OSJCL. It was a response to this piece by Joshua Dressler, entitled "The Model Penal Code: Is It Like a Classic Movie in Need of a Remake?".
My piece carries the quirky title "The Model Penal Code Second: Might 'Film Schools' be in Need of a Remake?" and can be accessed here. The first paragraph of the piece only makes sense after reading Joshua's piece, but this later sentence captures my main theme:
Because the fundamental issues and concerns of criminal law doctrine and practice have shifted so dramatically in the last 40 years, the original MPC’s continued use as a criminal law textbook operates, in my view, as a considerable disservice to criminal law academics and students, and ultimately to the entire field of criminal justice.
Would I Join a Club That Would Have Me as a Member?
With apologies to Groucho Marx and Woody Allen, I'm both grateful and bewildered by Dan Markel's kind invitation to have me blog as part of this group for a month. Until I received the invitation, I was awed by the background and accomplishments of everyone who posts here. I am a moderately unusual entrant to the legal academy, having become eligible to join AARP and written my first law review article in the same year. Like the little angel and little devil (recall Animal House), my natural chutzpah is sitting on one shoulder urging me on, and my inferiority complex is sitting on the other, wondering what is wrong with this group that they should give me a pulpit.
Career path dependency in many ways explains my present positions, employment-wise and intellectually. I was a law firm associate and partner for almost fifteen years, an in-house divisional general counsel for a huge multi-national company for five, and the senior vice president and general counsel of a Fortune 850 or so, NYSE-traded company for another six. (The story how I got to be here for another time perhaps.) So I'm certainly "raw" as a prof, but slightly moldy around the edges as a human being. And I'm unquestionably a lawyer (antitrust, securities and commercial litigation for the first ten years, and then corporate and M&A thereafter), but after many years in the corporate world as in-house and out-house counsel, I have come to wonder about the extent to which the law really orders our lives and influences our decisions about what to do.
To put it another way, most of the work we see nowadays in the business/commercial/contracts area is informed by economic analysis of one form or another (rational actor, behavioral, institutional). My work so far has been a matter of trying to reconcile, or at least come to terms with, my own admittedly personal and casual empiricism versus what I often take to be counter-intuitive normative assumptions underlying doctrinal law or economics. If you see the world as modeled by a lawyer-scientist (see Langdell) or by an economist-scientist (see Posner) and don't question the model, you take on faith (whether or not you admit it) that your subsequent ordering of the data based on that model is right. I like to think that by breaking the usual career path dependencies, combining a life-experience of practice with a bemused but philosophical (the jury is still out on scholarly) bent, I can add something to the discussion of law, business, and life.
I will try to keep to that over the next few weeks. I had one experience in baseless opinion-mongering that I'd rather not repeat.
Back in the late 1980's, when I was a young partner at the Dykema Gossett firm in Detroit, the Supreme Court came down with, as I recall, an opinion holding that Dial-a-Porn providers were protected by the First Amendment. (This predated L.A. Law, Erin Brockovich, Boston Legal, and The Practice, so stories combining sex and the law were still at a premium.) A local TV station regularly called one of the older partners for "legal reaction," but he had a meeting, so he volunteered me, his young prodigy. I did the "sitting at the desk in front of the West reporters" thing, offering views on something as to which I had absolutely no substantive clue. But, if you happened to be in the Detroit-Ann Arbor area at the time, and were watching the 6:00 p.m. TV2 news, you will recall that I looked mahvelous.
Should We Stop Teaching the Model Penal Code?
Confession time. I was up in Vancouver in June at the mid-year AALS conference workshop on Criminal Law and Criminal Procedure, which was attended by a surprisingly large number of the luminaries in the field. In one small group discussion in which the issue of casebook selection arose, I gathered my courage and fessed up to a secret: I don’t like teaching the Model Penal Code. The cold stares from my distinguished colleagues suggested my heresy. Am I the only one who finds the MPC a big, ungainly, classroom-discussion deadener? I can recall as a law student my own instinctive distaste for studying “model codes” that aren’t really “the law” anywhere. Thus I have an intuitive sympathy for the inevitable student complaints and queries regarding what “law” they should know for the exam, and whether that law includes the MPC, and if so, how much of the MPC, etc. In fact, I am fully on board with those dissenters. Sure, I know the arguments for why the MPC is a good teaching tool. It is a comprehensive code, logically organized and internally coherent, that provides a counterpoint to many older common law approaches to several criminal law issues. The MPC does a great job of reformulating and rationalizing mens rea. Students need an opportunity to learn to interpret statutes after all that common law they get in their other first-year courses, and the MPC gives them that opportunity. But I am still not convinced.
Why the MPC needn't be taught: First, there are plenty of actual criminal codes out there to use as the basis of interpretation and comparison. Students can get plenty of practice interpreting California’s or Illinois’s or Texas’s code without resorting to the MPC. Second, I don’t see many states looking to the MPC for continuing guidance about criminal law reform, although perhaps Kevin Reitz’s efforts at the ALI on sentencing (see ongoing projects) will have an impact. It seems unlikely, however, that there will be a resurgence of MPC influence, because the basic penological presuppositions of the “treatment-oriented” MPC don’t have much currency in our contemporary culture. As I explained in a previous article, the MPC largely encapsulated the anti-retributivist views of Herbert Wechsler, views that focused on the idea that the basic purpose of the criminal law was to isolate habitual offenders using the tools of modern science and provide them with “treatment” within the context of indeterminate sentences that leave the authority over release largely in the hands of professionals. These ideas, for better or worse (and perhaps with a few exceptions, think sexual predator civil commitment laws) are pretty much a dead letter today. (Keep reading for my generational theory explaining the continued MPC-obsession.)
Nobody is pouring over the MPC as inspiration for penal code reform. Yet, just try to find a major criminal law casebook that does not devote large chunks of content to the MPC. A perusal of the many on my bookshelf does not turn up a single one. Okay, so here’s my generational hypothesis: the current crop of casebook editors are largely a product of the free-lovin’, Vietnam-protestin’, MPC-generation (see e.g., Dressler, J.D. UCLA 1968; Schulhofer, LL.B., Harvard Law School, 1967; Loewy, J.D. U.Va. 1975; or a somewhat earlier generation of scholars who learned their criminal law at the proverbial feet of its drafters (Kadish, LL.B., Columbia University (1948) (probably studied under Herbert Wechsler; see also, Kamisar, LL.B., Columbia University (1954) (same); and/or were convinced by the passion of their teachers that the MPC was an essential conceptual tool for understanding criminal law.
Well, guys, I'm here to say that the MPC-era is as yesterday as tie-dye and the VW van. Peel off those bumper stickers and put away the MPC. What do our casebooks have to say about, say, drug crimes? Usually very little, even though 21% of state prisoners and 55% of all federal prisoners were convicted of drug crimes. See this report. What about gun crimes and other possession offenses, e.g., child porn laws, which draw increasingly harsh sentences and make up ever larger percentages of prisoners? Some “new generation” casebook authors have been moving in the direction of including the concept of “possession” as a subject worthy of study in its own right. (See, e.g., Dubber, Stanford University, J.D., 1991). But not many.
Up in Vancouver, Austin Sarat's call for shifting the focus of criminal law pedagogy "from an examination of the purposes of punishment and their connection to the articulation of the various elements of the law of crimes to a focus on state power and how it is manifest in penal law" seemed to have a powerful resonance with many, though some were openly skeptical that such lofty aims could be achieved in the context of the more pedestrian first-year curricula that most lawprofs feel the need to cover. Perhaps that is asking too much. But by neglecting the study of crimes and crime control issues that clearly dominate real-world courthouses, we are doing our students a disservice. Dwelling on the creative approaches taken by the MPC’s drafters to the problem of, say, mistake of fact just doesn’t seem so compelling to me in light of the fact that 2 million people now reside in American jails, the vast majority of whom were convicted of crimes never even mentioned in American law school casebooks (well, there is a problem of mistake in there somewhere, but not what the MPC had in mind). Finally, to the extent this is a consideration, as far as I know, bar exams do not test students on MPC concepts, nor even on jurisdiction-specific criminal law, but rather on general “common law” principles, whatever those really are. So to the extent a “uniform nation-wide” body of law is sought for study, the bar examiners at least seem to believe that such a law already exists.
Anyway, all you MPC-lovers can now shower abuse upon my head, but I plan to look for ways to teach criminal law based on actual penal codes, and criminal law casebooks that don't obsess over the MPC. God knows, with the steady proliferation of criminal statutes (see Bill Stuntz’s article on the Pathological Politics of Criminal Law for an explanation why) there is plenty of real-world material to choose from.
The trouble with movie reviews: the Ruth Franklin School of Film Criticism
Like Ruth Franklin with novels, I tire of having to stretch my mind to come up with new ways of expressing the warm feelings I develop toward many movies. I can certainly understand her frustration with respect to reviewing novels, which almost invariably are dead to me. (Yes, I know, it's a sickness of sorts.) But I definitely don't share the same ennui with non-fiction books with real opinions and arguments; there I have little trouble registering more than an utterance of affection.
In any event, I'm not one to give up on innovations lightly. Thus I'm starting a new feature at PrawfsBlawg, what might, in ironic homage, be called the "Ruth Franklin Movie Review." Here's how it works: I look at what's been successfully returned in my netflix queue, and the following genius erupts in prose.
Spanglish (2004): I liked it.
Yana's Friends (1999, Israel): I liked it.
Late Marriage (2001, Israel): I liked it!
The Limey (1999): Not so much, though I'm a fan of the genre generally.
Gandhi (1982): I liked it even more seeing it as a grownup.
March of the Penguins (2004): I fell asleep.
Feel free to add your own reviews in the comments. PrawfsBlawg is nothing if not Web 2.0!
Stone on the Stem Cell Veto
One often sees examples of laypeople expansively assuming that any religiously motivated action by a legislator or other public official is, in some way, an undermining of the "separation of church and state." But such views are, it seems to me, increasingly rare in that sector of the legal academy that deals regularly with law and religion issues. (A broad statement, to be sure, and I don't doubt there are exceptions; but I think such statements, even if they linger elsewhere in the legal academy, are indeed rarer in the law & religion branch of the legal academy, in which strict separationists are less common than they once were.)
A partial exception to this can be found in a recent post on the University of Chicago Law blog. There, Geoffrey Stone writes to complain of a variety of recent actions by President Bush and Congress. Stone begins by criticizing President Bush's veto of the stem cell bill. He says it shows "a reckless disregard for the fundamental American aspiration to keep church and state separate." He continues:
What the President describes neutrally as “ethics” is simply his own, sectarian religious belief. Is this an ethical (or legitimate) basis on which a President should veto a law? Of course, Mr. Bush is entitled to his belief. He is entitled, for his own religious reasons, to choose not to donate an embryo he creates to try to save the lives of living, breathing children. More than that, he is entitled to protect the interests of others who do not want the embryos they create to be used in this manner. Thus, he could ethically veto a law that required all embryos to be destroyed in the name of scientific research, even over the religious objections of their creators. But in what sense is it “ethical” for Mr. Bush – acting as President of the United States -- to place his own sectarian, religious belief above the convictions of a majority of the American people and a substantial majority of both the House of Representatives and the Senate? In my judgment, this is no different from the President vetoing a law providing a subsidy to pork producers because eating pork offends his religious faith. Such a veto is an unethical and illegitimate usurpation of state authority designed to impose on all of society a particular religious faith.
Professor Stone concludes that he is not necessarily saying such an action violates the Establishment Clause. So it may not be unconstitutional; merely "unethical and illegitimate."
I respectfully disagree. I disapprove of President Bush's veto as a matter of policy and my own sense of ethics, but I see nothing "unethical and illegitimate" about a public official proposing or disposing of legislation because that official is religiously motivated to do so, as I think I have made clear.
[more after the jump -- update: including a brief response to Larry Solum's comments]
There are, I think, several problems with Professor Stone's argument, and the first is one of misdescription. Professor Stone suggests that the President erred by acting on his own "sectarian, religious belief[s]." We do not know why he did what he did, however. It is entirely possible that the President vetoed the bill not only or even primarily for religious reasons, but for political purposes -- shoring up the base and so forth. Motivations for legislative action are often opaque; what of a legislator who (permissibly, according to Professor Stone) acts to protect religious objectors from having their embryos destroyed, not for any secular reasons, but strictly as a matter of her own religious faith? So we should set motivation to one side and acknowledge that what Professor Stone is really asking is, under what circumstances is it ethical or legitimate for a public official to publicly offer religious reasons for some official action?
Although it may often be unwise to offer religious reasons, and no other reasons, for a public action, that does not make it illegitimate. Ours is a republican democracy, but not a Rawlsian republic in which public officials or citizens deliberating publicly are obliged to speak in terms of universally accessible reasons, if such a language is even available. We should remember that public officials who give religious reasons are subject to a host of vetogates and barriers: they may lack the requisite votes for a particular action, they may be subject to a veto or a veto override, and they face significant electoral checks. (For that reason, the argument that the President's action are especially wrong because they placed the President's convictions "above the convictions of a majority of the American people and a substantial majority of [Congress]" strikes me as an utter canard. Ours is not a majoritarian democracy in that sense, and actions that dissatisfy a large enough majority are subject to reversal.) They are also subject to substantive checks: whatever their reasons for acting, they are simply barred from engaging in official actions that deny the free excercise of religion to others or that effectuate an establishment of religion, a substantive check that I am inclined to read fairly broadly, although not so broadly as to negate any actions that are merely religiously motivated. Within these political and constitutional parameters, however, public officials have no obligation to give generally accessible public reasons. So President Bush's veto was not illegitimate.
If we take Professor Stone's choice of language perhaps more seriously than we should, the question whether President Bush acted ethically is perhaps a more difficult question, although maybe not for precisely the reasons Professor Stone would select. Professor Stone seems to suggest that the President acted unethically because his motivations for acting were religious. I do not think any ethical obligation exists to be motivated by publicly accessible reasons. But we could ask, does a public official have an ethical obligation, qua public official, to publicly give publicly accessible reasons for his actions, regardless of his motivations? That is to say, even if a public official is entitled to publicly offer religious reasons for her actions, must she also offer public reasons to justify her actions that are more broadly accessible?
This is a closer call, and while I ultimately am inclined to say no, I think a very credible argument could be mounted on this point. But this isn't what the President did. His veto statement does not speak in clearly religious terms at all. Rather, he simply argues that the bill does not strike a proper ethical balance. Surely the President's sense of what is ethical is substantially derived from his religious beliefs, but the same could be said, directly or indirectly, of many Americans. And for those whose ethical beliefs are at least nominally untethered to any religious views, those of us who are non-philosophers are likely at some point to come to rest on arguments that are equally publicly inaccessible: "It's just right." "It's just wrong."
Unless Professor Stone thinks that we are all obliged to appeal to some form of utilitarian philosophy, or some other closely reasoned form of moral philosophy, every time we give our sense of what is ethical or unethical, I can see no reason why the President's publicly offered reasons can be seen as intrinsically "unethical." And if I am wrong, then I would expect that Professor Stone would demand the same level of reason-giving from any legislator who voted for the stem cell bill on the basis that encouraging medical research is the "ethical" thing to do, or simply "the right thing to do."
Politicians may justifiably suffer if they offer reasons for their actions that satisfy only a narrow band of the public; one of the political benefits of publicly accessible reasons is that they enable public officials to retain the support of larger coalitions of voters. But Professor Stone seems ultimately to argue that there is something unethical or illegitimate not just in speaking in religious terms, but in having religious motivations, and acting on them, regardless of what reasons the public official gives publicly. That, I think, is altogether too expansive a view of "the separation of church and state." I may think the President's veto was wrong, but it certainly was not wrong for those reasons.
UPDATE: Larry Solum has offered a thoughtful response at Legal Theory; you can find it here. I knew that casually invoking Rawls might be courting trouble, but so be it. Let me clarify what I was trying to say in a couple of places. I don't have a settled view on whether and when motivation is or isn't relevant to political morality, although I certainly don't think that religious motivations are impermissible as such for public officials. My point in the first portion of the post excerpted by Larry was simply to suggest that Stone's post itself is unclear on whether the primary concern is Bush's motivations, or his public explanation of his actions.
As to the "Rawlsian republic" line, I meant to suggest there that I do not believe our Constitution itself demands that public officials offer publicly accessible reasons for their actions. It is true that in a variety of ways, the institutional design of the Constitution may encourage politicians to offer such reasons if they wish to stand any chance of successful coalition-building, and the fact of pluralism in the real political landscape in which we live also may encourage the provision of publicly accessible reasons. By the same token, because a politician who fails to provide reasons in a form that is likely to convince a broad swath of voters or other politicians risks political failure, I think the risks of public officials who give religious reasons are also self-limiting -- and to that one must add that the Constitution's commands restrict public officials from taking certain religious actions, whatever their motivation. In a constitutional sense, then, I do not think there is a legitimacy problem with public officials who give reasons that are not widely accessible.
I think the questions of political morality that Larry raises fall under the category of "ethics" in Stone's post and my response, and I think I gave some hint of my greater sense of ambivalence on this question. But I suspect I come at it from the opposite direction; while Larry has seen nothing that convinces him of the rightness of laissez faire as "the appropriate ideal of public reason for a pluralist democratic society," and certainly has read the literature for longer and more closely than I have, I have yet to be convinced by the literature I have read that politicians in our procedurally and substantively constrained society are also, on top of those restraints, obliged to present public reasons according to the ideal of public reasons. Maybe Larry will encourage me to read more! In any event, I appreciated the thoughtful comments.
Regulation and Governance: A new journal
I received an email this morning from Prof. David Levi-Faur (polisci, Haifa) to tell me about a new journal (Regulation and Governance) he's editing with John Braithwaite (ANU, Australia) and Cary Coglianese (KSG/Penn Regulation program). Here's the editorial board and the announcement:
Regulation & Governance aims to serve as a leading platform for the study of regulation and governance by political scientists, lawyers, sociologists, historians, criminologists, psychologists, anthropologists, economists, and others. Published quarterly by Blackwell beginning in March 2007, Regulation & Governance will seek to provide a forum for open and critical scholarly dialogue from different disciplines, using diverse methodologies, and from any area of regulation and governance. Through Regulation & Governance, we aim to advance discussions between various disciplines about regulation and governance, promote the development of new theoretical and empirical understanding, and serve the growing needs of practitioners for a useful academic reference. For further information about the journal, including submission instructions, please visit our website at: http://www.blackwellpublishing
.com/rego Manuscripts can be submitted online at: http://mc.manuscriptcentral .com/reggov .
Looks good. Orly, how come you didn't blog about this before me??
Monday, July 24, 2006
I've always thought it a bit weird when law professors blog pictures of their new babies. What do I care about your baby? But now since it is my baby, I don't much care whether it is professional or whether you care. Here she is with her father:
Clementine L. Schonfeld was born yesterday at 12:56pm and weighed in at 8 pounds, 5.6 ounces. She is very cool. Of course, my amazingly strong wife did all the hard work (without medication, to boot), so I'm not sure who I'm more in awe of right now.
Some dark humor from Tel-Aviv
This morning I got this list that is being circulated amongst friends. Some of you know about these Israeli compilations that reach everyone. I think it offers a little window to the Israeli culture of maintaining a humor in a constant state of conflict. I remember these little bits helping me stay sane when I was a teenager during the gulf war and scuds fell in Tel-Aviv near my home…I will try to make justice to it in the translation. The title is 10 pieces of advice to Tel-Aviv residents afraid of the missiles.
- When told to go down to the shelter, that means immediately. Not a short espresso in Aroma café; not an almond croissant in Arccafé. Immediately.
- If you hear an annoying sound, going up and down – its not a war alarm, its Ninette’s (popular young Israeli singer) new album.
- In case of an attack, be prepared for the worse of all – the cancellation of the planned concert of Depeshe Mode.
- When you are recruited to the reserve forces, do not mention the new show of the Barabash brothers.
- When the media is talking about “Operation Rolling”, they don’t mean Zara’s hangers.
- When a missile falls on your neighbor’s car, run quickly – you might manage to catch is parking space.
- If you have daughters, this is the time to hide them. The president may show up for a visit [referring to President Katsav’s recent accusation by five women of sexual harassment]
- Make sure to bring to the shelter a full variety of take out/delivery menus.
- When all are talking about the “red dawn”, they are not referring to Almodovar’s new film.
- Even if a missile falls on your apartment, you can still rent it for $650.
Over the past couple of weeks, the internet has been filled with blogs in which Israelis and Lebanese are writing about their deepest fears and hopes (see for ex the NYT take on it yesterday). Studying the effects of this kind of conflict communications using internet, emailing and blogs would be a worthwhile research project.
Article Length Limits: Some Early Results
In early 2005, eleven of the top law reviews issued a "Joint statement regarding articles length." The statement acknowledged a consensus among academics that law review articles had gotten too long. The eleven reviews thus announced a new direction in their editorial policies:
The vast majority of law review articles can effectively convey their arguments within the range of 40-70 law review pages, and any impression that law reviews only publish or strongly prefer lengthier articles should be dispelled.
After the reviews issued this policy statement, many of them adopted formal policies about preferences or hard limitations on article length, based on pages or word count. (The MacMillan Law Library at Emory has helpfully composed a list of such policies.)
I've recently blogged about the effects of the new limits. In particular, I wondered, like others, what effects the new policy would actually have on article length. I received some helpful feedback from editors about how the policies are actually put into practice. As a follow-up, I decided to do a study of the articles published after the new policy statement went into effect, as compared with the articles published right before it. Did the new policy actually have the effect of reducing article length?
The initial answer appears to be a resounding yes. I chose seven law reviews that signed on to the joint statement -- Columbia, Harvard, Penn, Stanford, Texas, Virginia, and Yale. I looked at 230 articles published in these reviews from 2003 to 2006, and I compared those published after the policy to those published in the two editorial cycles before it. Here are some findings:
- For those articles published in the 2005-2006 editorial season, the average length was 67.13 pages. The median article was 67 pages long. In contrast, those articles published during the 2004-2005 and 2003-2004 seasons averaged 87.76 pages. The median article was 84 pages long.
- Of the 71 articles published in 2005-2006, only four were over 100 pages (5.6%). None exceeded 108 pages. Of the 130 articles published from 2003-2005, thirty-four were over 100 pages (26%). The longest was 218 pages, and twenty-four of the articles exceeded 110 pages.
- Three of the seven reviews -- Columbia, Harvard, and Virginia -- did not publish an article over 80 pages long thus far in the 2005-2006 season.
These results clearly indicate a dramatic change in the length of articles published by these top reviews. Articles have lost an average of twenty pages. Perhaps these results will serve as a catalyst for further discussion about how page limits are enforced, and what effects these changes have had on authors.
Results for each law review, and a note on methodology, after the jump.
UPDATE: I've added in the number of articles and the range for each review below.
Here are the averages for each review:
Columbia Law Review
- Average length, 2006: 64.66.
- [9 articles, ranging from 42 to 79 pages]
- Average length, 2003-2005: 85.36.
- [39 articles, ranging from 49 to 157 pages]
Harvard Law Review
- Average length, 2005-2006: 60.23.
- [13 articles, ranging from 36 to 76 pages]
- Average length, 2004-2005: 87.
- [13 articles, ranging from 53 to 134 pages]
University of Pennsylvania Law Review
- Average length, 2005-2006: 76.2.
- [10 articles, ranging from 62 to 93 pages]
- Average length, 2003-2005: 101.5.
- [17 articles, ranging from 52 to 218 pages]
Stanford Law Review
- Average length, 2005-2006: 60.
- [12 articles, ranging from 30 to 108 pages]
- Average length, 2003-2005: 89.4.
- [20 articles, ranging from 34 to 146 pages]
Texas Law Review
- Average length, 2005-2006: 66.25.
- [8 articles, ranging from 46 to 85 pages]
- Average length, 2003-2005: 81.88.
- [24 articles, ranging from 32 to 166 pages]
Virginia Law Review
- Average length, 2006: 61.85.
- [7 articles, ranging from 45 to 73 pages]
- Average length, 2004-2005: 84.82.
- [28 articles, ranging from 48 to 168 pages]
Yale Law Journal
- Average length, 2005-2006: 79.66.
- [12 articles, ranging from 57 to 107 pages]
- Average length, 2003-2005: 81.16.
- [18 articles, ranging from 62 to 108 pages]
A note on methodology: I conducted this study by looking at materials for each review on the Internet. These seven reviews were chosen out of the eleven statement signatories because of their web resources. I looked only at articles, not essays or book reviews. I excluded articles that were labeled as responses or replies to other articles published by that review. I measured an article's length by either looking at .pdf files available through the law review's site or by looking at the table of contents. When using the table of contents, I measured the article as ending at the page prior to the beginning of the next article. Since articles may not end on the page before the following article, I may have overestimated the length of those articles by one or two pages. Article appendices were not excluded. Finally, regarding the date of the law reviews, five of the seven reviews date their volumes by academic year (e.g., 2005-2006). Two of the reviews -- Columbia and Virginia -- date their volumes by calendar year. For these two reviews, I counted 2005 as a "transitional" year. I excluded these transitional articles from the group calculations about the policy's effects. I am happy to share my data with anyone who is interested in it.
Sunday, July 23, 2006
Legal Theory Blog Joins TypePad
The address is http://lsolum.typepad.com/legaltheory. Solum is also soliciting reactions to the blog's facelift.
Saturday, July 22, 2006
Welcome Jim Chen, Part II
Earlier this week I issued Jim Chen's Jurisdynamics a welcome to the blogosphere. It turns out Jim has since persuaded two extraordinary persons to join him at Jurisdynamics. The first is my utterly delightful FSU colleague and (soon to be erstwhile) neighbor, JB Ruhl. The second is the very funny Dan Farber (law, Berkeley). I'd like to say both are brilliant additions to Jim's efforts, but that might earn Dan's ire. (Imagine a hyperlink here to 70 Minn. L. Rev. 917). Seriously, I'm very excited to see both Dan and JB (another FSUnik) join the blogversations. Perhaps my other colleagues will soon follow. In any event, good job on recruiting, Jim! You can catch JB's maiden post on the Simply Complex Law here.
Dr. Prawf and Mr. Cool
A fun item for the weekend: My USD colleague Junichi Semitsu who teaches legal writing has landed a pretty cool gig this summer. He is the blogger official for the country rockin’ Dixie Chicks. According to the Washington Post, Junichi was told to simply write anything he feels like writing: "I don't know of any other artist of their caliber that's essentially invited a non-music journalist into their entourage." More from WP:
“He is one of the music industry's first embedded bloggers, assigned to be everywhere and write whatever about this lightning rod of a country-music group. He posts the blogs at spaces.msn.com/3dixiechicks. And we do mean whatever: In one of his earliest, Semitsu -- who is a fan but by no means a sycophant -- wrote about some of the pseudonyms the Chicks have used at hotels, a common if rarely discussed practice in the celebrity strata. On Wednesday, he posted this: "Emily showed up to the concert in London sloppy drunk. She was so inebriated she couldn't speak, much less sing. Natalie and Martie, in a panic, yelled, 'You're drunk again?' But in the very next sentence he revealed that it all was just one of Robison's "anxiety dreams… There's also the screening process for his posts, though Semitsu says it's in place only to ensure that he doesn't violate anybody's privacy or release confidential information. "They don't screen for editorial content….When Semitsu first met the Chicks, he says, the musicians told him they didn't want him to come across like their fan-club president or a member of their marketing team. "They said, 'Want you to be honest. Feel free to criticize us and make fun of us.'"
A Stanford law grad, Juichi also runs a politics and pop culture blog, Poplicks.com. Blogging and hanging out with three awesome chicks for a living, while maintaining (at least partial) journalistic freedom, you go Junichi!
Friday, July 21, 2006
Here's my offer: write me an e-mail expressing willingness to read and comment on my draft (it's dutifully 35,000 words) and I'll send it to you. In return for a prompt read and moderately useful comments or edits, I will read and comment on your draft sometime in the next year.
No rights for abused, but undocumented wife
In Pomona, CA, in the hearing of Aurora Gonzalez, a Mexican woman seeking a restraining order against her husband, Superior Court Judge Finke asked Gonzalez if she was an illegal immigrant. Gonzalez admitted to be in the country illegally, the judge responded: "I hate the immigration laws that we have, but I think the bailiff could take you to the immigration services and send you to Mexico.” Then the Judge had a creative idea: he would count to 20 and Gonzalez would disappear by the time he was finished. No trouble for her; no trouble for him. "One. Two. Three. Four. Five. Six. When I get to 20, she gets arrested and goes to Mexico," said the judge according to the court transcript. This week, in an interview with the LA Times, Judge Fink explains his intent to get Gonzalez from trouble with the INS. He also said he saw nothing more than screaming between the husband and wife, although reportedly Gonzalez had moved last month into a domestic violence shelter. The Superior Court is now reviewing the hearing.
The case decisively continues the trend post-Hoffman Plastics, where the Supreme Court denied an award of limited back pay to undocumented workers that were fired for organizing. Since then, lower courts have been expanding the logic to many more employment related and non-employment contexts.
Teaching vs. Scholarship: This time, with data!
Those of you interested in the perennial discussion about the relationship between teaching and scholarship probably whetted your appetite with last week's colloquy among Stuart Buck, Orin Kerr, and Larry Solum. However, Ben Barton (law, UTenn), who served as my "new scholars" mentor at SEALS, has actually done an empirical survey of the matter. (H/t to Lisa Fairfax at the Glom.) His study concludes:
The study correlates each of these five different research measures against the teaching evaluation index for all 623 professors, and each individual law school. The results are counter-intuitive: there is no correlation between teaching effectiveness and any of the five measures of research productivity. Given the breadth of the study, this finding is quite robust.
Thursday, July 20, 2006
Torture in Chicago
The L.A. Times reports this morning that special prosecutors in Chicago have released a report, an excerpt from which appears on Jurist, concluding that torture was widely used to extract confessions, particularly from black suspects from Chicago’s South Side, in the 1970s and 1980s. There are several intriguing aspects to this story. First, it should be noted that accounts of police torture in Chicago have been in circulation for quite some time. In a remarkable book on the criminal justice system in Chicago, reporter Steve Bogira, in Courtroom 302: A Year Behind The Scenes In An American Criminal Courthouse (2005), details several accounts of police torture and the legal system’s almost total disregard for the allegations, notwithstanding substantial evidence of their veracity. This new report finally lends substance to these old allegations. In one disturbingly typical instance, involving the same type of facts as reported by Bogira, and in which there is enough proof to support an indictment, the report stated that:
detectives kicked [the victime], forced him to stretch out over a radiator while being beaten, shocked him with an electronic device and "put a plastic bag over his head and burned him on the arm with a cigarette.
Police also "put a gun in Wilson's mouth and clicked it," the report said.
Second, it turns out that Chicago Mayor Richard M. Daley was the Cook County state's attorney during the time when many of these complaints were made. Although the special prosecutors claim that the statute of limitations has run on these various offenses, this new evidence casts a dark shadow over Mayor Daley’s current administration. As chief prosecutor during the time in which these offensive tactics were used to gather evidence in cases prosecuted by his office, how much responsibility should Daley be obliged to claim? To date, most blame has been targeted at former Police Commander Jon Burge, since detectives under his command at Area 2 and 3 Police Headquarters are implicated in the torture of 135 African American men over a period stretching from 1972 and 1991.
Third, the United Nations has become involved with the issue, and reportedly has pressed Chicago to conduct a more thorough investigation. The allegations of torture were discussed in a report prepared by U.S. NGOs, and submitted to the UN Human Rights Committee tasked with monitoring compliance with the International Covenant on Civil and Political Rights.
The report's authors recommend, inter alia, that the U.S. enact "a federal crime of torture and allocate sufficient and impartial resources to document, investigate, and prosecute allegations of torture by local, state, and federal law enforcement officers.” Many cases of torture have been brought under 18 U.S.C. 242, which makes it a crime to "willfully subject any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States." The provision appears to have a five-year statute of limitations. Presumably, any more specific torture offense would be coupled with a more forgiving statute of limitations that permits prosecution of old cases. Certainly, there is little justification for shielding from such a law cases in which complaints were timely lodged by the victims but ignored by the courts.
The Meltdown at Rocketboom: How Law Shaped the Outcome
If you've heard of Rocketboom, the three-minute daily video blog, you've probably heard about the falling-out between the two people behind it: host Amanda Congdon and producer Andrew Michael Baron. My description of their titles, actually, is not quite correct, and that is what led to the falling out. Although Baron came up with the idea and has produced most of the episodes, Congdon has done some writing and producing for the show as well. According to Congdon, the rift developed when Baron insisted that Congdon only be the "face" of Rocketboom, while she wanted a larger role.
What happened next is still unclear, and the law of business organizations may be playing a role. Congdon reports that she owns 49% of Rocketboom, and that she continues to hold that ownership stake. (See also this interview and this comment to her post.) But she also says that she has been "fired." Baron reported on Rocketboom, however, that Congdon had decided to leave Rocketboom and move to L.A. to pursue an acting career. (Congdon has appeared on CSI and other television shows.) In a lengthy letter which she posted for her readers, Congdon contested Baron's claims and even laid out a timeline of their conversations. But Blogcritics and Valley Wag are now reporting that Baron believes Congdon forfeited her ownership stake by leaving the show.
So did Congdon quit or was she fired? And what do those terms mean when applied to a 49% owner? (Or former owner?) As this case plays out, it may be a fascinating case study on closely-held corporations. One interesting wrinkle to the tale: even though she claims to have been fired, she is still actively promoting Rocketboom. Why? She's an owner, of course. Watch the awkward moment at the end of this Scarborough clip for an example.
Wednesday, July 19, 2006
On Doing Nothing
In our mother/daughter yoga classes, my toddler and I love the final and most important pose, the do-nothing-doll (shavasana/corpse pose) and the teacher asks us to “practice doing nothing.” As Oscar Wilde said, “to do nothing is the most difficult thing in the world.” Now English professor Tom Lutz has written a book – Doing Nothing: A History of Loafers, Loungers, Slackers and Bums in America. The book is a cultural history of the tensions between work ethics and idle impulses. It includes case studies that unfold the interplay of the competing models of hard workers and slackers, ranging from the Industrial Revolution through the dotcom '90s. Throught, it reveals ironies in our culture like the industrious character of the “flaming youth” of the 1920s; the closet workholics that are celebrated slackers; and of course, the most outspoken Puritans that love to rest (GWB…). Weaving it all together, the book actually makes you think differently not only on the art of resting, but perhaps more so on norms of production, productivity and work. Now that’s hard work!
U.S. District Court Holds that Maryland's "Wal-Mart" Bill is Preempted
Maryland's so-called "Wal-Mart" bill, which imposed an 8% health care allocation on large employers (specifically the Bentonville folks), has been struck down by U.S. District Judge Frederick Motz. Judge Motz found the law to be preempted by ERISA. The opinion is here. Kudos to Paul Secunda for arriving at this conclusion in January.
Faculty Appointments Chairs
I'm starting to get calls for advice about the meat market in the fall. One of the traditional components of the onslaught from entry-level candidates is the targeting of Faculty Appointments Committees at schools of particular interest. I'm not fully clear on how useful this information really is (most letters addressed to "Appointments Chair" will get where they are supposed to go), but it certainly helps your advisors make calls to important people at the relevant school.
In PB's long tradition of helping entry-level types on the market, I'm opening a thread for people to announce committee members and chairs. At Hastings, Leo Martinez is the chair this year. Let the information flow freely.
UPDATE: If your school is searching for any particular areas of expertise, you might note it here too. Hey, it's free advertising.
I'm delighted to report that I have uploaded the published version of my newest article to SSRN: Responsibility & Social/Political Choices About Choice, 25 LAW & PHILOSOPHY 453(July 2006). Here's an abstract:
Linking choice with responsibility is a seduction our voluntarist society often cannot resist. We generally wish to hold people responsible in our tort and criminal law for their free choices - and conceive of responsibility as intimately bound up with personal choice. Samuel Scheffler may have diagnosed why many redistributive forms of liberalism often fail to command support in the public sphere: because they regularly deny what seems to be a basic moral intuition of our society - that people should be held responsible for their free choices.
To be sure, the contours of what counts as a free choice and what counts as a product of duress, genetics, or upbringing sufficient to vitiate or mitigate responsibility is always a matter of vigorous ongoing contestation. Still, there remains a strong intuition in our society's collective moral psychology that responsibility is somehow deeply connected to free choices. Indeed, we might not be able to make sense of ourselves as selves without feeling justified in claiming responsibility first and foremost for what we perceive to be our own free choices. The potential that the Causal Thesis may be true - that some weak form of determinism obtains - does not deter us: to reinforce our aspiration for free will, we tend to design our punitive policies and moral practices of praise and blame consistent with it, in spite of our failure to have a clear faith that our institutions contribute to members' true freedom. We do this, some would argue, to retain the basic connection of responsibility to choice; the business of apportioning responsibility somehow seems manageable, justifiable, and legitimate if it is tied to choice. Accordingly, even many determinists among us are compatibilists. Here, I make an effort to think hard about the purported connection between responsibility and choice - and try to avoid the seduction of voluntarism. I build from the work of Meir Dan-Cohen, who has done the most to develop a theory of responsibility unmoored from choice. In the process, I touch upon love and creativity, two areas of social life that provide a window into a different conception of responsibility that can be used to guide our practices of praise and blame in morality, the criminal law, and torts.
Courage, Prudence, and Tenure
At the Conglomerate, Lisa Fairfax has this very interesting post, with valuable comments, describing a discussion about whether young scholars should engage in empirical research. The response of the panel mulling this question was cautious for a number of reasons, not the least of which was a set of concerns about whether such efforts would damage a young scholar's chances at tenure. Larry Solum weighed in on his blog, responding, among other things, that "it's better to do scholarship that is likely to be understood and valued by those who will be voting on one's tenure." And I am mindful too of the remarks of Randy Barnett at the AALS panel this year on blogging, who suggested that blogging might be unwise for untenured scholars. All of these discussions have been gnawing at me, and inspire these somewhat loose thoughts on tenure advice in the legal academy.
Let me say at the outset that the advice offered by the SEALS panelists, Solum, and others is wise and is offered in good faith, and it doesn't necessarily say anything about how these folks would advise junior scholars in a perfect world. Moreover, some of the advice in the empirical scholarship debate has less to do with winning the tenure "game" and more to do with doing work that is appropriate to your experience. Larry's advice that junior scholars should begin by "exploiting their strengths, not starting over," is sound advice for any junior scholar regardless of tenure. Finally, let me say that I agree that tenure is important to junior scholars, and advice on how to obtain it is always appreciated. How could I not agree with that? I like my job.
Still, there is an undercurrent behind all of this advice that troubles me. That same current runs through the advice offered to Kenji Yoshino in his book Covering, that as a junior scholar he is better off being a homosexual professional, i.e. someone who's gay but doesn't write about gay issues, than a professional homosexual. It's present in the countless anecdotes in which junior scholars of color were warned to mute their interest in race scholarship until they were safely ensconced in positions of tenure. It is also present in advice regularly offered to junior scholars to think strategically about their scholarship, although this is more of a mixed picture; some of that advice is geared toward tenure, and some of it is just about how to put together a useful scholarly agenda. Taken together, this advice doesn't just say, "Be a smart scholar"; it also, and maybe primarily, says, "Be smart about being a scholar." It says, be careful, be prudent, or you may be sorry.
As I said above, it's all good advice, offered in good faith -- and it's advice that junior scholars are very eager to follow. Maybe too eager. Most of us junior scholars know that we are very privileged to have these wonderful jobs. But the tail shouldn't wag the dog: we should care about these jobs because they enable us to do the work we are burning to do, and not treasure the jobs as an end in themselves. It seems to me that at some point, too much emphasis on pre-tenure prudence encourages the latter tendency, not the former.
What is the point of tenure, after all? It's not job security as such; if that's all tenure is about, there would be a good case for abolishing it. It's more specific than that. The point of tenure is job security in service of academic freedom -- security against being judged for one's teaching and scholarship except according to the standards of one's academic field, and against being judged by anyone other than qualified senior colleagues duly applying those standards. Tenure is meant to enable us to pursue our goals as scholars and teachers fearlessly, provided we continue to meet the relevant standards. It's certainly not, as I see it, supposed to be a reward. It's not even a reward for strong pre-tenure work; someone who turns out three top-tier articles while explicitly vowing never to write another piece after tenure has little business applying for tenure, let alone receiving it. The point of your early work, where tenure is concerned, is to demonstrate that you are going to continue to do good work that meets the standards of the field, and thus that you deserve some measure of continuing protection in doing so.
It seems to me, then, that there is some danger in overstressing the need for prudence among junior scholars, rather than the need for courage. Junior scholars ought to be willing to follow their muses, to cross swords, to offend or dismay more senior colleagues (not that they should do so, but they should be willing to do so), to try out new paths in scholarship. If they're not willing to do so before tenure, because they're thinking strategically about tenure, why assume they'll be willing to do so afterwards? The lawyers I know -- especially those who come from the top schools, which supply most of the teaching profession in law -- are already fairly risk-averse, and I doubt that those habits of mind, once inculcated, will go away just because one is now supported by tenure.
There is an interesting irony here. As a sometime teacher of legal ethics, I point out to my students that even as junior lawyers, they are responsible for their work. If they fail to represent a client according to the standards of the profession, or if they violate an ethical rule, they will pay the price, no matter how many senior attorneys directed them to act unprofessionally and no matter whether they were threatened with dismissal. They are literally required to display at least that much courage. And this rule applies equally to the top graduate of the top school and the bottom graduate of the lowest-ranked school. If a graduate of Podunk Law School, whose job prospects may be seriously limited, can be asked to risk everything in service of his professional standards, surely we can demand at least as much courage from law professors, who really do have other professional options.
It seems to me, in short, that a junior scholar who does everything with thoughts of tenure in mind is precisely the kind of tenure about whom we should be concerned when it comes time to actually award tenure. Vincent Blasi wrote powerfully some years ago about the ideal of "civic courage" in the First Amendment. Junior scholars should be encouraged, similarly, to display at least as much "academic courage" as prudence.
None of which is to say that the advice that's parceled out to junior scholars isn't good advice. We don't live in the best of all possible worlds, we do often value tenure as an end and not just a means, and it is possible that tenure committees won't always be everything they should be. There is room for prudence here. Moreover, there are ways in which junior scholars should be prudent that are academically relevant, rather than just politically relevant. They should be modest about what they don't know; in disagreeing with more established senior scholars, they should be humble about the gaps in their knowledge and experience; and, a point of special relevance to such questions as whether to pursue empirical work, they should be painstaking in seeking to meet professional standards. But the goal of all of this should be to earn tenure, to be the kind of scholar who deserves that protection, and not merely to receive tenure by avoiding doing anything that might put it at risk.
This doesn't mean we junior scholars don't want and don't appreciate the very good advice we often receive. It does mean that we should be trying to shape these discussions differently. Although the real-world burden may often fall on the junior scholar, we should be aiming to shift that burden. We should be encouraging junior scholars to take chances, provided they do so in a way that strives to meet the highest standards of the academy. We should be asking, to paraphrase a comment of Jason Czarnezki at the Conglomerate discussion, how to support junior scholars' pursuit of scholarship in a useful, professional, and fearless fashion. We should distinguish between the kinds of prudence in a junior scholar that are about becoming good scholars, and those kinds that are merely about staying out of trouble. And if the point of much of the advice we get is that senior scholars sometimes apply improper standards for tenure ("Why is he writing about racial issues?" "Why is he blogging?" "What the hell is this empirical stuff?"), our primary focus should be on reforming that sector of the academy rather than placing the burden of prudence on the junior scholar.
I appreciate the advice I receive on tenure. We all do. I would like to be writing and teaching five, fifteen, and fifty years from now. But in thinking about tenure and the junior scholar, we should be thinking as much about how to make this the best of all possible worlds as we do about how to survive in something less than the best of all possible worlds. We should remember that tenure is a means and not an end, and junior and senior scholars alike should work together to ensure that we all pursue our scholarly muses with as much fearlessness as we can muster. Junior scholars should strive to avoid error -- not failure.
Tuesday, July 18, 2006
A.O. Scott on the Edge
In May guest Prawf Scott Moss was set off by an A.O. Scott review which attacked Hollywood's current remake infatuation. Disturbed by his preception of Scott's elitism, Moss wrote:
At some point, A.O. Snottypants, when you have such disdain for 99% of the movies that your readers actually go see, shouldn't you just stop being a movie reviewer? If everything my multiplex is showing is lowbrow crapola, aren't you uniquely unqualified to write about what movies I should see?
Now, two months later, Moss has gotten his reply. In a brief article that is one part schrei, one part shrug, and one part challenge, Scott takes on the moviegoing public that, apparently, is happy to ignore his directives. Citing to the box-office success of The Da Vinci Code and the latest Pirates of the Caribbean installment, Scott notes his disdain for these movies and then asks this question:
For the second time this summer, then, my colleagues and I must face a frequently — and not always politely — asked question: What is wrong with you people?
Ultimately, Scott fails to arrive at an answer. His initial question leads him to wonder, "what, exactly, critics are for." After wandering through some interesting eddies of ambiguity, Scott arrives at this rather smug answer: "We take entertainment very seriously, which is to say that we don’t go to the movies for fun. Or for money. We do it for you."
C'mon. The conversation in the discussion following Scott Moss's post was a much more nuanced approach to this issue. On one side, some commenters agreed with Moss that a critic too out of touch with popular tastes was not doing her or his job properly. On the other side, some folks defended Scott's reviews as well as the notion that a critic can stand outside the tastes of the masses and apply a more informed, intelligent, and, indeed, critical perspective to film.
So while you at Prawfsblawg tackled the issues, Scott ultimately is content to stick with his weeping and gnashing of teeth. And that's a shame. Because if he is true to himself, he shouldn't worry what the masses do in response to his (and others') critiques. I admire Scott's willingness to display a little existential angst. But I wish he didn't reach such a contrived and happy ending.
A couple more thoughts after the jump.
Scott rests his empirical case against Pirates on the following analysis:
Let’s start with a few numbers. At Rottentomatoes.com, a Web site that quantifies movie reviews on a 100-point scale, the aggregate score for “Pirates of the Caribbean: Dead Man’s Chest” stands at a sodden 54. Metacritic.com, a similar site, crunches the critical prose of the nation’s reviewers and comes up with a numerical grade of 52 out of 100. Even in an era of rampant grade inflation, that’s a solid F.
What Scott doesn't tell you is that the Rotten Tomatoes score is actually a percentage -- the percentage of critics who liked the movie. So the Rotten Tomatoes "score" actually shows that more than half of the critics counted by RT liked the movie. (See here.) The "Cream of the Crop" score -- namely, the percentage of big-name critics who liked the movie -- is lower at 42%. But still, it's not as if every critic disliked the movie. If you're looking for a poorly received movie, check out this RT meter, for example.
Another thought: both movies singled out by Scott had a huge group of people eager to see the movie. The Code had all of the readers of the book, and Pirates had all those who saw and liked the first movie. Such films are more likely to be resistant to criticism. Witness the last three Star Wars movies -- I'd reckon that they would have been far less successful without the good will built up from the first three (two?) films. When the audience has established some grounds for trust in a film -- because they liked the first one, they like an actor in the film, they read the book -- critics will be less influential on a moviegoer's decision.