Sunday, December 31, 2006
The Constitution as Contract (of Adhesion)
Over at Balkinization, there is some discussion of the Constitution-as-contract metaphor. Brian Tamanaha thinks it is a useless metaphor. Some of the dynamics of the conversation are pretty interesting to me: Living Constitutionalists are said to deny the metaphor and hold it to be wholly inappropriate; only originalists are said to care about the metaphor because it helps confer legitimacy on the document. As I argue, however, in The Perpetual Anxiety of Living Constitutionalism, it is the Living Constitutionalists who should embrace the Constitution-as-contract metaphor. In particular, they should embrace the Constitution as a contract of adhesion -- with the special rules for contractual interpretation that form contracts of a take-it-or-leave-it variety can trigger.
Full disclosure: Because I teach both contracts and Con Law, I am perhaps more fond of the metaphor than is justifiable.
Intuitions About Blaming Fred
Over at Concurring Opinions, my colleague Deven Desai recently dipped a toe into the free will / moral responsibility can of worms. His post reminds me that I've got some questions about a fun and interesting experiment Eddy Nahmias, et al., did a couple of years ago. In the experiment, Nahmias, et al., used a short hypothetical to flush out college students' "folk intuitions" about moral responsibility in a deterministic world. I'll post something about the results later, but first I'm curious to know whether Prawfsblawg readers have the same folk intuitions the students had. Here's the hypothetical:
Imagine there is a world where the beliefs and values of every person are caused completely by the combination of one's genes and one's environment. For instance, one day in this world, two identical twins, named Fred and Barney, are born to a mother who puts them up for adoption. Fred is adopted by the Jerksons and Barney is adopted by the Kindersons. In Fred's case, his genes and his upbringing by the selfish Jerkson family have caused him to value money above all else and to believe it is OK to acquire money however you can. In Barney's case, his (identical) genes and his upbringing by the kindly Kinderson family have caused him to value honesty above all else and to believe one should always respect others' property. Both Fred and Barney are intelligent individuals who are capable of deliberating about what they do.
One day, Fred and Barney each happen to find a wallet containing $1000 .... After deliberation, Fred Jerkson, because of his beliefs and values, keeps the money. After deliberation, Barney Kinderson, because of his beliefs and values, returns the wallet to its owner. [The hypothetical also explains that had Fred had been adopted by the Kindersons, not the Jerksons, he would have returned the wallet].
Nahmias, et al., asked subjects whether Fred was "morally blameworthy for keeping the wallet." I'm curious to know how Prawfsblawg readers would answer (what's your folk intuition?); I'm also curious about what Prawfsblawg readers would predict "most people" would say (what are your intuitions about the relevant folk intuitions?). So what do you think? (1) Do you think Fred is morally blameworthy for keeping the wallet? (2) What do you think most people would say?
Sixth Circuit Declines to Delay Affirmative-Action Ban -- What's the U.S. News Impact?
Via How Appealing came news of this decision issued by the Sixth Circuit on December 29. As everyone knows, Michigan voters passed Proposal 2 in November, which prohibits race and gender preferences in public education, employment, and contracting in that state. Universities, which had already begun admitting students based in part on race for the class to enter in the fall of 2007, asked for a six-month delay in the implementation of the law. The court denied the request for a delay, finding no reason authorizing a federal court to interfere in the operation of this state law, but stated that state courts might be in a position to permit such a delay.
I am curious as to what will be the effect on these three law schools' -- the University of Michigan, Michigan State University, and Wayne State University -- U.S. News rankings, assuming that race and gender are actually removed from consideration in admissions and faculty hiring. (I'm also curious as to whether that effect will actually obtain.) I think it's fairly safe to predict that the academic credentials of the students in these schools will improve overall -- the whole point of the schools' arguments in Grutter, Gratz, and this suit is to permit the schools to admit minorities whose credentials would not get them admitted were it not for their race. On the other hand, to the extent that U.S. News considers only median students' test scores and GPAs, that may have allowed for affirmative action in the bottom 49% not to result in the negative impact that could be expected from a consideration of the mean credentials, so there might not be much of a change at all in the statistics that U.S. News reports. And on the other side of the ledger, whatever advantages there are to racial diversity will not be as plentiful at these schools. Will the effect be markedly different for the three law schools, which operate at different "tiers" and, I would imagine, serve somewhat different missions?
Saturday, December 30, 2006
"This Is Your Brain on Law School...": Stimulants vs My "30-Hour Day" Plan
On Conglomerate, Vic Fleischer had an interesting post about the phenomenon of law students taking stimulants to try to enhance their exam performance. One aspect of the discussion that interested me (in part because I may well have gotten something dead wrong) went as follows:
- Vic asked, "is there any empirical evidence that Adderall enhances concentration or exam performance for students without ADHD?"
- I suggested, "this [pill phenomenon] is another argument against the traditional short, rush-to-finish, closed-book law school exam, which places a premium on (1) speed, (2) memorization, and (3) intense short-term focus -- traits that really aren't at the heart of most lawyering (and certainly not at the heart of legal academic work)."
- Josh Wright disagreed: "not sure if I follow why pills which keep students up and able to concentrate for longer would yield less benefit in a longer exam rather than a 'normal' 3 hour final (btw, pills like these and others are alleged to be fairly popular in the poker tournament world where concentration and endurance are at a premium). "
Josh may well be right, but let me disclose where I got my intuition: a weird little medical experiment I once performed on myself. As a fall 2L in 1996, I was hopelessly behind on finals studying, and I somehow decided this would help: I spent 3 weeks living 30-hour days, alternating 7-8 hours sleep with a 22-23 hour caffeine-induced stupor. I did get an awful lot of studying done, but several problems arose:
- If I happened to be up at hour 23 or 24, I was near collapse -- literally. One day, I was studying at a coffee shop (caffeine!) 5 minutes from home and lost track of time; it turns out I was approaching hour 24. I almost couldn't finish the 5-minute walk home.
- My social life got complicated because every day my bedtime moved 6 hours later. I took to putting a graph paper chart on my door for my roommates showing when I'd be sleeping each day (I'm not kidding). I'd just started dating someone new, and it wasn't wonderful to have to respond to a dinner suggestion with, "unm, tomorrow I'm scheduled to be asleep 2 pm to 10 pm; can we make it an early lunch, which will be my dinner?"
- Some days I was nocturnal (e.g., sleeping 8 am to 4 pm), which was creepy and depressing.
- As I entered weeks 2 and 3, I still was getting a lot done, but I was getting dumber. My ability to focus remained, but I was getting... slow.... It was like I was living Flowers for Algernon. This is confirmed by the fact that my grades on my four finals were in the exact order I took them; the last of the four finals was the easiest but was my worst grade.
Ultimately, I concluded, the 30-hour day would be great for a few days but was close to a disaster, on both a personal and an academic level, when extended into weeks. The human body often can survive pushing its limits for a short time, but not for that long.
Friday, December 29, 2006
This will probably be my last post (thanks to Dan for having me and Paul for suggesting it), so I thought I'd end on a theme that is somewhat related to something I raised earlier in my stint. Over at MoneyLaw, there was recently a discussion as to the merits of using multiple choice questions on exams. One of the justifications offered in the comments for the use of such questions was the pragmatic concern that a full day of the bar exam is devoted to multiple choice questions and that using such questions may help better prepare students for the bar. Arguably, this justification applies with greater force to third- and fourth-tier schools. Based on my quick read of the bar passage rates included in the 2006 U.S. News & World Report rankings, at 52 of the 74 third- and fourth-tier schools that published their bar passage rates, the bar passage rate was lower than the state average. (I just eyeballed the numbers for the top 100 schools, but it seems pretty clear that the numbers are higher there.) If, as those numbers seem to suggest, bar passage is a greater concern for those of us at third- and fourth-tier schools, which of the following is most accurate: (a) this is a valid reason for using multiple choice questions on exams at those schools?; (b) the same goals could be accomplished at those schools by offering for-credit elective bar prep courses (which the ABA now allows); (c) both (a) and (b) are acceptable approaches; (d) none of the above; or (e) Bob owns Blackacre in fee simple?
The Fordham Law Review's war on my to-do list
The papers from Fordham's recent Symposium, "A New Constitutional Order," are now out, in Vol. 75, No. 2 of the Fordham Law Review. There is a lot of really interesting stuff here. If, like me, you crave avoidance-behavior-enabling mechanisms this time of year, check it out. (Many of the papers are also available on SSRN. Here -- to pick just one -- is Linda McClain's "Family Constitutions and the (New) Constitution of the Family."
Thursday, December 28, 2006
2007 Labor/Emp Works-In-Progress Conf: Denver/Boulder!
It's only been two months since a raucous time was had by all at the First Annual Colloquium on Current Scholarship in Labor & Employment Law here at Marquette -- the conference that came about from some us us grumbling, here on Prawfs, "why aren't there more of these conferences" -- and already the planning for the Second Annual is well underway! Marty Katz (U. Denver Law) tells me that next year's will be on September 27-29, 2007, split in some manner between U. Denver and U. Colorado -- both of which have shiny new buildings that I look forward to seeing.
If you'd like to be kept in the loop as further details emerge (e.g.: more scheduling info; registration procedures/deadlines), email Marty that you want to be one of his spam-ees.
For those of you not among the 50+ at this past October's event, this conference is a great way (1) to get feedback on your recent scholarship or work in progress (even if it's not written yet -- most folks' works in progress weren't) from a good number of profs who all specialize in labor/employment law, (2) to see a wide variety of emerging scholarship in the field (we had about 50 papers split into three parallel tracks), and (3) to get together with a decent proportion of those writing in labor/employment law (the 50 or so in attendance must be a decent fraction of the total body of law profs writing in the field, no?). This past year we accommodated everyone who wanted to present, though that can't be a firm promise for this coming year (after the number of presenters reaches the mid-50s, it gets hard to schedule any more!).
Thoughts on the Ethical Practice of Legal Scholarship
Earlier Ethan asked what obligations we prawfs might have (positively or normatively). The post seemed to focus particularly on attitudes expressed by prawfs about the courts of the land or perhaps political institutions generally. An astute comment on that thread raised a related question, which I thought deserved its own separate thread: namely, what obligations prawfs owe each other in the legal academy? I suspect these obligations might be compartmentalized under scholarship, teaching, and service, and perhaps a fourth one for general menschiness around "the office," physically and virtually.
In this post, I'll speak about the obligations I try to fulfill in terms of scholarship, but I want to highlight that these are chiefly aspirational, and they are likely to reflect my ideals more than they reflect my practices. I'm afraid this gap is especially more pronounced in my earlier scholarship written while I was in law school or shortly thereafter, and I hope I've gotten better about this in the last few years. (To my victims, please accept my apology in the spirit of the season.)
One of my main goals when I'm critiquing someone else's scholarship is to ensure that I've fairly and accurately characterized the other person's work. To facilitate this, I try to make sure that I send drafts of my scholarship to anyone whose work I've critiqued before it is published. (I even try to do this with work I am planning on writing about on this blog.) Anytime I'm tempted to write out of rage that someone's argument is hopelessly misguided or fabulously wrong, I try to remember how much I cringe when my own work is criticized. I drop adverbs and instead use locutions such as the claims advanced in the article "seem mistaken or inaccurate" for the following reasons... This helps focus on, what Michael Walzer wisely described, the task of "getting the arguments right." It's not about making anyone look foolish or wicked. Sending drafts of your work to the objects of criticism is also likely to vastly improve the work because you're likely to get more useful comments than you would from others without the vested interest.
A related aspect of this test -- could I show it to the objects of criticism and be assured that they will think I've acted fairly, if not charitably, toward their work -- is avoiding the drive-by characterization of or criticism against a "school of thought." One often reads something like: retributivists believe X, or utilitarians believe Y, or Crits think Q and originalists think R. To my mind, this is largely unhelpful, except in very introductory materials. Far better to name names and cite particular works of scholarship than to make vague generalizations that are more often accepted by critics of the particular school of thought but rarely accepted by adherents to the relevant school of thought. Relatedly, avoid quoting a critic of X when trying to explain what X is. Better to find an adherent of X to cite and quote than someone who thinks X is wrong or inaccurate--that's because the critic of X is less invested in actually describing X accurately than an adherent of X is.
Finally, and this is something I remember seeing from an interesting meta-piece by Richard Delgado (entitled Rodrigo’s Book of Manners: How to Conduct a Conversation on Race—Standing, Imperial Scholarship, and Beyond, 86 Geo. L.J. 1051 (1998))--if you're focusing on the arguments of a person, and you're interested in moving the conversation forward, try to ensure that you've engaged the most recent work of the scholar on the particular topic, if possible and if relevant. It might well be the case that you've found a weakness in the argument that the person has already spotted and reconstructed to make stronger--or possibly the person has renounced that argument or claim altogether.
This advice might seem obvious to many law professors, but I think it's helpful for those entering the profession and it's even more important for law students to understand and internalize as they embark on their own scholarly projects during law school. (The truth is, I wish it were something lawyers would internalize more in their own advocacy, but it's quite difficult to achieve for a host of reasons.) I'd be very curious to hear what other practices or norms you think are relevant to improving the ethical practice of legal scholarship. In future posts, we might consider the obligations we have to other legal academics in the areas of service, teaching, and general menschiness.
Over at Co-Op, Dan Solove has written a response to the discussion started here. Here's my response to Dan S., which might clarify my views on related comments here. Solove suggests that I embrace a "love my opponent" approach and that he doesn't agree with me "that one must be very deferential to those making opposing arguments." Note, here are two misreadings of what I wrote. I didn't say anything about deference to those making opposing arguments. What I said was that our focus should be on fairness and accuracy in characterizing other people's work, especially those we would criticize. I indicated that our interlocutors should be deemed as potential teachers. But that doesn't mean that there is any deference to them or their arguments or any "love my opponent" mushiness going on either. My guess is that both Dave Hoffman and my positions are being mischaracterized so that Dan can stake out a more reasonable or attractive middle position...in the service of humor and some larger point.
As to practical matters, how much disagreement is there with the following three suggestions I made? (And this I raise in response to comments below by Ethan or Kate or Dave H. or Dan S., or anyone else):
1) have I characterized the work of the other person fairly and accurately such that if I were (notice the hypothetical here) to show the draft to the object of criticism she would say you have not distorted my meaning? (I mentioned that I actually try to follow up on this by showing the work to those I criticize before I consider it finished. I recognize that not all think it's obligatory, but is there any downside to doing so?)
2) Does anyone disagree with the claim that what I called drive by characterizations of schools of thought are less helpful to academic debate than engagement with specific claims by specific authors?
3) Does anyone disagree with the claim that one should try to engage, if relevant, the most recent work of the person on the given subject to avoid the potential pitfalls I spotlighted in my post?
If these three points are in contention, I'd like to know. I'd also like to know if there are any other constructive ideas about how to realize the ethical practice of legal scholarship. Tony's comment about theft of ideas probably deserves another thread altogether, but feel free to weigh in on that too.
Wednesday, December 27, 2006
Packing for a visit
I'm packing up for a visit this spring at another law school. A question for those who have done it, or for anyone else with a thought on the matter: What should I take from the "home office"? Will I miss "my" copies of books, if I decide not to box them up and to rely instead on my host-school's library? What about office-tchotchkes, pictures, goofy Justice bobble-heads, etc.? What does one need to feel at home? Or, does it make more sense to avoid trying to feel too comfortable, too much the same?
Canons of Professional Professorial Conduct
The Third District Appellate Court of California's Court of Appeals has just issued People v. Zackery. Among the issues in the case is the trial court's remark that the higher court is a "kangaroo court." Relevant piece and comments after the jump:
During the change of plea hearing . . . defendant’s counsel indicated defendant was prepared to withdraw his not guilty pleas and enter no contest pleas as to all counts. The trial court, Judge K. Peter Saiers presiding, then asked the prosecutor, “You’re going to dismiss Count Two, aren’t you?” The prosecutor responded, “No, it’s a strike case.” To this, Judge Saiers replied, “Oh, that’s right. You can’t offend the kangaroos up there in kangaroo court.”
This was a perjorative remark. Thus, Webster’s dictionary defines “kangaroo court” as follows: “kangaroo court n (1853) 1: a mock court in which the principles of law and justice are disregarded or perverted 2: a court characterized by irresponsible, unauthorized, or irregular status or procedures 3: judgment or punishment given outside of legal procedure.” Webster’s 11th Collegiate Dict. (2006) p. 681.)
. . .
The kangaroos are described as being “up there.” This implies a higher court than the trial court--higher in the sense that the “higher” court reviews the work of the trial court. As a practical matter, that leaves the Court of Appeal for the Third Appellate District and the California Supreme Court. We will give Judge Saiers the benefit of the doubt and assume he was referring to this court, not the Supreme Court.
In making his “kangaroo court” remark, on the record in open court, Judge Saiers violated Canon 1 of the Code of
Judicial Ethics, which provides as pertinent: “A JUDGE SHALL UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE JUDICIARY. [¶] An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved. The provisions of this Code are to be construed and applied to further that objective.” (
Cal. Code Jud. Ethics, canon 1.)
Ouch. Still, I wonder whether we can really expect lower court judges never to express their views about the wisdom of higher court opinions. I suppose one can argue that trial judges should at least be deferential and more civil in their expressions. But is the integrity of the judiciary really at stake in this one judge's comments? keep in mind that Canon 1 has never been stretched this far: It has been applied against judges in bar fights, judges that don't recuse themselves when they should, judges that expose their employees to pornography, judges that force their secretaries to babysit, and judges that take inappropriate fees.
Here's a related question: Are law professors bound by some unspoken canons? Can Con Law professors mock the highest court in the land? Can we tell students that certain courts are effectively lawless? Can we tell students that most of our Article III judges don't write their own opinions? Or would these pronouncements contribute to undermining the integrity of the law? Is our role to help the priests-in-training remain believers -- or to shake their faith?
H/T Larry Haveson
Grants and Legal Scholarship
My collaborator Yuval Feldman, an experimental psychologist and law professor at Bar-Ilan and I are launching an empirical study to better understand individual behavior, motivation and organizational and regulatory incentives in reporting illegalities in complex organizations. We are in the midst of applying for grants to fund a rather ambitious survey sample. In the process, we have discovered that many well know grants do not have the category of “law” as a field. It seems to be a historical, outdated oversight to assume that law research does not require funding. I am wondering if others have confronted this issue. Which are the most relevant foundations / grant givers for legal scholarship? Are the traditional exclusions of law as an area of study about to change, as more and more legal scholars conduct empirical research?
Tuesday, December 26, 2006
I'd like to teach Brand X in my Legislation course next term. Can anyone recommend a well-edited version of the case? Since I don't teach Admin, I don't get innundated with Admin casebooks, where I take it the case appears.
Sunday, December 24, 2006
For those of you with kids who have not gone to bed yet, check out this site.
The Right and criminal-justice reform
An interesting read, in the New York Times Magazine, about the right's "jailhouse conversion" on a number of criminal-justice and prison-reform issues, including the "Second Chance Act." If the shift in "conservative" thinking described in this piece is real -- and, I am inclined to think it is -- it is a very positive development, I think. I was struck by this passage:
Over the past decade, as the political scientists William Galston and Elaine Kamarck have suggested, the culture war of the 1970s and 1980s that revolved around race has been replaced by one that revolves around religion. A side effect has been a radically different crime debate. If the Second Chance Act fails to pass, it will not be because the two parties cannot agree on the importance of rehabilitation programs in prisons. But it may be because they disagree on the role religious organizations should play in rehabilitation. . . .
By passing the Second Chance Act, Democrats can acknowledge that the Christian desire to improve the lives of prisoners is more than a mere proxy for evangelism. And in doing so, they can re-embrace a cause of their own: the creation of a criminal-justice system that is more humane and more just. The current moment is, in Michael Jacobson’s view, “the best opportunity of the last 25 years for altering the way in which the United States has used incarceration.” But if that moment is to be seized, if there’s any possibility to reform a prison system that almost everyone thinks has failed, both parties are going to have to rely, at least a little bit, on faith.
Thursday, December 21, 2006
I received some very interesting comments on my post about how to make Westlaw more user-friendly and on my post about whether Wikipedia citations are appropriate in scholarship. I was talking about these topics with another lawyer, and we soon began to discuss how Westlaw and Lexis could improve their services by incorporating open-source-style suggestions. For example, if you discover that a red or yellow Westlaw flag is inappropriate or that a case disposition is inaccurately described, Westlaw should provide an easy opportunity to make that suggestion and have the issue reviewed. Westlaw could then focus its corrections on those areas that get the most user attention. I'm sure there are somewhat inconvenient ways of suggesting corrections now. Perhaps Westlaw fears that an easy feedback option would remind us of how fallible its services are.
A more extreme solution would simply have all this legal analysis done Wikipedia-style. I have no idea whether this would work. It also raises some interesting professional responsibility issues. Presumably, attorneys would have to stop the clock when they spend time improving open-source legal knowledge, even though such work has the potential to ultimately save clients money in the long run. There might also be confidentiality/strategy issues that need to be addressed: If I can tell what cases my adversary is looking at, then I may be able to better prepare my briefs. I'm sure you can hide IP addresses and the like; however, if changes are made about a very narrow issue of law in a small jurisdiction, one might gain some clues about the work of one's adversaries.
So would this more extreme strategy work and who wants to get it started?
Jan. 3d, 9pm at Cloud: Our 2d Annual AALS Bloggy Happy Hour
Friends, please join us for an AALS tradition in the making. On Wednesday, January 3rd, at 9:00 PM, we'll be co-sponsoring a happy hour at the AALS conference. The venue will be Cloud, located at One Dupont Circle, Washington, DC (right off Dupont Circle at New Hampshire Avenue). Many of us from here and the good folks at Co-Op will be there. If, like some of us, you'll be at the receptions being hosted by the casebook publishers, then feel free to stop on by after. We'll be in the back bar area, where it was last year.
Course on "Standards of Review"
A comment on David Post’s recent Volokh discussion of assigning edited vs. unedited cases stated as follows:
Standard of review. Standard of review. Standard of review. That's always what the casebooks take out, and it's often the dispositive part of the opinion. And it's usually not the job of _any_ particular class to cover it, so it's possible for students to graduate with only a passing awareness of the concept. It should be drilled into them, at every opportunity.
Understanding how to apply standards of review is of enormous importance (it’s raised difficult issues for me on my Journal, while clerking, in practice, even last week in a faculty meeting). And I don’t think students get a good enough sense of how important it is. In fact I’d love to develop such a course; has anyone done so? Or do people include such discussion as part of other courses? There’s a great book, Childress and Davis’s Federal Standards of Review (3d ed.), though perhaps it's dated now. My hesitation has always been working it into a full-length course—though one might incorporate empirical analysis, comparative analysis, historical perspectives. . . .
Parenting Around the World
Recently, I have been on two flights that revealed alot about cultural differences in what is regarded as acceptable parenting. On the first flight from New York City to Hong Kong, I noticed a relatively high number of Chinese infants between the ages of several months to one year old. I counted over twenty such infants. They were all traveling with their mothers and without their fathers. My travel companion explained to me that these mothers had given birth to these children in the US but were taking them back to Hong Kong and other parts of China in order for relatives to take care of them. The moms would then return to the US and work in their full-time jobs without having to worry about childcare arrangements. Once the infants were old enough to attend school, their parents would fetch them from their distant relatives in Asia and bring them back to the US to live.
On the second flight, I was going from Hong Kong to a resort in Thailand and seated near me were two nannies watching a pair of very young siblings. The status of the two women as nannies was fairly obvious since they appeared to be southeast Asians and their young charges were Caucasian. The parents were not around. The nannies and the children struck me as an unusual sight because nannies and children traveling on an airplane without parents is a rarity in the US. The sight made me realize that children in Asia may be left in the care of nannies more significantly than in the US.
Both these flight observations reveal how the central meaning of what it means to be a parent in the US is significantly different from what it means to be a parent in Asia.
Parenting in the US is defined to include day-to-day tasks and residing with your children while parenting in Asia does not necessarily involve either one. Instead, it seems perfectly acceptable for parents not to live with their children and for parents to have others perform the day-to-day caring for children. Indeed, even two of my personal friends in their thirties who grew up in Asia were apart from their parents for several years as children. In Asia, day to day care is less important than being able to provide economically for children. If the demands of work require parents to find alternative daily caretakers for their children, then so be it.
The different approaches to parenting in the US and in Asia are not merely interesting facts, but pose problematic challenges for child welfare laws. Immigrant parents are often the subject of abuse and neglect proceedings because of such cultural differences. For example, a recent case in Tennessee involved a Mixtecan mother charged with neglect because among other things, she had left her adolescent daughter in the care of an adult sibling while she went off to do farming work in Virginia. Perhaps the Mixtecan culture is similar to the Asian view of parenting, but because Tennessee child welfare laws are contrary and follow American ideals of parenting, this mother almost lost her child to the state. Thus, such cultural differences are not simply important to know, but they are also essential for the law to consider.
The Perfect Gift for the Prawf
It's that time of year -- parades, lights, candles, eggnog, latkes, and giving and getting things you never knew you needed. So, any nominations for the perfect gift for a law professor? What is it we need, appreciate, enjoy, crave, or were too ashamed to buy ourselves?
I have a couple of ideas. One is a Buddha water drawing board, to remind the prawf that our art is a work in progress. The water board helps us practice not getting too attached to anything we create. We draw something and set it free. Us prawfs are in it for the long haul and we want some of our thoughts to evolve, fade, and draw new ones on top of what we already put out.
Of course, if one looks around enough, they may run into a website such as the lawshop.com or forcounsel.com or gifts-for-the-legal-profession dot com, https://www.e-corporategifts.com/legal_gifts.html. But does anybody really wear "the constitution tie" or "the legal dictionary tie"?
Wednesday, December 20, 2006
The Perpetual Anxiety of Living Constitutionalism
I have uploaded my short draft, The Anxiety of Living Constitutionalism, to SSRN. Here's an abstract of the essay, which is a reply to Jack Balkin's Abortion and Original Meaning for Constitutional Commentary:
It certainly seems like the originalists are winning. Professor Jack Balkin – finding that he couldn't beat 'em – joined them. Living constitutionalists used to turn to Balkin as a reliable advocate; he recently wrote "we are all living constitutionalists now." But Balkin has forsaken them. Losing such an important advocate might be a sign that what some once deemed the "ascendant" and dominant theory in constitutional interpretation is on the decline. Still, don't count living constitutionalism out of the game just yet.
I'm hopeful that I will have an opportunity to fix it up before publication -- so please send your comments.
Tuesday, December 19, 2006
What's Next for Student Legal Scholarship in the Age of Blogging?
Over at the Yale LJ's Pocket Part, Anthony Ciolli, a Penn Law student who is also Chief Educational Director of autoadmit.com, has posted "Much Ado About Nothing: Why Student Scholarship Has Nothing To Fear from Blogs." It's a Response to our own Steve Vladeck's piece, "That’s So Six Months Ago: Challenges to Student Scholarship in the Age of Blogging."
Shortly after the popularization of the World Wide Web in 1996, Professor Bernard Hibbitts proclaimed that “[t]he next decade could witness the end of the law review as we know it,” for cyberspace would allow law professors to “finally escape the straitjacket of the law reviews by publishing their own scholarship directly on the World Wide Web.” Earlier this fall, Professor Stephen Vladeck made an equally bold—and equally erroneous—prediction in stating that “[t]he days of the case note . . . may well be numbered.” Ten years later, we now know that Professor Hibbitts’s prediction did not come true. In this Response, I will explain why Professor Vladeck’s prediction will also not come to pass
It's not clear to me that Hibbitts is totally wrong, even if Steve may be--I'll let Steve answer Anthony directly. It's true that most law reviews haven't kicked the bucket since 1996, but consider: many prawfs are posting things on SSRN or bepress or on their own websites that might not be going through law reviews at all. Additionally, some folks might say that some blog posts by prawfs are themselves online scholarship. Finally, more law journals are now faculty edited and published only online. See, for example, the new Journal of Tort Law. That's not to say the law review is gasping its last breath now, but legal scholarship is certainly evolving with technology in the last ten years. In any event, check out Anthony's interesting contentions about the distinctive purposes of blogging by prawfs and student scholarship.
This time of year, however, it's usually the free booze, Ecstasy, and mistletoe.
In the good news department, today's NYT reports that Senator Brownback is lifting his block on Janet Neff, a nominee for the federal bench. I don't know Neff or whether she should be confirmed on the merits, but I'm glad that Brownback's reason for opposing her has been reconsidered. Earlier, Brownback explained his opposition to Neff for this asinine reason: she had once attended a same sex commitment ceremony. In case the obtuseness of this position wasn't facially obvious, the NYT brought in my former con law professor to give this detailed response:
Charles Fried, a Harvard Law School professor and leading conservative scholar, said Mr. Brownback’s actions were improper. “First of all, people go to parties for all sorts of reasons,” Professor Fried said, and how one would rule on a case should not be inferred from that private activity.
When this reason was ventilated to the public, Brownback backpedaled from that, floating a "compromise" that he would let the nomination go forward on the condition that Neff recuse herself from cases involving same-sex marriage issues. Fried was having none of that either:
Further, he said, “It would be inappropriate for the judge to recuse herself from any such case because it is a judge’s duty to sit on cases” unless there is a clear conflict of interest. There would be a genuine conflict of interest, he said, if the judge had a financial interest in a case’s result or had been associated with one of the parties in the case. “For her to agree to any such restriction in this case would be wrong,” said Professor Fried, who has been both a judge and the solicitor general of the United States.
Glad that's settled.
Unionize! (or I'll slap the Figure Four on you)
-- The Nature Boy, Ric Flair
One of the more interesting topics I saw presented at the Employment Law Conference that Blogs Built was John Hall's talk on workplace safety in the pornographic film industry. (The only reason I went to this particular session was because of my deep interest in workplace safety. Really.) The thing that was most striking about Professor Hall's topic was, given the obvious risks of contracting sexually transmitted diseases, just how badly porn actors are in need of legal protection and just how little protection California safety and health officials actually provide. According to Hall, this is an area in which California health officials have more or less turned a blind eye.
Hall's talk eventually got me thinking about another industry that has largely been ignored by the law and those who enforce it: the professional wrestling business. Like the porn industry, professional wrestling is a high-risk business for performers. The number of professional wrestlers who have died young in the past few years is truly frightening.
In many instances, the cause of death appears attributable, in part, to abuse of painkillers, steroid abuse, and/or general physical abuse resulting from risky on-the-job behavior. Like performers in the porn business, wrestlers take sometimes extreme risks in terms of their job performance. While modern wrestlers spend less time in the ring than their predecessors, their style of wrestling has far more potential for serious injury. High-risk maneuvers -- such as flips, leaps from the top rope to the floor, and unprotected chair shots (i.e., smacks to the head with metal chairs) -- are far more common now than in the past as workers try to push the envelope to keep the attention of the public. The risky behavior doesn't end in the ring, however. Steroid use is reportedly widespread in the business. As a result of these factors, the potential for sudden paralysis (see Darren Drozdov) or death (see Owen Hart) is fairly high. So too is the potential for long-term, chronic pain (see the Dynamite Kid), a condition frequently treated by copious amounts of painkillers (see Kurt Angle).
Like performers in the porn industry, wrestlers are easily exploited. Because they are classified as independent contractors, wrestlers are not entitled to collect workers' compensation, so working with serious injury is a common occurrence. Unlike football players, wrestlers don't have pensions. They don't enjoy employer-provided health insurance. State athletic commissions generally take a hands off approach. (At least as of a few years ago, Oregon was the only state whose commission tested wrestlers for steroids. Coincidentally (?), the WWE didn't run shows in Oregon.). In short, this is an industry that is largely unregulated to the detriment of the performers.
So, if the law won't protect wrestlers, what's the solution (short of siccing Professor "Samoa Joe" Slater on management)? Unionization might be one possibility, but it would be a tough sell. Because there are plenty of people who dream of being a wrestler, the performers are often quite willing to assume risks workers in other industries would never tolerate. Years ago, Jesse "the Body" -- later "the Governor" -- Ventura actually tried to organize the WWE (then the WWF). According to Ventura, however, he was ratted out to management by one Hulk Hogan.
In discussing all of the above, I don't mean to overstate the seriousness of the situation. There are plenty of occupations out there in which workers earn far less money and face greater health risks (say, coal mining, for example). But there is something at least slightly offensive to me about the fact that lawmakers and regulators are unwilling to take steps to protect those such as wrestlers and porn actors because (I surmise), in part, they don't want to associate themselves with such "embarrassing" industries.
Framing Constitutional Restraints
Over at Slate, Emily Bazelon (erstwhile Dorito) has a plaintive essay about the perils of court-stripping in the MCA context and bar-raising in the AEDPA context. In the course of explaining why Salim Ahmed Hamdan, a detainee from Gitmo, had his case dismissed in federal court, Bazelon writes that
The problem for Hamdan is that he's a noncitizen whose contact with the United States has been "involuntary"—he's in Guantanamo because the military grabbed him and put him there. The MCA stripped Hamdan of the rights to habeas corpus granted by federal statute. There are also constitutional rights to habeas. But noncitizens like Hamdan don't have the sort of "substantial connection with our country" that justifies invoking the constitutional right to habeas corpus, the Supreme Court ruled in 1990, in United States v. Verdugo-Urquidez.
I'm assuming Emily's got the analysis right, and I invite Steve or Marty or others to help me out with this issue, but it strikes me that one thing that's problematic -- from a political theory perspective at least -- regarding what happened to Hamdan here is that we're looking at what rights and remedies a person can have, based on the constitution, rather than what restraints a liberal democratic constitution imposes on the government. These are often related, obviously, but here, because of the framing, it looks as if Hamdan's out of luck because of the lack of substantial connection to the US. What that suggests is the US government has carte blanche against foreigners, at least with respect to false imprisonment. If we framed the inquiry of what government might reasonably and permissibly do, because it happens in our name, rather than what government might do because of the status of the complainant, we might have quite different answers.
I suppose one reason we have the status quo here is that federal courts are of limited jurisdiction over actual cases and controversies, and that has led to a parsimonious strategy to limit access to the courts because of standing doctrine. I wonder, again more as a political theory matter than as a current legal issue, whether jurisdictional stinginess is defensible, especially in situations when the Leviathan of government snatches persons from other states and sticks them in places like Gitmo, where they have already demonstrated themselves to be batting an abysmal average in terms of accuracy. H/t to Jason at Scotusblog.
Monday, December 18, 2006
Enforcing Word Limits
I'm in the midst of grading, and have run into a problem I had not yet encountered in my (admittedly short) teaching career:
On my Federal Courts exam, I have strict word limits for each question. The students are directed to answer three short-answer questions (from a list of five) and an essay question. The word limits on the short-answer questions vary, but are generally ~200-250 words.
The problem: I just finished reading a student paper that was very good, but that was over the word limit on each question. Way over. Examples: For one short-answer question, with a 250-word limit, the student wrote 495 words. For another question with a 200-word limit, the student wrote 408 words, and for the third question, also with a 200-word limit, the student wrote only 315 words.
The question is how to take this flagrant disregard for the word limits into account. Clearly, some penalty should be imposed, or else it would be unfair to all of the students who abided by the (rather draconian) limits. And it's not like I wasn't clear that there would be word limits, and that those limits would be enforced; I was. So, do I just stop reading at word-limit-plus-one, or do I reduce the overall grade for the answer by some fixed percentage (and if so, what?). I've never been the biggest fan of the former approach, because it's hard to stop reading mid-sentence.
So, my tentative course of action is to grade the answer in its entirety, and then reduce it in proportion to the percentage of excess words. Thus, for the questions for which the student wrote twice as much, halve the grade; for the question for which the student exceeded the word limit by 50%, take 1/3 off the grade for that question.
But I'm curious for others' thoughts. Am I being too harsh? Not harsh enough?
If you like impressions as much as I do ...
OK, here's a major grading diversion. You can thank me later. This is a clip from Letterman a few weeks ago, featuring impressionist Frank Caliendo. Enjoy. Caliendo is supposed to be on Letterman again tonight, according to Caliendo's website.
Last Name Changes and Equal Protection
Many of my students are undoubtedly sick of my sanctimony when it comes to my beliefs about last names. I tend to feel rather strongly that women shouldn't take men's last names (I know, I know: they are usually their father's name!) and that children shouldn't be given their father's last name. Although one might think it is inappropriate to discuss these personal matters in contracts class, the issue actually comes up in a number of canonical cases. Well, the issue itself doesn't come up as central to the case; but it is a good excuse for a fun digression.
Irrespective of your views on these questions, however, I take it you'd agree that it should be as easy for a man to change his name to his wife's upon marriage as it is for a wife to do the same. If it is just a personal choice for which no one should be judged, that choice should be able to be made freely and without discrimination. Alas, no such luck in California. And the ACLU is trying to do something about it:
The ACLU of Southern California today will ask a federal court to bring marriage in California up to date by making the rules for a husband who wants to take his wife’s last name the same as for a wife taking her husband’s. Men must now pay court fees of more than $300 and advertise the name change in a newspaper. Women who choose to take their husband’s name when they wed pay only a $50-$80 marriage license fee.
Only six states recognize a statutory right for men to take their wives’ last name. They are: Georgia, Hawaii, Iowa, Massachusetts, New York, and North Dakota. No data exists on how common the practice is.
I may give them a small donation this year.
We discussed the matter once before here.
One of this year's big ideas, according to the New York Times Magazine, is "creative shrinkage," i.e., a strategy employed by struggling cities to "shrink [their] way into a new identity," rather than grow their way back to prosperity:
At its peak, Youngstown supported 170,000 residents. Now, with less than half that number living amid shuttered steel factories, the city and Youngstown State University are implementing a blueprint for a smaller town that retains the best features of the metropolis Youngstown used to be. Few communities of 80,000 boast a symphony orchestra, two respected art museums, a university, a generously laid-out downtown and an urban park larger than Central Park. “Other cities that were never the center of steel production don’t have these assets,” says Jay Williams, the city’s newly elected 35-year-old mayor, who advocated a downsized Youngstown when he ran for office.
Williams’s strategy calls for razing derelict buildings, eventually cutting off the sewage and electric services to fully abandoned tracts of the city and transforming vacant lots into pocket parks. The city and county are now turning abandoned lots over to neighboring landowners and excusing back taxes on the land, provided that they act as stewards of the open spaces. The city has also placed a moratorium on the (often haphazard) construction of new dwellings financed by low-income-housing tax credits and encouraged the rehabilitation of existing homes. Instead of trying to recapture its industrial past, Youngstown hopes to capitalize on its high vacancy rates and underused public spaces; it could become a culturally rich bedroom community serving Cleveland and Pittsburgh, both of which are 70 miles away.
Youngstown’s experiment has not gone unnoticed. Williams’s office has already fielded calls from officials in a few of the many American metropolitan areas that have experienced steep population drop-offs. When cities hit rock bottom, it seems, planners can find new solutions for urban decay — if they are willing to think small enough.
In the land-use and local-government areas, there's been a lot of work done on annexation and secession. I wonder, if "creative shrinkage" catches on, can we expect a wave of efforts by cities to slough off unwilling, perhaps previously annexed neighborhoods? (Of course, the Times piece is not so much about changing the political boundaries, only about limiting new construction and capturing open spaces.) I don't know this field, but is there precedent for cities (let's assume we're talking about "home rule" cities) kicking out -- i.e., returning involuntarily to unincorporated status -- parts of themselves?
The Legal Theory of "Stairway"
In his "Legal Theory Lexicon" post on "path dependency", Larry Solum works in a nice little "Stairway to Heaven" reference:
Sometimes, if we choose the left fork, we may be able to reach exactly the same destinations we could have reached via the right fork, but sometimes, our choices foreclose some possibilities altogether. It isn’t always the case that in the long run, there’s still time to change the road you’re on.
In so doing, Larry skillfully manages to communicate meaning through lyrics taken from a song that -- although I spent countless hours learning how to play it -- always struck me as meaning-challenged. But now, I'm inspired, and will try my best to work obscure Zeppelin references into my law-blogging. Starting next time.
Inside Edition: How Law Reviews Select Manuscripts by Tony D'Amato
It just so happened that as I was reading Daniel Solove’s post “A Guide to Grading Exams,” I recalled between laughs a conversation about law-review selection of manuscripts that described a strikingly similar methodology. I was having a late snack in the dining hall of a large university, and the only other person there was a janitor. We talked about various things, including his work in the law building. He gave me some information which I think may be of general interest. However, he said that if I ever published our conversation, I should leave his name out of it. As a Venezuelan here on a green card, he is at the top of the list of undesirable aliens as compiled by Homeland Security. On that list, Venezuela comes first, followed by Bolivia, Cuba, Al Qaeda, Taliban, and documentary film makers. But all that aside, here is our conversation, after the jump.
D’AMATO: Do you know who actually does the work in selecting manuscripts that professors submit for publication in the law review?
JANITOR: Yes, it’s basically an office boy—a high school kid who works there for a couple hours a day—and me, if you want to include me.
D’AMATO: How come you’re familiar with all this?
JANITOR: I’m an expert in Buildings and Maintenance. I’m very interested in what comes in and goes out of campus buildings. Is it called GIGO or something like that?
D’AMATO: I wouldn’t know. But tell me about the office boy. What does he do?
JANITOR: He’s in charge of collecting manuscripts that come in. He opens envelopes and takes the manuscripts out and puts them in a pile on a chair near the back door.
D’AMATO: Wait a minute, I thought most manuscripts these days were submitted electronically.
JANITOR: That’s true, but in order to give every manuscript an equal chance, the kid prints out the manuscripts that are submitted through the computer. Then there’s this huge stapling machine next to the printer, and he drives a staple through the corner. Then he places it on top of the exact same pile on the chair near the back door.
D’AMATO: Well, they could give each manuscript an equal chance by requiring them all to be sent in by mail.
JANITOR: Some kind of urban legend about stink bombs in envelopes. Whatever the reason, though, you’re right, they prefer computer submissions.
D’AMATO: Don’t they give the ones that come in electronically a tracking number?
JANITOR: Yes they do. They give them TS216.
D’AMATO: You mean the same tracking number?
JANITOR: Yes, everyone gets the same tracking number.
D’AMATO: What if an author wants a progress report on his manuscript?
JANITOR: They all get the same automated reply: “Thank you very much for writing to us. Your manuscript is still under active consideration by the editors. As you know, it is our policy not to return manuscripts.”
D’AMATO: What if an author writes in that two other journals are bidding for her article?
JANITOR: The office boy deletes all messages of that kind.
D’AMATO: Are you saying that even if an author wants a progress report six months after submission, he gets the same automated reply?
JANITOR: Six months? I think the record is eight and a half years.
D’AMATO: What does the “TS” stand for in “TS216”?
JANITOR: I have no idea, but I heard that the T stands for “Tough.”
D’AMATO: Does the pile of papers get pretty high?
JANITOR: Oh yes, when it gets to about 40 or 50 manuscripts, the kid picks up the papers and goes out the back door and throws them down the back stairwell. He does this three or four times a day, I reckon.
D’AMATO: I take it we’re now talking about the selection process?
JANITOR: Yes. Every once in a while one of the editors goes around to the back door and picks up the nearest manuscript. You understand, that’s the one that will have traveled the farthest down the stairs.
D’AMATO: I see. Does this mean it’s a better manuscript?
JANITOR: Yes it does. An editor told me the one that goes the farthest has legs.
D’AMATO: What if two manuscripts are tied?
JANITOR: You mean, they are exactly the same distance to the door that the editor opens?
JANITOR: Well, actually, it does happen. In the past the editor used to look at the names of the authors and throw the one with the male name back on the stairs and keep the one with the female name.
D’AMATO: That was in the past? What do they do now?
JANITOR: I think the current board’s policy is to pick the one with the male name and throw back the female one.
D’AMATO: Well, policies change.
JANITOR: Yes. That’s what makes my job so interesting.
D’AMATO: Let’s go back to something you said a moment ago. You said an editor picks up the winning manuscript every once in a while. Why not every day?
JANITOR: They only pick one up if they need it to fill the current issue of the law review.
D’AMATO: I see. Fairly efficient of them. But now I’m thinking, doesn’t the back stairs get pretty clogged up?
JANITOR: That’s where I come in. I pick up the papers once a week and truck them over to the storage area under the football stadium.
D’AMATO: A pretty large storage area?
JANITOR: You bet. The whole university could be relocated down there.
D’AMATO: What happens to all the papers?
JANITOR: You’ve heard of our big homecoming bonfire? Nice talking with you.
D’AMATO: Same here. And say hello to Hugo Chavez.
Tony D'Amato is a law professor at Northwestern.
Saturday, December 16, 2006
The Need to Excuse
For the past two weeks, newspapers in New York and around the country have been covering the latest shooting of unarmed civilians by the NYPD. One of the three civilians, Sean Bell, died in the early morning hours of what was supposed to be his wedding day. Shakespeare could not have imagined a more compelling tragedy.
The public reaction was swift and fierce. Local politicians issued statements, the family and the city mourned, and attorneys began their media campaigns. Commentators also threw in their two cents. What they all sought to understand was how five police officers could fire fifty bullets at three unarmed civilians, how last year police fired forty-three bullets at an armed man and how in 1999, the police fired forty-one bullets at unarmed Amadou Diallo.
Interestingly, many of the theories offered centered on the legal doctrine of excuse. A New York Times article suggested the phenomenon of contagious shooting where officers shoot mostly because their fellow officer is shooting. Police experts likened contagious shooting to the spread of germs, to reflex, to instinct and to automated Pavlovian response. Yet another commentator described how the rush of adrenalin impairs the judgment of officers. These purposeful portrayals invoke the powerful concept of involuntariness that lies at the heart of excuse doctrine. Don't blame the actor; instead, blame an uncontrollable disability that they do not choose to have. This disability is what causes the actor to commit the harmful offense. This overwhelming and immediate desire to explain what happened to Sean Bell in terms of excuse is understandable. It allows the alleviation of guilt without the denigration of the loss of a human life.
But the reality is more complex and nuanced than these excuse-based theories. There are important elements of rationality and reason being ignored in these shootings. When officers assess whether a situation rises to a threatening level of danger, they consider numerous factors. Certainly, amongst these factors are the beliefs and judgments being formed by their fellow officers at the scene. Indeed, the nature of the undercover operation in place at the time of the shooting relies on the sharing of beliefs and perceptions among fellow officers. Thus, when an officer shoots because he has just observed his fellow officer shooting, it is not instinct or disease taking over; it is arguably reasonable and rational behavior.
In other words, the police officers could be presenting a very different defense: They chose to shoot because at the time they had good reasons to believe they needed to do so. Among these reasons was the fact that their fellow officers were shooting, presumable because they perceived a lethal threat. Ultimately, they all turned out to be wrong. Sean Bell and his two friends were unarmed. However, the criminal law allows for mistaken justification defenses. Such defenses answer the call for more nuanced and complex analysis of these difficult shootings. And yet, so many feel driven to claim excuse based on instinct, on reflect, and on automatic behavior. Why is that? Somehow, it is regarded as unpersuasive and unappealing to ignore 20/20 hindsight and to plead a case for reasonable, rational behavior.
Friday, December 15, 2006
Here is a link to some of the recent takes on the Latke v. Hamentash debate.
Today I taught in two classrooms - pre-school and pre-k - talking about the celebration and miracle of Hanukkah. The focus was on the lesson of tolerance, diversity, and freedom and perhaps there was enough interest sparked in the young minds that in 20 years from now, they too will decide to go to law school and deepen their study of civil and political rights...
Happy Holidays to All!
Favorite Magazine Articles for 2006
Yesterday, in the course of selecting his favorite magazine articles from the year, David Brooks spotlighted this magnificent New Yorker piece by Cal Trillin, reflecting on the passing of his wife, Alice. I remember reading this piece on an airplane, barely a month after I married Wendi, and weeping. As Brooks notes, the piece is very difficult to summarize, but there are countless gems embedded in it. Here are the excerpts Brooks highlights from the piece with minor redactions:
“Do you feel more comfortable with attractive women because you don’t have to worry about being resented?” Trillin asked Alice when they were young. “She looked at me as if I’d intruded on something that was meant to be private.”
Later, he writes, “When it came to trying to decide which theories of child-rearing were highly beneficial and which were absolutely ruinous to the future of your child — a subject of considerable discussion among some parents we knew — we agreed on a simple notion: your children are either the center of your life or they’re not, and the rest is commentary.”
At one point, Alice was working at a camp for children with genetic disorders. She wondered how one child, L., could be so cheerful, even though she neither grew nor could digest food. Then she saw a letter from L.’s mother: “If God had given us all of the children in the world to choose from, L., we would only have chosen you.” Alice pulled aside Trillin: “Quick. Read this. It’s the secret of life.”
In light of yesterday's discussion about the difficulties associated with saving your children's art, it might be worth considering Alice Trillin's point of view on related matters:
By now, my wife’s policy on attending school plays (a policy that also covers pageants, talent shows, revues, recitals, and spring assemblies) is pretty well known: she believes that if your child is in a school play and you don’t go to every performance, including the special Thursday matinée for the fourth grade, the county will come and take the child.
Any nominations of your own for your favorite magazine article (law or non-law related)?
Thursday, December 14, 2006
One Way to Conduct Empirical Legal Scholarship
Peter Hook has an interesting piece on SSRN, in which he maps, using various statistical techniques, the "topic space" of Supreme Court opinions--i.e., mapping the commonalities in the topical categories assigned to each case by West. It's a nice article, but I also like it in part because it gives me an entree to talking about methodology in empirical legal analysis, which I'd like to offer a couple posts on--if only to remind empirical legal scholars that multiple regression isn't the be-all and end-all.... The first is multidimensional scaling (MDS), which is one of the approaches Hook uses. As I mention in a recent paper, "MDS is a procedure that helps researchers uncover 'hidden structures' in existing data by graphically plotting respondents’ perceptions of perceived similarities (or dissimilarities) among various stimuli. When these stimuli are located on a plot based on such perceptions, underlying dimensions that respondents may have used (consciously or not) can be inferred." So, for instance, a bunch of stimuli are identified -- crimes, Supreme Court opinions -- and every pairwise combination is created. Each pair is rated on how similar or close they are on some scale -- usually unarticulated. Those similarity ratings are then plotted to give the best fit to the data, yielding a "map" of the ratings that also reflects the perceived structural relationship of all those stimuli. Finally, by examining the map, one might be able to identify the dimensions that, implicitly or explicitly, underlay the ratings (and also look at individual differences, e.g., do men and women come up with different maps?). Hook used MDS to map Court opinions; I used it to map people's perceptions of the similarities of crimes. But I think it's a more broadly useful methodology, particularly for looking at lay intuitions about legal institutions, punishments, or cases; or to assess whether different punishments may have been proportionate; or any context in which (a) similarities among stimuli may be interesting or (b) we are interested in understanding what the basis might be for people's judgments or perceptions. I'm painting with a broad brush here, but there are useful resources on how to conduct MDS (it's pretty easy and, as Hook's paper shows, gives pretty pictures), and it's another useful part of an empirical legal scholar's toolbox. One more methodology post to come...
Peter Hook has an interesting piece on SSRN, in which he maps, using various statistical techniques, the "topic space" of Supreme Court opinions--i.e., mapping the commonalities in the topical categories assigned to each case by West. It's a nice article, but I also like it in part because it gives me an entree to talking about methodology in empirical legal analysis, which I'd like to offer a couple posts on--if only to remind empirical legal scholars that multiple regression isn't the be-all and end-all....
The first is multidimensional scaling (MDS), which is one of the approaches Hook uses. As I mention in a recent paper, "MDS is a procedure that helps researchers uncover 'hidden structures' in existing data by graphically plotting respondents’ perceptions of perceived similarities (or dissimilarities) among various stimuli. When these stimuli are located on a plot based on such perceptions, underlying dimensions that respondents may have used (consciously or not) can be inferred."
So, for instance, a bunch of stimuli are identified -- crimes, Supreme Court opinions -- and every pairwise combination is created. Each pair is rated on how similar or close they are on some scale -- usually unarticulated. Those similarity ratings are then plotted to give the best fit to the data, yielding a "map" of the ratings that also reflects the perceived structural relationship of all those stimuli. Finally, by examining the map, one might be able to identify the dimensions that, implicitly or explicitly, underlay the ratings (and also look at individual differences, e.g., do men and women come up with different maps?).
Hook used MDS to map Court opinions; I used it to map people's perceptions of the similarities of crimes. But I think it's a more broadly useful methodology, particularly for looking at lay intuitions about legal institutions, punishments, or cases; or to assess whether different punishments may have been proportionate; or any context in which (a) similarities among stimuli may be interesting or (b) we are interested in understanding what the basis might be for people's judgments or perceptions.
I'm painting with a broad brush here, but there are useful resources on how to conduct MDS (it's pretty easy and, as Hook's paper shows, gives pretty pictures), and it's another useful part of an empirical legal scholar's toolbox.
One more methodology post to come...
Take a minute to ponder Seth Barrett Tillman's most recent provocation: Can the 110th Senate vote and pass a bill initiated and passed by the 109th House of Representatives? Is there really a contemporaneity requirement in the Constitution (Art I, Sec 7)? If so, where is it? Tillman thinks there is a constitutional opening for non-contemporaneous lawmaking. Aaron-Andrew P. Bruhl tries to defend the conventional wisdom that there is a contemporaneity requirement. I like Bruhl's effort -- and recommend his short reply -- but am somewhat underwhelmed with his basic affirmative argument: that there must be some reason the conventional wisdom is the way it is. His rebuttals to Tillman's affirmative arguments, however, are pretty impressive.
The Future of Legal Education
When you get right down to it, there really hasn't been a radical change in the conventional law school curriculum since ... well, I don't know, but it's been a long time. Most of the major changes of the past 30 years (the rise in clinical education, the general trend toward more skills-based courses, etc.) -- while undeniably important -- represent an attempt to integrate skills training within the traditional law school curriculum rather than an outright rejection of the traditional model. The first-year curriculum at Law School X is still probably pretty close to what it is at Law School Y, and the upper-level offerings at both institutions are likely to be pretty similar as well. To date, no one has tossed the old mousetrap aside and tried to build a new one. Maybe that's because the old mousetrap works pretty well. Maybe there are other reasons. (Any takers on that one?)
That's what makes all of the focus on the recent changes to the curricula at Harvard and Stanford interesting. Between the two, Harvard's changes to the first-year curriculum are the more modest. Stanford's new "3D" plan is a bit bolder. Stanford's focus is on the second and third years of law school. According to the press release, Stanford's program "combines the study of other disciplines with team-oriented, problem-solving techniques and expanded clinical training that enables students to represent clients and litigate cases -- before they graduate." The Wall Street Journal used the word "revolution" in reference to the 3D program, and the approach certainly represents more than mere tinkering. But if you like your revolutions a bit more revolutionary, you might check out "Educating Lawyers for the Future of the Legal Profession," a forthcoming article by Professor Thomas D. Morgan of George Washington. If you'd all love to see the plan, here's the SSRN link. According to the abstract:
Tomorrow's lawyers are likely to have to be more specialized than their predecessors, and many will deliver services that are less personal, more commodity-like, and less financially rewarding. Legal education, in turn, faces challenges producing lawyers capable of functioning in that world. Future lawyers will have to be simultaneously more specialized and more capable of responding to change than were earlier generations. To meet these needs, entering students should be introduced to fundamental issues that cut across all fields, including more public law and international material than most students now encounter. Upperclass students should be given opportunities to specialize and study more non-legal subjects that will make them better able to understand clients' needs.
All of which sounds fairly mainstream. It's when you start looking at the details of Morgan's imagined future that things get really interesting. To provide a couple of examples, Morgan suggests that the fourth year of undergraduate study become the first year of law school. After that, a student would take three years of law school with the third year consisting of non-law courses. And what would students take in that first year of law school, you ask? Well, forget Contracts. Think Enforcement of Agreements. Bye bye Civ Pro and Property. Hello Sources of Legal Rights and Redress of Wrongs. It's all good as long as I can still teach Torts.
Saving Your Children’s Art
Here is a dilemma that may sound odd to people who do not have children, but believe me, strangely familiar to most people who do. Kids come home from day care every week with piles of crafts and drawings, work sheets and colored shapes, cut outs and pasted collages. Particularly those with more than one child know that these art pages pile up, month after month, year after year. At first you are excited, saving each little scribble that your 18 months old ingeniously made for you. At some point however, the piles become heaps and the drawers, boxes and shelves becomes full. How do you decide what to save and what to throw away? One friend told me she saved one representative art work from each season. Another offered a more critics choice perspective, saying she selected “only the good ones and threw away the rest.” Another option I can think of is to ask your 4 year old to select their favorites for keepsakes, but mostly parents who throw away some of the delivered cubby art (and my case is that we are talking about the majority of parents) prefer not to tell the child about this practice, with the likely prediction that the child will forget about some of these sheets and be happy with the half pile that was saved. This raises the questions: who and what purposes do these designated art souvenirs serve, present and future?
Grand Strategies for Precision in Grading
Big congratulations to Tung Yin (Iowa) and Mark Fenster (Florida), two of our PrawfsBlawg alumni! Their colleagues had the good sense to vote them tenure in the last few days. Woohoo! Tung follows Orin Kerr and Dan Solove down the line of blogging junior prawfs who got tenure. There's obviously not enough data yet, but perhaps the title of his co-authored paper, Blogging While Untenured and other Extreme Sports, will be retired soon...
More good news: today is also the birthday of Ted Frank, the voracious wordsmith who often appears in our comments and is the force majeure behind calamities such as Lagniappe and Overlawyered. Just kidding. Happy Birthday, Ted!
Update with breaking news: Jim Chen has just accepted the Deanship of the Brandeis School of Law at the University of Louisville. Congrats Jim! This is fantastic news for legal education mavens. Jim will start his duties there in four weeks or so. As Brian Leiter notes, it will be very interesting to see how Brandeis evolves in light of Jim's commitment to the development of MoneyLaw strategy. Here's one piece of advice, Jim: my closest friend from high school now teaches philosophy of law, among other things, in the philosophy department at the U of L. Be sure to
synergize with co-opt Avery Kolers!
Wednesday, December 13, 2006
My seminar on politics and law at the U.S. Supreme Court has been the course that I have enjoyed more than any other since I began teaching. We spend about a week on each of several really interesting topics, and the students who sign up for the class tend to be the ones who are especially likely to make good contributions to class discussion. We start off talking about the appointment and confirmation process, then move to retirements, clerks, certiorari, oral argument, opinion assignment, etc.
One of the most entertaining weeks in the semester is the week we discuss conflict between individual Justices, using Philip Cooper's Battles on the Bench as the reading assignment. It is educationally valuable because it vividly illustrates a major theme of the course, viz., that the Court is not a monolithic institution, but rather one formed by the combination of very different and strong individual personalities. But the book is also a tremendous amount of fun because of the gossip it reports about the Justices. Specifically, the insults traded between the Justices of the New Deal era are just tremendous. An ATL-lover's dream come true.
Here are two examples, both involving Justices Douglas and Frankfurter: Frankfurter was notorious (apparently) for giving lectures during Conference (lasting, it was said, exactly 50 minutes -- the length of a Harvard Law School class). Douglas, exasperated by FF's diatribes, would then have his turn to speak, and would say, "When I came into this conference I agreed with the conclusion that Felix has just announced; but he's just talked me out of it." Another time an out-of-his-league lawyer was having a terrible time at oral argument, and Douglas passes Frankfurter a note, which read, "I hear this chap is the best student you ever had at the Harvard Law School." Both of these remarks would, it seems, send FF into a rage, which, of course, was exactly Douglas's objective.
I'm looking for help from our readers in identifying additional examples. What are the best examples of Justices or judges needling each other, in opinions or otherwise? Scalia's remark in Webster that Justice O'Connor's position "cannot be taken seriously"? Scalia's remark in Weisman that "interior decorating is rock-hard science compared to psychology practiced by amateurs"? Comment away.
Joint authorships have a big future in legal scholarship. This is standard practice in many other academic disciplines, and it seems to be growing in the law. I've been lucky enough to co-author articles with several different people, and the nature of the partnership (perhaps no big surprise) is very different with each co-author.
I've been thinking that a standard lingo might be helpful here. When two potential co-authors are talking about a possible joint venture, they might want to agree ahead of time on the nature of the partnership. Partner A might propose, "Let's write something on regulation of tropical fruit juice, and let's use Co-Author Model X." Then Partner B has a pretty clear picture of the proposal.
The question is, are there truly recurring types or models of co-authorship? I suspect so. There is the partnership of straight man and flamboyant (think Martin and Lewis), the partners who bring very different backgrounds and lives to the work (think Cagney and Lacey), the partnerships where one person calls the shots and delegates the work (think Jack McCoy and the ever-changing female ADA on Law and Order). Other suggestions?
I have occasionally had students submit draft seminar papers that cite to Wikipedia, the collaborative internet encyclopedia founded in 2001. I now warn students against the practice (unless they are citing a point that is about Wikipedia and its contents rather than a use of Wikipedia to support the truth of an underlying assertion made therein).
Some students are surprised, but the reasons should be obvious. You wouldn't cite to a standard encyclopedia, so you shouldn't cite to an internet encyclopedia for the same set of reasons. Additionally, (1) Wikipedia authors may have no expertise in the subjects on which they write, (2) Wikipedia is constantly changing and so it's harder to present all seekers with a consistent copy of the source, and (3) Wikipedia sometimes has intentionally false or malicious information. All of this is true, even though I realize that in head-to-head tests, Wikipedia has compared rather well to Britannica.
One of the easiest ways to make the point though is this: If I want to make an assertion about, say, the size of the population in the United States, I could just go on to Wikipedia, add the relevant information, and then I have my citation. Clearly, such a citation adds nothing beyond my bald assertion of the claim. I'll be interested in the comments if people want to add other student research pitfalls to avoid.
This year's "Basketbrawl"?
Every once and a while, an event or image captures the attention of the American public. And many of these events, for better or for worse, find their way into law school exam hypotheticals. Sometimes, unfortunately, law professors teaching different classes at the same school latch on to the same event in drafting hypotheticals.
The poor members of the class of '07 at my law school were the among the victims of the infamous "Basketbrawl" between the Indiana Pacers and the Detroit Pistons. You know, the one where Ron Artest took a nap on the scorer's table, got a beer he didn't order; Jermaine O'Neal duked it out with a slow-footed fan; and Stephen Jackson behaved like, well, Stephen Jackson. No, these then-1Ls from the class of '07 weren't at the game. But they were victims nevertheless.
You see, when they sat down for their exams in the December of 2004, they had essay questions based on that very same fight in three, yes, three, classes. In my torts class, there were of course the battery issues, negligence claims against the Palace of Auburn Hills and the NBA; in contracts, there was some dispute about psychiatric bills for a troubled NBA star; and in civil procedure there was some question about the brawl and summary judgment or something like that. Now, my school, being just an hour from the site of the brawl, may have had professors who paid more attention than elsewhere in the country, but based on talking to friends at other schools, I'm not so sure.
Was there any such event this year? That is, any event that found its way into a lot of law school exams? For what I hope would be obvious reasons, please don't comment if you haven't yet administered your exam.
I should add that when crafting an exam question based on real events, in my experience it's always best to (1) change the names of the players somewhat (e.g., "Ron Smartest"), and (2) specifically instruct students to respond to the facts presented rather than what they might have gleaned from the media and other sources.
Chemerinsky on Roosevelt in the new issue of Democracy
The new issue of Democracy: A Journal of Ideas has been released. The issue contains, among other things, Erwin Chemerinsky's review of The Myth of Judicial Activism, by Prawf alum Kim Roosevelt (Penn). While praising some aspects of Roosevelt's book, Chemerinsky finds that the judicial theory espoused in The Myth of Judicial Activism ultimately undermines the very case for judicial theories generally. As you may have seen in Kim's PENNumbra debate with our own Rick Garnett, Kim claims that a legitimate decision requires prudent consideration of the following factors: institutional competence, lessons of history (typically with respect to discrimination), costs of error, defects in democratic representation, and rules vs standards.
According to Chemerinsky, this multifactor test is too loose to provide a useful theory. He states:
Roosevelt could not have a more sympathetic reader than me. I share his view that the focus on judicial activism is misguided; it is political rhetoric without substance and gives a misleading impression about what courts and judges do. And, almost without exception, I agree with his position on each of the hot-button issues he covers. I would like to see him succeed in justifying the results he advocates. The problem is that the five factors he identifies don’t add up to a useful theory of judicial review.
First, according to Chemerinsky, Roosevelt "does not adequately explain" why three of the five factors (institutional competence, costs of error, and rules vs standards) should be used. Second, Roosevelt fails to offer sufficient "criteria for determining when" a factor cuts in one direction and not another, such as when rules are better than standards or standards are better than rules. As a result, the "multifactor analysis inevitably means that there is a great deal of discretion and that almost any result can be reached, as some factors point one way and others in a different direction." In other words, the theory can justify both A and not-A in many cases.
Chemerinsky offers an anti-theory perspective of his own at the end of the review:
Perhaps, then, it is time to move past the judicial-theory obsession and focus instead on arguing over the best constitutional vision for each area of constitutional law. What is the best way to understand the president’s powers as commander-in-chief? What is the best way to understand what is “cruel and unusual” punishment? What is the best way to understand the protections of the free exercise clause? In each area, the discussion and disagreement will be about text and structure, purpose and precedent, and tradition and contemporary needs and values. Inescapably, constitutional law requires that Justices make value choices that cannot be determined by any constitutional theory. What is a “legitimate” or an “important” or a “compelling” government interest? No constitutional theory, including Roosevelt’s, can provide a coherent way of determining this.
So I wonder how Kim would respond to this. My sense from what I've read of Kim's work elsewhere (and I haven't read the book so please correct me if I'm wrong) is that Kim's ambition with the theory is more modest; it is not to explain what the correct outcome is in any particular case, but rather to point the way to a vision of adjudication that could at least tell us which modes of reasoning and which outcomes are "illegitimate." Thus, some things are viewed as impermissible.
As Chemerinsky notes, Kim does express disdain for much of the substantive due process jurisprudence. But to this, Chemerinsky seems anxious. He writes:
Overruling the substantive component of due process would radically change the law, including overruling Supreme Court decisions protecting the right to marry, the right to procreate, the right to custody of one’s children, the right to keep the family together, the right to control the upbringing of one’s children, the right to purchase and use contraceptives, the right to engage in private consensual homosexual activity, and the right to refuse medical treatment.
This parade of horribles will be familiar to readers of the Sunstein-Prakash debate. And to my liberal ears, these would be bad results. But the question is whether these policies are constitutionally required. In the absence of substantive due process rights, most state legislatures would protect most of these "rights" through statutes. Or, we might see more constitutional amendment activity, which might not be a bad thing considering, per Sandy Levinson, how undemocratic the American constitution is. In any event, perhaps Kim will take a moment to respond to Erwin's critique.
In the meantime, check out some of the other articles in Democracy:
Peter Bergen and Michael Lind take on the conventional wisdom that it’s economic deprivation that leads people to join terrorist groups. Jeff Faux, president of the Economic Policy Institute, crashes the Party of Davos and asks: Why can’t globalization work for workers too? Aaron Chatterji and Siona Listokin - of Duke's Fuqua School of Business and the University of California, Berkeley, respectively – make the progressive case against corporate social responsibility. Kevin Mattson charges that the history profession has been stuck in the ivory tower, leaving pundits and ideologues to distort our past and political discourse. In examining the future of American foreign policy, Suzanne Nossel makes the case for American legitimacy; Joshua Kurlantzick writes that to handle China, we need to look to India; Gayle Smith, of the Center of American Progress and a former National Security Council official, argues for adding human security to our discussion of national security; and Nancy Soderberg, a former deputy ambassador to the United Nations, says that the UN is more indispensable than ever to U.S. interests. And on issues closer to home, Gara LaMarche examines the history of the ACLU, Harvard’s Jerold Kayden critiques Joel Kotkin's urban vision, and historian Ellen Fitzpatrick looks at how public opinion research has shaped American life.
These articles are available at www.DemocracyJournal.org.
D'Amato and the Interdisciplinary Turn in Legal Education
Last night, thanks to Brian Leiter, I came across Anthony D'Amato's fascinating new article entitled, The Interdisciplinary Turn in Legal Education. Here's the abstract, with some reflections after the jump:
The nature of law and legal practice is changing with the addition of interdisciplinary scholars to law-school faculties and interdisciplinary studies to the law curriculum. However, the accessibility of non-law disciplinarians in the rest of the university raises the question of the cost-effectiveness and opportunity costs of importing them directly into the law school. This Article criticizes the interdisciplinary turn on three grounds. First is the unlikelihood that the joint-degreed persons who join the law faculty will happen to be the ones that their colleagues will end up collaborating with. Second is the even greater unlikelihood that any given discipline can communicate usefully with another discipline. Third is the opportunity-cost factor: that the new interdisciplinary courses will crowd out an essential part of the legal discipline, namely, an understanding of the foundations and dialectical evolution of its forms of language.
I found D'Amato's essay incredibly well-written: provocative, sharp, and at times funny. But I'm not sure I'm completely persuaded by the thesis and its implications. Consider the first argument, that law faculty will be unlikely to collaborate with the jointly degreed persons. Based on my three semesters at FSU last year and Miami this fall, I have found the opposite phenomenon to be true. Until he decamped to UVA this past fall, my next door neighbor at FSU, Greg Mitchell (JD/Phd in psychology), co-authored pieces at least once with both Jon Klick (JD/Phd in economics) and another time with Adam Hirsch (JD/Phd in history). Klick has also co-written something with Fernando Teson, and Klick's presence on the FSU faculty has also helped me in countless ways with even my more removed work in criminal justice issues and legal theory. While I've been visiting Miami this semester, I've also spent many hours in the company of Ben Depoorter, another Phd in economics. As you might recall from my posting on Miamifest last week, Ben was also a participant and having him there was invaluable for many of our presentations. So there is (admittedly anecdotal but robust) evidence of both formal collaboration (co-authorship) and informal (how do I solve this particular problem in my project, Ben?), and having jointly degreed people (or even just people with Phds in other fields) can be a great resource for those working on more traditional legal issues. Indeed, I wonder whether people who are jointly degreed and on law school faculties are more likely to collaborate than those with just JDs on the faculty, either because of selection effects (these are the people who wanted to work in a different setting than their "home" discipline) or because in those "home" disciplines, collaboration comes more naturally and is encouraged more than in legal scholarship, which reserves some suspicion for co-authorship.
I understand the opportunity cost concern raised by D'Amato, but I'm not sure the solution to the problem he identifies is opposition to interdisciplinarity. For example, D'Amato seems to express concern that young law professors do not know "where the words and phrases they use came from." (p. 74 of the ms). He writes:
How many young law professors know that if a losing party wanted to appeal a trial judge’s decision, he had to sue the judge for theft of his legal rights? How many law teachers understand the origins of the jury system and the evolving bifurcation of facts and law (which remains an issue today in the phrase “a mixed question of fact and law”)? How many know that the early jurors asked questions of the parties and their attorneys, and were accustomed to going around the neighborhood interviewing citizens and poking into evidence? How many are aware of the self-protective reaction of the judges in turning to formalism?
It's true that I don't know any of this stuff. (It's also true that I'm not sure I or my students are worse off because I don't know any of this...but that's another matter.) But it seems to me I'd be more likely to know this if I were trained in part by legal historians when I was a student, or had some exposure to this knowledge through having a legal historian as a faculty colleague, or someone like D'Amato. Moreover, because most JD's have a "presentist" bias in their scholarshp and orientation anyway, I doubt the interdisciplinary turn is what's impeding our understanding of law's "foundations and dialectical evolution of its forms of language." Certainly, many of the issues D'Amato raises regarding what we've lost sight of are matters to which my JD-only professors at Harvard never alerted me.
In any event, as I said, it's a very interesting and provocative essay, and there's one ironic aspect of the essay worth highlighting: it is an intensely erudite piece, no doubt the product of familiarity with if not fluency in a wide range of disciplines outside of law. For what it's worth, D'Amato himself has a Phd and was initially cross-appointed in Political Science at Northwestern when he was a junior prawf too.
N.B. Josh Wright has added some thoughts to this discussion regarding how interdisciplinary work in law and econ has influenced his area of antitrust.
Tenure Track in Decline
The American Association of University Professors released this week its Contingent Faculty Index, with the numbers of tenured, tenure-track, part-time, and full-time non-tenure-track faculty members employed at 2,617 American colleges and universities.
From the Chronicle of Higher Education, via workplace prof blog: “Since the 1970s, the proportion of tenured and tenure-track faculty members in the American professoriate has dwindled from about 57 percent to about 35 percent, while the proportion of full- and part-timers working off the tenure track has grown from about 43 percent to 65 percent.”
H/T Paul Secunda @ Workplace Prof Blog
Curricular Reforms and New Governance – Part II: The OUP Series "Twenty-First Century Legal Education"
An email and a post by Mark Tushnet have prompted me to post some more thoughts on the (new) legal process and legal education. As I described a couple of weeks ago, the HLS reform focuses on cutting down traditional first year courses (contracts, torts, civ. pro, crim, property) and adding 1st year requirements centered on legislation, international law, and “problems and theories”, all designed to give more emphasis than before on the role of statutes and regulations, public law processes and actors, institutions and systems.
A national development has been a collaboration effort beginning a few years ago among, then Georgetown law professor Mark Tushnet, Harvard law professor, Martha Minow, who chaired the HLS curricular reform committee, and the energetic and creative (then) new dean of Larry Kramer. The collaboration is designed to produce a series, called Twenty-First Century Legal Education, consisting of first year casebooks to be used at schools adopting such reforms. Oxford University Press is the publisher of the series which focuses on adding the public law dimension to the first year curriculum. OUP describes the series as a response to the need of lawyers to "understand statutes associated with the modern regulatory state." OUP just published the first volume of the series, “the Regulatory and Administrative State” by Tushnet and Lisa Heinzerling.
I liked the book, which introduces questions about the choice of legal institutions, types of regulatory instruments, regulatory dilemmas and paradoxes, and focuses in particular on risk regulation as a unifying context. I admit to be somewhat sold on the project based on the fact that the very last chapter, which introduces "new perspectives on regulatory issues" includes a long excerpt of my article, Interlocking Regulatory and Industrial Relations: The Governance of Workplace Safety. The article's focus is on regulatory responsiveness, enforcement and compliance that involves industry in a more active and less adversarial way in risk assessment and prevention. The article won the Oberman memorial award last year for the best article on a current legal issue on law and governance.
Tushnet describes the first volume of the OUP at length on the Georgetown law blog:
"We gave the book its title to signal that this was not a scaled-down or introductory administrative law book. We begin, not with topics in administrative law, but with the “classical,” that is, common law, mode of regulation through the imposition of liability in tort and contract. We do this for pedagogic and intellectual reasons. Pedagogically, efforts to introduce administrative law and statutory interpretation into the first year typically have foundered on the “trans-substantive” nature of those fields – that is, the cases and problems typically come from quite disparate fields of law, leaving students confused about exactly what they are supposed to be learning. That problem infect s even second- or third-year courses in statutory interpretation, but is a smaller problem in upper class administrative law courses because students there already have had a fair amount of exposure to substantive law, which is not true of first-year students.
If, as some have done, one tries to solve that problem by focusing on a particular field like labor law, students tend not to understand that they are learning statutory interpretation and administrative law, and think that the course is one in labor law. Professor Heinzerling and I address this difficulty by defining our field of interest as risk-regulation, which includes topics in the regulation of risk in the workplace, the environment, and the (food) market. This also has the pedagogic advantage of dealing with subjects that students typically find substantively interesting. That alone wouldn’t explain why we start with common-law regulation. One reason is that we think it’s important to get the message across – or to reinforce the message that students are getting in their common law courses – that contemporary statutory and administrative regulation is continuous with classical common-law regulation, and that the reasons for the displacement of one by the other are more process-based than substantive.
At most – and we could have done more about this in the course book than we did – there are ways of regulating that might be somewhat easier to pull off through the administrative process than through the judicial one. So, we spend quite a bit of time developing the rationales for regulation of risk. (This doesn’t get us to all the possible justifications for regulation, but the field of risk-regulation is broad enough to get us quite a bit. And, as I note below, the book is conceptualized so as to allow others to supplement it with material from other substantive fields.) Students will see, we think, that the modern regulatory and administrative state doesn’t do things conceptually different from what the common law state did.
In addition, we think it important to show how the modern administrative state emerged out of the common law state, and specifically what problems associated with common law regulation of risk are addressed by administrative regulation. That creates what we hope is a natural flow into statutory interpretation and administrative regulation: Exactly how does the modern mode of regulation attempt to address the problems we’ve seen with common law regulation? And – and here’s where the standard administrative law topics come in – what are the problems associated with risk-regulation through administrative regulation? Because students will have already examined the justifications for regulation and the problems with common law regulation, identifying problems with administrative regulation leaves them in a position – the right position, we think – to think about which set of problems is more severe, rather than, for example, thinking that regulation should be abandoned despite its justifications because administrative agencies and legislatures are pervaded by public choice problems.
We think that our approach overcomes, or at least substantially lowers, the hurdles faced by prior efforts to introduce regulation and administrative law into the first year curriculum. Because of its emphasis on the justifications for regulation (again, as a way of providing a glue across substantive topics), our book has less material on administrative law as such than, for example, administrative law course books do. We think that we’ve made the right pedagogic and intellectual choices in doing so, but there are other mid-level ways of introducing statutory and administrative material into the first year curriculum that have some promise: treating the materials as a way of introducing students to a distinctive way of reading, for example, or to general problems of separation of powers. We think that teachers who were so inclined could use our materials to do those things too, and indeed we do a reasonable amount ourselves. (The book has quite a bit about public choice analysis of the legislative and administrative processes, for example, and presents materials discussing the relevance of that analysis to normative issues in statutory interpretation.) We think we’ve struck a better balance than existing materials do – and, indeed, our hope is that the book will tap a latent demand for materials that could be used in curricular revisions elsewhere.”
Tuesday, December 12, 2006
Supreme Court Update by Aaron Streett
Two unsurprising opinions handed down by the Court yesterday—a unanimous reversal in a 9th Circuit habeas case and a unanimous affirmance of a D.C. Circuit opinion by a former Circuit Judge who was unable to hold the job for more than a couple years—John G. Roberts, Jr. In other news, the Court has now thrice re-listed a religious symbols case that could become the first major religion case of the Roberts Court. Off to the cases!
Carey v. Musladin, 05-785
Justice Thomas wrote the Court’s opinion for six Justices (JGR, AS, RBG, SGB, SAA), administering the second smackdown to Judge Reinhardt and his merry band of AEDPA-flouters in less than a month.
On federal habeas, the 9th Circuit had vacated Musladin’s murder conviction because the victim’s family members were allowed to wear buttons to the trial that featured a photograph of the victim. It took the Court all of 7 pages to explain why that holding was wrong—and 3 of those recounted the facts. The bottom line: AEDPA says a federal court can’t spring a crook unless the state court unreasonably applied clearly established federal law, as decided by the Supreme Court. Hard as it is to believe, in this single, solitary habeas case, alone among all the habeas cases in the western third of the United States, the 9th Circuit granted relief based on something less. Justice Thomas explained that the question of when spectators’ conduct deprives the defendant of a fair trial “is an open question” in the Supreme Court’s jurisprudence. While the Court has created a test to determine when state-imposed trial conditions unfairly prejudice the defendant—such as by forcing him to wear prison clothes—it has “never applied that test to spectators’ conduct.” Consequently, the state court did not violate any clearly established Supreme Court caselaw when it affirmed Musladin’s conviction.
Three Justices filed solo opinions concurring in the judgment. Justice Kennedy read the caselaw as clearly establishing a defendant’s right to a trial free of coercion and intimidation, regardless of whether it comes from the state or from spectators. But AMK saw no evidence of coercion or intimidation here. In his (advisory) opinion, however, lower courts should consider banning buttons as a preventative measure. Similarly, Justice Souter would have held that any courtroom condition that causes “an unacceptable risk . . . of impermissible factors coming into play” violates the Constitution. But button-wearing spectators do not clearly pose an unacceptable risk because (1) most courts have upheld convictions despite the presence of button wearers, and (2) victims may have a First Amendment right to wear “mourners’ buttons” that would justify some level of risk to the defendant’s rights. Justice Stevens agreed with DHS’s reasoning, except for his shall-we-say-unique First Amendment musings. JPS also found fault with the majority’s statement that AEDPA’s “clearly established law” includes only holdings, not dicta, of the Court.
BP America Production Co. v. Burton, 05-669
Despite the diligent efforts of Baker Botts counsel, the Court declined to reverse a D.C. Circuit opinion by then-Judge John Roberts in this mind-numbingly boring statute-of-limitations case. Justice Alito drew the short straw and wrote the unanimous opinion for the 7-member Court (SGB was also mysteriously recused, as he often seems to be in boring cases). The question was whether the 6-year statute of limitations for government breach-of-contract actions applies to administrative proceedings to recover royalties under the Federal Oil and Gas Royalty Management Act (“FOGRMA”), or “Foggy Grandma” as it is known among hilarious Interior Department bureaucrats. The statute of limitations covers “actions for money damages” that are initiated by filing a “complaint.” Justice Alito explained that those terms most naturally refer to lawsuits in court, not to administrative proceedings. And in a move sure to warm the heart of the Court’s other Italian from New Jersey, he cited Black’s Law Dictionary, 1951 edition, for this proposition. Further bolstering his Scalito credentials, Justice Alito said that any doubts about the scope of the statute are resolved by “quod nullum tempus occurrit regi”—the half-millenium-old common-law rule that means “time does not run against the King.” In other words, an ambiguous statute of limitations is construed strictly in favor of the sovereign, here, apparently King George II. The Court complimented petitioners’ “cogent policy argument” that the government’s interpretation allows it to circumvent the limitations period simply by bringing administrative proceedings instead of lawsuits, but essentially told petititioners to take it up with the King. As Justice Alito thoughtfully put it, “while we appreciate petitioners’ arguments,” we don’t appreciate them enough to rule for you.
Re-list Watch: The Court has now re-listed Skoros v. New York City (06-271) three times. Skoros involves a New York public school’s refusal to permit the placing of a creche alongside a Jewish menorah and an Islamic star and crescent in a school holiday display. Be on the lookout for either a grant or dissent from denial in this case when the Court reconvenes on January 8. Either way, the Court’s action will probably give us some insight into its approach to religion cases now that Justice O’Connor and her controlling fifth vote on these issues have passed from the scene. In the meantime, Merry Christmas and Happy New Year!
Until next time (and probably next year), that’s today’s baseball.
Aaron M. Streett is an associate in the Houston office of Baker Botts LLP, and a member of the firm’s Appellate and Supreme Court Practice. If you would like to subscribe to these updates, please send an e-mail to aaron.m.streett at bakerbotts.com
Monday, December 11, 2006
RSVP'ing to The Iranian Holocaust Conference: To Attend, or Send Regrets
The New York Times today reports on a conference being hosted by the Iranian Foreign Ministry titled "Review of the Holocaust: Global Vision." The conference is the brainchild of the president of Iran, Mahmoud Ahmadinejad, whose own views on the Holocaust have been widely reported. Speakers at the conference include such notorious deniers of the Holocaust as David Duke and Robert Faurisson, although the Times report suggests that the conference organizers provided enough contrary information to offer at least a window-dressing version of diversity of viewpoint (if one can even speak of diversity of viewpoint concerning the historical existence of the Holocaust). Let me make a couple of observations about this conference; it may be giving undue attention to what is undoubtedly a parliament of knaves, but so be it.
The first is to note that part of the ammunition for such a conference stems from European and Canadian laws restricting or criminalizing the denial of the Holocaust altogether. Thus, some of the conference participants from Western nations effectively described the very existence of such a conference as liberating, noting that, for instance, "We are forbidden to have such a conference in Germany." Of course, these speakers could have pointed to these laws for purely opportunistic reasons. Nevertheless, as a matter of optics, it might be said that this is a conference underwritten not only by the Iranian Foreign Ministry, but also by the existence of laws in otherwise openly speech-loving and epistemically agnostic societies that criminalize the very fact of Holocaust denial. among other forms of dangerous speech. Of course, notwithstanding the efforts of the conference organizers to equate "Western taboos [concerning the Holocaust] and the restriction imposed on them in Europe," any pressures against Holocaust denial in the United States come solely from social forces, and not from any legal restrictions. By avoiding any legal penalty for stating such wrongheaded ideas, American law both permits such ideas to circulate and strips from their adherents the dignity of martyrdom. They are protected, but they are also at the mercy of the marketplace and likely (one hopes) to be generally ignored as a lunatic fringe. If David Duke were a German, he would be an insurgent and a champion of free speech; here, he is reduced to his natural state -- laughingstock. I'm glad he has to travel to Teheran to get any attention.
One might ask a separate question, though: What would be the proper response to such a conference for someone who writes and speaks in the area of Holocaust studies -- who, in other words, quite rightly understands the Holocaust as a historical event? Is it better to ignore such a conference altogether, or would it be more beneficial to take advantage of the conference's pretense of fair-mindedness and show up to refute the denialists? I can't definitively answer such a question, and there is much to be said, of course, for ignoring the conference altogether, so as to avoid giving the appearance of controversy to what ought to be uncontroverted. But so, too, there would be something to be said for appearing: for showing up long enough to squarely address and definitively refute the claims made by denialists -- not for the sake of the conference audience, but for the sake of the world at large, and also out of a sense of defiance, a will to demonstrate that the truth just is, and demands to be heard anywhere and everywhere. Such issues of course also arise when considering debates on intelligent design, race, and a variety of other issues. But they are certainly raised in a particularly striking fashion in this case.
[Cross-posted at Dorf on Law.]
A year and half ago, when this blog was just wearing diapers, Gordon Smith over at Conglomerate did an informal survey of teaching loads at top 25 schools, finding that most schools in that cohort had moved in the last ten years to a 3 course or 9-10 hour credit teaching load. Some schools allowed banking to either supplement or supplant a formal sabbatical program.
I'm wondering whether since that post things have changed much. Over at Concurring Opinions, Jennifer Collins is inquiring about teaching loads and their relationship to long-term strategic planning. She has invited us to ask readers what the teaching loads being advertised at various schools are. Given the relatively young readership of this blog among law professors, I would think it is interesting to see what loads are being offered to new and junior prawfs generally, and especially outside the top 25 schools that Gordon initially posted on. Feel free to post relevant comments here anonymously or over at Co-Op, where Jennifer shrewdly asks: "If you have recently gone from four courses to three, has that made a meaningful difference in your academic life or in the number of course offerings at your school?"