Thursday, November 30, 2006
The (American Legal Thought) World According to Kennedy and Fisher
The much anticipated, long-awaited, already-canonical-anthology Canon of American Legal Thought is now officially out, published by Princeton University Press. In truth, those who have known about the David Kennedy and Terry Fisher’s canon project perhaps were not holding our breath, as many of us have save the spiral bound photocopied volume that was circulated since over a decade ago. I took the course, carrying the same name of the book, as an L.L.M. student at HLS. Coming from Tel-Aviv for graduate studies in law in the U.S., the course was perfect as a crash introduction to many of the themes and schools of thought in the contemporary American legal academy. Fisher was not teaching the course with Kennedy that year, but their super-thoughtful S.J.D student at the time, now Tel-Aviv law professor, Roy Kreitner, was the designated Teaching Assistant, and in practice Roy served as a co-lecturer on the course. Together, Kennedy and Kreitner gave us a fabulous roller coaster ride through legal realism, the legal process school, legal liberalism, CLS, L&E, socio-legal studies, and feminist and race crits.
The anthology as much as I can tell, is pretty much identical to the materials we used for the course. The blurb of the book claims that these are “the twenty most important works of American legal thought since 1980.” What is added is that in the anthology, each article is preceded by a short intro “highlighting the article’s main ideas and situating it int eh context of its author’s broader intellectual projects, the scholarly debates of his or her time, and the reception the article received.”
Here is the list of the hall-of-fame twenty:
TABLE OF CONTENTS:
Part I: Attacking the Old Order: 1900-1940
Oliver Wendell Holmes, "The Path of the Law," 10 Harvard Law Review 457 (1897) 19
Wesley Hohfeld, "Some Fundamental Legal Conceptions as Applied in Judicial Reasoning," 23 Yale Law Journal 16 (1913) 45
Robert Hale, "Coercion and Distribution in a Supposedly Noncoercive State," 38 Political Science Quarterly 470 (1923) 83
John Dewey, "Logical Method and Law," 10 Cornell Law Quarterly 17 (1924) 111
Karl Llewellyn, "Some Realism About Realism--Responding to Dean Pound," 44 Harvard Law Review 1222 (1931) 131
Felix Cohen, "Transcendental Nonsense and the Functional Approach," 35 ColumbiaLaw Review 809 (1935) 163
Part II: A New Order: The Legal Process, Policy, and Principle: 1940-1960
Lon L. Fuller, "Consideration and Form," 41 Columbia Law Review 799 (1941) 207
Henry M. Hart, Jr., and Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law, Problem No. 1 (unpublished manuscript, 1958) 241
Herbert Wechsler, "Toward Neutral Principles of Constitutional Law," 73 Harvard Law Review 1 (1959) 311
Part III: The Emergence of Eclecticism: 1960-2000
Policy and Economics Ronald H. Coase, "The Problem of Social Cost," 3 Journal of Law and Economics 1 (1960) 353
Guido Calabresi and Douglas Melamed, "Property Rules, Liability Rules, and Inalienability: One View of the Cathedral," 85 Harvard Law Review 1089 (1972) 401
The Law and Society Movement
Stewart Macaulay, "Non-Contractual Relations in Business: A Preliminary Study," 28 American Sociological Review 55 (1963) 445
Marc Galanter, "Why the'Haves' Come Out Ahead: Speculations on the Limits of Legal Change," 9 Law and Society Review 95 (1974) 481
Liberalism: Interpretation and the Role of the Judge Ronald Dworkin, "Hard Cases," 88 Harvard Law Review 1057 (1975) 549
Abram Chayes, "The Role of the Judge in Public Law Litigation," 89 Harvard Law Review 1281 (1976) 603
Critical Legal Studies
Duncan Kennedy, "Form and Substance in Private Law Adjudication," 88 Harvard Law Review 1685 (1976) 647
Liberalism: Legal Philosophy and Ethics
Robert Cover, "Violence and the Word," 95 Yale Law Journal 1601 (1986) 733
Frank Michelman, "Law's Republic," 97 Yale Law Journal 1493 (1988) 777
Catharine A. MacKinnon, "Feminism, Marxism, Method, and the State: An Agenda for Theory," 7:3 Signs: Journal of Women in Culture and Society 515 (1982) 829
Catharine A. MacKinnon, "Feminism, Marxism, Method, and the State: Toward a Feminist Jurisprudence," 8 Signs: Journal of Women, Culture, and Society 635 (1983) 869
Kimberlé Crenshaw, Neil Gotanda, Gary Peller, and Kendall Thomas, eds., "Introduction," Critical Race Theory: The Key Writings that Formed the Movement, The New Press, New York, 1996 at xiii-xxxii 887.
It would be fascinating to hear how people react to the list – obviously Kennedy and Fisher have a particular view of the development of legal thought. As crits, they see legal realism as the origins of contemporary legal reasoning, leading to subsequent schools of thought, all attempting to respond to the realist challenge to 19th century formalism. They view partial successes by some of these responses but have a deep affiliation with the particular later challenges presented by Duncan Kennedy, Robert Cover, MacKinnon and Crenshaw to the Dworkinian reliance on principles and the Calabresi comfort with economically sound policies. I often think about how my American legal education would have been different with a different sequence of exposure to the various ideas and research networks with which I am currently engaged. How would a different duo, say, Calabresi and Dworkin, collaborate on a competing course and anthology?
My mid-term papers in constitutional law are now graded and returned, so one of the many piles of paper has been moved off my desk. I require my students to write a majority opinion and a dissent in a pending or hypothetical case before the Supreme Court. This year the students wrote opinions in the two race-conscious school assignment cases that will be argued Monday, December 4.
The papers were, by and large, good, and now that I have finished grading them I am pretty confident that assigning such a paper is a good idea, all told. To be sure, grading them is not fun, and I think far more doctrinal teachers would assign mid-terms if we could get teaching assistants to do the grading. Further, it is unpleasant having to face a class comprised of some students who resent the teacher for assessing a lower grade than the student desired.
Nevertheless, I think mid-terms of the sort that I use can be valuable tools for both teaching and assessment, for several reasons. First, requiring both a majority opinion and a dissent forces students to approach the assignment thinking about counter-arguments, and allows me to demonstrate that the most effective legal writing anticipates and deflates those counter-arguments. Second, for a case where the issues are already apparent, it allows the students to focus on the techniques of making the arguments, rather than on discovering the case that's on all-fours with theirs. (A true research paper would have value as well, and perhaps I will try something like that in a later semester, but there is a benefit even without requiring the students to find the issues themselves.) Third, my paper requires students to pay attention to which individual Justices are signing-on to statements in precedential cases. Until they get to constitutional law, many students are unfamiliar with the importance of not only realizing what "the Court" said, but also who on the Court said it. Fourth, a writing assignment is much closer to real-life legal work than is the sit-down exam. Fifth, the mid-term gives me an additional data point on which to assess the students' performance, which decreases the crap-shoot nature of law-school grades. Overall, therefore, I think it is a good thing to require these mis-semester writing assignments. But, as I said, I've finished grading them.
Negotiating Your First Law Professor Job
With many would-be professors soon to be the fortunate recipients of tenure-track job offers, I thought I would share some suggestions about post-offer negotiations. I hope others will chime in to offer insight into things they wish they had asked for when they agreed to a job. There are some general tips on negotiating an academic job here, which are in large part not relevant to a law professor's job. I should also say that negotiating is always easier when one has the good fortune of a BATNA, namely, in this context, multiple job offers. If you have just one, it might be wise to tread somewhat lightly.
So, what should an offeree seek from a law school? Here are some thoughts:
1. Salary. Particularly at state schools, while starting salaries may be negotiable, they are likely negotiable only within a small range. That is, if a school wants to start you at a certain amount, you might be able to negotiate a few thousand dollars more, but even if you are a Supreme Court clerk with 15 Harvard Law Review articles, you probably can't get ten thousand dollars more. While some academic types, who usually aren't all that interested in money in the first place, may feel it unseemly to ask for more money, it's not. You're likely negotiating with a Dean who him- or herself negotiated their own salary package with a university president or provost, so, as long as you are polite, I would be surprised if you ruffled any feathers. Similarly, even if you end up getting a higher amount than junior faculty already "in the building," that should work in their interest (i.e., it will make it easier for them to ask for a raise), so don't worry about coming in at a salary higher than what "the last person came in at." Negotiating for a higher salary will likely be easier if one has (1) advanced degrees (Ph.D.s), (2) prior visiting experience, and (3) multiple offers. Keep in mind, though, that the cost-of-living will vary widely, and an $85,000 offer from a small town school may well mean more money in your pocket than a $105,000 offer from a big city school. So a small-town school may not feel compelled to match a big-city offer. Finally, when negotiating a salary, one might want to do one's research. State school salaries are often a matter of public record, and you might want to investigate what other state law schools in the state you're headed to pay in order to get a ballpark figure.
2. Teaching Package. Now that you've spent four months telling anyone who would listen about your ideal teaching load, you may feel inspired to negotiate hard for your preferred classes. My personal take on this is that flexibility is the better approach. For one, if you're an intellectually curious person, you should enjoy teaching almost any law school class. In addition, negotiating a teaching package for the "long term" may not be possible with law schools that have small faculties and varying teaching needs as time passes. You may start teaching Torts, or Securities Regulation, but some day find that you're passionate about Family Law. Since law school needs and your own interests may change, the value of a negotiated teaching package is questionable. To the extent that it's worth addressing, my general thought is that new teachers do better to avoid first-semester first-year courses, as well as upper level "seminars" without a casebook. First-year law students need a lot of guidance, and learning how to provide that takes time. It's also a lot easier to go astray teaching the "Law and Economics of Icelandic Blood Feuds" than it is teaching Corporations, Agency & Partnership. If possible, you might also try to "double up" on a course (that is, teach two sections of the same course). During your first semester, prepping one class is hard enough.
3. This summer. If there is anything I wish I had asked for but didn't, it was a summer research grant for the summer prior to beginning my teaching. Schools should be able to make this happen, and it can make all the difference. Trying to prep a class for the first time while teaching it (that is, staying just a few weeks ahead of the students) can be a dangerous activity. Since most candidates already have a work-in-progress or idea for further research, a school should be willing to give you a grant to take up residence in June or July and do research and writing; while working on your article, you can also get prepped up for your fall classes. Just picking a casebook is a time-consuming process (particularly if you think the casebook you used for the class is not appropriate for the context in which you'll be teaching), and trying to do it, and do it well, while practicing at the firm is a challenge. On a related note, if you're in a position you could easily leave (e.g., a visiting position, or a big firm where you might not be missed), you might consider asking the school if they would let you start in January. In a lot of cases, the line you will be filling is currently open, and a school could make that happen. There are, of course, downsides to starting your academic career five weeks from now, so it might be better to wait.
4. Equipment. Obviously, if there is any equipment you will need to do your job, you should ask for that up front. I'm not sure this is as important to a law professor as it likely is to a hard scientist, but for some, it might matter. For instance, if you're an ELS person going to a school without ELS people, you should probably find out if the school has a Stata license that will cover you. The likely answer is no, which means you'll at some point need to come up with $1000 to cover that software. While it's probably not necessary if you're heading to the right school to get that in writing (schools should be willing to support the research endeavors of their junior faculty to whatever extent possible), you might want to at least put the dean on notice that you're going to be asking and hope that won't eat into your faculty travel / conference budget.
5. Another visit. If you've done a lot of flyback interviews, they have probably started to bleed together by now. You shook hands with a lot of serious people, joked up some students, and gave the same talk numerous times. It might have been sunny that day in the upper midwest, and raining that day in southern California, and your impressions of a place may have been incomplete and even inaccurate. Schools should be willing, if they've made you an offer, to bring you back out to take another look. If you have a partner or spouse, they should get to come (on the school's dime) as well. It's worth making these trips, because your second impression of a place and its people may alter your preferences.
6. The tenure clock. If you've got prior teaching experience, you may be able to negotiate for an accelerated tenure clock. While being untenured certainly has its disadvantages, it's also generally unwise to force an early tenure decision, since that may work against you. Most senior faculty will advise you to take as much time as you can before applying for tenure. At most, if this is an issue for you, ask for an "option" to apply for early tenure, that, at your discresion, you can choose not to exercise.
7. Investigate before you Associate. Again, if you are coming out of a VAP or some other prior non-tenure teaching position, you may have the option to come in as an "Associate Professor" rather than an "Assistant Professor." While I guess higher "rank" sounds more impressive (although outside of academia, I'm not sure who knows the difference), and may afford additional voting rights at faculty meetings (e.g., voting on renewal or hiring of other "Associate" Professors), there may be some downsides. At some schools, promotion from Assistant to Associate Professor (or from Associate to "full" Professor) can trigger an automatic salary bump (in addition to normal, annual raises). If you start as an Associate Professor, you may have just given up that bump.
Wednesday, November 29, 2006
Paper Money Must Accomodate the Blind
Judge Orders Treasury Department to Make Paper Money Recognizable to Blind People. Interesting. A taste:
U.S. District Judge James Robertson said keeping all U.S. currency the same size and texture violates the Rehabilitation Act, which prohibits discrimination on the basis of disability in government programs.
"Of the more than 180 countries that issue paper currency, only the United States prints bills that are identical in size and color in all their denominations," Robertson wrote in his ruling. "More than 100 of the other issuers vary their bills in size according to denomination, and every other issuer includes at least some features that help the visually impaired."
Day Al-Mohamed, director of advocacy and government affairs at the American Council of the Blind, said that most of the world's currency is distinguished by color, size, perforations or tactile symbols. The Euro, for instance, can be determined by the length of the bill — the higher the denomination the longer the bill.
H/T: Paul Schwartz
Borat: Behind the Music
Prawfsblawg has already had a post on the film Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan, as well as the not-particularly-novel legal issues it has raised.
I don't think anyone here has linked yet to this piece on Salon which goes behind-the-scenes to reveal how the film's producers induced subjects to be in the film and discloses a good bit about which participants were in on the gag.
At the Other End of the (Hiring) Telescope
Below are some random and not terribly profound observations about being the chair of a law school hiring committee in the wake of the DC conference. Caveats: this is not about giving advice to candidates, and I’ll try to keep complaints to a minimum. Many folks have given better advice than I can (experience on the hiring end has actually diminished my confidence that I understand it). And complaining about how tough it is to do hiring is much like complaining in front of students about how miserable it is to grade.
First, the talent available is extremely impressive. All of the folks we met with in DC were great, and I’m not just saying that to be nice. I leave these events feeling lucky to have a job. However one measures ability or potential – and there are varying theories, especially re predictions for publishing records – it’s a very deep pool.
Second, the “dating” metaphor. The hiring process on both sides is often analogized to dating. While there’s something to that, when you’re on the hiring committee you’re keenly aware that decisions on your end are made not just by the hiring chair (it would be simpler if I had unilateral authority!) or even the hiring committee, but by the faculty as a whole. So it feels like dating would feel if a few dozen other people got to discuss and vote on whom to date.
Third, teaching skills. The “moneyball” and other theories of hiring I’ve seen go to publishing potential, and that’s important at our school. But we also very much value good teachers, and potential in that area is harder to spot. I know there’s a recurring debate in legal academia and academia generally as to whether publishing is privileged too much over teaching. The hiring conference always reminds me of this, especially when I talk to my friends outside academia about the hiring process.
Fourth, similarly, my friends outside academia are always struck by how extended periods of practice experience often don’t count as positives and indeed can be seen as negatives by some folks doing hiring. I wonder about that too.
Finally, if you ever get the chance to serve on your school’s appointments committee, do it. Yes, it’s time-consuming. But you get to meet fascinating people. Before my first time interviewing, I worried that doing 20-30 half-hour sessions in two days would be painfully repetitive. It’s really not, because the candidates are bright and interesting in significantly varying ways. Also, you can help build your school. And you are forced to think again about what legal academics should be like, and why.
Prof. Balkin's two abortion rights
The first right to abortion is a woman's right not to be forced by the state to bear children at risk to her life or health. The second right is a woman's right not to be forced by the state to become a mother and thus to take on the responsibilities of parenthood, which, in our society are far more burdensome for women than for men. Although the first right to abortion continues throughout pregnancy, the second right need not. It only requires that women have a reasonable time to decide whether or not to become mothers and a fair and realistic opportunity to make that choice. . . .
The state's interest in protecting unborn life is most compelling in the later stages of pregnancy. But letting states vindicate this interest when it is strongest is not necessarily inconsistent with the second right to abortion. When a woman's health and life are not at risk, the second right requires that women have a right to a fair and realistic opportunity to choose whether or not to become a mother, and in most cases this choice can usually be made in the earlier stages of a pregnancy. . . .
There's a lot more here (about, among other things, the "discourse shaping" character of his approach), and the post is well worth reading. Take a look.
For my own part, two quick thoughts: First, it seems that, in his discussion of the "first" abortion right, Balkin should say more about what he means by "health." (I should emphasize that I have only read the blog post, and not the article, so it could be that he does say more in the latter.) In the post, he compares and contrasts his approach with Eugene Volokh's discussion of "medical self-defense" and abortion, and emphasizes that his first right encompasses not only concerns about women's lives but also their health. Does he mean to incorporate, though, the expansive, not-just-physical-well-being sense of health employed by the Court in Doe v. Bolton? Do (quoting Bolton) "emotional, psychological, [and] familial" hardships also justify, in Balkin's view, removing any time-limits on the first right?
Second, I wonder if the discussion, or the analysis, would change if, instead of asking -- as Balkin does -- about the point at which the "state's interest in protecting unborn life" justifies time-limiting the exercise of the "second" abortion right, we ask instead about the point at which the fetus's own moral claims -- if we think the fetus has, at any point, such claims -- justify such limits?
The Precydent Search Engine and the Web of Law
My colleague at USD Tom Smith has a fascinating study on lately legal citation networks. In his paper The Web of Law he researches the structure of citation of nearly four million American legal precedents to shed light on how the legal system evolves, demonstrating that the American case law network has the overall structure that network theory predicts it would, with clusters, node and patterned aging.
Now Tom and his co-author Antonio Tomarchio, a mathematics graduate student at the Polytechnic of Milan and the Ecole Centrale Paris, have launched https://www.precydent.com. Tom desribes it as “a new kind of legal search engine…Unlike the search engines at Westlaw, Lexis and other legal research services, the Precydent search engine is based on the legal citation network and various Web 3.0 technologies. Like Google's PageRank algorithm, Precydent's algorithm traces its intellectual ancestry to important discoveries about networks made by Cornell computer scientist Jon Kleinberg, who also generously assisted Antonio in his academic research on the legal citation network. The algorithm and its many innovative features are the creations of the Precydent team. The search engine does use sophisticated techniques to analyze click streams in order to adapt to users' individual and collective preferences. While I do not think this raises any privacy concerns, I should at least note this feature of the technology. Analyzing user behavior is an important part of Web 3.0 technology.” When the founders compared the performance of the Precydent search engine to that of the natural language search engines of Westlaw and Lexis, they found that “Precydent does a much better job in returning relevant and authoritative US Supreme Court cases (as judged by human experts) than do the natural language engines of Westlaw and Lexis.”
Tracking Down Old Student Outlines
I got two student reports in quick succession. A student in my Brooklyn Contracts class reported to me that some of his/her classmates had tracked down some of my Hastings students from last year to procure their outlines. And some of my Hastings students also contacted me to let me know whose outlines were in circulation (just so I wouldn't think my Brooklyn students were smarter when they aced my test from using the Hastings outlines!).
My first (obnoxious) instinct was to get these outlines myself, find where they had mistakes or omissions, and use them to trip up the students who were relying on them. My ground rules for my modified open book exam is that you can bring into the exam room the course materials and "any materials that you had a hand in preparing." Then I had a few days of vacation and realized that was sort of mean. In any case, the instruction about what students may use in the exam room (of which they have notice) is ambiguous and is clearly meant to exclude commerical outlines and old student outlines from the exam room; it is clearly meant to enable students to work in groups to form outlines. Under my exam policy, students aren't barred from making group outlines (indeed, they are encouraged to collaborate) nor are they barred from consulting outside materials in the preparation of their outlines (though I do actively discourage this behavior).
I confess that I found it rather amusing that people would go to such lengths to get old outlines. I realize that my visiting status leaves my curent students at some disadvantage because I assume it is extremely common for people to use old outlines. But I still think it is a rather silly crutch. Not only is the class different from year to year (and the test covers only what the class covers in a given year) -- but it seems so fundamentally misguided to take the short cut presented by using old outlines. From what I remember, making the outline is most of the studying. Cutting and pasting from old outlines just doesn't work the same way. Perhaps that is just my idiosyncratic need for active learning. But I remain convinced that students are actually wasting valuable studying time when they try to get the material in an already-processed form (whether that comes from commercial outlines or old student outlines). Reasonable people could differ and have different studying needs.
Yet, I believe the Brooklyn student who alerted me to the issue had some ethical qualms about the practice. I don't see the issue as an ethical one, just a practical misstep. What's your take?
Faculty presence at student-sponsored talks
Yesterday, I gave a talk on "The Rehnquist Legacy" (taken, basically, from this) to the Federalist Society chapter at the University of Cincinnati School of Law. (I was unaware, by the way, before the visit, that UC is a public school, and that it has very small -- about 125 -- classes. It is, at present, working to capitalize on being small, public, and urban -- very interesting.) I really enjoyed the visit.
In particular, I was struck, and pleased, by the fact that a number of UC faculty came to the talk. Which got me wondering -- how common is it for faculty to attend and participate in student-sponsored events like this (e.g., FedSoc talks, ACS events, etc.)? Do others think -- as I am inclined to think -- that faculty attendance and participation is a good thing? Are there pitfalls?
Tuesday, November 28, 2006
Judge Posner in "Second Life"
“I am very excited to have been asked to give a talk, via an avatar, in Second Life," Judge Posner tells me, via e-mail. "Virtual communities are an important social phenomenon with transformative potential, and I know that Second Life is in the forefront of this latest stage of the digital revolution." And I'm very excited to welcome such an august figure in-world, joining Lawrence Lessig, Thomas Barnett, and other great public intellectuals who're among the first to transmit their crucial ideas into the metaverse.
Clicker Training for Law Students
Six months ago, I became the proud owner of a Portuguese Water Dog puppy. In my quest to raise The Best Dog Ever, I naturally sought out the very best doggie obedience training for my little yuppie puppy -- and found myself thrust headlong into one of the hottest controversies around: The Alpha Wolf vs. The Clicker Trainers. On one side is Cesar Millan, a media darling whose wildly popular National Geographic Channel show features various Hollywood B-list celebrities and other assorted rich people seeking help for their spoiled rotten, out-of-control pooches. Cesar's theory: Our dogs are out of control because Americans are wimps. Dog training is all about The Alpha Wolf. Your dog does not want you to be his friend -- he wants you to be a strong, assertive leader. In short, he wants -- and needs -- a good alpha roll every now and then.
On the other side are the clicker trainers, for whom alpha rolls, choke chains and other dominance techniques are hopelessly outdated and downright destructive. For clicker trainers, it's all about positive reinforcement: All you need is a little metal clicker, some yummy treats, and lots and lots of praise. Ignore the bad behavior, reward the good stuff -- and your dog will eventually develop the "confidence" that he needs to reach his full potential.
It strikes me that the same dynamic is playing out in law teaching these days. The "old guard" tend to be unapologetic Alpha Wolves. At Washington & Lee, our quintessential Alpha Wolf was the incomparable Roger Groot, who struck terror into the hearts of generation after generation of first-year students with his old-school, Socratic-style teaching. (The statement "I got Grooted today" was sure to elicit sympathetic groans from other students -- and perhaps even a "pass" in another professor's class.) I, on the other hand, am an unapologetic clicker trainer. I cheerlead, I reward even the smallest, most hesitant attempt to think creatively, I never criticize students who get the wrong answer, even to the most obvious question. And I usually ignore most bad behavior, as long as it's not distracting other students. Most other young professors I know are clicker trainers, too.
What is the right learning environment for today's law students? Do they respond better to alpha rolls, or to clickers and treats? The popular wisdom on this generation is that they're fragile, that they respond best to positive reinforcement. On the other hand, lawyers live in an Alpha Wolf world, and the sooner we prepare our students for that reality, the better. More importantly, isn't the hard-core Socratic method an essential component of learning to "think like a lawyer"?
W&L's Alpha Wolf passed away last spring. The outpouring of love and respect -- and sheer gratitude -- from his former students was a real lesson for me. "The day I got Grooted," his students seemed to say, "was the day that I started down the path to becoming a real lawyer." I can't help but wonder if we clicker trainers, for all our cheerleading, will one day inspire similar outpourings from our students.
Legal Catch Phrases
Over here is a fairly extensive list of TV characters and their various catchphrases. It’s got everything from “De Plane, De Plane” (Tattoo, Fantasy Island), “Is that your final answer?” (Regis Philbin, Who Wants to be a Millionaire) to “Watcha talking about, Willis?” (Arnold Drummond, Different Strokes). (True, some of these TV character catch phrases were uttered by politicians, who are only characters in a nominal sense. Seems a bit odd, but I suppose these phrases were uttered during televised debates).
In any event, wondering about legal catch phrases that seem almost sit-com worthy. My first thought was Justice Potter Stewart’s tried-and-true remark about obscenity (“I know it when I see it.”) I’m sure there are many others. Any nominations?
Monday, November 27, 2006
Lewis on DeYoung on Powell
In this Sunday's N.Y. Times, Michael Lewis reviews Karen DeYoung's new biography of Colin Powell. Describing the book, Lewis notes that it is "as revealing as it can be and remain flattering, and as flattering as it can be and remain revealing." He argues that DeYoung is overly sympathetic to Powell's flaws and that she "leaves the reader with the sense that Colin Powell was a good man in a bad administration." From Lewis's perspective, however, Powell has consistently manifested a willingness to be a good "soldier" to better his career while manifesting enough doubt to maintain his credibility if things go wrong. As an example, Lewis points to Powell's willingness to reveal his initial doubts and concerns about Iraq, after things went horribly wrong, to DeYoung and Bob Woodward.
Readers of his books like Moneyball and The Blind Side may be surprised by Lewis's interest in political biography. But one of Lewis's best, if perhaps most overlooked, books is Trail Fever: Spin doctors, rented strangers, thumb wrestlers, toe suckers, grizzly bears, and other creatures on the Road to the White House. The book is primarily a collection of Lewis's columns from the 1996 campaign for the New Republic. Unlike other campaign books, which dutifully report on the main candidates' backgrounds, policy positions, and debates, Lewis spends most of his time with fringe candidates, such as Alan Keyes, Steve Forbes, and Pat Buchanan. Out of all the candidates, Lewis spends the most time with Morry "The Grizz" Taylor, a tire magnate who is running for the Republican nomination. You may never have heard of Taylor, but Lewis takes delight in describing how this force of nature takes to the political process. But Taylor is just one example. Lewis's book is overflowing with examples of bizarre yet beautiful moments from the campaign: Keyes' surprisingly captivating oratory; the union leader with the stuffed fawn on his wall; the Doles going off the dutifully watch "Independence Day" with a crowd of reporters. Because he is interested in genuine moments, Lewis is mostly bemused, disgusted, and finally bored with the day-to-day of the campaign. The entire process, Lewis notes, is designed by "rented strangers" to avoid anything that has not been planned, scripted, and focus-grouped to death. So he seeks out the fringes for moments of reality.
After pages and pages of describing his disgust with the political process, Lewis finally meets the hero of the book: John McCain. McCain speaks his mind. McCain is loyal, even when it hurts him to be. McCain is a war hero, but is self-effacing about it. He has an acerbic sense of humor. This may not be news to you now, but it was news back in 1996. Back then, McCain was probably mostly known as one of the Keating Five. But to Lewis, McCain cut through all the preprocessed nonsense speak and just said what he thought. McCain was exactly the opposite of Powell (as described by DeYoung). He did not undercut people. He did not care, above all, about his career or image. He was, as Lewis wrote in the introduction, an example of "the heroic possibilities of American politics."
Lewis did a follow-up profile of McCain for the New York Times Magazine, entitled "The Subversive." While I have not done a historical study of the McCain phenomenon, my guess is that Lewis is the one responsible for this senator's leap into the national consciousness. If John McCain becomes our next President, "Trail Fever" got him started. Given that, it is perhaps no surprise that Lewis would review a biography of Colin Powell. Perhaps Lewis' review is an effort to argue that Powell and McCain, despite many similarities, are quite different at their core.
Atheism on Steroids
I recently attended a symposium at the Salk Institute entitled "Beyond Belief: Science, Religion, Reason and Survival." I expected to hear from a politically-correct mix of theists and atheists talking about the relationship between science and religion. In fact, the atheists in the room far outnumbered the believers (perhaps the name of the event gives this away, but I missed that). Here's a snippet from the NYT:
Somewhere along the way, a forum this month at the Salk Institute for Biological Studies in La Jolla, Calif., which might have been one more polite dialogue between science and religion, began to resemble the founding convention for a political party built on a single plank: in a world dangerously charged with ideology, science needs to take on an evangelical role, vying with religion as teller of the greatest story ever told.
. . .
“Every religion is making claims about the way the world is,” [Sam Harris] said. “These are claims about the divine origin of certain books, about the virgin birth of certain people, about the survival of the human personality after death. These claims purport to be about reality.”
By shying away from questioning people’s deeply felt beliefs, even the skeptics, Mr. Harris said, are providing safe harbor for ideas that are at best mistaken and at worst dangerous. “I don’t know how many more engineers and architects need to fly planes into our buildings before we realize that this is not merely a matter of lack of education or economic despair,” he said.
You can click over here to video of the event, an op-ed in today's NYT addressing the substance of the issues raised at the symposium, and some thoughts on this event from my USD colleague, Tom Smith at the Right Coast Blog.
An ICPSR Survival Guide for the Law Professor
Based on attendance at last spring's Epstein/Martin Conducting Empirical Legal Scholarship Workshop, law professors are quite interested in developing skill sets to do sophisticated empirical research. I can't speak to the quality of the Epstein/Martin workshop or the planned follow-up Advanced Course, but I can heartily endorse the ICPSR Summer Program in Quantitative Methods, which I had the good fortune of attending for part of last summer. Measured solely in terms of "bang for your buck" (that is, the ratio between hours of instruction and registration fee), the ICPSR Summer Program compares favorably.
Here are some suggestions for anyone thinking about participating in ICPSR next summer or at some other point in the future:
1. Think of ICPSR as a multi-year endeavor: Particularly if you are new to empirical research and statistics, ICPSR should not be viewed as something that you do just once. Many of the participants last summer were "repeat offenders." The program itself consists of two four week terms (for a total of eight weeks). For many law professors, particularly untenured scholars with publish-or-perish obligations, the idea of committing eight weeks to an intensive quantitative program is daunting. I participated last summer for just the second four-week term, but still got a lot out of it. I would suggest (especially for introductory-level students) picking up just part of the summer program, and planning to return in summers to come.That's my two-cents; anyone thinking about participating next summer is welcome to e-mail me with further questions.
2. Don't overload: Part of the ICPSR experience is resisting temptation. Just like trying to attend every workshop at the AALS conference is a bad idea, trying to attend and keep up with too many ICPSR courses will take away from the experience. Last year, I did two workshops, Time Series Analysis (four weeks) and Matrix Algebra Review (two weeks). Some of my classmates tried to do two (or three) full workshops, but inevitably, their attendance fell off. I would suggest one or at most two workshop(s); that would make it possible to have a somewhat enjoyable summer, but also learn a lot. Another reason not to overload is that a number of the courses cover overlapping topics. You can always pop in on an extra course if you find you have the time.
3. Do your homework: The only way to really learn how to do empirical analysis is by doing. One can read all the text books about statistics one wants (consisting mostly of derivations or proofs of the models employed), but the only way to really prepare yourself to do this kind of work is to sit in front of a computer and abuse a dataset with Stata. Since most law professors will likely be taking ICPSR courses on a non-credit "Program Scholar" basis (it's much cheaper to take the courses for no credit), there may not be the pressure of a grade to motivate one to do homework. But unless you do the homework, you might as well not even be there. (Taking the exams is another matter -- it may or may not add to your experience to sit for the exam, although for introductory-level students, it's probably a good idea).
4. Make friends with the Hungarian biostatistician sitting next to you: You may have burning questions which you think only empirical methods can answer, but you also could use some help in actually executing your projects. One of the nicer things about ICPSR is that you will be in workshops and courses with graduate students and post-docs who are often hungry for research ideas. In my experience, most of the students were political scientists, with a smattering of psychologists, sociologists, business Ph.D.s and (very few) economists. A number of these students may be interested in "legal questions," and for them, getting published may help land them a teaching or research position. Get to know them, both because it makes the experience more fun and because you might be able to form relationships that could lead to productive collaboration in the future.
5. Enjoy Ann Arbor: Even though it will likely not be celebrating a college football national championship in 2007, Ann Arbor is still a great town. In the summer, the weather is perfect, parking is a bit more manageable than during the year, and there are great cultural and academic opportunities (including a wonderful lecture series put on by the ICPSR folks).
Sunday, November 26, 2006
A Post-Thanksgiving Provocation
In an attempt to stir folks out of their turkey, stuffing, and pie-fed lassitude, I'll ask the following question, meant to be somewhat provocative but not merely rhetorical.
A year or two ago, one could find on respectable law blogs (this one and the Volokh Conspiracy, for example), the argument that criticism of the Iraq war or Bush's policies in Iraq, while at least probably and/or usually protected by the First Amendment, had the negative effect of undermining troop morale, emboldening our enemies, or otherwise harming U.S. interests.
While this argument is probably still made in some quarters, I haven't encountered it on mainstream legal blogs in some time. My question, is, why not?
Is it because that argument has been so thoroughly discussed that there isn't anything new to say about it anymore? If that's the claim, doesn't the significantly increased amount of criticism of the war in the past year make the question of how much this criticism is undermining our interests more important?
Is it because the more recent criticism is of a different kind, and thus it has different effects?
Is it that it's harder to make the argument, in public at least, that criticism of a war undermines a country's interest when a majority of the country opposes the war? In other words, do folks still believe the argument, but just find it more difficult to make?
More generally, what can we say now about free speech in a time of war -- not just "what should the legal rule be?" but what the policy concerns should be?
Thursday, November 23, 2006
Thanksgiving, Thursday(s), and... Gettysburg?
My little sister just asked me if I knew the origins of Thanksgiving being celebrated on a Thursday (as opposed to some other day of the week). I had no clue, so turned to our good friends at Wikipedia. According to its entry for today, it appears that Thanksgiving was first tied directly to Thursday by President Washington in 1789 (November 26), but was only regularly observed on Thursdays beginning in 1863, when President Lincoln proclaimed a day of thanksgiving on the last Thursday of November, again, November 26.
So this led me to think -- why would Lincoln choose Thursday generally, and the 26th specifically? This probably ends up being nothing more than a coincidence, but Thursday, November 26, 1863, was one week after Thursday, November 19, 1863. And Thursday, November 19, 1863, owns its own place in history. Given that the date for the Gettysburg ceremony was already set by the time Lincoln proclaimed the day of Thanksgiving on October 3, is it possible that his fixing of Thursday, specifically, was motivated as much by what would happen a week before as by other considerations?
Just a random thought... Happy Thanksgiving to one and all!
Thanksgiving for Law Reviews?
From all of us at Prawfs, I wanted to wish all our readers and contributors a bountiful and blessed Thanksgiving Day.
I also thought that, given the spirit of the day, we should be in the business of praise and thanks to our colleagues. Let me invite readers to participate in what I hope will be a fun activity. I'd like you to select a law review article or essay or review (other than your own of course) that was published between last Thanksgiving and this one, and explain why you think that publication is outstanding. Did it change the way you thought about a particular subject? Did it reveal information that we didn't know before that now helps us understand law and society better? Just give a few sentences to describe what you think its contribution is. It can be from any field so long as it was published in a law review, whether student-edited or peer-reviewed. With some luck, we'll remember to do this next Thanksgiving, and we'll start a new tradition...
Wednesday, November 22, 2006
Curricular Reforms and New Governance
I’ve been thinking some about curricular reforms for several reasons. It’s on the agenda of my school as with many other schools. Indeed, in some schools, like Vanderbilt and Harvard, it has recently been a major driving force of debate and change. Also, I have been recently appointed to serve on the AALS committee on curricular reform. Chairing the committee is Dean Edward Rubin, who has been extremely innovative in his thinking about curricular changes for Vanderbilt JDs. Also on the committee is Martha Minow, who chaired the HLS reform.
There has been much talk about Harvard successful completion of a reform committee’s work, unanimously adopted last week by the faculty. More than the fact that uniting such a large, and at times conflicted, faculty around a significant reform was a personal accomplishment for Dean Kagan, the reform itself is interesting and I look forward to hearing about its implementation and whether other schools will move in similar directions. Of course, as Brian Leiter was quoted saying, other schools have already been adopting similar reforms, but I think the significance of this reform is both in its breadth and in the fact that this is Harvard. So what is the HLS reform about? Basically it is about cutting down the hours of the traditional first year courses (contracts, torts, civ pro, crim, property) to make way for additional mandatory 1st year offerings. The three new course requirements are a new course on legislation and regulation; a course on international/comparative law; and a course on “problems and theories”.
This last course offering is the most interesting to me, because I see it as very much part of what I have termed “the rise of governance in contemporary legal thought”. Here is how Harvard described their problems and theories course: “the new course…will allow students to reflect on what they have learned through systematic treatment of methods of statutory and case analysis, discussion of different theories of law and work on a complex problem (or problems) beyond the bounds of any single doctrinal subject, explored through simulation and team work. The course’s focus will be on complex problem solving. The basic materials used will be case studies of complicated situations involving facts and diverse bodies of law and demanding both creativity and analytic rigor in generating and assessing solutions.”
This last course offering is the most interesting to me, because I see it as very much part of what I have termed “the rise of governance in contemporary legal thought”. Here is how Harvard described their problems and theories course: “the new course…will allow students to reflect on what they have learned through systematic treatment of methods of statutory and case analysis, discussion of different theories of law and work on a complex problem (or problems) beyond the bounds of any single doctrinal subject, explored through simulation and team work. The course’s focus will be on complex problem solving. The basic materials used will be case studies of complicated situations involving facts and diverse bodies of law and demanding both creativity and analytic rigor in generating and assessing solutions.”
Overall, the three new focal points are intended to achieve the following goals, the last two again resonate particularly well with contemporary ideas about regulatory innovation and participatory governance:
"greater attention to statutes and regulations; introduction to the institutions and processes of public law; systematic attention to international and comparative law and economic systems; opportunities for students to address alone and in teams complex, fact-intensive problems as they arise in the world (rather than digested into legal doctrines in appellate opinions) and to generate and evaluate solutions through private ordering, regulation, litigation and other strategies; more sustained occasions to reflect on the entire enterprise of law and legal studies, the assumptions and methods of contemporary U.S. law and the perspectives provided by other disciplines, and to develop a common fund of ideas and approaches relevant to designing effective and just laws and institutions."
Again, this sounds a lot like new governance theory – a shift away from a narrow focus on adversarial legalism to a broader study of the entirety of the legal process, a deeper understanding of public management techniques, and the many techniques through which private and public institutions can be designed to better solve problems efficiently and legitimately.
Are Young Law Scholars Too Old?
If you’re at all like me, you have a tendency to subscribe enthusiastically to listserves and distribution lists. I like to tell myself that, if I had more time, I really would read all of the BNA, SSRN, etc., emails I get each day, or each week, in my e-mail box. But the truth is that there are relatively few that I read consistently.
One distribution list that I consume like candy is SSRN’s “Young Scholars Law Abstracts,” edited by Robin Wilson (Maryland) and David Hyman (Illinois). Young Scholars Law Abstracts is both informative about the direction of legal scholarship (in that junior faculty at least aim to write about new and interesting topics) and a great source of what passes for “gossip” in the legal academy (whose work is getting placed in what journals). The list is of course misnamed (as is the headline of this blog post), in that it consists of abstracts of works by junior scholars, who may not be “young” as people but are young as scholars. Young Scholars publishes
abstracts of both working papers and accepted papers on any subject relating to law written by individuals who have been in teaching for seven years or less. . . . For purposes of calculating "seven years or less" of teaching, fellowships, adjunct positions, and lectureships do not count against the total.
This is but one of a couple of notable forums for junior legal scholars to obtain feedback on and attention for their work. Two other (national) opportunities are the Yale-Stanford Junior Faculty Forum and the AALS Paper Contest. The Yale-Stanford Forum is open to
twelve scholars (with one to seven years in teaching and who are not yet tenured) . . . chosen on a blind basis from among those submitting papers to present.Similarly, the AALS contest was open to scholars in the first seven years of teaching. Until this year. Now, only scholars who
as of July 1, 2006, have been educators for five or fewer years are eligible to submit papers.Why the sudden change? The AALS described the change as one “made to emphasize the goal of recognizing scholarship produced by Junior Faculty.” Will the Yale-Stanford forum, and the Hyman-Wilson distribution list follow suit and reduce the number of years-in-post they consider “Young” or “junior”? Should they? When exactly does one stop being a “junior” scholar?
What constitutes a “junior” scholar has been in flux for years. With the rise of J.D./Ph.D. candidates (in the ‘80s?), an increasing number of new legal scholars are both more experienced teachers and scholars than in previous generations. The latest contributor to the aging of the junior faculty is the emergence of numerous 2+ year long Visiting Assistant Professorships (and their rising importance in securing a tenure-track post). Moreover, very few candidates these days are credible without at least a student note and a law review article (or substantially completed work in progress). With new scholars coming in both more seasoned and better prepared to make a contribution to the debate, it is understandable that the AALS would move to reduce the time horizon during which it considers one “junior.”
Dan Markel would like me to introduce myself, something that is always a bit uncomfortable for me, but if you’ve read this far, I suppose you deserve an explanation of who’s writing this. I’m an Assistant Professor at the University of Toledo, currently in my third year of teaching. I teach torts, corporations, antitrust and sports law, write on a variety of topics (mostly in the area of business associations), and have been blogging at for most of this year at the Sports Law Blog. I’m looking forward spending to the next few weeks to sharing some of my thoughts on non-sports topics, mainly dealing with this business of law teaching and legal scholarship.
Tuesday, November 21, 2006
What do gay marriage and burqas have in common?
Answer: They both get the vote out -- at least, such is the fervent hope of the Netherlands' center-right government, which is trying to use the issue of Dutch burqa-wearing much as Karl Rove has used the issue of gay marriage. Experts estimate that roughly 100 Muslim women in all of Holland don the burqa. (The burqa is the full-body garment that hides a woman's face -- think Afghanistan during the Taliban era -- as opposed to the abaya, which is the full-length robe more commonly worn by Muslim women.)
Given the minuscule numbers involved, you'd think that the Dutch government would have something better to do with its time. But just five days before national elections in Holland, the government announced that it is introducing legislation to ban the wearing of the burqa in public places, arguing that it poses a grave security threat. The announcement is part of an ongoing (and increasingly divisive) debate across Europe on the issue of just how far European governments can go in legislating what Muslim women and girls are allowed to wear in public. (The European Court of Human Rights' answer, by the way: Pretty darn far. It held that a Turkish ban on the wearing of headscarves in public universities did not violate European laws protecting religious freedom.)
The New York Times has an article about the Dutch legislation here.
Think about this: If the legislation is enacted, a Dutch woman could marry her lesbian partner, spend her life smoking a little hashish now and then -- and when the time comes, get a doctor's assistance in pulling the plug -- all well within Dutch law. But she couldn't ride the subway with a veil over her face. What an odd country.
(Of course, I fully recognize that the Dutch find the balance that we Americans have struck on such issues to be a bit odd, as well. I could go on at length pointing out the ironies of the peculiarly American approach to legislating morality -- but why spoil others' fun? (Anyone care to comment on what the Dutch would find most odd about our approach?))
Nice to Meet You, Too...
at the Federalist Society's annual Lawyers' Convention last weekend. It was a delightful conference, and gave me an opportunity to meet a great number of wonderful people, including several people whose Internet postings I had seen, but whom I had not otherwise been personally acquainted. The conference featured a startling number of high-profile jurists, practitioners, and academics, including (as is typical) a substantial minority who hold left-of-center postions. Dave Lat has posted some highlights of the conference on Above the Law.
My journey to my parents' home in Buffalo for Thanksgiving requires that I refrain from blogging from tomorrow to Sunday, but I shall return next week, eager to use any convenient distraction from writing and grading exams. Happy Thanksgiving, everyone!
Law Reviews and Law School Rankings
Over at TaxProf, Paul Caron has posted a fascinating contrast between the USNews law school rankings and the Washington and Lee library's rankings of law reviews, based on number of citations in law reviews, citations in cases, and impact factor (citations per articles). I was surprised by a number of these findings, especially the gaps between some of the top schools and their law reviews. For example, I would think Chicago and Michigan's law review would normally be viewed as top six, but based on the combined factors data, they are 10 and 16, respectively. Certain schools with strong law reviews (Chi-Kent, Cardozo) many faculty know about; most would be surprised, however, to learn that schools like Houston and Depaul have law reviews that are "top 50."
What Paul's excerpts don't show is also important. There's no real reason to exclude from consideration the specialty journals that are highly ranked. If you stick to just the student edited law reviews, Harvard actually dominates the top 35 based on the combined rankings. 6 out of the top 35 student-edited journals are edited by HLS students: Harvard CRCL is ranked 18, Harvard Int'l L.J. is ranked 22, Harvard's J. of Law and Technology is ranked 27; its Journal on Legislation is ranked 31, and its environmental law review is ranked 33. Even when you add the peer-reviewed and refereed journals, Harvard still dominates. The venerable Journal of Legal Studies is ranked 38 and the Supreme Court Review is ranked 12. But otherwise the top 35 still looks the same, with Harvard's specialty journals outpacing many of the "main" journals at other schools.
At various faculties, there's discussion about what kind of premium (if any) to put on high placements. The truth is, it's very hard to look at these stats and say who should be in the top 10, or in the top 20, and especially hard for the top 25. That's because faculty are making journal selections based on these rankings from W/L, as well as considering rankings from Leiter and/or USNews. Looking at just USNews, consider: how many people accept placements at, say GW, because of it USN status as 19 without knowing that its law review is ranked 70th? Wash U faces similar gaps with a USN of 19 and a LR ranking of 53. Our friends at MoneyLaw may think this is worthy of Beane-ball exploitation, so I'm curious to see what distortions, if any, are created by this. (Parenthetically, I'm feeling guilty for not having linked more often to Moneylaw, which is on my required reading list every week.)
I also wonder if Leiter's faculty quality rankings track the law review rankings more closely than the USNews rankings. At first blush, I would think it would be hard to draw much of a causal story between the quality of a faculty's reputation and the quality of the student-edited law review. But we live in a strange world. My quick analysis shows there's also some huge chasms. The most recent data from Leiter is here. Michigan and Texas are tied for 8 on Leiter, but have law reviews (surprisingly) ranked 16 and 15, respectively. University of Miami has a Leiter ranking of 40 but a law review ranked 107th among all student edited journals (and 79th among general law reviews). William and Mary's Law Review is ranked 20th, but 37th on the Leiter faculty rankings, and 27th in USNews. All that said, if you exclude Harvard CRCL and William and Mary, the rest of the top 20 journals and the top 20 schools based on USNews look pretty familiar. The same can be said for most of Leiter's top 20. So, if schools are looking to award placements in the top 19, it shouldn't be hard to reach some consensus as to which schools are included there: Harvard, Yale, Chicago, Stanford, NYU, Columbia, Penn, Michigan, Virginia, Georgetown, Texas, Boalt, Duke, Northwestern, Cornell, Vanderbilt, USC, UCLA, and Minnesota. But presumably, placements in the Supreme Court Review and Harvard CR-CL should also count. I'd be curious to get other people's assessments, especially if you can report on what your schools give weight to.
Monday, November 20, 2006
IF the O.J. Controversy Ended
In an update to an earlier post, Fox has canceled plans to air an interview with O.J. Simpson where Simpson describes how he would have killed his ex-wife and her friend if he were the killer. According to an AP story, "A dozen Fox affiliates had already said they would not air the two-part sweeps month special, planned for next week before the Nov. 30 publication of the book by ReganBooks. The publishing house is a HarperCollins imprint owned -- like the Fox network -- by News Corp." I guess this means that the book will not enter general circulation, though I imagine some copies will get out and sell for big money. I predict that we have not heard the last of this story.
Also from the AP: "For the publishing industry, the cancellation of 'If I Did It' was an astonishing end to a story like no other. Numerous books have been withdrawn over the years because of possible plagiarism, most recently Kaavya Viswanathan's 'How Opal Mehta Got Kissed, Got Wild, and Got a Life,' but a book's removal simply for objectionable content is virtually unheard of."
Kudos to Pennumbra and Colloquy
I'm pleased to announce that the U. Penn Law Review's online companion, Pennumbra, is now hosting an excellent exchange between our own Rick Garnett and our own (Prawf alum) Kim Roosevelt on the subject of judicial activism. It's styled as a debate, but Rick and Kim are voices of calm reason, and it's much more of a conversation that jointly advances the ball forward than anything combative. Kim's book, which is the springboard for his discussion with Rick, is available here.
And don't worry, we've not declared that Pennumbra is the house organ here. As evidence, let me alert you to a few posts of interest elsewhere. Over at Yale's www.thepocketpart.org, my friend Chad Flanders (Yale 3L) has this post up on the precedential value of Bush v. Gore.
You might also want to check out Northwestern's new law review blog, Colloquy, which has some posts up on LLM's and American education, as well as Kelo. Indeed, as even more evidence of our commitment to ecumenicism, we are going to add links on the blogroll to many of the online law review companions so you can stay current with what's going on there. So far, I know of Harvard, Yale, Penn, and Northwestern (update: and Michigan). Please let me know if more emerge.
A few short responses...
... to some recent posts will start this second stint of mine as a Prawf; so thanks to Dan & co. for the invite. I promise more substantive posts later, but I figured I'd get the ball rolling with some short notes:
(1) Re Ethan's note about a new UC law school in Irvine: is the density of law schools in certain regions -- I'm thinking south Florida, southern California, and Philadelphia -- striking anyone else as inefficient? I get that if you're starting a law school, you'd want it in a warm-weather climate; and I get that Drexel had advantages as a major university that are helping it off to a quite impressive start for such a new law school; but grads tend to linger in the cities of their law schools, especially at non-elite schools, so is the phenomenon of new law schools clustering in already well-served markets going to yield a glut of job-seekers in those locales?
(2) A possible answer to Joe Slater's dilemma about what to do on his sabbatical: run for president, Joe! If Newt Gingrich can run -- er, I mean, "offer a series of solutions so compelling that if the American people say I have to be president"; and the field sure looks wide open now that Rick Santorum shocked the world by announcing that he would not follow up his 18-point Senate race loss with a run for President! Is it me, or has politics gotten really funny in the weeks since the election? I'm not just picking on one side with that observation; I'm including in the hilarity (1) Nancy Pelosi's decision to end her "new Speaker of the House honeymoon" amazingly early with a move "so incomprehensible, so politically stupid" as endorsing a longshot candidate to be Majority Leader....) and (2) the incoming chair of House Ways & Means deciding that a really great way to introduce America to their new Democratic overlords would be to make the first post-election policy proposal to come from a major Dem the return of perhaps the least popular government program ever: the draft.
How early is too early to start writing final exams?
This will probably be the last post of my guest-stint here at Prawfsblawg, so it may be fitting to close with a post about final exams. Specifically, how early do prawfs start writing their exams? I'm sure this varies tremendously from those who reuse old multiple choice exams and hence have them ready from the start of the semester to those who procrastinate until just before the exam itself.
I like to finish writing my exam a couple of weeks before the end of the semester so that I have time to debug them, but that still leaves a lot of leeway in terms of when to start.
Hamdan v. Rumsfeld is probably one of the most significant executive powers/con law case in recent history and therefore rightly shows up in new editions of Constitutional Law casebooks, as well as Federal Courts ones. However, it turns out to be not so easy to teach.
The case runs 106 pages in the Supreme Court Reporter. Ten pages of that is devoted to the syllabus and head notes, but that still leaves 96 pages of opinions, which is far too long to assign for one night's reading. The 2006 Supplement for Hart & Wechsler cuts Hamdan down to a svelte 20 pages, but at the cost of details. The Councilman abstention is boiled down to one editorial paragraph, though that is an edit that seems valid to me.
More difficult is the decision to truncate a good deal of Justice Scalia's argument regarding the Detainee Treatment Act. In particular, Justice Stevens' majority opinion relied on a number of statutory interpretation cannons, one of which was that the explicit statement in one part of a statute coupled with the omission in another part should be understood as intentionally not applying the explicit statement to the other part. Thus, the fact that subsections (e)(2) and (e)(3) stated that they applied to "pending claims" meant that the omission of such language with regard to other subsection (e) claims -- including Hamdan's -- was intentional, and pending claims in the latter category were not covered by the DTA. 126 S. Ct. 2749, 2766-67 (2006).
Justice Scalia's response was that subsections (e)(2) and (e)(3) created new jurisdiction exclusive to the D.C. Circuit, and therefore it made sense to specify that they applied to pending claims. 126 S. Ct. at 2813. Yet, this entire point is omitted from the Hart & Wechsler supplement. I say this not because I necessarily think that Scalia has the better argument, but because it can confuse the student-reader of the case to wonder why Scalia has no response to the Stevens point.
I don't mean to suggest that I disagree with the editorial decision that Professors Fallon et al. (the current casebook authors) made in cutting Hamdan down to size, just that I bring this up because a student was asking during office hours about the Stevens argument and we got to this part of the opinion. I found that it was difficult to keep track of what I had read in the full opinion versus the edited one, and then I had to go over the gist of the unedited opinion for the benefit of the student.
Of course, Supreme Court Justices have no obligation to make their opinions accessible to law students, and certainly complex matters deserve how ever much attention it takes to discuss them fully. But sheesh, 96 pages?
Musical Review: Business Associations
Last year, I decided to do a review for my Contracts class based on various songs. This year, I decided to do the same thing with Business Associations. We use the Klein, Ramseyer, Bainbridge casebook, but some of these songs would go well with the cases in any text. Since we had so much fun with the “musical revue” / “musical review” today, I thought I’d post them and you can try your hand at guessing which cases or concepts go along with these songs in the comments:
I Pagliacci (Maria Callas)
Secret Agent Man (Johnny Rivers)
Opportunities (Pet Shop Boys)
Centerfield (John Fogarty)
It’s a Small World (Disneyland Children’s Chorus)
I Drink Alone (George Thorogood and the Destroyers)
Big Yellow Taxi (Counting Crows)
Holidae Inn (Chingy)
Goin’ Out of Business (Babyface)
If you have other song ideas for business associations cases, I'm also more than happy to take suggestions for next year. In the meantime, have fun guessing!
Top Ten Things I Should Do On My Sabbatical?
In a month, I'll begin my first sabbatical leave, and I'm beginning to wonder what the purpose of a sabbatical is or should be.
I'm taking a one-semester sabbatical. Currently, my plans for this leave include (but are not necessarily limited to) the following:
1. Researching and learning enough about International/comparative labor and employment law that I could write something interesting about it and possibly prep a class on it.
2. Brush up on my mediocre French enough to help with (1).
3. Live in Paris for at least a few weeks (along with wife and three-year old son).
4. Actually read the 100+ articles relevant to areas I teach that looked really interesting on SSRN that I haven't gotten to yet.
5. Re-charge my batteries through non-academic musical pursuits (improve my lousy lead guitar playing, maybe buy some sort of home recording equipment so I can live out my rock-star wanna-be fantasies in my basement).
6. Exercise and get into better shape.
7. Finish various chores around the house (pesky basement mold ...).
8. Spend more time with the family.
9. Figure out how to edit all the incredibly cute video I've shot of my son.
10. Take some well-deserved time to rest and just mellow out.
It occurs to me that I might not actually do a thorough job on all of this in four months or so of the sabbatical.
The broader question is, what is the purpose of a sabbatical? Is it to allow a longer/additional period of time to write and research without normal teaching or committee duties (i.e., essentially an extended summer)? Is it to allow the beginnings of Big projects, that would be more difficult to do with a normal schedule (books, attempting to do work in new fields)? Is it more to allow the professor to refresh him/herself, to come back renewed and re-energized, even without a ton of concrete accomplishments to show for it?
It's a great perk of the job, and I plan to take it seriously. I'm just curious what folks think the most important things are to get out of it.
Urbanism and the Natural Law
Putting on my wanna-be-Property-theorist hat again: Last week, my friend and colleague, Philip Bess, gave the Schmitt Lecture, "After Urbanism: The Strange Bedfellows of Neo-Traditional Architecture and Town Planning," sponsored by the Notre Dame Center for Ethics and Culture. (I have mentioned Bess's work here at Prawfs before.)
In his lecture, Bess claimed -- as he has before -- that it is a precept of the "natural law" that "human beings should make mixed-use walkable settlements." I'm (still) curious to know what people think of this claim, or claims like it. Does the claim mean -- can it mean -- more than "I prefer -- and, in fact, I note that many others prefer, too -- mixed-use walkable settlements"? Obviously, the claim is intended to mean more than this. The claim is, after all, that "human beings" -- as human beings, precisely because they are human beings -- "should" make such settlements; it is that this precept is "binding." Do we think it is possible to establish this claim, or claims like it?
Sunday, November 19, 2006
To Life, To Life, Resveratrol...
If you're a mouse with access to good health care, you've got a lot to be excited about. A couple of recent studies have shown that mice given very large doses of resveratrol (a component of grape skins and other foods) were able to (1) live longer on a high-fat diet and (2) have greater endurance than mice who did not consume resveratrol. The results have been astounding. It's too early to say whether resveratrol (or experimental drugs based on it that are believed to be "sirtuin activators") will have the same effects on humans and whether side effects will be tolerable. I was puzzled, though, by this claim in the New York Times:
For the Food and Drug Administration, if for no one else, aging is not a disease and death is not an end-point. The F.D.A. will approve only drugs that treat diseases in measurable ways, so Dr. Westphal hopes to show that his sirtuin activators will improve the indicators of specific diseases, starting with diabetes.
I don't know the basis for this claim about the FDA. Does it mean that substances designed merely to extend life without treating "disease" (as commonly understood) cannot be regulated by the FDA? Would we not simply think of such a drug as treating a wide range of diseases that shorten life? I don't know whether its better for the FDA to regulate or not regulate such substances, but it would be unfortunate if pharmaceutical companies think that they must treat specific, identifiable diseases rather than simply promoting the quality and quantity of life in general. (X-posted.)
Finnis on "Religion and State"
Anyone interested in law-and-religion or church-state work will probably want to check out this new paper, "Religion and State: Some Main Issues and Sources," by my colleague, John Finnis. (Thanks to Larry Solum for the link.) Here is a bit:
Any discussion of religion and state derails from the outset if it presumes that, as Brian Leiter puts it, “religion is contrasted with reason” – a theory for which Leiter, if he felt inclined, might summon as a supporting witness the first definition of “religion” in Webster’s New Universal Unabridged Dictionary (New York 1992). And the discussion equally derails if it presumes that no religion’s claims about God and man, world and society are reasonable, or that no religion’s claims are even discussable within the domain of public reason, that is, of the discourse that one should find in universities, schools, and legislative and other political assemblies, including discourse about what laws and public policies to adopt. The discussion derails, again, if it presumes that the philosophically neutral, default, baseline or otherwise presumptively appropriate framework or basis for the discussion of religion and state is that no religious claims add anything -- whether content, certitude, or probability -- to what is established in moral or political philosophy, or in natural or social science or social theory.
It derails, too, if it holds or presumes that religion’s status is nothing more than one way of exercising the “right” proclaimed as fundamental and “at the heart of liberty”, in Planned Parenthood v Casey (1992): “to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Or again if, as Ronald Dworkin says, the basis of the First Amendment’s guarantee of religious freedom is simply that “no one can regard himself as a free and equal member of an organized venture that claims authority to decide for him what he thinks self-respect requires him to decide for himself.” These celebrations of the right to “decide for oneself” and “define one’s own concept” trade, as we shall see, on an important truth. But they abandon reason when they assert that the relevant intelligible and basic good in issue is not the good of aligning oneself with a transcendent intelligence and will whose activity makes possible one’s own intellect and will, nor even the good of discovering the truth about some meaningful and weighty questions, but rather the good of self-determination or self-respect. For these are no true goods unless the goods around which one determines oneself deserve the respect due to what is true, rather than self-interested make-believe.
By the way, it seems to me that the paper's opening sections work as -- even if they are not billed explicitly as -- a response to Brian Leiter's recent essay, "Why Tolerate Religion?"
Duke's new VAP program and Ph.D.'s
Stuart Benjamin blogs here about a new visiting-assistant-professor program at Duke. The program is designed
to bring aspiring law teachers into the law school as visiting assistant professors. Visiting assistant professors spend two academic years at the law school (to give them time to work on scholarship in anticipation of their entry on the law school teaching market). Each visiting assistant professor is provided with an office and is invited to participate in faculty activities open to visiting professors. Each has a very light teaching load – one course per year. Selection for participation in this program is competitive, based on potential for success in an academic career.
I have been wondering, as VAP programs proliferate, will there be any effect on the demand for, and prevalence of, Ph.D.'s in the entry-level market? I guess the answer depends on whether Ph.D.'s are in increasing demand because they (a) know more, (b) are better trained in research methodologies, (c) they have teaching experience, and / or (d) they come pre-socialized into the academic life. Two years in a good VAP program can supply some of these advantages, it seems to me, though not all.
Self Important Law Professor Blog
I’m not sure that I’d give it that much of a ringing endorsement. Okay, the page managed to get me to smile, but I wasn’t “laughing out loud” and I certainly wasn’t “rolling on the floor laughing.” The blog is simply too bland and generic -- not enough name dropping. To whoever is writing the page (I can’t really call it a blog because the prof is too self-important to take comments), I’d say get a bit better at mimicry. Read Jeremy Blachman’s Anonymous Lawyer for inspiration.
On the other hand, it is entirely possible that I am criticizing the page because I wish to distance myself from it. It is also possible that the title “Self-Important Law Professor Blog” is redundant.
Saturday, November 18, 2006
Osama Awadallah was acquitted of perjury by the second jury to sit in judgment on him. The first jury hung, 11 in favor of conviction and 1 in favor of acquittal -- and took six days to reach that conclusion. The second jury acquitted unanimously after seven hours.
Why the difference -- given that the cases the prosecutors put on were virtually identical? Here's one theory:
One major difference between the two trials was the emotional response to the Sept. 11 attacks cast on the jurors. After the first trial, at least four jurors openly acknowledged sharing stories of losses they had suffered and weeping during their deliberations, despite strict orders from the judge to keep emotions out of the proceedings.
This time, jurors said they kept those feelings out of the jury room.
Mr. Awadallah’s lawyer, Jesse Berman, said he believed that the three extra witnesses he used this time, including two of his client’s former teachers, had helped humanize Mr. Awadallah.
“It made jurors not have to worry that he was some loner in some sleeper cell,” Mr. Berman said.
A final theory: Bush and his administration have been repudiated by the American people and this prosecution seemed part of an incompetent effort to prosecute terrorism; jurors continued the repudiation.
I used the occasion of the first trial to argue for relaxed jury decision rules for conviction (and acquittal), a short version of my much longer argument here. What light does this one episode shed on my argument? Well, for one it looks like there is some contingency in how juries decide cases -- and that politics may have something to do with why some people get convicted and some get acquitted, whether we like it or not. It also suggests, perhaps, why unanimity is favored by some. But did the second jury reach the "truth"? Who knows?
Friday, November 17, 2006
Best Commercial Ever
Although it's not a new commercial, my favorite commercial of all-time just came on while I was watching Pardon the Interruption:
The commercial opens with cheesy music in the background, and with a guy and a girl saying cutesy things to each other and making out.
As the commercial goes on, the couple continue to make out, while the camera pans down, revealing that the guy is wearing an Ohio State shirt, and the girl is wearing a Michigan shirt.
The commercial ends with the following text on screen:
"Without sports this wouldn't be so disgusting."
Amen. Go Blue.
Another UC Law School?
So what do you think about UC's decision to open a new law school in Southern California at Irvine? Does this spell disaster for UC-Hastings, which is usually able to recuit the "downstate" students who, perhaps, don't get into UCLA? Admittedly, as the cost of UC law schools approaches private schools (as it has been doing over the last few years), the "downstate" students may just decide against a UC law school altogether for some of the private law schools in San Diego and LA. But to the extent that the UC brand is part of what the student is after, I wonder what role UCI may play in diluting the brand and convincing students who want to practice downstate to stay downstate. What do you think?
Of course, law students are very prestige sensitive -- so as long as Hastings has a prestige advantage above the new UCI law school, there may be no effect. Indeed, this development may hurt USD, Loyola, TJ, and Southwestern more than Hastings itself. Keep your eyes out: Riverside may also try to open a law school . . .
weekend reading: new versions uploaded
If you're looking for a soporific to lead you to a good afternoon nap this weekend, feel free to check out the new versions of two drafts I've uploaded this week. At this link, you can find the new version of my short article: Still Wrong? Professor Kahan on the Fall of Shaming and the Rise of Restorative Justice. In this draft, I've tried to render more clear the nature of some of the claims I've made against Kahan in Part II, with respect to whether he's engaged in moral reasoning or moral sociology. I argue that Kahan's claim that shaming should be rejected is ultimately best understood as an empirical claim, not a theoretical one, and Kahan adduces little support to sustain the empirical claim that shaming won't secure widespread support. Moreover, even if such support existed, Kahan does not explain why any partisan wrangling over shaming cannot be handled by the institutions of liberal democracy.
And at this link, you can find a newer version of "Criminal Justice and the Challenge of Family Ties." Ethan, Jennifer and I are still tinkering with it quite a bit, as it doesn't come out until August 2007; in recent weeks, we've tried to incorporate some of the useful feedback we've received in the last few months when we workshopped it at various schools. (We still have a ways to go.) So, if you haven't had a chance to read it yet, then feel free to download it from the link here. (The one up on our regular SSRN pages has the older version still. It usually takes a few days for SSRN to "blend" the two sites.)
Finally some blog related announcements: Elaine Chiu (St. John's) was initially slotted to blog this month but will actually start blogging in December; meanwhile Scott Moss (Marquette) will show up on these pages for a return visit starting next week, through December.
Equally exciting: on December 7-8th here in Miami, a small group of us affiliated with Prawfs and/or UMiami will be doing a young scholar's workshop on public law. We're very grateful to UMiami for hosting us, and we look forward to doing these workshops on a regular basis in the future, perhaps as often as every semester, but at least on an annual basis, preferably in sunny climates. In case you're interested, the structure is designed to workshop papers that are just more than raw, but only about 1/3 to 1/2 baked. Each participant is required to assign 20 pages of a manuscript in progress to the others and to present their 20 pages or so. The presentations will be about 10 minutes long, summarizing the main claims, but the bulk of the time is reserved for questions and discussion. We'll let you know how it goes.
Finally, watch this space for announcements of a happy hour in DC during the AALS festival in early January. We will probably be co-hosting with a couple other blogs. That's all. Have a great weekend.
Formalism and Anti-formalism at the Airport
I got stuck in the storms yesterday and spent 11 hours in airportland. It got me thinking about the relationship between formalism/anti-formalism, the "war on terror," and equality norms. Below is the snapshot of those thoughts in flight...
Are we ready for a rational conversation about airport security? Maybe it hasn't been long enough. The World Trade Center has not been rebuilt; the "war on terror" goes on. The wounds are still fresh. But do we really suppose that this bizarre ritual of taking off our shoes, like penitents about to enter holy ground, divesting ourselves of all our worldly belongings, and ensuring that we are free from any bottled water -- do we really think that this is a permanent, necessary, or even effective way to ensure air safety?
Israel, which has been battling "terror" for decades, provides a useful counterexample -- though I think what is most interesting is how the Israeli method won't work here, because of our commitments to equality, and our unspoken understanding that moving away from bright-line rules to a more "common sense" system would inevitably cause problems of bias. Once again, we Americans manage to have created for ourselves a counterintuitive, legalistic, bureaucratic system -- just the kind of law we say we don't like -- because our highest norms demand nothing less.
Quick bag checks are ubiquitous in Israel: at bars, at movie theaters, and of course at any bus or train station. These checks do work; there are dozens of instances, in the last few years alone, where a would-be suicide bomber was caught by an average security guard. In many cases, the bomber detonates on the spot, killing himself and the guard, but, in being forced to do so early, failing to kill as many civilians.
Even at airports, however, there is rarely the kind of detailed inspection that is de rigeur for air travelers in America. Why not? Because most Israeli security systems now check people, not things. El Al, the Israeli national airline, is perhaps the most obvious example. El Al does x-ray and inspect every piece of luggage, but it also briefly interrogates every prospective passenger. There is an art to this process, or rather a science: finding the right question to, however momentarily, confuse and startle anyone. One time, for me, it was when I couldn't remember my cousin's name. A friend of mine, wearing a yarmulke, was asked what portion of the Torah was being read that week -- and panicked when he couldn't recall. And in that brief moment, the guard is watching for telltale signs of deceit.
Well, it seems to work -- but would it work in America?
The obvious problem with such a system is that it inevitably involves some degree of racial profiling. A security guard will, unavoidably, be more suspicious of an Arab, or a Muslim, than of an "obvious" Christian or a Jew. Yes, we all get interrogated -- but some interrogations are more intense than others, which is probably why all the Palestinians fly Continental instead.
Yet surely in America we're at the other extreme -- this ridiculous and, yes, ritualistic spectacle of a troop of girl scouts taking their shoes off because of one man, Richard Reid. Has one person ever had such an effect on so many?
Perhaps the long lines at security have now moved from grudgingly-accepted necessary evil to a rote motion that's really ignored altogether, just like the pointless safety demonstrations at the start of every flight. Or perhaps it gives people a sense of confidence, that we can lick these terrorists once and for all. Maybe -- but I don't think so. I think we all know that this system can't possibly work, and jumping through all the hoops (in our stocking feet) only serves to heighten our sense of homeland insecurity. Yes, we're doing our best -- but it's obviously not going to be enough.
There is a bright side, which is that, knowing the alternatives, the security ritual is actually more about equality than security. Of course, racial profiling still goes on all the time. Often it's not even the right "race" that's profiled; I've had Sikh friends tell me that they get heightened scrutiny all the time, even though Sikhs are not Muslims, and in fact have been fighting a low-level war with Muslims in Kashmir for decades. But when the proverbial little old lady gets pulled out of line for a random security check, it's like we're all casting a vote against it. It's as if we're saying "Of course, we know this woman isn't a terrorist. But we're not willing to pay for convenience with prejudice."
The Israeli mainstream has no such qualms. There, everyone knows what the enemy looks like, and only the Left really seems to care that hundreds of thousands of innocent Israeli Arabs and Palestinians get caught up in the dragnet. We have no choice, they say. It's a war.
(Set aside the fact that, when suicide bombings were more common, the terrorists would disguise themselves as secular Israelis, ultra-Orthodox Jews, even punk kids. The majority of Jewish Israelis are from Arab countries, after all, and once the cultural markers are taken away, it's really hard to tell Jew and Arab apart. One of the most disturbing moments in the film Paradise Now is when the familiar-looking Palestinian shaheed is transformed by a haircut, shave, and new suit into the perfect secular Israeli lawyer.)
Admittedly, when I'm stuck in the security line -- I'm writing on a plane now, and due to stormy weather have spent seven hours traveling today, with at least two more to go -- I don't feel very patriotic. The process is more annoying than edifying, and to me still carries with it the reflexive, reactive whiff of panic. Okay, Okay--NO liquids! I also think it is possible to profile people using criteria other than skin color and religious identifications -- and that it is necessary to do so, for practical as well as democratic reasons, since for every twenty Al Qaeda terrorists, there's also a Timothy McVeigh who looks as All-American as anyone.
Even that, however, seems too close to a suspect classification. As someone who often travels alone, has dark Semitic features, and doesn't shave every day, I'd probably get profiled myself. But the real problem is that ethnicity will inevitably play a role, even if we say it shouldn't. I noticed just an hour ago, for example, that when a Sikh man in a burgundy turban got on the plane, I did a doubletake, and a brief jolt of nervousness flashed through my body. A Sikh -- just like my friend.
Let alone the 99% of Arabs and Muslims who are 100% innocent.
Are we doomed, then, to waste time and money in order to maintain our at-least-official opposition to singling people out based on how they look or act? Well, maybe we are, unless we're really willing to address root causes rather than run after the symptoms. And no one seems interested in doing that. It goes against all common sense not to bend the rules, even for the wheelchair-bound old man, even for the infant. But then, that's the point of formalist rules -- to defy common sense, which is often just another word for prejudice.
Militant Moderate Musings on the Democratic Party
Thanks to the folks at Prawfsblawg for allowing me a temporary venue for sending random, half-baked, vaguely law-oriented thoughts out into cyberspace. First, a shout-out to my beloved Arkansas Razorbacks, who trounced Tennessee last weekend 31-14. So the underappreciated and long-suffering Hogs are finally getting their due from the rankings gods, having moved up to # 7 in the BCS rankings. Those of you lucky enough to be born Arkansawyers, let’s call those Hogs … Whoo Pig Sooie!
Now for the vaguely law-oriented part of my first post. For those of you who are not yet sick to death of all those water cooler conversations about the election and what it all meant (that would be myself and about five other people, all of whom live inside the Beltway), Yale Law School has an interesting e-debate on the future of the Democratic Party, at www.openingargument.com. It includes essays written by Nancy Pelosi, Ryan Sager, Reihan Salam, and – my personal favorite – Yale Law Professor Peter Schuck. Schuck, author of the recently published “Meditations of a Militant Moderate,” offers his views on "what Democrats should do to regain, hold, and justify power.” His most colorful suggestion for the Dems: Have more babies. The fertility rate of Democrats is far below that of Republicans. As Don Corleone might put it, it is time to go to the mattresses.”
On a more serious note, Schuck urges the Democratic base to “get out and meet your fellow Americans.” The base, in Schuck’s view, “seems clueless about what the rest of America is like…. The base wishes that American society were more like Europe, and America does not.”
The Rise of Bush, Bonaparte, and Hitler: Abraham Picks Up the Ball
Two years ago, at the ACS conference, Judge (and Academic Legend) Guido Calabresi kicked up a sandstorm when he analogized Bush's rise to power to the rise of the fascists in Germany and Italy. Following his comments, Judge Calabresi was admonished by the Second Circuit, and he issued an apology. Happily, academics are not typically constrained in what they might write, at least not in the United States. As Thanksgiving approaches, this is something for which we should be grateful.
On that note, I bring to your attention a piece that examines -- unwittingly -- in greater detail the claims advanced by Judge Calabresi in his offhand remarks. The essay was recently uploaded to SSRN by David Abraham, my endearing and erudite colleague here while I'm visiting at the University of Miami School of Law. The essay is short and extremely provocative, based on a set of remarks he delivered in Vienna right before the elections of last week. The piece is entitled, "The Bush Regime from Elections to Detentions: A Bootstrapped Moral Economy of Carl Schmitt and Human Rights." Here's the abstract:
This essay, presented in Vienna at an international conference on the Bush Administration and America's Future and to be published there, analyzes the Bush administration through two lenses: one developed by Marx in his analysis of the rise of Louis Napoleon Bonaparte, and the other Hans Mommsen's analysis of the happenstantial construction of Hitler's dictatorship. The essay moves through a look at the coup of 22 November 2000 and then proceeds to look at the analogous dynamics of the Reichstagsbrand/Ermaechtigungsgesetz and 9/11-USA Patriot Act. Next, the essay examines the role of sovereignty in states of exception and the role of the decider, as developed from the Weimar Constitution's Art. 48 and Carl Schmitt to John Yoo. Finally, the essay touches upon the ironic and pernicious role of radical human rights discourses in abetting an imperialist agenda. The essay concludes by considering whether the legal, moral, political, and social construct of the West, which the US has shared with Europe for over half a century, has now come to an end in an era of unchallenged, if ineffective, American hegemony.
Having read the piece this morning, let me make a couple quick comments and open it up for discussion. I think David usefully reminds us, via diagnosis, of the many sins of GWB. That is, to my mind, its signal contribution. But no doubt, that is not its only intended contribution. I'm not a historian of the Nazi regime, just an interested observer of the current scene in which the events described in David's paper have played out. Nor am I in the slightest someone who feels at ease, let alone comfortable, with the "Bushies" in power. Reading the paper indeed exacerbates my unease with the origins of the current administration as well as its excesses and omissions in so many aspects of its governance.
That all said, what I find troubling is the polemical recourse to historical analogy to the rise of fascism. As a matter of ensuring "influence" on mainstream academics and lawyers, the surer way would be to forbear from historical analysis of this sort and focus instead on granular policy analysis and a gestalt critique of the Administration, the kind seen in recent books by Suskind, Ricks, and others. Indeed, there is so much grist for the critical mill provided by the 43 Administration that there is really little need for rhetorical retreat to historical analogy. If liberals or the left can't secure majorities and make policy arguments effectively based on the last six years of misdeeds, then they probably don't deserve to win. (Happily, the reclaiming of Congress is evidence of some success in this field.)
Bracketing the merits, and thinking purely as a matter of efficacy, I see no real traction gained by likening John Yoo's worldview to Carl Schmitt's, and Bush's rise to Hitler's rise. Maybe it's my impoverished imagination. Maybe it's my fear that the lessons of history are used too often to stultify and paralyze us rather than to educate us on how to do better. To my mind, the essay, especially its unrelentingly stiff words toward the human rights community, speaks in the wrong register, and misguidedly gestures, in the name of an unknown peace promised by a mysterious realpolitik, toward a leadership fueled by pusillanimity toward the destination of moral retrenchment. That's not the leadership I'd like to see come 2008 to fix the damage done, both in America and abroad.
One point worth emphasizing, and here I draw on a gracious email David sent me before I posted this: the point of David's essay is not to make an "equation of horribleness [between Hitler and Bush]. One main point of the analogy to Germany and also to Louis Napoleon’s rule in France is to show how petty figures can bootstrap themselves into mighty figures and how dictatorships can be born of happenstance. It is the seeming ordinariness of most of these developments that should give us pause."
Thursday, November 16, 2006
"Smart Mice, Not So Smart People"
I was recently sent an advance copy of Arthur Caplan's most recent book Smart Mice, Not So Smart People. The book covers a wide-range of bioethical issues in easily digested, bite-size installments, and is written by a superstar in the world of bioethics. Speaking of digestion, Caplan accuses Yum Brands Inc. (owner of KFC restaurants and others) of hypocrisy for announcing that 1,200 KFC restaurants will ban smoking while, at the same time, the company was dressing up their "greasy, cholesterol-infused offerings" (p.11) by taking the word "fried" out of the brand name and eliminating the Colonel Sanders brand image ("He seemed to remind people that what they were eating might not be the most nutritious foodstuffs to be found on our fruited plain") (p.11).
Interpret this as you will, but Colonel Sanders is back in a big way. A very big way:
(Cross-posted at the Neuroethics & Law Blog.)
Wednesday, November 15, 2006
What Is a Student-Focused Casebook?
I am finishing my work on one casebook and hoping to start another (or two) over the next year. Of course, by "finishing," I mean that my co-authors and I still have something close to a lifetime of work remaining, when one considers the time that will be required to do an index. Nevertheless, most of the page-proofing is done and I am pleased with the way it has come out.
Doing the project, however, has caused me to reflect on the goals of a casebook. When I was initially choosing the ones I would use in my courses on constitutional law and criminal procedure, I was amazed by the number of books that purported to be student-focused or student-friendly. (I chose Farber, Eskridge & Frickey in constitutional law and Dressler & Thomas in criminal procedure, both of which take something of a middle-of-the-road position.) Nobody wants a book that is unfriendly to students for the sake of making the task of learning more difficult than it would otherwise be, but I have never quite understood whether there is more-or-less universal agreement on what a student-friendly casebook is. Do books receive more adoptions by marketing themselves that way?
My sense is that books that offer themselves as student-friendly typically edit cases heavily; ask relatively few unanswerable, philosophical questions; and include very little in the way of academic commentary. I am unlikely to adopt such a book, but I don't know that this makes me less "student-friendly." For me, the ultimate in casebooks is Hart & Wechsler's The Federal Courts and the Federal System, which stated in the preface to the first edition, "We have proceeded here on the conviction that over-simplification is no service to advanced students and have tried to put before the reader something of the breadth of background and knowledge that an experienced teacher brings to a subject -- or a teacher's manual seeks to give an inexperienced one."
The approach shown in that sentence has two important elements, as I see it. First, the casebook serves an important function by presenting a subject with some complexity. "Advanced" students who gravitate to the subject can use the text to spark research, and all will come away with an appreciation for how involved the subject is. Second, though the material should not be "over-simplifi[ed]," it should provide adequate background to allow students to approach the material knowing the way in which portions of the subject fit together. I've especially appreciated books that use this second animating principle to introduce sections with brief essays that place in context the material that follows the essays. I think doing so makes an otherwise hard and inaccessible book much more inviting, without watering-down the substance.
In short, casebooks can be student-friendly in different senses, and it really depends, it seems to me, on which students one wishes to focus on. A book, like a professor, can be student-friendly by not challenging the students, or it can be student-friendly by being a resource that will serve them well beyond the requirements of the class itself. The first approach hopes to reach more students and keep them interested in the subject by not overwhelming them with unessential details or academic debates. The second attempts to encourage the students who already have the motivation to throw themselves into the material. Aren't both approaches student-friendly in their own ways?
Am I out-of-tune with the times? Is the trend to treat casebooks as teaching tools only, or is there a market for books that are in effect hybrid casebooks-treatises? Is the "student-friendly" casebook movement concentrated in survey courses, or is there a move in that direction in the upper-division subjects as well?
Check out this Washington Post story, about nine hard-partying Georgetown students who live in a $2 million (!!) rowhouse in Georgetown and who are insisting that they are a religious community, and therefore entitled to an exemption from zoning laws about unrelated people living together.
The neighbors call it blasphemy and a possible precedent-setting threat to property values. It has impressed some of the young men's parents, including one who called it "ingenious" and another who said they were defending American property rights in the face of fuddy-duddy Georgetowners. And it has registered little reaction from the Catholic university, which says it doesn't consider the Apostles its business.
"It's between the owners of the property and the city," university spokesman Erik M. Smulson said.
So much for in loco parentis. Seriously, though, the rest of the article raises interesting questions about the creation and application of religious accommodations.
O.J. Simpson Finally Hypothetically Admits It
Suppose this post were about a famous former football star accused of murdering his ex-wife and her friend in a 1994 trial of epic proportions. If so, it might very well reference an upcoming television interview with O.J. Simpson on Fox where, according to the network, "O.J. Simpson, in his own words, tells for the first time how he would have committed the murders if he were the one responsible for the crimes." Furthermore, "[i]n the two-part event, Simpson describes how he would have carried out the murders he has vehemently denied committing for over a decade." The interview segments, which air on Nov. 27 and Nov. 29, will promote Simpson's new book If I Did It. You can find an AP story here and a video clip of the interviews in characteristically subdued Fox fashion here.
Tuesday, November 14, 2006
Friends with Benefits?
I write to recommend a fabulous paper in draft form by Laura Rosenbury (Wash U, St. Louis), "Friends with Benefits?" It can be downloaded here. Admittedly, there are only a few people in the legal academy who are interested in the legal analysis and recognition of friendship -- but I'm one of them and I learned a great deal from Laura's paper. Indeed, some of my analysis in "Friendship & the Law" will have to address Laura's very innovative approach. She's a family law person and finds that legal recognition of friendship could contribute to gender equality; this is a perspective that goes relatively unexamined in my paper in large part because I very naively attempt to cordon friendship off from the family (for reasons I explain in Part I of my paper). More, she draws upon some queer theory that has me revisiting some very basic claims in my own paper: If our conception of friendship is very heterocentric (and I think my operating conception in my paper probably is), friendship-promotion risks privileging heterosexuals -- especially if the sort of friendship we are trying to promote is the sexless kind (as mine is). Any thoughts on my heterocentrism or Laura's claim (attributed to Sasha Roseneil) below are especially welcome:
Sociologist Sasha Roseneil has summarized these phenomena by writing: “For some lesbians and gay men the boundary between friends and lovers is not clear and shifts over time – friends become lovers, and lovers become friends – and many have multiple sexual partners of varying degrees of commitment (and none). These practices de-centre the primary significance that is commonly granted to sexual partnerships and the privileging of conjugal relationships, and suggests to us the importance of thinking beyond the conjugal imaginary.”
The Foreword, and the Rest
The annual Supreme Court issue of the Harvard Law Review is now available on line, from cover to cover, at the HLR web site here. This year's Foreword is written by Frederick Schauer, and Neal Kumar Katyal presents a mixed doctrinal/personal look at the Hamdan case in his Comment. More thoughts on these articles to come as I digest them. I confess I'm one of those folks who eagerly -- nay, hotly -- awaits the Supreme Court issue and is always fascinated to see who will get the Foreword slot. I may, however, be one of only a relatively small number of readers who have enjoyed the issue over breakfast at a Cracker Barrel in the middle of Alabama. Don't write to tell me I need to get a wider set of interests. I've got my stamp collection, my early Genesis CDs, and every Saturday I cut loose with a hot cup of tea and "America and the Courts" on C-SPAN. I'm no recluse.