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Thursday, August 31, 2006

Hamdan v. Rumsfeld and the Impossibility of POW claims going forward

Just when you thought you'd heard the last about Hamdan v. Rumsfeld...

    Both the government and Hamdan have filed motions with the D.C. Circuit suggesting how (and where) Hamdan’s petition should be handled going forward.  In brief, the government argues for a limited conception of what claims Hamdan has left to assert, and contends that any such remaining claims are to be resolved in the D.C. Circuit. Hamdan argues for a broader understanding of his remaining claims, and for resolution of them in the first instance by the district court. SCOTUSBLOG’s Lyle Deniston has more details, including links to both motions, here

    The debate is interesting in several respects, but there is one point I'd like to highlight concerning the extent to which the Hamdan ruling entails a silver lining for the government.  In its motion, DOJ points out that the original district court ruling in Hamdan referred in part to the proposition that Hamdan could not be tried by military commission until a GPW Article 5 tribunal is convened and determines that he is not entitled to POW status. DOJ notes that the DC Circuit reversed on that point, and that the Supreme Court in Hamdan expressly reserved judgment on the issue. Accordingly, DOJ now argues, the DC Circuit should vacate the portion of the district court’s injunction that requires a POW-status determination before any commission proceedings can begin.  Here’s the question, though.  Given that the Supreme Court famously holds that Hamdan is detained in connection with a Common Article 3 conflict, it follows that he is not detained in connection with a Common Article 2 conflict.  And if that is correct - and I have trouble seeing how it is not - then it falso ollows that neither he nor any other al Qaeda detainee going forward can maintain any claim to POW status (or to any other protections afforded by the Conventions other than what is contained in Common Article 3).  From the government's perspective, that is some degree of silver lining in a decision that otherwise turned out badly. And yet it appears (at least at first glance) that DoJ has not yet picked up on this point (and, indeed, that the Court itself did not appreciate it in Hamdan). 

    It's been a long day, so perhaps I'm missing something rather obvious.  Am I?

Posted by Bobby Chesney on August 31, 2006 at 10:33 PM | Permalink | Comments (8) | TrackBack

So Long, Farewell . . . .

I can't top Marvin K. and I'm not even going to try.  Thanks to Dan for inviting me to spend the past month on Prawfs, and thanks to the many folks who offered thoughtful comments on my posts.  I appreciated the virtual conversation and look forward to the possibility of renewing it in the future.

Posted by Michael O'Hear on August 31, 2006 at 09:44 PM in Blogging | Permalink | Comments (3) | TrackBack

Same Crime, Different Sentence

One of the many interesting questions in the world of post-Booker federal sentencing is whether a judge, in sentencing one defendant, is required (or permitted) to take into account the sentences imposed on codefendants.  Yesterday, the Third Circuit issued an interesting opinion on this question.  (Doug Berman has an excerpt and link to the opinion here.)  In United States v. Parker, the defendant received a sentence of 349 months, while his codefendants in the drug trafficking case received only 86 and 180 months.  Parker argued this his sentence was "unreasonable" (the post-Booker standard for appellate review of sentences) "because it failed to take into account 'the need to avoid unwarranted sentence disparities mong defendants with similar records who have been found guilty of similar conduct' as provided by [18 U.S.C.] 3553(a)(6)." 

I have argued elsewhere that (a)(6) should not be read to encompass codefendant disparities, so I was not unhappy that the Third Circuit rejected Parker's argument.  Yet, while the court did not require codefendant sentences to be considered, the court did indicate that judges were permitted to take the factor into account.  I am a big fan of increased sentencing discretion post-Booker, but I am troubled by the prospect of a sentencing judge saying something like this: "I see, Mr. Defendant, that your guidelines sentence is about 20 years, but your coconspirator, whom I sentenced a few months ago, got only 10 years.  So, I'll split the difference and give you 15."  (For an example of a real case in which the judge seemed to be doing just that (United States v. Strange), see my article linked above.)  This approach seems to make the sentence depend on the vagaries of who gets prosecuted and sentenced first--precisely the sort of arbitrariness that the guidelines were intended to eliminate.

Where I would find codefendant disparity the most palatable as a sentencing factor would be where the disparity highlights some systematic problem in the guidelines sentencing calculus.  For instance, Section 3E1.1 of the guidelines operates as a de facto trial penalty, meaning that the defendant who invokes his constitutional right to a trial is likely to get a longer guidelines sentence than his codefendant who pled out.  Such disparities are troubling, but what makes them troubling is not that two codefendants received different sentences per se, but that they received different sentences based on a consideration that shouldn't really matter.  To the extent that district courts take up the Third Circuit's invitation to consider codefendant disparities, I hope they will do so with careful attention to what actually drives the disparities, rather than taking the more clumsy approach of Strange.

Posted by Michael O'Hear on August 31, 2006 at 12:00 PM in Criminal Law | Permalink | Comments (2) | TrackBack

Marvin K. Mooney Will You Please Go Now

Seuss-like: "The time has come, the time is now . . . [Paul M. Secunda] will you please go now."

OK, well Dan didn't actually say exactly that and in fact, he and the rest of the Prawfs have been every bit the gracious hosts. 

It really has been a pleasant stay. While here, I've been facebooked, textbooked, addictedstressed, dressed up, faced down, and along the way have opened my door, referred to students by their first names, had some awkward moments, and engaged in some really bad '80's music digressions.

I hope you will all come visit me at my regular blogging spot, Workplace Prof Blog.

But now, by Zumble-Zay, I must be on my way.

"The time had come. SO . . . [Paul] WENT."

Posted by Workplace Prof on August 31, 2006 at 10:48 AM in Blogging | Permalink | Comments (2) | TrackBack

Explaining our jobs to our students

For the past six years or so, first-year students where I teach have attended a panel session (right before the opening-of-the-year dinner) featuring 3 or 4 faculty members who are asked to describe their own scholarship and research interests, and also to talk more generally about the scholarship dimension of law-professor-ing.  My sense is that this tradition started in order to explain to students what professors do all day, when they are not teaching, and also in response to a worry that some students might devalue, or perhaps even resent, their professors' scholarship goals.  And, I think there was also the aim of firing up law students to think about doing scholarship themselves.

This year's panel was last night, and I was one of the participants.  I suggested that teaching (including mentoring, career counseling, etc.), citizenship (including public-education efforts, law-reform work, pro bono service, etc.), and scholarship are (or, can be) complementary dimensions of a law professor's vocation, and that one of the challenges of that vocation is integrating these dimensions in a responsible and fruitful way.  And, I tried to say that, because law students are preparing to live and work in what we like to think is a learned profession, they will almost certainly -- whether or not they go into the academy -- have to deal with a similar challenge.

What would you say, at such a panel?  What would you ask, if you were a student attending such a panel?

Posted by Rick Garnett on August 31, 2006 at 10:38 AM in Life of Law Schools | Permalink | Comments (2) | TrackBack

Wednesday, August 30, 2006

Above the law, but not above scrutiny

A few minutes ago Dave Lat sent word that he's launching his new post-Wonkette website, a legal tabloid called Above the Law. The site is essentially a souped-up version of his other site, Underneath Their Robes, meaning that it bears the snark of UTR and the aesthetic sense of Wonkette. A few quick reactions. What makes the site particularly gruesome to the eyes is the obstreperous banner ads that change graphics every second or so. Great that cfo.com and Kayak.com are advertising; I only recently discovered kayak and sidestep for travel planning purposes. And Lat's gotta make a buck now that he's not at Wachtell or on the federal dole. But if the ads aren't tuned down a notch, it will drive readers away, or at least this one. (I find Slate's advertising also is going graphically overboard, fwiw.) Second, I noticed that UTR is not part of the ATL blogroll, which makes me wonder whether Lat will wind down operations at UTR. Third, as to the content of ATL, it's very similar to UTR: high-end salaciousness that will likely make you feel a bit dirty for reading it but will also trigger a few smiles. Especially outre are the rankings and descriptions of the "legal eagle" couples in the NYT weddings section. As Lat notes elsewhere, it's one thing to dis judges who are public figures. So I'm not sure the same rancorous treatment is called for regarding these listings, especially since what gets put in the published version is not necessarily what the couples asked for or submitted. Anyway, I have no doubt I'll be reading it regularly. Good luck with the new venture, Dave!

Posted by Administrators on August 30, 2006 at 04:48 PM in Blogging | Permalink | Comments (13) | TrackBack

Stressed in the Greatest Job in the World

Whenever people ask me whether I like what I do for a living, I invariably respond: "Being a law professor is the greatest job in the world." 

And I really mean it.  What with the ability to satisfy intellectual curiosity by engaging in scholarship and interacting with wonderful colleagues, to teach and interact with students, to have flexible work days and lots of vacation time to spend with family, to be in an academic environment, it really is a hard gig to beat (especially compared to billable large law firm life).

Yet, I and so many of my fellow law professors seem really stressed out.  Do we as Type A personalities not know how to relax (this from a guy who take his computer on family vacations so he can blog) and no matter the job we would be equally stressed out?   Or is it something about the nature of what we do for a living, which even though it is a great job, very much causes stress (even with worrying about getting tenure put to one side).

Well, think about that while I am frantically trying to prepare for teaching labor law in a hour or so.  Of course, after that I need to worry about what I'm going to have for lunch, and then . . . .

Posted by Workplace Prof on August 30, 2006 at 10:28 AM in Life of Law Schools | Permalink | Comments (3) | TrackBack

What Magic Can the Apprendi 5 Perform?

If you're like me, and enjoying the two days of school that have been cancelled on account of Ernesto, you're probably wondering, Hmmm, what interesting criminal/constitutional law article can I read today? Let me help. Guest blogger Michael O'Hear has just posted on SSRN his very interesting article entitled: Two Types of Consequentialism, Two Types of Formalism: Reconsidering Bordenkircher in Light of Apprendi. I read a draft earlier this summer and think Michael has found and analyzed a very challenging and unusual problem. Here's the abstract:

While the Supreme Court approved of the use of charging threats nearly thirty years ago in Bordenkircher v. Hayes, a more recent line of cases has subtly undermined key premises of that landmark decision. In order to induce guilty pleas, prosecutors might use any of a number of different tactics. A prosecutor might, for instance, charge aggressively in the first instance and then promise to drop the most serious charges in return for a guilty plea to a lesser offense. Bordenkircher addressed the mirror-image of this tactic: the prosecutor filed relatively minor charges at first, but then threatened to pursue more serious charges if the defendant did not plead guilty. The Supreme Court approved of such charging threats based on two considerations: the efficiency benefits of resolving cases by plea instead of jury trial, and the possibility that prosecutors would evade a ban on threats by charging more aggressively in the first instance. The Court's reasoning, however, is inconsistent with Apprendi v. New Jersey and its progeny. Apprendi rejected the use of both efficiency considerations and evasion concerns as grounds for impairing access to juries. Apprendi instead emphasized a need for robust checks and balances within the criminal justice system. Because the Apprendi line of cases addressed sentencing procedures, not plea bargaining, their relevance to Bordenkircher has thus far escaped notice. The Article argues, however, that the Court should now overturn Bordenkircher in light of the values it embraced in Apprendi. The Article also proposes a new test for evaluating the constitutionality of charging threats.

The rule Michael proposes to the Apprendi 5 prohibits prosecutors "from carrying through on threats made after formal charging that have the effect of increasing the defendant’s sentencing exposure." What appears to motivate this proposed test is a special solicitude for the welfare of the defendants who want to go to trial and yet, because of that decision, face higher penalties. This group is obviously one that elicits sympathy, for as Michael explains, their decision to go to trial follows from "a firm belief in their innocence, unusual optimism regarding their chances of winning at trial, extraordinary bullheadedness, ineffective legal counsel, and/or an expectation that the results of a conviction will be especially onerous." These condions, it bears emphasis, have essentially little connection to the defendant’s culpability. But, as Michael adeptly shows, one cannot embrace this new rule without an acute understanding of the difficulties that are likely to result in a system where the government wields great power and will search for other means of evading this new procedural tax on the prosecution. Check out this very interesting paper.

Posted by Administrators on August 30, 2006 at 12:08 AM in Criminal Law | Permalink | Comments (2) | TrackBack

Tuesday, August 29, 2006

Dean Searches and the New Law Prof

It's going to be an interesting year here at Wake Forest, as our dean, Bob Walsh, is stepping down after a remarkably successful 18-year run at the helm.  Not having been involved in a dean search previously, I'm not quite sure what to expect of the process.  I'm sure universities vary widely in their approach to dean searches, but nonetheless would be curious to know whether readers have any comments on the issue from the junior faculty point of view.  Is this a time for junior faculty to be assertive?  Cautious?  Assertively cautious?   What qualities, in your view, should junior faculty be looking for in a dean candidate?  Are there red flags to watch for?

Posted by Bobby Chesney on August 29, 2006 at 10:28 PM in Life of Law Schools | Permalink | Comments (4) | TrackBack

"The Taxman goes to church"

This Wall Street Journal piece reports that "[o]ver the past two years scores of organizations have faced scrutiny [from the IRS] for allegedly mixing their political convictions with their religious ones.  And this summer the IRS expanded a program it first launched in 2004 to take direct aim at political advocacy inside houses of worship."  It continues:

The IRS has also announced it will no longer wait for complaints to come in, but will instead take action "to prevent violations." It will be reviewing the content of sermons, it says, as well as the financial books of religious organizations."

This problem -- that is, the problem that attends the perhaps-unavoidable task of enforcing the terms of religious organizations' tax exemption -- is, I think, such an interesting one.  If we think (as I do) that such organizations ought to be largely exempt from tax burdens, but worry (as we well might) both about fraud and abuse and about the tricky enterprise of distinguishing between prohibited politicking, on the one hand, and faithful engagement, on the other . . . what should we do?

I wrote a few months ago, in USA Today, that:

Religious leaders and activists have always spoken provocatively — and even prophetically — about faith's implications for citizens, candidates, policies and elections. Not surprisingly, these reminders often prompt criticism and resistance in the pews, the news media and the public square. But we should neither demand nor expect our faith commitments or religious ministers to tell us only what we want to hear, or always to assure us that we and the status quo are doing just fine. What's more, it should not be the place of government officials or IRS agents to impose and enforce a line between pastors' stirring sermons and partisan stump speeches. . . .

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

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

See also this paper I wrote a while back, "A Quiet Faith?  Taxes, Politics, and the Privatization of Religion":

The government exempts religious associations from taxation and, in return, restricts their putatively “political” expression and activities. This exemption-and-restriction scheme invites government to interpret and categorize the means by which religious communities live out their vocations and engage the world. But government is neither well suited nor to be trusted with this kind of line-drawing. What’s more, this invitation is dangerous to authentically religious consciousness and associations. When government communicates and enforces its own view of the nature of religion­, i.e., that it is a “private” matter, ­and of its proper place­, i.e., in the “private” sphere, not “in politics,”­ it tempts believers and faith communities also to embrace this view. The result is a privatized faith, re-shaped to suit the vision and needs of government, and a public square evacuated of religious associations capable of mediating between persons and the state and challenging prophetically the government’s claims and conduct.

Posted by Rick Garnett on August 29, 2006 at 10:54 AM in Religion | Permalink | Comments (9) | TrackBack

Facing Down the "D" Student

I guess we all face uncomfortable moments in our lives as law professors, but the  ones I dislike the most by far are the awkward meetings between myself and a student I have just given a "D" or "F" on an exam.   I know we have to give students what they deserve, but it doesn't make these encounters any easier, especially when you really like the student.

You would think that it would be these students who would be the first to your office during exam review to see what they did wrong and how they can improve.  Interestingly, most students who review their exams with me fall in the A or B range.

In any event, instead of seeking me out and finding what went wrong, these students avoid me like the plague and if we should happen to meet outside in the parking lot or in the hallways of the law school, they look away embarrassed and mumble some inaudible greeting at best before making their get away.

Any good advice out there with how to deal with these "D" students?  Is it: if they don't want to help themselves, you shouldn't go out of your way to assist them?  Or is it:  many of these students will inevitably become lawyers, and so any good I can do now, let me do it now, for they shall not pass this way again?

Posted by Workplace Prof on August 29, 2006 at 09:41 AM in Life of Law Schools | Permalink | Comments (9) | TrackBack

John Locke's birthday

John Locke was born on this day in 1632.  (So were Ingrid Bergman, Charlie Parker, and Slobodan Milosevic.)

Here is Locke's Letter on Toleration (1689).  Here is a paper by Steve Smith, "Toleration and Liberal Commitments."  And, here is an interview with Stanley Fish, "There's No Such Thing as Free Speech."

Question:  Which term is more often used (or misused) in law-school classes:  "Lockean", "Kantian", or "Rawlsian"?

Posted by Rick Garnett on August 29, 2006 at 09:14 AM in Legal Theory | Permalink | Comments (6) | TrackBack

Monday, August 28, 2006

The Use (and Misuse) of Song Lyrics and Movie/TV Quotes During Class

Am I the only one or do other law professors end up peppering their classes with various song lyrics and movie/TV quotes?  I like to say I do this to better relate to my students, but more often than not my students just look at me the way I use to look at my parents when I was a teenager.

Here's just a few recent examples from my classes:

1)   When asked what the name of the case was, I answered "Rush," as in the Paula Abdul song.  Thankfully, I did not break out into song.

2)    When discussing the fact that general jurisdiction makes individuals "automatically" subject to court jurisdiction in states in which they reside, I ended up quoting the Pointer Sisters' "Automatic":  "No way to control it . . . ."   My students were so perplexed that one ended up looking up the song on iTunes during class just to make sure I didn't make it up (I know this because a student's computer was playing the song as we packed up at the end of class).

3)  And, of course, no class would be complete without a Monty Python quote or two, most recently: "Run away,  run away," and "Go away or I shall taunt you some more."  And although I didn't say it, I recently almost threatened to turn an unprepared student into a newt (he would have got better!).

I have many more examples, but am I alone in engaging in these gratuitous (nay, bizarre) pop culture digressions?

Posted by Workplace Prof on August 28, 2006 at 03:18 PM in Life of Law Schools | Permalink | Comments (20) | TrackBack

Little Miss Sunshine and Rosa Brooks on the sexing up of little girls

Though I am sure we are outdone by our friends at Concurring Opinions, and their unceasing search for internet traffic via popular word searches, I fear the title of this post could also generate a few Google hits from the unsavory kind of readers recently profiled in the New York Times in a couple articles that Paul described last week on these pages.  So if you're drawn to this post for those reasons, click away please.  On the other hand, if you're here to discuss Little Miss Sunshine, have at it. Little_miss_sunshine My wife and I saw it the other night.  All I can say in the PrawfsBlawg spirit: we loved it!   Any movie that can justifiably make a star out of this kid's glorious acting is worth my 7 bucks.

Oddly, FOP/Georgetown prawf Rosa Brooks's recent LATimes op-ed overlooked this outstanding movie when discussing the  spate of  causes underlying the robust sexualization of young girls.  Brooks thinks corporate America is going soft on family values.  She writes:

In a culture in which the sexualization of childhood is big business — mainstream mega-corporations such as Disney earn billions by marketing sexy products to children too young to understand their significance — is it any wonder that pedophiles feel emboldened to claim that they shouldn't be ostracized for wanting sex with children? On an Internet bulletin board, one self-avowed "girl lover" offered a critique of this week's New York Times series on pedophilia: "They fail, of course, to mention the hypocrisy of Hollywood selling little girls to millions of people in a highly sexualized way." I hate to say it, but the pedophiles have a point here.  There are plenty of good reasons to worry about children and sex. But if we want to get to the heart of the problem, we should obsess a little less about whether the neighbor down the block is a dangerous pedophile — and we should worry a whole lot more about good old-fashioned American capitalism, which is busy serving our children up to pedophiles on a corporate platter.

Though I still live in a kid-free home, and thus, perhaps, I'm a bit out of my depths on this issue, I'm skeptical of the effort to locate responsibility for this mess on the shoulders of corporations.   The notion that Disney or other Acme Corp'ns are "serving our children up to pedophiles on a corporate platter" is a bit, uh, fantastic.  No doubt, harried parents are pressured to succumb to the tyranny of desires sharply articulated by their kids.  But the choice to send 4 year old girls to school in lip gloss, nail polish, and mini-thong underwear is largely that of the parents who buy and tolerate these badges of "maturity." 

As to the pedophiles' newfound role as social critic, it doesn't take a genius to espy continued slippage in the social norms that once co-related modesty with self-respect.  But the vigor of Disney's marketing strategy hardly confers a reason to engage in coercive sexual violence against young children.  Blaming corporations, while warranted on occasion, should not become an escape hatch from responsibility--for both parents and pedophiles alike. 

Posted by Administrators on August 28, 2006 at 01:19 AM in Current Affairs | Permalink | Comments (11) | TrackBack

Sunday, August 27, 2006

Creative Faculty Workshops

Last week was our first Fall 06 faculty workshop at USD. Instead of the usual paper/talk format, our faculty used the occasion of the first colloquium of the semester to have several of our faculty members make short presentations about recent development in their field. In particular, the format was a Supreme Court review in several fields, with an expert in each field reporting and commenting on the major decisions of the term. I thought it was an excellent session. It allowed the faculty to interact on a substantive level without the dynamics of a paper presentation. It reminded me of something that one of our dean candidate’s last year mentioned he had done at his faculty. He described how the faculty at UVA was brought together to monthly meeting/retreats to basically continue their legal education drawing on each other’s strength. They even invited one outside professor to teach them a mini course in analytical jurisprudence, as that was an area where they all felt they could use some back-to-fundamentals training.

I often think that when I have more time, I will want to take some of my colleagues courses/seminars. But there are of course limits to that, and the level of discussion might not really get to what you hope for it to be. Isn't it great to develop some more of these sessions that draw on our greatest strengths – the fact that we are all teachers and scholars under one roof - to continue teaching and learning from each other, in more ways than just the paper talk?

Posted by Orly Lobel on August 27, 2006 at 06:32 PM in Life of Law Schools, Orly Lobel, Teaching Law | Permalink | Comments (0) | TrackBack

Corporate Endowed Academic Chairs

Interesting article the other day in Inside Higher Ed about how BMW has very generously endowed two professor chairs in Clemson's International Center for Automotive Research:

Clemson University’s two new BMW endowed chairs are among the most well endowed chairs there are. The auto giant — which while based in Germany has a major plant in South Carolina — contributed $5 million for each one. The state matched those dollars, creating endowments for each chair to support a professor’s salary, lab, graduate students and more.

Now, there is also of course so-called philanthropic chairs set up by wealthy alumni and other notable individuals.   But I'm not familiar with those chairs being set up to allow donors to interview and have a say about potential chair holders.   Apparently, however, part of the BMW endowment requires letting BMW interview all finalists for the positions.

Like others mentioned in the article, I see this as an objectionable and unusual practice and I view such arrangements as dangerous to institutional independence and academic freedom. 

Roger Bowen, general secretaryof the AAUP, put it best when he said: “Donors may designate the academic discipline they wish to fund, but the decision on who to hire should be left to a search committee composed of faculty members.”

Anyone know of any similarly-conditioned corporate endowed chairs in the legal academy?

Posted by Workplace Prof on August 27, 2006 at 01:33 PM in Life of Law Schools | Permalink | Comments (3) | TrackBack

Are you reading this during class?

By any chance are you reading this post while sitting in a class that has, at least for the moment, lost its grip on your attention?  I hope not (I especially hope that you aren't reading this during my own class), but like many other prawfs I've come to realize that quite a bit of surfing does go on in today's law school classes.  This has generated an interesting debate, with schools all around the country reviewing their policies regarding what counts as appropriate use of technology in the classroom and what limits if any there ought to be on the power of individual instructors to police the issue. 

I had occasion to think about my own preferences on this issue recently, in the course of updating my class policies for the fall semester.  Ultimately, I decided to confine myself to one admonition and one rule.  The admonition amounts to a reminder that surfing websites unrelated to the class is inconsiderate with respect to classmates in that it has a tremendous capacity to distract the students sitting behind the surfer, quite distinct from doodling and other low-tech ways to pass the time (a consideration that does not have much bite for students along the backrow, of course). 

The rule concerns use of email, instant messaging, texting, posting to a chatroom, or any other technology to communicate with a student on whom I have called.  We've all seen this situation, or at least we have seen situations that might involve this.  A student is struggling to answer a question, and is staring intently at the laptop screen.  Suddenly, the student looks up, and has an answer of sorts (or perhaps delivers an answer while still staring at the screen).  Did the student find the answer in his/her notes?  Probably so, in most instances.  Other times, though, it may be the case that a friend in the class has  sent along a helpful suggestion.  In my view, this is inappropriate (though no doubt well-intentioned).  Of course, I don't have any illusions about the enforceability of my rule; there's just no way for me to tell when a student is getting help in this way, as opposed to pouring over notes or other legitimate materials on the laptop screen.  I suspect, though, that most students will refrain from this practice once it is clear that the professor objects to it.

Is this approach too weak?  Too strong?  Or have I got it just about right?

Posted by Bobby Chesney on August 27, 2006 at 10:54 AM in Life of Law Schools | Permalink | Comments (6) | TrackBack

Saturday, August 26, 2006

Only 68 Days to the Meat Market!

I am little cross-eyed from reading 300 FAR forms over the past couple of days.  (For the uninitiated, these are the forms filled out by prospective law professors in anticipation of the "meat market"--a national law faculty hiring conference.)  This is the third year I have gone through the process as a member of my law school's appointments committee, so I have a pretty clear idea of what I am looking for now.  Ultimately, I will cast my vote at the faculty hiring meeting based on these factors: scholarly potential, teaching potential, collegiality, curricular needs, and diversity needs.  At this preliminary stage in the process, however--where my committee is merely deciding with whom to schedule interviews at the meat market--I am thinking almost entirely about scholarly potential. 

Why the particular emphasis on scholarship?  For one thing, scholarship seems to be a dominant consideration in tenure decisions, and the last thing I would want to do is hire a new prawf who does not have what it takes to succeed in this business.  For another, I have a hard time making judgments about teaching potential and collegiality based on the FAR forms.  I'll be in a better position to assess those characteristics after an interview and call-back. 

So, how should scholarly potential be assessed based on the bare-bones information available through the FAR?  I look first and foremost to the past record of scholarship.  Prior academic publications (not, say, bar journal articles) seem an especially helpful predictor of future academic publications.  In particular, if a candidate has managed a well-placed article or two during a clerkship or while in practice, there seems every reason to believe that the candidate will be at least as successful if transplanted to an academic setting (which will likely offer far more support for scholarly activities).   

Of course, there aren't that many entry-level candidates with impressive bodies of scholarship already in print.  So, I also look to other credentials that seem suggestive of serious academic interests and capabilities, i.e., whether the candidate attended an elite law school, got good grades, had a leadership position on a law review, has an advanced degree in law or another field, or did a post-JD fellowship of some sort.  To be perfectly blunt, though, there is a superabundance of these credentials in the FAR.  A candidate should not expect law schools to be fighting over her just because she has a degree from Yale, or was editor-in-chief of a law review, or has a Ph.D.  In my book, at least, a candidate without significant prior academic publications needs to have multiple distinguishing credentials in order to get any serious attention at this stage.  I speak here only for myself (and certainly not for my committee), but my impression is that most law schools are employing similar criteria.

Posted by Michael O'Hear on August 26, 2006 at 03:31 PM in Life of Law Schools | Permalink | Comments (16) | TrackBack

Friday, August 25, 2006

Book Review: "Uncovering Identity"

Prawfsblawg had a vigorous discussion of Kenji Yoshino's fascinating book, Covering: The Hidden Assault on Our Civil Rights, earlier this year, graced by the presence of the author himself.  For those who remain interested in Covering and the important issues it raises, I have posted a draft copy of my review of Covering on SSRN.  It is titled "Uncovering Identity," and is forthcoming in the Michigan Law Review.  (Please note that the version I have posted is slightly longer than the eventual published version, which the estimable folks at Michigan are helping to condense a little, will be.)  It's available here.  Here's the abstract, with apologies for the longer-than-usual length of this post.  Readers and detractors are welcome.

Kenji Yoshino's book, Covering: The Hidden Assault on Our Civil Rights, offers an instructive and intimate look at the many claims that society makes upon the self. In discussing “covering” – the demand that one “tone down a disfavored identity to fit into the mainstream” – it promises to open a productive debate about the shape and future of civil rights law. Its argument that we should move away from an equality-based approach to civil rights law, and toward a liberty-based approach, is especially interesting. Nevertheless, it builds on a shaky foundation.

This book review focuses on Yoshino's treatment of identity, authenticity, and the self in Covering. Yoshino describes the book as a defense of the “True Self” against demands for conformity and/or identity performance. He writes that we are all engaged in an act of “self-elaboration,” a “search for authenticity” that “is the most important work we can do.” I make three basic points about Yoshino's placement of authenticity and the “True Self” at the heart of his project.

First, drawing primarily on the work of Charles Taylor, I argue that it is not clear that the search for authenticity is “the most important work we can do” as human beings. But even it were, such a project cannot depend only on acts of “self-elaboration.” Our truest, most authentic selves are often those we forge in moments of dialogue and interaction with others. Second, Yoshino's focus on covering as an act of coerced assimilation fails to fully capture the extent to which one's identity, and one's uses of identity, may be fluid and intentional. Third, I argue that another essential identity trait is present throughout Yoshino's book, but is not adequately acknowledged and examined: class.

My criticisms of Yoshino's foundational treatment of authenticity and the self have three broader implications for his project. First, I suggest that generalizing from the formation of gay identity to other forms of identity may be trickier than the book suggests. Second, I call into question Yoshino's attempt to refigure civil rights as a matter of liberty rather than equality. Third, and more generally, I argue that before we can hold the “reason-forcing conversations” that Yoshino recommends, we need to reach a firmer understanding of the self, its connection to the broader social world, and the occasions on which we are willing to call certain identity demands reasonable or unreasonable.

Posted by Paul Horwitz on August 25, 2006 at 02:53 PM in Article Spotlight | Permalink | Comments (0) | TrackBack

The Value of the Open Door

This is not a post about affirmative action or the "Open Doors" campaign of the University of Mississippi from a few years back to celebrate the 40th anniversary of the admittance of James Meredith.

No, it is far simpler than that, but may be one of the most overlooked issues that can have a significant impact on one's law teaching career:  do you keep your door open or shut when you are working in your office?

Let me be the first to declare (at least on Prawfs) that I am an out-an-out open-doorer. My door is literally always open when I'm in the office.   I think there are two reasons that argue in favor of such an approach rather than having your door closed most or all of the time.

First, if you have your door closed most or all of the time, it's just that no one knows when you're around.   People are uncomfortable knocking on doors unless they really need to talk and are less likely to do so if they just want to engage in casual banter.  But in order to foster those important collegial exchanges that I discussed in a previous post, open doors help to foster open dialogue between colleagues.   Of course, if you are busy and can't be bothered, then just say so.  If  you are one of those people who needs absolute silence and no distractions to get work done, that's fine, but you still don't have to keep your door shut all the time.

Also, if you are a new faculty member, it is absolutely essential you keep your door open a good percentage of the time.  Your colleague want to get to know you and it strikes me as a little stand-offish if you don't put yourself out there to interact with them.  Also, if you are a visiting professor, you shouldn't just have your door open, you should be walking the halls introducing yourself and going into other people's offices.

Second, on the office hour front, it is a much easier argument.  My experience and the experience of many to whom I have talked is that when you set forth definitive office hours, students definitively do not come (exam time might be an exception).  I have found that my walk-in policy not only has led to greater interaction with students and makes students feel more at ease, but it does not force me to stay in my office during certain parts of the day during certain days of the week.  Win-win situation.

So, I say unto you my law professor brothers and sisters, throw off your chains, throw open your doors, and embrace (not literally, please) your colleagues, students, and the larger world!

Posted by Workplace Prof on August 25, 2006 at 11:22 AM in Life of Law Schools | Permalink | Comments (12) | TrackBack

Thursday, August 24, 2006

What's Wrong With the Criminal Justice System, in a Nutshell

The story of this extraordinary case appeared in today's Milwaukee Journal Sentinel: on two separate occasions, a Wisconsin woman received medical care in circumstances suggesting a very recent birth, but denied having had a baby;  suspicious health care providers notified the police; however, no baby was ever found.  The woman was nonetheless charged with the felony of concealing the death of a child.  She ultimately pled guilty to three misdemeanors.

As a teacher of criminal procedure, what strikes me as remarkable in this sordid tale is the way the case brings together so many prominent themes in the criticism of our criminal justice system.  Here are a few:

Defendant rights run amok.  The prosecutor justified the plea deal based on concerns that she would not be able to use key medical evidence because it was (at least arguably) obtained in violation of medical privacy laws.

Sacrifice of the truth-seeking function.  The defendant pled guilty to child neglect and lying to a police officer about not being pregnant.  Yet, she has never admitted to giving birth or explained what happened to the babies.  These are matters of public concern that would have received a public airing had the case gone to trial.  Not only have we missed the opportunity for a public inquiry into the truth, but the prosecutor's dismissal of the "concealing the death of a child" charge may be perceived by the public as factually inconsistent with the implicit concessions made by the defendant in pleading guilty to the lesser charges.  Doesn't this scenario encourage the cynical view that judges and prosecutors care more about clearing their dockets than determining the truth?

Plea bargaining as lawlessness.  By the prosecutor's account, it seems that the key element of the plea deal was the defendant's agreement to obtain a hysterectomy.  (Putting that aside, her punishment was a proverbial slap on the wrist.)  The law does not authorize sterilization as a form of punishment.  This is a classic example of what Joseph Colquitt calls "ad hoc plea bargaining."  You can read his stinging critique of the practice at 75 Tulane L. Rev. 695 (2001).

Sentencing as lawlessness.  The newspaper article observes that, in 14 similar cases over the past 12 years in Wisconsin, defendant have received sentences ranging from probation to life(!).  To be sure, what the newspaper reporter considers to be "similar" might not be nearly so similar in the eyes of a sentencing judge.  Still, it is hard not to view this disparity as an extraordinary failure of our indeterminate sentencing system.  (My gracious Prawfs host, Dan Markel, has a wonderful forthcoming article that makes the constitutional case against sentencing systems like this.)

Are there other nominations for ways in which the system seems to have disregarded important public values in this case?

Posted by Michael O'Hear on August 24, 2006 at 07:26 PM in Criminal Law | Permalink | Comments (0) | TrackBack

Does format matter?

The law review article submission process has been much on my mind lately.  Some aspects of the process - e.g., article length - have been the subject of extended conversations in the blogosphere and elsewhere.  There is one issue, however, that I've not seen discussed: article format.  Does it matter?

I have a colleague who formats articles before submission in a way that looks exactly like a finished law review article, complete with small font, huge margins, single-spacing, journal-style headers, and so forth.  It looks great, and makes for a pleasant read compared to the traditional double-spaced, Times New Roman, 12-point, orthodox approach.  Variations of this approach also frequently appear on SSRN, where in my experience pdfs almost invariably turn out single-spaced and often contain relatively unorthodox styles of presentation.  On the other hand - as anyone who recently has navigated the submission process knows - journals frequently call for submission in a standard font, double-spaced, 1" or 1.5" margin format.  And so the question arises:  Do articles editors really care whether a submitted piece conforms to the format stated on their websites?  Might you even prefer something packaged with a bit more style?

To the extent that at least some journals do insist upon the traditional format (at least in the sense that it is a disadvantage to submit something in a different style), it would seem that growing reliance on ExpressO will cause most authors to forego the more creative approaches even when they have the option with some journals (since you only upload one version of your piece on ExpressO).  Then again, the number of journals insisting upon submission via their own websites seems to be growing, so perhaps the leveling effect of ExpressO will erode over time.

So tell me, Article Editors of the world, does any of this matter?

Posted by Bobby Chesney on August 24, 2006 at 03:52 PM | Permalink | Comments (1) | TrackBack

The Eerie Prescience of Dick Van Patten

Astronomers agree: "Eight is Enough."

Posted by Paul Horwitz on August 24, 2006 at 02:13 PM in Paul Horwitz | Permalink | Comments (5) | TrackBack

Advice for 2-L students

Jim Lindgren and David Bernstein have posted, over at the Volokh Conspiracy, some advice for second-year law students.  I would add to their suggestions at least one of my own:  If your school has (as mine does) upper-level required courses (e.g., Tax, Business Associations, etc.), try to resist the pull of the common view that students should "get the requirements out of the way" as soon as possible.  The first year of law school is often a long line of big lecture classes, topped off with standard-issue three-hour exam / disgorgements.  It seems to me that second-year students should try to diversify their law-class experience, strike out in some new and even strange directions (go ahead -- take "Law and the Catholic Social Tradition"!), and so on.  Besides, you never know if that interesting biodiversity or election-law class -- the one you figure you'll take during your third year, after all the requirements are done -- will be offered or available.

Posted by Rick Garnett on August 24, 2006 at 01:54 PM in Life of Law Schools | Permalink | Comments (3) | TrackBack

"Rational reason[s]" and research on embryos

This story, from today's New York Times, describes and discusses the significance of a "technique for establishing colonies of human embryonic stem cells from an early human embryo without destroying it."  The piece quotes Dr. Robert Lanza, vice president of Advanced Cell Technology, as saying that "[t]here is no rational reason left to oppose this research."

I wonder what we should make of this statement / claim?  It takes us back, in a way, to the blogsphere-wide debate, a few weeks ago, about whether President Bush's veto of the embryonic-stem-cell-research bill involved the inappropriate, if not unconstitutional, imposition of his religious views.  (See, e.g., posts by Paul Horwitz, Larry Solum, Brian Leiter, Eugene Volokh, and me.)

With respect to this particular matter, though:  Does Dr. Lanza mean to suggest (or concede) that it is "rational" to oppose -- or, perhaps, that "public reasons" can be offered for opposing -- embryonic stem-cell research that involves the intentional destruction of human embryos?  Probably not.  But, in any event, if it is "rational" to oppose such research -- on the ground, I suppose, that human embryos are the kind of thing that ought not to be intentionally killed -- then it is not clear to me why it would not be "rational" to oppose the research described in the article.  One might think, for example, that even the described method involves injury, or the risk of injury or death, to a human embryo, or that the research's longer-term effects on the more developed child are uncertain, or simply that the research -- like the kind that destroys the embryo -- involves an objectionable kind of commodification or instrumentalization of "spare" embryos.

Here, by the way, is a link to a White Paper produced in 2005 by the President's Council on Bioethics which identifies a number of concerns which would seem to supply, at the very least, "rational" reasons for being concerned about the research described in the Times article.  To be clear, I do not know nearly enough to have a firm view on the soundness or morality of the research.

Posted by Rick Garnett on August 24, 2006 at 11:45 AM in Legal Theory | Permalink | Comments (2) | TrackBack

"See the man with the stage fright..."

At Prawfsblawg we talk a good deal about the life of the legal academic, especially the fledgling prof: getting the job, balancing scholarship and teaching, what to wear (this may have come up more than once), and so on.  Another aspect of teaching that is addressed less often here and on other lawprof sites is the sheer fact of standing in front of a group of strangers and performing.  I find it enjoyable once I get to know my students, but I always find that first day a little scary, and well into the semester I often feel a nervous thrill for a good hour before I walk into class.  Do you, dear reader, feel the same? 

I ask because this week's New Yorker has a very enjoyable piece on stage fright, written by John Lahr.  You can hear about the paroxysms suffered by Stephen Fry, Laurence Olivier, and Ian Holm, among others.  It's not available online but is well worth reading if you can.

Why don't law professors, especially those of us who write regularly online about teaching, talk more about stage fright?  Perhaps because it doesn't exist among law professors, but I find that hard to believe.  Perhaps because no one likes to admit weakness, especially in a branch of the profession in which information is both porous and closely guarded.  Or maybe out of superstition, and because it is so horrible to contemplate.  Name it, and it might come for you.  Ian McKellen is quoted in the piece as writing: "Performers don't talk much about stagefright....The spectre of a tongue turned to stone and vomit where the lines should be is all too frightening to be evoked."  Ghastly.

Bonus point: Lahr writes that one of Carly Simon's remedies for stage fright is to induce physical pain, which she finds "often trumps psychological terror."  She has even asked band members to spank her before going on.  "At a celebration for President Bill Clinton's fiftieth birthday, at Radio City Music Hall, in 1996, Simon, terrified of following Smokey Robinson, invited the entire horn section to let her have it."  If she really wanted to give the President a birthday present that would have been up his alley, she should have just skipped the performance and taped the spanking.

P.S.: Title courtesy of The Band, and the great vocal performance of Rick Danko.   

Posted by Paul Horwitz on August 24, 2006 at 11:41 AM in Article Spotlight | Permalink | Comments (3) | TrackBack

Hello, My Name is Paul and I am a Blogging Addict

Reuters reports that China has started halfway houses for those who just can't seem to tear themselves away from the computer (hmmm, sounds familiar):

Mainland China has opened its first halfway house for Internet addicts, offering shell-shocked teenagers counselling, books -- and the use of computers.

The shelter can hold four minors for one-night stays and help bridge gaps between children and parents, the Shanghai Daily said.

The article goes on to explain:

Computer and online gaming has exploded in China in recent years, with an estimated 14 million people taking part.

Amid growing concern that more and more young people are getting hooked, China has issued a raft of regulations aimed at curbing excessive game playing at Internet cafes and heavily fining owners that admit minors.

The Shanghai shelter, modeled on one already in operation Hong Kong, took in the first three boys on Monday, the paper said, including Chen Jiafeng -- a 17-year-old "fed up with the depressive atmosphere" of his family.

OK, so clearly some of us (myself included) could also benefit from such a halfway house here in the States.  Excessive blogging is indeed a nasty affliction and maybe we could have a specialized blogger-only part of the house to handle the special problem of manic expression normally associated with these hopeless cases.

So who else is coming to live with me at the blogger halfway house?  Thankfully, none of the regulars here at Prawfs seem to have this affliction.

Hey, but where's Lipshaw?  Is that where he went?

Posted by Workplace Prof on August 24, 2006 at 10:37 AM in Culture | Permalink | Comments (1) | TrackBack

Debating the War Crimes Act

A Prawfs public service announcement--over at the Law Librarian Blog, Joe Hodnicki writes:

When the Supreme Court of the United States decided in Hamdan v. Rumsfeld that the Bush administration's policy of not honoring the Geneva Conventions was illegal, and that prisoners in the "War on Terror" were entitled to such protections, the Court opened the door for the criminal prosecution of political appointees, CIA officers and military personnel under the War Crimes Act. At issue is government authorized interrogations using methods that U.S. military lawyers testified at a July 13 hearing of the Senate Armed Services Committee were in violation of Common Article 3 of the Geneva Conventions (Treatment of Prisoners of War).

Concern over the applicability of the Act made the front page of the Washington Post immediately after the Hamdan decision was announced. R. Jeffrey Smith, Detainee Abuse Charges Feared: Shield Sought From '96 War Crimes Act, Washington Post, July 28, 2006 at Page A01. Now, the Bush Administration is reportedly circulating draft amendments to the Act that would significantly narrow the scope of potential criminal prosecutions to 10 specific categories of illegal acts against detainees during a war, including torture, murder, rape and hostage-taking. This chain of events calls for publication of a compilation of all relevant legal materials so an interested public can be a well-informed public.

Over at his site, you can find a very well-linked array of resources that are helpful to understanding the legal background to this complex and interesting issue.

Posted by Administrators on August 24, 2006 at 10:18 AM in Law and Politics | Permalink | Comments (0) | TrackBack

Wednesday, August 23, 2006

Between a Racy Show and Racial Segregation

This morning, CBS confirmed that the next Survivor show, Survivor: Cook Islands, airing Sept. 14, will be grouped by race, with competitors divided into four tribes consisting of whites, blacks, Asians and Hispanics. CBS calls it “a valuable social experiment” and explains that “the idea for this actually came from the criticism that Survivor was not ethnically diverse enough, because for whatever reason, we always have a low number of minority applicants apply for the show." The network also stated that this was the logical next step in "a show that explores social politics." Robert Thompson, director of the Center for the Study of Popular Television at Syracuse University was quoted today comparing this “social experiment” to "a return back to segregated leagues in sports. The unseemly interest this will invite certainly is not worth the dramatic elements it's going to bring." Sounds right to me. What good can possibly come out of segregated teams trying to win on national TV a survival of the fittest competition?

Posted by Orly Lobel on August 23, 2006 at 08:11 PM | Permalink | Comments (5) | TrackBack

The Neglected Importance of Faculty Collegiality

No two ways about it, I am a huge fan of collegial law faculties.  Now, I know I might just be stating the obvious here, but I feel truly blessed being surrounded by the colleagues (especially the junior ones) that I have.

I think this is an important aspect of a law school for entry-level candidates to keep in mind as they go through the meat market this year.  Yet, it might be one of the most under-appreciated or under-valued ones.

So I am clear about what I mean by collegiality, I don't mean everyone is best friends or that there are dinner parties at one another's house every weekend (though that might be fun), I am talking more about the little things that go on during the day like colleagues stopping by your office to make small talk and ask how both your professional and non-professional life are going, colleagues offering to read your law review article drafts before they go out on the market, or just the yearly ritual of explaining to new faculty the ins-and-outs of a law school.

Surprisingly, my observations of other law school faculties in action and the anecdotal evidence I have from friends around the country suggest that such collegiality is lacking much more than one might think.  In some cases, it seems that the faculty just don't get along because there are splits among different political lines or individuals take different sides in hot-button debates surrounding certain law school issues (you know the ones). 

For others, it is just the dynamic of the faculty and the fact that there just aren't that many junior faculty to interact with in schools that have disproportionately large amounts of senior faculty (I guess a lone associate would feel the same way in a law firm filled with mostly partners).  Don't get me wrong, good senior colleagues are important too, but they do not fill the role played by junior ones.

In any event, if you are going on the job market this year, spend some time  figuring out the dynamic among faculty members, and also pay attention to  how many junior faculty members a school has.  From my own perspective, it has been the personal connections that I have made especially with my junior colleagues (who number near 10 here) that has been the most important part of having an enjoyable law professor career so far.

Posted by Workplace Prof on August 23, 2006 at 01:34 PM in Life of Law Schools | Permalink | Comments (3) | TrackBack

How should states construct the criminal history of migrant offenders?

In addition to being a delinquent blogger of late, I have tried to use the summer to, among other things, write a few responses to other scholars' work, which I hope to float here over the next few weeks.  Today, I'd like to get readers' thoughts on a draft of a short piece I wrote in response to my friend and future colleague (for spring 07 at least) Wayne Logan's great article from this past year. The Response is coming out next month in the Penn Law Review as part of their online forum that they'll launch around September 1.  Here's a rough draft of the paper, which includes footnotes. Currently standing at only ten pages, the piece is tentatively entitled Connectedness and its Discontents: A Response to Professor Logan.  (Anyone got a better short title?)  Here's the intro. The rest is after the jump.

Please send comments to markel at post.harvard.edu, or in the comments space.

I.

Connectedness is actually a quandary. Often assumed to be a better state of affairs than being disconnected, the state of connectedness upon closer scrutiny is not necessarily voluntary or desirable. Indeed, when E.M. Forster chose “Only Connect” as an epigraph to his novel, Howards End, he surely wasn’t thinking – it is safe to say – of the kind of connectedness among polities that Professor Wayne Logan describes in his rich, measured, and illuminating article. This should come as no surprise. Forster was exalting the weightless energy of passionate encounter. Logan’s research, by contrast, reveals the potential gloominess of connectedness.

By focusing on the legal implications of the migratory patterns of criminal offenders, Logan’s article asks two important questions that have been given spare and insufficient attention. The first focuses on how states construct the criminal histories of the offenders who are now in their midst. The second asks what tradeoffs are implicated as states make their choices regarding how to interpret the pasts of these itinerant offenders as they relate to registration requirements or sentence enhancements for recidivism.

Answering the first question, Logan observes the existence of two archetypal approaches a state might adopt when assessing an offender’s prior record: an internal one and an external one. Under the internal approach, the use of “out-of-state convictions, and any punishment resulting from those convictions, [must] satisfy the eligibility requirements of the forum state's registration or recidivist enhancement law.” On this view, for example, a state would not apply a recidivist sentencing enhancement to an offender on the basis of a conviction in another state for conduct that would not be illegal in the forum state. By contrast, under the external approach, a forum state faithfully implements the consequences of the legal judgments of its fellow sovereign states, rather than re-examining those determinations to see if the underlying circumstances (or length of sentence) would have initiated the same legal consequences in the forum state. Consequently, with the external approach, an offender’s former actions potentially trigger a “marked trail” effect in the new forum state. Of course, jurisdictions need not be consistent between recidivism and registration requirements: some states might adopt, for instance, an internal approach with respect to recidivist sentencing enhancements but an external approach to sex offender registration laws.

With respect to the second question, Logan capably shows how the competing internal and external approaches raise difficult theoretical and practical policy questions. Indeed, simply by ventilating the various issues as he does, Logan helpfully foregrounds a lot of otherwise easily obscured value tradeoffs, and thus makes a profound contribution to the study of federalism and American criminal law.

This Response registers no real quarrel with Logan’s analytic account about the scope and nature of criminal justice connectedness. My focus instead is on the normative argument in Logan’s apparent preference for the internal approach. I choose this focus not because I’m convinced that the external approach is the obviously superior one. Rather, I think Logan overestimates its deficiencies. The goal of this Response, then, is simply to adumbrate a few of the rejoinders available in defense of the external approach against Logan’s criticisms. To the extent these responsive arguments are persuasive, then state courts and/or legislatures will be in a better-informed position to select an approach more consonant with their particular concerns and objectives.

II.

As alluded to above, Logan ultimately sides with the internal approach. This might seem odd as Logan himself recognizes several distinct advantages to the external approach. First, at least as compared to the internal approach, the external approach advances judicial economy, sparing courts the task and expense of comparing whether the predicate conduct would satisfy the forum state’s eligibility requirements for offender registration laws or sentence enhancements. Second, by serving judicial economy, the external approach is capable of serving distributive justice goals as well, since a dollar saved in administrative costs is a dollar available for helping other social projects. Third, by giving effect to the prior judicial decisions and legislative determinations of the foreign states, the external approach instantiates comity among the several states, evidencing respect for the equal dignity of the states. Fourth, the external approach is often the better vehicle for providing notice to a migrating offender; under the external approach, for example, the offender need only know one set of laws regarding registration requirements—those of the state in which he committed the offense. If states employ an internal approach, then migrant offenders will have greater difficulty in keeping abreast of whether they are expected to register or not. Fifth and finally, in the expressive political economy of punishment discourse, the external approach is more likely to reinforce norms of individual responsibility and accountability, since the external approach signals, as President Clinton said, that if you break the law, “the law will follow you wherever you go--state to state, town to town.” In other words, if you had to register in Alabama as a consequence of some crime you committed there, you won’t be able to escape those registration requirements simply by moving to a different state, where the same underlying conduct would have been perfectly legal.

Despite the variegated benefits of the external approach, Logan condemns the external approach for four reasons: its harshness, its creation of inequalities, its denigration of state autonomy, and, relatedly, its discouragement of jurisdictional competition for citizen migration. In what follows, I explain why these charges are overstated or misplaced.

A. Is the External Approach Unduly Harsh?

To begin with, Logan notes that an embrace of the external approach can lead to the imposition of ever-more onerous registration requirements or sentence enhancements based on weird predicate crimes or harsh procedural sorting rules that are extant in the several states. It may be true that, on the margins, the external approach leads to more harm to defendants. But Logan’s article doesn’t furnish us with enough evidence to believe that is conclusively the case, as there are a variety of circumstances in which the internal approach may lead to worse outcomes for migrant offenders. For example, forum states may have a lower bar for registration requirements than foreign states; thus, out of state conduct that may be deemed relatively benign in the foreign state may prompt severe consequences once the migrant offender moves to the forum state. Indeed, as Logan himself notes, the external approach would lead to better circumstances for offenders on those occasions where “a crime classified as a misdemeanor in a foreign state can be treated by the forum as a felony for purposes of assessing recidivism, or the foreign state would not count deferred or probated adjudications, or a nolo contendere plea, or a prior juvenile disposition.”

Even if it could be shown that the external approach is a net detriment to defendants because it tends to widen the scope of penality, this is not always bad. For one thing, take note that the democratic weirdness of federalism’s fifty labs approach may cut in many directions. One need only imagine that the forum state adopts the internal approach and also fails to recognize the crime of marital rape, or refuses to impose higher penalties for racially-motivated assaults or driving under the influence. Shorter criminal codes (and sentences) are not inexorably better criminal codes (and sentences). Consequently, when offenders move to an internal approach jurisdiction, there is a decent chance that the resulting outcomes will offend progressive political sensibilities in the forum state, rather than reflect them. That’s because the criminal codes of foreign states may actually be serving retributive or other ends more effectively than those of forum states.

In this regard, by giving effect to the “marked trail” of an offender’s conduct through the external approach, a forum state may in fact be able to better conduct comparative experiments in crime policy than they otherwise would be able to perform. Of course, this would raise, albeit in a different way, Logan’s pronounced concern that the external approach entails a basic unfairness by treating similarly situated offenders differently. This concern warrants careful scrutiny.

B. Does the External Approach Promote Inequality?

Logan’s basic point about unequal treatment resulting from the external approach is that “[w]hen forum states defer to outcomes reached in foreign states with significant variations in substantive laws, punishments, and procedural rights, otherwise similarly situated individuals can be treated unequally.” To see how this works, consider two types of inequality Logan espies under the external approach. Logan writes:

The first [unequal treatment] involves immigrants from states with narrower registration eligibility criteria; they, unlike the immigrant from, say, South Carolina, will not be subject to registration because it was not required by the foreign state from which they migrated. The second arises when an offender in the forum state is not required to register as a result of being convicted of an offense (e.g., peeping), yet the newcomer is so required, again because of the idiosyncratic nature of the foreign state's registration law. Alternatively, the duration of registration can be made lengthier for newcomers if the forum state ties the newcomer's period of registration to the duration imposed by the state left behind. In each such situation, registration, with its direct and collateral burdens (including possibly community notification, with its litany of negative consequences), is driven by the geographic happenstance of where the foreign conviction occurred, leading to unequal outcomes in the forum state.

To be sure, unequal treatment of similarly situated offenders should give us pause -- as a normative and constitutional matter. But the unequal treatment resulting from adoption of the external approach isn’t necessarily “unwarranted” or “unfair” unequal treatment if it doesn’t involve offenders who are actually similarly situated. Logan’s first scenario compares immigrants from different states who arrive in the same new forum state; one is susceptible to more onerous registration requirements while another is not—merely because of where the foreign conviction occurred. This disparity is troublesome, according to Logan, as is the second disparity resulting between the immigrant offender and the native offender in the second scenario.

Both scenarios however present only the veneer of unfairness. Upon scrutiny, the unequal treatment dissolves simply by recourse to the very point about notice that Logan acknowledges elsewhere. In the case of the two immigrant offenders now in the forum state, it makes little sense to think they are similarly situated if they committed their offenses in different states against different sovereigns. The same holds for the comparison of the perpetrator of an offense in jurisdiction X to the perpetrator of the same offense in jurisdiction Y. These offenders are not similarly situated precisely because the predicate conduct was perpetrated against different sovereigns whose democratic institutions may legitimately issue different rules with different consequences. This matters because in a federal scheme of decentralized democracy, an offense, say, of drug possession, in state X may reasonably be regarded as having a different valence than those contemplating the criminalization of drug possession in state Y. (Of course we might not like all the resulting laws from the plural nature of the states, but this calls perhaps for increased constitutional regulation of criminal law legislation, not an abandonment of federalism as such.) Moreover, given the variety of ways in which similar acts committed in different states may reveal different attitudes about criminal propensities, there is further reason for thinking that the offenders in Logan’s two scenarios are not similarly situated—though of course, this would depend on the assumption that the offenders had knowledge of these varying penalties.

In short, to generate a legitimate inference of unwarranted disparity one has to treat differently two similarly situated perpetrators of the same offense in the same jurisdiction. Both of Logan’s two scenarios don’t present that prerequisite. Indeed, when a forum state effectuates the consequences that would be visited upon an offender had he remained in the foreign state—by adoption of the external approach—the forum state is actually serving the cause of equality because it ensures that similarly situated defendants convicted in the same jurisdiction endure the same kinds of consequences regardless if one of the offenders decides to up and go to another jurisdiction. More importantly, no unfairness or surprise to the offender can be claimed because he is (presumptively) on notice from the outset; he is simply receiving under the external approach what he would otherwise have received had he stayed in the foreign state.

C. Does the External Approach Undermine State Autonomy?

In addition to his concerns about widening penality and inequality, Logan also fears the external approach leads to the erosion of autonomy in individual states. This erosion of self-government occurs on account of the ossification effects resulting when states, through the external approach, “replicate temporally and geographically contingent aspects of substantive criminal law, punishment, and procedure.” Logan thinks these “frozen-in-amber” effects are more pronounced in jurisdictions employing the external approach because under the internal approach such “intergenerational drift” might be checked by the forum state’s own substantive rules and procedural requirements.

There are two reasons to hesitate before condemning these replication and ossification effects. First, as shown earlier, because the internal approach is not always less harsh and because criminal codes in the foreign state may be more “progressive,” the replication and ossification created by the external approach might not be bad for defendants or society.

Second, and more relevant to the autonomy erosion claim, there are two reasons states may see their choice of the external approach as an expression of their autonomy, rather than as a denigration of it. First, a state may view its choice of the external approach as saying to an offender something like: “if you made the choice to violate the criminal law of another state, we have a concern you might do so here as well, even though what you did there would not have been a violation here.” Thus, a state might self-consciously try to enhance its crime reduction strategy against specific threats by adopting the external approach. Second, notwithstanding its “right to act autonomously and independently, free of the constraining authority of other governmental units,” a state might adopt the external approach because it wants to see its norms adhered to when its offenders migrate to other states. If the state sees itself in an iterative process by which it believes that other states will reciprocate with adoption of the external approach, then its choice to embrace the external approach will make sense. To illustrate: State X might be willing to give effect to State Y’s laws to offenders whose crimes were prosecuted in State Y if State X thinks that State Y (or States A through W) will adopt and abide by the external approach. That’s because State X believes that in subsequent cases, those states will give effect to State X’s laws to former X-convicted offenders who migrate to these other states.

Indeed, State X might try to persuade other states to adopt an external approach so that they give effect to State X’s legislative views on offenders previously convicted in State X. Though they have no power to mandate the extraterritorial application of their laws, the states employing the external approach might try to convince the “internal approach” states that they are acting as “free-riders.” They are free-riders because internal approach states have their laws apply in their own jurisdiction to indigenous and immigrant offenders and they also have their laws apply to their own former citizens who migrate to external approach states. Without a rule mandating one approach or another, internal approach states are able to enjoy a kind of law-hoarding, thereby undermining norms of reciprocity.

There is a solution available to bring this “game” to equilibrium: states that care about this problem could use a bifurcated strategy. The courts in the forum state could apply the external approach to offenders from other external approach states while using the internal approach against offenders migrating from internal approach states. But the fact that such a strategy is not used indicates that this unfairness is either deemed relatively insignificant or that the unfairness has not been made obvious to relevant policymakers.

D. Does the External Approach Discourage Democratic Experimentalism and Jurisdictional Competition?

Logan concludes his critique of the external approach by contending that states that adopt the internal approach are better able to serve as “stalwarts of fifty-labs federalism.” I find this claim puzzling. To begin with, a state adopting the external approach is at least equally able to convey its respect for fifty-labs federalism precisely because it may doggedly apply its own laws to offenders who commit crimes in that state while at the same time demonstrating its respect for the equal dignity of its sister states by implementing the laws of its sister states on their migrant offenders. Pace Logan, the external approach poses no real jeopardy to the spirit of democratic experimentalism—after all, the proportion of migrant offenders is likely to be small compared to the number of indigenous offenders, so lawmakers won’t likely be deterred from trying to undertake criminal law innovations to see how they work.

Indeed for the same reason, Logan’s fear that the external approach prompts a slippage in democratic accountability seems remote. How many instances are there where someone convicted of a weird crime in another state -- Logan’s examples are adultery and peeping -- has that offense later serve as a predicate to enhanced sentences or registration requirements in a forum state adopting the external approach? My guess is not that many -- unfortunately, Logan’s article (quite reasonably) doesn’t provide the empirics. But even if it were a non-trivial number, calling that result, as Logan does, “stealth legislation” seems inapposite. After all, no citizens of the forum state will face penalty enhancements for such conduct if that conduct is committed in the forum state.

As long as the forum states citizens are free to engage in that predicate conduct, then virtually no risk to Alexander Hamilton’s vision of the states competing for the “people’s affection” materializes--because people are still able to make informed choices about where to live ex ante, that is, before any crime is committed. If I want to move away from a state that makes peeping a felony, I can do so at no penalty if I haven’t committed an offense. But Logan thinks people should be able to commit an offense and then escape (some of) the consequences of that conduct by moving to an “easier” place to live. Certainly, offenders who serve their sentence and complete all their conditions of release should enjoy the fruits of mobility associated with the American religion of self-reinvention. But by what moral rights do they merit a free roaming pass prior to their release from the criminal justice system? There’s no evidence adduced by Logan that this is the kind of jurisdictional competition Hamilton or other federalists supported. Moreover, to the extent that internal approach states end up being harsher on defendants, then that too will deter migration on the margins, thereby depriving “prospective states” of “such persons’ talents and resources.” At the level of abstraction Logan has pitched this inquiry, the choice of internal approach over external approach can often cut both ways.

Finally, to the extent anyone in an external approach state is troubled by the introduction of what Logan calls “stealth legislation,” she might take comfort in knowing that her own state’s “weird” legislation is being given effect in other external approach states. Logan correctly worries that the external approach might give extended effect to laws like the ones invalidated in Lawrence v. Texas. But that’s just one side of the coin. The flip side is that progressive states might be criminalizing marital rape or making it easier to prosecute date rape, and through the external approach, they are seeing norms shift in “better directions.” And in both situations, criminal legislation is policed, albeit too weakly, by the Constitution. In the end, there is a quid pro quo going on among the external approach states—one that Logan appears reluctant to acknowledge. And for those states that are still worried about the injustices potentially worked by replicating weird laws of other states, they have yet another strategy available to them: to employ the external approach generally while simultaneously carving out specific safe harbors for particular conduct. On this view, a legislature would tell its courts to exclude from consideration convictions arising from, say, consensual sodomy or recreational drug use, or whatever conduct the legislature deems worthy of protection.

III.

In reviewing Logan’s multiple concerns about the external approach, one might be tempted to view them as fragments of a larger skittishness toward the work of democracies in the realm of criminal law politics, and the crisis of overcriminalization produced therefrom. To be sure, there is a basis for fearing incessant overcriminalization. But the claims of pernicious democratic pathologies in criminal law politics are also prone to exaggeration, as Professor Darryl Brown has recently demonstrated. And to the extent the crisis of overcriminalization is real, it probably does not make much sense to base much optimism for its amelioration on the correct choice between the internal or external approach—simply because there are far more direct measures available.

In any event, the choice between the internal approach and the external approach is not an easy one, and Logan’s research and arguments have done a tremendous service in bringing to light the various challenges associated with creating bridges among our various criminal justice systems. At the very least, I hope this Response has both shed further light on the topic of conversation invaluably provoked by Professor Logan and shown that the case against the external approach is not as forceful as it might seem at first blush.

Posted by Administrators on August 23, 2006 at 12:23 AM in Article Spotlight, Criminal Law, Dan Markel | Permalink | Comments (3) | TrackBack

Tuesday, August 22, 2006

Of Willie Nelson, Manic Expression, Au Revoir, and Coming Soon to a Blog Near You

Turn out the lights
The party's over
They say that
All good things must end
Call it tonight
The party's over
And tomorrow starts
The same old thing again

                                                    - Willie Nelson (as interpreted by Dandy Don Meredith)

It's three days short of a month since I first posted something as a guest, and having now whined to Dan Markel about everything on my plate between now and early November, I am going to say thank you, thank you to my gracious hosts, this has been too much fun to count as work, and au revoir (not goodbye).

Several things I have learned:

- Never again make a joke about Richard Posner not having ever had an unpublished thought  until you yourself have been a manic expressive on line for a month.

- Do not debate in the comments with anonymous posters.

- Don't take it personally.

- There is something called Trackback Spam, and it's not pretty.

- You can challenge yourself intellectually in this medium.

Dan has also been kind enough to let me say (not as though these things compete) that Alan Childress, of Tulane and visiting this year at GW, another co-editor with whom we are currently in top secret free agency negotiations, and I will be launching the Legal Profession Blog as part of the Law Professor Blogs network some time in October.  We hope to dig into the issues that touch on an academic view of the profession, including law firm economics, ethics, the profession's view of the academy, and the globalization of the profession.   The only question Paul Caron has had is whether we will be able to post enough to keep it active.  I don't know.  I am completely out of ideas, but that may reflect the fact I taught the first session of Secured Transactions and Business Enterprises today, and am so tired I can barely type.  Alan is probably going to have to carry us.

Thank you also to new cyber-friends Vladeck, Secunda, Gowder, Horwitz, the ubiquitous Anon, FMLTX whoever you are, and everybody else.  The views reflected here are not necessarily those of PrawfsBlawg, or sometimes even the author, ten minutes after he posted them.  Take it away, the pride of the Demon Deacons, the urbane and dashing Bobby Chesney.

Posted by Jeff Lipshaw on August 22, 2006 at 07:37 PM in Blogging, Lipshaw | Permalink | Comments (10) | TrackBack

Overcriminalization in Action?

As reported in today's Milwaukee Journal Sentinel, a hotly contested issue in this year's hotly contested Wisconsin AG race is whether state law should criminalize first-time drunk-driving offenses.  Wisconsin criminalizes repeat offenses, but leaves the first-time offender to punishment under local ordinances.  Ordinances provide for fines and license suspension, but not jail time.  Wisconsin is apparently the only state not to penalize first-time offenses--perhaps a reflection of the state's hard-drinking cultural traditions.  In any event, in this year's Republican primary, one candidate supports criminalization, while the other opposes it.  And, on the Democratic side, one candidate supports the proposal, while the other declines to take a position.

I am skeptical of criminalization, although I must admit I am not on top of the relevant social science and medical research (deterrent effects of criminalizing DUI, characteristics of first-time DUI offenders, actuarial risks associated with them, etc.).  My skepticism stems from the standard reasons that I think should always give us pause before we create new crimes, especially when criminalization is not accompanied by any new commitment of law enforcement resources.  More crimes means greater police and prosecutor discretion, which I do not trust to be exercised in an evenhanded manner.  Prosecution of new crimes drains resources from the prosecution of old crimes.  And when the new crime is a strict liability crime, like DUI, there ought to be particular concerns about directing limited law enforcement resources towards those cases where punishment has the least moral legitimacy.

Crim prawfs are, of course, aware that "overcriminalization" has been the subject of much recent scholarship.  Professor Stuntz has done some of the most interesting work in the area.  Interestingly, if Wisconsin is now on the path to criminalization, the politics don't seem driven by the institutional pathologies that play such an important role in Stuntz's account.  Prosecutors are divided in their views of the proposal.  My suspicion is that the real reason the issue has emerged in the AG race this year is that the incumbent AG, who is running for reelection, was convicted of DUI two years ago, and her opponents are looking for ways to make the DUI issue more salient.

Posted by Michael O'Hear on August 22, 2006 at 05:40 PM in Criminal Law | Permalink | Comments (6) | TrackBack

Conglomerate on Interview Questions

A lovely discussion at the Conglomerate about interview questions during the law school hiring process.  Gordon Smith suggests that interviewers ask about law professors who serve as a model for their career, a question I recall expounding on at some length during my own job search.  A similar question could be, what course influenced you the most, intellectually and/or pedagogically, and why. 

Jim Chen, in the comments, writes:

One question I like to ask is this, "Is there a book or law review article you wish you had written? Do explain why." A shocking number of candidates have no meaningful response. Those who do respond in a nondisqualifying way reveal useful information.

Actually, I'm not sure I'd find the number of "no meaningful response" answers that shocking.  For law professors, who are born parsers, there are all kinds of ways to interpret this question, at least some of which call for a level of candor that most can agree is neither sought nor welcome in the legal academy.  Although I am not a law and economics scholar, could I be blamed for wanting to have written "The Problem of Social Cost," for no other reason than that magnificent careers are made of such articles?  On the other hand, even if we all agree to play by the rules of the same game in answering the question, it still seems hard to distinguish on the spot between articles we have found greatly influential or important in developing our own agendas, and articles we actually wish we had written ourselves.  And in the latter category, there are the articles we wish we had written because they are like our own writing, only so much better, and those that are so different from our own work that to have written the article would entail being a different person altogether. 

Ponder the question a while, if you like.  In the meantime, if you happen to be interviewing this fall, keep in reserve two potential answers to this question, in case you're stumped.  1) "I admire so many of your articles that it's hard to choose just one."  2) "The Vertical Dimensions of Cooperative Competition Policy."  [Warning: This answer may only work for a limited number of interviewers.]

P.S.: Blasi, "The First Amendment and the Ideal of Civic Courage: The Brandeis Opinion in Whitney v. California."  For starters.

Posted by Paul Horwitz on August 22, 2006 at 12:33 PM in Life of Law Schools | Permalink | Comments (7) | TrackBack

Aspiring Law Professors: Get a Job!

First, I just want to say "Posner."  That now makes three posts in row that the eminent jurist is mentioned (except now I see that I have been foiled by that meddlesome co-blogger Lipshaw posting yet another post.  Phooey!).

With that out the way, I want to discuss the importance of aspiring law professors having real world, practitioner experience before entering the academy.  My general take on this is that we are training future lawyers, not future professors, unlike most graduate school programs.  As a result, it is important that a law professor can give a practical perspective about what it is like to be in the world of law, especially if one is teaching in a specialized field in which his/her students are likely to practice.  And I'll throw in a quote by Oliver Wendell while I'm at it: "The life of the law has not been logic: it has been experience."

And even though I know a lot of law professors spend time in prestigious appellate boutiques before they become law professors, I would think it would be more advantageous for professor wanna-bes to practice in the areas they are going to teach.   Of course, this is what I did, being a labor and employment law associate for four years and I really think it has helped me in my teaching.   There is just something about document production that you have to experience to believe.   Besides, how many areas of the law are really understood by merely participating in its appellate aspects?

Now, all that being said, I know some very fine law professors who never spent a day of their lives in a law office, appellate boutique or otherwise.  One, in fact, I know has been named teacher of the year.  So, of course, I am dealing in generalities, but my basic argument is that since we are training future lawyers, we need to bring some of our own lawyering experiences to the table.

Also, let me add one more argument: legal scholarship (or at least most it) should be practical in its outlook and seek to solve problems, rather than being merely descriptive and characterizing existing problems.  In this sense as well, practicing law prior to becoming a professor can be an important part of what one brings to the scholarship enterprise.

Posted by Workplace Prof on August 22, 2006 at 10:16 AM in Life of Law Schools | Permalink | Comments (8) | TrackBack

Unintended Law Firm Merger Synergies?

The WSJ also reports this morning the merger of "Cooley Godward LLP, a 445-lawyer law firm known for its representation of West Coast technology companies" with "Kronish Lieb Weiner & Hellman LLP, a 110-lawyer New York firm specializing in commercial litigation, bankruptcy and white-collar crime."  I'm sure the idea of one-stop shop, from start-up to IPO to backdated option scandal defense, to bankruptcy never occurred to them, although it would make for an interesting study in branding (now there's a law firm unlike any other). 

More on law firm mergers later, perhaps.

Posted by Jeff Lipshaw on August 22, 2006 at 10:09 AM in Current Affairs, Lipshaw | Permalink | Comments (0) | TrackBack

Posner and Steele in Today's Journal

I let my Wall Street Journal go a while back (I confess when the company-paid subscription ran out), but I just resubscribed, and it was sitting politely on the front stoop when I left the house this morning.  WSJ readers all have their favorite sections; the places I always look are the front page middle column and the right side of the first op-ed page.  (The "official" editorials are too Neanderthal even for me, but you almost always get a well-written if usually a smidgen right of center provocative viewpoint on the rest of the page.)

Sure enough, the op-ed page did not disappoint this morning.  At the top, we have Richard Posner on the institutional and constitutional  infirmities (not the decision itself) by which the Hon. Anna Diggs-Taylor in the Eastern District of Michigan struck down the NSA surveillance program.  And at the bottom, we have one of my favorite op-ed writers, Shelby Steele, on anti-Semitism and white guilt as applied to reactions to Islamic extremism.

H/t for pass-thru link: HJB.

Posted by Jeff Lipshaw on August 22, 2006 at 09:04 AM in Current Affairs, Lipshaw | Permalink | Comments (2) | TrackBack

Another Bizarre Government Defense in an Immigration (Sort Of) Case

In the famous Seventh Circuit case from late last year where Judge Posner castigated one of the government's attorneys for defending the clearly unjustified decision of the Immigration Judge (see my earlier coverage), Posner repeatedly asked the lawyer why the government was wasting its time and money showing up and trying to argue for affirmance.

But that case pales in comparison to a recent decision of the U.S. District Court for the Northern District of New York.

Duarnis Perez is a U.S. citizen. Unfortunately, he was unaware of this fact when he was deported to the Dominican Republic in 1996 for having committed an aggravated felony (manufacturing and delivering heroin). In 2000, when Perez was arrested in New York, he was charged with illegal reentry, to which he pleaded guilty. In 2004, after serving his sentence for the illegal reentry, he met with officials from the "ICE" concerning the commencement of removal proceedings for illegally reentering. At that time, ICE told Perez that he was, in fact, a U.S. citizen. Oops.

It gets better.

The Customs and Immigration Service issued Perez a certificate of citizenship shortly thereafter, because he automatically became a naturalized U.S. citizen in 1988, derivatively through his mother's successful naturalization. In 2005, after retaining counsel, Perez filed a petition for a writ of coram nobis (which was later recharacterized as a motion for post-conviction relief under 28 U.S.C. 2255), seeking vacatur of his conviction for illegal reentry (since a U.S. citizen cannot illegally reenter), and of the remaining term of his supervised release.

The government opposed his motion!

In a 17-page decision posted here, the district court rejected the government's argument, and granted relief to Perez. The decision itself is an interesting read, sustaining, as it does, an "actual innocence" claim, but it begs a very different question to me: What the hell is the government doing opposing a motion like this? The government did not argue that Perez isn't a U.S. citizen; they argued that Perez was time-barred because he could have discovered earlier that he was a U.S. citizen (even though one might think that someone who was deported would have no reason to check). And they argued that he procedurally defaulted his claims. And they argued that his guilty plea to illegal reentry barred him from collaterally challenging the conviction through 2255.

I must confess that, whatever its legal merits (although it's a sad day if there actually is merit to the argument), I find the government's position wholly indefensible here. Perez is a U.S. citizen. The government deported him in 1996, even though it could not possibly have had the legal authority to do so. The government convicted him of illegal reentry in 2000, even though it could not possibly have had the legal authority to do so. Now, the government argues, Perez can't obtain relief because he waived all of his claims by failing to figure out earlier that he was, in fact, a U.S. citizen.  Why not just let this one go, concede error, and move on to the next case worth the efforts of the ICE?

A troubling case, through and through.

Posted by Steve Vladeck on August 22, 2006 at 08:40 AM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (0) | TrackBack

Monday, August 21, 2006

The Times, Pedophilia, and Espionage

New York Times reporter Kurt Eichenwald has been writing a series of disturbing articles on what an editors' note calls "an online subculture of pedophiles."  The most recent articles ran yesterday and today.  Yesterday's article includes the following statement, which is echoed in that editors' note:

The Times did not subscribe to any sites, which it first saw referenced in online conversations among pedophiles. The Times followed a link posted in those conversations to forum postings and images on freely accessible pages of the modeling sites. Because those sites appeared to be illegal, The Times was required by law to report what it had found to authorities. Federal law enforcement officials were notified in July about the sites.  [Emphasis added.]

I have no quarrel with Eichenwald's investigation or his reports, which have been detailed and, as I said, quite disturbing.  I am curious about the implications of the statement I quote above, however.  It is clear that Eichenwald's reports have been closely vetted by Times editors.  But I wonder which set of editors vetted that statement, and whether they considered its broader implications for another set of Times stories -- the stories disclosing various heretofore confidential aspects of NSA surveillance programs and other aspects of the administration's "war on terror." 

The editors' note on the pedophilia stories expands on Eichenwald's statement, noting that "United States law makes it a crime to purchase, download or view child pornography, unless the images are promptly reported to authorities and no images are copied or retained."  Compare that statement to 18 U.S.C. section 793, a provision of the Espionage Act, which states (in brief) that anyone who has unauthorized possession of any information relating to the national defense that the possessor has reason to believe could be used to the injury of the United States, and who willfully communicates that information, or "willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it," is guilty of a crime under the Espionage Act. 

Under the apparent logic employed by the Times editors in divulging information about pedophilic web sites to federal law enforcement officials, was the Times not equally obliged to surrender to the relevant government official any information or documents it had with respect to national security that might fall under the scope of the Espionage Act?  I'm not arguing that it should have done so, although certainly many critics of The Times have said as much; but doesn't the same logic apply?  Did the Times editors vetting the statement in Eichenwald's story consider whether it had any implications for the paper's position on its national security stories?

To be sure, the question whether the Times could be prosecuted for its actions under the Espionage Act for its national security disclosures is a much-debated one.  A recent decision by a district court judge in Virginia in the ongoing AIPAC case, if read broadly, suggests that it could be prosecuted.  There are, nevertheless, compelling reasons to interpret the law narrowly, or to hold that it does not apply at all, in cases raising significant First Amendment interests.  (For discussions, see this post by Geoffrey Stone of Chicago and this chain of posts by Jonathan Adler at VC.)  So, if the Times editors looking at Eichenwald's piece thought about the NSA stories at all, they may have concluded that no matter what the Espionage Act says, the First Amendment negated any obligations the newspaper might have under that statute.  But why did the Times editors conclude that the First Amendment might not similarly negate any reporting obligations it had with respect to the pedophilia sites?  And how does this compare to the position that paper took (and, I'm guessing, still takes) in, say, the  consolidated cases decided under the lead case name of Branzburg v. Hayes?  Or any positions the Times took with respect to the availability of post-publication criminal prosecution in the Pentagon Papers case?

Of course, for many, the moral case for disclosing information about online pedophiles may be much more compelling than the moral case for surrendering, and refusing to report, information about national security programs that may be unconstitutional, unwise, or intrusive.  And I might understand if the paper decided for strategic reasons not to stand on its rights, if any, in the case of the pedophilia web sites.  But those weren't the justifications the Times offered in Eichenwald's piece.  The story, and the editors' note, simply assume that if the Times is required by law to surrender to the government any covered information that comes to its attention in the course of its reporting, that law is presumptively valid and the Times will comply.  As I said above, I think it is possible to reconcile the Times' position in the Eichenwald story with its position in the NSA etc. stories, but not without more footwork than I see at work in the statement I've quoted.  I wonder, again, if the Times editors vetting Eichenwald's piece fully considered the connection between the two sets of stories.      

Posted by Paul Horwitz on August 21, 2006 at 08:56 PM in Current Affairs | Permalink | Comments (3) | TrackBack

Book Meme

Okay, I don't even know what a meme is (like a chain letter? do you have to call people "dude" to know what it means?) but I saw this over at Law and Letters and then again from Christine Hurt at Conglomerate and it seems like nice mind candy before I go home.  The set of questions comes from Ann Bartow.   (Is this what James Lipton (the "fawning sycophant") does with that set of questions in each interview on Inside the Actors Studio?) 

Here goes:

1.  One book that changed your life.  Evil in Modern Thought: An Alternative History of Philosophy by Susan Neiman.  It was my introduction to Kant.

2.  One book you have read more than once. Tinker, Tailor, Soldier, Spy, by John LeCarre.  The best spy novel ever written.

3.  One book you would want on a desert island.  Boy, that's tough.  How long am I there?  I suppose a complete works of Shakespeare.  "How sharper than a serpent's tooth it is to have a thankless child."  Or:  "Blow, winds and crack your cheeks! Rage! Blow!"

4.  One book that made you laugh.  Easy.  Missing Links, by Rick Reilly (of Sports Illustrated).  Maybe you have to be a golfer to appreciate it, but it is clever beyond belief and funny as anything.   But runners up are the original Rumpole of the Bailey by John Mortimer, and Ball Four by Jim Bouton.

5.  One book that made you cry.  I'm a manly man, and I don't cry.  But if I did cry, and I'm not joking, I read it to a student today, the last several pages of John Adams by David McCullough.  Great people should not get old and die.

6.  One book you wish had been written.  Meat Market for Dummies.

7.  One book you wish had never been written. Amsterdam, by Ian McEwan.  My wife gave it to me.  This guy is considered a great writer?  Give me a break.

8.  One book you are currently reading.  The Foreign Correspondent, by Alan Furst.

9.  One book you have been meaning to readA Theory of Property, by Stephen R. Munzer.

Posted by Jeff Lipshaw on August 21, 2006 at 07:32 PM in Blogging | Permalink | Comments (5) | TrackBack

One charge dismissed in Padilla

Greetings to all!  I'm grateful to Dan for the invitation to spend some time here on PrawfsBlawg, and happy to be in such outstanding company.   I'm also very happy to have a place to share my thoughts on the big news out of Miami today, involving the criminal prosecution of former enemy combatant Jose Padilla.

In an opinion posted here, the district judge in United States v. Hassoun (S.D. Fla.) has invoked the rule against multiplicitous counts in an indictment (rooted in the 5th Am. double jeopardy clause) as grounds to dismiss the charge that Hassoun, Padilla, and the other defendants violated 18 U.S.C. 956(a).  Section 956(a), in brief, makes it a crime to conspire in the U.S. to carry out a murder, kidnapping, or maiming in another country.  In this case, the nature of the charge is that Hassoun and other defendants constituted a recruiting cell for what might best be described as the global jihad movement, and that Padilla was one of their recruits. 

So what gives rise to the multiplicity issue?  The defendants also are charged with violating 18 U.S.C 2339A, which makes it a crime to provide material support or resources with knowledge or intent that the support will facilitate commission of any of some 46 predicate crimes, including section 956(a) conspiracies.  In addition, they also are charged with conspiring to violate section 2339A.

In brief, the court's opinion dismisses the 956(a) charge on the ground that it is not actually distinct from the 2339A charges.    The court concludes that the purpose and object of each conspiracy was in fact the same ("to advance violent jihad, including supporting, and participating in, armed confrontations in specific locations outside the United States . . . ."), as were the alleged means-and-methods and overt acts. 

In the wake of this ruling, the 2339A charges remain (another aspect of the opinion has the effect of cutting down the scope of this charge, but does not throw it out altogether).  These are weighty charges (punishable by up to 15 years), though not nearly so much as the 956 count (punishable by up to life).   

There's much to discuss here.  Bearing in mind the greater significance of the 956(a) charge, it is not clear to me why that should be the one to give way (as opposed to the material support counts, or more specifically, the 2339A conspiracy count), particularly as to Padilla himself.  From a big picture perspective, however, what really interests me is that the ruling draws attention to the incredibly significant, but rarely noticed use of 956 and 2339A in post-9/11 prosecutions.  As it happens, I've just finished drafting an article on this exact topic ("Beyond Conspiracy?  Anticipatory Prosecution and the Challenge of Unaffiliated Terrorism," going up on SSRN soon), and the data I've collected shows that these two charges are central to DOJ's capacity to prosecute in terrorism-related cases.  A close review of the indictments in these cases indicates, moreover, that 2339A and 956(a) can be and have been interpreted to permit prosecution at very early stages in the planning process.  This particular case is not necessarily an illustration of that phenomenon (although I do have an extensive discussion of Hassoun; if you happen to be an articles editor looking over my draft as we speak, rest assured I will be updating it to account for today's ruling!), but there are others that very much do so. 

In light of the string of preventive prosecutions that we've seen this summer in the U.S., U.K., Canada, and elsewhere, this is an issue that is going to be front and center for the near future.  In my next post, I'll begin to elaborate by touching on the competing policy goals that complicate the early prosecution approach.

Posted by Bobby Chesney on August 21, 2006 at 04:32 PM | Permalink | Comments (4) | TrackBack

Research leaves and disengagement

First, thanks so much to the many guest prawfs who have been admirably diligent in keeping the conversation going during the dog days of August.

The new semester starts today at my law school, and the building is full of enthusiastic, nervous first-years.  I'm on a one-semester research leave, though (before leaving for a visit in the Spring), and am moving into an office outside the law school, in Notre Dame's Erasmus Institute.  My thinking is that this move, and the disengagement from law-school life that will, I assume, accompany the move, will make the leave more productive.

At the same time, I'm wrestling with the task of figuring out just how much disengagement I really want, or really should indulge.  What should I do about, say, faculty meetings, workshops, colloquia, and job talks, to say nothing of the various student-related events and activities that, ordinarily, I enjoy?  I do not want the first years -- or, for that matter, my own former students -- to be or become strangers.  I'd welcome advice from others who've dealt with the same or similar balancing challenges, or from anyone else.

Posted by Rick Garnett on August 21, 2006 at 11:35 AM in Life of Law Schools | Permalink | Comments (0) | TrackBack

Dress What You Are

OK, so first day of classes here at the University of Mississippi School of Law (see recent post on exactly where that is and who we are not)

First pressing question: What to wear?  Answer:  Dress what you are.

I am teaching labor law today, so I am looking very much like a Teamster (well, a Teamster that I remember once bargaining against during collective bargaining negotiations).   In solidarity with workers everywhere, I will strive for that proletariat look throughout the semester.

Tomorrow, I teach employee benefits law, so I will go with the distinctly nerdy look (although I don't think that I will wear a pocket protector, but who can really say?).  This class will actually just require me to dress like I normally do.

As for the suit and tie and all that mumbo jumbo, I'll leave that to the corporate law and prosecutor-types (and yes, Jeff, to those who teach Article 9  and Secured Transactions for a living).

Posted by Workplace Prof on August 21, 2006 at 11:02 AM in Life of Law Schools | Permalink | Comments (12) | TrackBack

Sunday, August 20, 2006

Solum on "It Takes a Theory"

Larry Solum's weekend "Legal Theory Lexicon" takes on the "it takes a theory to beat a theory" adage, with an unusual (for him) but delightful touch of the snarky.

In particular, I like the Daniel Farber quote on the problem of "physics envy" in the social sciences.  It took Einstein's theory of general relativity to beat Newton's gravitation theory, and it did so by predicting curvature of light, testable during an eclipse, that Newton's theory could not explain.  As Farber points out, rational choice theorists roll out "it takes a theory to beat a theory" against the behavioral economists, with both sides assuming implicitly that (a) the goal of social science is to state a unified predictive theory of human behavior, and (b) that it is possible to state a unified predictive theory of human behavior.

I'll add two brief comments,  if I think about it long enough, the inspiration for which I must lay at the feet of Professor Solum and his great blog.  First, a thoroughly enjoyable screed, if you are into this kind of epistemological debate, is The Flight from Reality in the Human Sciences by Ian Shapiro (Yale, Political Science), who argues, primarily in connection with the rational choicers, that maintaining the integrity of expansive social science theory has become the tail that wags the dog of social science research.   Second, to my mind, the real problem with the application of "it takes a theory to beat a theory" in connection with divining (note my deliberate word choice) a unified predictive theory of human behavior is Hume's dictum in A Treatise on Human Nature about conflating the descriptive with the normative:

[T]he author proceeds for some time in the ordinary ways of reasoning, and establishes the being of a God, or makes observations concerning human affairs; when of a sudden I am surpriz'd to find, that instead of the usual copulations of propositions, is, and is not, I meet with no proposition that is not connected with an ought, or an ought not.

Posted by Jeff Lipshaw on August 20, 2006 at 05:27 PM in Legal Theory, Lipshaw | Permalink | Comments (45) | TrackBack

Have You Been Facebooked?

I first learned about Facebook when I did a post on Workplace Prof Blog a number of months ago on how employers were increasingly using so-called social networking sites to find out more about students they were about to interview for jobs. 

For those that don't know, Facebook is a website where people (mostly students) can post information and pictures, write friends, and join cyber-groups (real and whimsical) with those with similar interests.  For instance, there are groups based on being in the same section in law school, based on having the same political affiliations, and based on not passing the bar the first time.  According to Facebook, it "has grown to over 8 million people and, according to comScore, ranks as the seventh-most trafficked site in the United States."

The second time I heard about Facebook was when I was informed by one of my students more recently that a Facebook group had been started in my honor (as you will see, I use the term "honor" loosely).  The name of the group?  Professor Secunda's Stockholm Syndrome Support Group.  The description of the group:

Come on. You know it's true. You took one class with him, and now you can't stop. You know it's bad for you, but you just can't stop. Besides, he only beats you when you deserve it, right?

Still not sure what to think about this ersatz fan club, but flattery doesn't quite capture it.  I feel like castor oil.   And Kim Roosevelt (my college classmate) thinks he has issues with student evaluations.

Anyway, I would be interested to hear if anyone else has had similar Facebook experiences.

Posted by Workplace Prof on August 20, 2006 at 01:02 PM in Life of Law Schools | Permalink | Comments (1) | TrackBack

Thoughts From a Touchless Car Wash About the Joys of Being a Law Professor

The Prius was screaming for a bath this morning, and that ubiquitous woman in the GPS ("in half of a mile, right turn onto L-A thirteen fifty-two") directed me over to a touchless car wash on Louisiana Street.  As this thing that resembled a miniature of the Grande Arche de la Defense moved back and forth over head, at one point coating us with something that looked like melted rainbow sherbet, I thought about my dinner out with new colleagues last evening, Gordon Smith's post and the associated comments over on Conglomerate about interview questions, and Article 9 of the UCC.  I didn't think it was blogworthy until I got back here, and was chuckling to myself (a strange thing when you are sitting alone in your office on a Sunday morning) over Kate Litvak's last comment to Michael O'Hear's post on teaching criminal law:  namely learning the  criminal statutes (then, I presume, getting the hell out) and getting on to the fun stuff like Article 9.  Perhaps it is the liberating and creative effect of humor (the unexpected juxtaposition of heretofore wholly unrelated events or concepts, like Robin Williams' impression of Elmer Fudd singing Bruce Springsteen - "I'm dwivin' in my cah, tuhn on da wadio...") that just snapped it all together.  (Thank you, Kate!)

Call this paean to the academic life ridiculously sentimental; call me a fool; but ask me the interview question "why do you want to be a law professor?"

Because, despite all the faults, the incomprehensibility of the hiring system, the thrashing over student-edited publications, the struggle to determine the legal academy's place between research university scholarship and the trade school training of professional lawyers, the impact of internet access in the classroom, the butterflies in my stomach (and  shpilkes) the thirty minutes before EVERY class, my worry that I have tapped myself out on ideas for new articles (or to a far lesser degree, blog posts), I love it.

How on earth does that possibly tie back to dinner last night and Article 9?   That was what I was considering as the shower of red, blue and yellow glop spread over the windshield.  A long-time faculty member (who teaches criminal law, among other things, and was a prosecutor at one time) and his wife invited another visiting faculty member, his spouse, and me over to their lovely home for a glass of wine, and then we all went out to dinner.  The occasions in my previous life for having a conversation in which the other parties have tremendous experience and expertise in things like criminal law and international law were relatively few.  This conversation started in on current events (Iraq, fighting the Taliban as a response to 9/11, the Israeli-Hezbollah war), turned to theories of the law of war where recognized nation-states are belligerent with non-state entities in failed states, and finally, as I was taking a break to gather my thoughts and catch my breath (I compared it to being the dummy in bridge), the critical theorist view of the whole idea of international law as being something created by the European colonial powers, thereby incorporating within it presumptions about colonialism, legitimate defense, the rules of war, and terrorism.

And just a few hours before, I had jotted some notes to myself from the Warren and Walt book on Secured Transactions to raise with the students on Tuesday:  the debate between Jackson and Kronman, on one hand, taking an efficiency view why there should be secured credit (while it might seem unfair to let a debtor prefer some creditors over others, the subordinated or unsecured creditors will reflect their greater risk in a premium for lending or in turning to other borrowers), and Lynn LoPucki's response why this fails to take account of involuntary unsecured creditors like tort victims (hence we should prefer such creditors even over the secured creditors in bankruptcy).  I had posed the question, at least to consider:  does Article 9 favor the entrenched, the powerful, the banks, the corporations, the diligent, the smart?  And is that the right policy?

Do I buy critical theory either in the area of international law, or the far more mundane world of project finance?  Not really, although the Frankfurt School critiques of modern media and institutions are powerful and thought-provoking.  Do I worry about the segue from critical theory to post-modern despair or nihilism?  Yes.  But the point is the intellectual struggle in civil discourse, the journey, not the destination.  That's the common thread between discussion of the law of war and the law of purchase money security interests.  And that's why I love it.

Posted by Jeff Lipshaw on August 20, 2006 at 12:09 PM in Corporate, Life of Law Schools, Lipshaw, Teaching Law | Permalink | Comments (0) | TrackBack

Another new arrival!

No, there's no newer baby than Clementine in the Prawfs family yet, but I did want to take a moment to announce the arrival of Bobby Chesney as a guest blogger for the next few weeks.  Bobby teaches and studies national security law at Wake Forest University School of Law, home of regular Prawfs visitors, Ron Wright and Jennifer Collins.  You can see his research here.

As you can tell by our stunningly low output to the blogversations lately, many of the Prawfs regulars have been on vacation and/or moving around the country the last few weeks, so we are particularly indebted to the stellar work generated by the guests around the house here lately.  Regular programming will resume shortly.  In the meantime, many thanks to all our guests for picking up the slack lately.

Posted by Administrators on August 20, 2006 at 11:46 AM in Blogging | Permalink | Comments (1) | TrackBack

Of TV and Decorated Needles

OK, I'm about to demonstrate my awesome analytical skills to you.

Here are two stories that were making their rounds on the blogosphere this past week:

Study: Decorated Needles Calm Patients:  Researchers at the University of New Mexico's Health Sciences Center believe they have found a way to make patients less fearful of needles — decorate them with butterflies, flowers and smiley faces.

TV found to be a painkiller for children:  Sometimes the numbing effect of TV can be helpful. Especially if you're a kid being stuck with a needle at the hospital. Researchers confirmed the distracting power of television — something parents have long known — when they found that children watching cartoons suffered less pain from a hypodermic needle than kids not watching TV.

My conclusion (besides the one that researchers do not have enough to do to occupy their time)?

TVs are a type of decorated needle.

That's why I get paid the big bucks, folks.

Posted by Workplace Prof on August 20, 2006 at 10:01 AM in Culture | Permalink | Comments (3) | TrackBack

Saturday, August 19, 2006

Where to Begin Criminal Law?

Classes get started again next week, and, with them, the never-ending process of tinkering with my Criminal Law course.  Last year, I tried beginning with theft, which is, I think, a very unorthodox thing to do--anyone else ever try that?  Anyway, I thought it worked.  This year, I am not only beginning with theft, but actually supersizing the unit to cover a couple additional property crimes over the first four weeks of the semester.  This will no doubt strike some crim profs as simply bizarre, so let me explain.

First, I am not a fan of starting with the con law limitations on criminalization, which is where many begin.  These con law doctrines are so anemic--why give students the misconception that they matter by foregrounding them in the course coverage?  Moreover, some of these doctrines, like privacy, get ample coverage in Con Law.  Finally--a personal idiosyncrasy--a major part of my pedagogical agenda in Crim is introducing students to statutory interpretation (something they will not otherwise get much of in their 1L courses), so I want to get students working with statute-based cases right away.

Second, the casebook I use (Arnold Loewy's) has a nice set of short, accessible, factually interesting theft cases (Topolewski, Pruitt, and Rogers) that are great for brand-new law students.  Topolewski and Rogers, in particular, present some nifty problems that can generate lively, useful discussion among students whose technical knowledge of the law is still extremely limited.  I did these three cases right out of the gate last year, and will do so again this year.

Third, the big-picture story of theft--eighteenth-century judges and juries made Swiss cheese out of common-law larceny in order to mitigate the absurd severity of the sentencing regime, legislatures plugged some of the holes in an ad hoc fashion, twentieth-century rationalizers attempted to bring coherence to the whole messy system--is a wonderful introduction to the dynamic interaction of legal institutions and the historical contingency of legal doctrine--two more key elements of my pedagogical agenda.

Before last year, I led off with homicide, which has some of the same pedagogical benefits as theft, but I found it to be a total downer--case after case of senseless loss of life.  I still cover homicide, but I find it to be the most depressing topic I do in any of my courses, and not something that I want to be a tone-setter at the start of the year.

Posted by Michael O'Hear on August 19, 2006 at 10:37 AM in Teaching Law | Permalink | Comments (11) | TrackBack

Friday, August 18, 2006

Law Firms for Law Professors

No, this post is not about a charity event for law professors (not with the all the money we are making from selling those complimentary text books). 

Rather, this post concerns the entry-level hiring market.  We all know that there are certain credentials that law schools look for when they hire new faculty.  Recite after me:  law school, rank in class, law journal, position on law journal, student note or comment or other publications, prestigious federal clerkship, great references, teaching experience, and, increasingly, an advanced degree in law or other discipline.  Heck, I don't even care if the candidate has a personality (and apparently many law schools feel the same way) if they have all these qualifications.

What else is missing? Well, one thing that sets apart law professors from their colleagues in other disciplines is that many of them practice in their field before becoming professors (and, in the case of some (read: Lipshaw), they practice many, many, many, many, etc., years).  Indeed, one might argue that at least a couple of years of law practice should be required for aspiring law professors (maybe more on that later).

So, in any event, my question for this post is if there are certain law firms which have a notable record of placing its attorneys in legal academia?  This thought came to me when I started noticing that a large number of law professors friends coming from the same firms (and not always the largest or starting with "Sullivan" or "Davis").  Consider Heller Ehrman, which through a rather informal, unscientific google query seems to have a large amount of its former attorneys in academia (including labor and employment types Maria Ontiveros and Michelle Travis).

But even if there are law firms which place more attorneys in academia, is this because the law firms encourage such movement (through formal programs) or because it just so happens that the firm attracts the type of intelligent, thoughtful people (I'm blushing)  likely to find a career as a law professor attractive?  It seems like the latter, but do people know of firms who have programs for attorneys who want to become law professors?

My impetus for leaving law firm life:  I was actually dreaming in billable hours.

Posted by Workplace Prof on August 18, 2006 at 10:21 AM in Life of Law Schools | Permalink | Comments (7) | TrackBack