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Friday, August 31, 2007

Good classes and bad

A couple of weeks of the Fall semester are now in the books, and already I've experienced both the pleasure of what I consider a successful class, and the self-criticism that comes from teaching a class I consider not so great.  And once again as I drive home from school I ask myself about what made the difference.

Ultimately, I think, the difference is not in preparation.  I've actually taught pretty bad classes where I have prepped, and indeed, where I know a lot more than usual about the material (e.g., cases or doctrines I've written about) --  and I know, by the way, that there's a difference between prepping and knowing the material.  For that matter I've taught pretty decent classes where my prep time was quite limited. 

I think the difference lies in my taking the time to think about my goals for the class.  There have been times when I've walked in all fired up to talk about a doctrine, yet when we get to the big punchline, the "why are we talking about this?" question . . . I don't have an answer.  Talk about climbing up the mountain, only to shrug and turn around and walk back down.

This ties in to some  thoughts on teaching I blogged about last year.  The point of those thoughts was that I was realizing the importance of teaching for the students' benefit, rather than my own.  What I meant then and mean now (although I've experienced it differently this go round) is thinking about what students need out of a class.  Some of what they need is obvious, and seemingly trivial, for example, for the professor not to fall behind so they can confidently prep for what we're going to talk about that day.  And part of what they need is a context for the material, so it doesn't seem to be a disjointed set of cases or statutes or readings.  But a big part of it is for me to think about what I want students to get out of that particular day's class.  The doctrine? Understanding a judge's method of analysis? Understanding the history so they can better understand the state of the law today?

These aren't questions I learn the answer to by rereading the case or my notes or any legal scholarship on the topic.  These are teaching questions.  They require me to approach the issue as a teacher, rather (simply) as a scholar.  I reached similar conclusions in that earlier post, but thinking about the issue this time around has taught me one of ways in which teaching and scholarship are different.  This may seem obvious, and indeed I have circled back to the same thoughts I had last year. But it's not something that comes intutitvely to me.  Maybe it doesn't come easily to anyone who hasn't been trained in education or who isn't what they call "a natural teacher."  For that reason it's probably a good thing that profs consciously try to think about these issues, at least at the start of every semester when their teaching bones may be a little creaky from the summer.

Posted by Bill Araiza on August 31, 2007 at 06:44 PM | Permalink | Comments (1) | TrackBack

Why Aren't More Main Stream Media Outlets Hiring Law Bloggers?

As Todd Zywicki noted yesterday at the VC, my Sports Law Blog colleague Mike McCann (Mississippi College) has landed a gig writing a monthly column for SI.com on sports law issues (his first column, on Vick, is here).  Mike has been blogging on sports law  since  July 2004, making him one of the "wise old ones" of the legal blogosphere, and the prominent forum (and paycheck) are well deserved. 

What is a bit surprising to me is that more mainstream media outlets haven't turned to bloggers as a source of regular contributions as columnists.  To be sure, a number of bloggers have written op-eds for individual papers, or served as columnists or guest columnists for sites like Findlaw's Writ and Jurist (for advice and thoughts on op-ed writing, see here or here).  Those gigs are great -- it's nice to reach a different (and often wider) audience, and it is great to get a check in the mail for one's labors, more because of the symbolism than the bottom line.

But why aren't more bloggers landing gigs as regular columnists? 

I've always thought that one of the reasons law prof bloggers  have attracted comparatively greater attention than bloggers from other disciplines has to with the fact that law profs, although you wouldn't know it from reading many law review articles, are actually really good writers.  For various reasons, law profs at some point decided not to write novels or pursue journalism, but blogging has given them a chance to indulge in the written word and they've jumped at it.

By contrast, many newspaper columnists, with some shining exceptions, are not good writers, or at least, don't have much to say.  Newspaper column gigs seem to go to seasoned journalists or upwardly mobile editors, but neither beat reporting nor editing involve the same skill set as opinion essay writing. 

Moreover, the economics of the industry would seem to favor hiring bloggers to create content.  Bloggers have shown their willingness to work for free, or close to nothing.  That would suggest to me, were I a financially sensitive media outlet operating in a time of dwindling circulation, that I could probably sign a blogger to a contract at a relatively low wage.  Since law prof bloggers have another job, they wouldn't need health insurance, or an office, or a company car.

Are they worried law profs would write about boring technical subjects?  Are they worried law profs would bring too much blogger irreverence to a traditional forum?  Are they worried law profs couldn't meet a deadline?

Posted by Geoffrey Rapp on August 31, 2007 at 01:29 PM | Permalink | Comments (2) | TrackBack

Nice To Be Here...

Let me echo Alex and Sam - it's nice to be on board. Thanks to Dan for the invite (and to Paul Horwitz for the introduction). I'm looking forward to my month here at Prawfsblawg as a newbie.

I write often on transnational law issues -- the intersection of domestic and international law -- while I teach courses in Civ. Proc., Fed. Courts, Int'l Law, and Civil Pretrial Practice. I also run an international and comparative law program in Vancouver, Canada. So I had planned to spend my time here exploring some cross-border challenges (perhaps with a slight emphasis on U.S.-Canada), some jurisdictional topics, as well as some professionalism/skills issues. But I may have to rethink that game plan, which I'm starting to think sounds somewhat quaint, if not pathetic. With posts on professional wrestling (Alex), muppet goodbye songs (Zachary), magnetic resonance imaging (Adam), and CV stalking (Liz), not to mention mystical cats (Paul) -- I realize I'm going to have to up my game significantly.

I guess I have the weekend to figure it out...

Posted by Austen Parrish on August 31, 2007 at 12:08 PM | Permalink | Comments (0) | TrackBack

Electoral College Reform

After a set of posts on Electoral College reform, I decided to write a short exposition of my views on the subject.  Alas, they were deemed too "subtle and equivocal" for TNR, which had originally planned to run the column.  Although the original version left open the question of whether Electoral College reform is desirable at all (certainly there are potentially viable arguments for preserving the system in some form), this version takes the need for reform as a starting point.  For what it is worth, here's my provisional thinking:

Democratic Principle and Electoral College Reform

Ethan J. Leib

The Electoral College is a relic from another time and is practiced in a way that perverts our selection of our country’s Chief Executive.  It enables presidential candidates to focus their campaigns on a small percentage of voters from a tiny number of swing states and disregard the needs of the rest of the nation.  This results because most states’ popular votes are not predicted to be close in a given election – and all states other than Nebraska and Maine award their electoral votes in a “winner-take-all” fashion, awarding no votes to the state-wide popular vote loser.  Electoral votes are not awarded proportionally and each individual citizen does not have the same power to determine who sits in the White House as our leader.  These dynamics can contribute to electing as our president individuals who have lost the popular vote.  But the Electoral College is, nevertheless, ensconced in our Constitution – and we need to amend the document to change that.  Still, some states are toying with Electoral College reforms at the state level.  And voters in those states need to know how to evaluate the offerings with which they are being presented.

For example, voters in California are about to be faced with two state-based reforms targeting the distribution of the state’s influential 55 electoral votes.  They can reject state-based reform altogether and vote for what we’ll call “Choice A,” a vote to preserve the current system of “winner-take-all” so that the state’s popular vote determines how all of their electoral votes in the Electoral College get allocated.  They can also vote for Choice B, a new initiative to distribute the electoral votes of the state according to the popular vote winners at the congressional district level (with two votes reserved for the state-wide popular vote winner).  And Choice C is having California join an interstate compact that would change California’s system to a different kind of “winner-take-all” distribution: If a consortium of states that represents a majority of the total electoral votes in the country joins the agreement, this plan would have all the electoral votes go to the national popular vote winner, irrespective of how the voters in the state vote.  What is a voter to do?

There is a fairly loud chorus from the left urging Californians to embrace Choice C.  At the very least, this liberal conventional wisdom recommends rejection of Choice B, deemed to be a naked power grab by Republicans.  And, in the very short term, it is undeniable that Choice B is likely to help Republicans capture electoral votes that they simply couldn’t get in the current winner-take-all climate that dominates the electoral landscape.  It is thus no wonder the left is loud and consistent on the point.  But there are also appeals to “democratic principle” beyond the partisan hankering.      

Of course, when debating the details of election reform, most think that the best way to be convincing is to try to stay above the fray of ordinary politics.  So appeals to higher principles of democracy are routine.  But, in this case, the principles likely leave California voters in equipoise and only partisan considerations will really help them make a decision.  For that reason, Californians should be urged to look at this problem of election reform as politics and not principle.  To be sure, they can look at the problem in terms of short-term “fairness” for 2008 – a perspective that counsels for a vote against Choice B.  But the rhetoric of “democracy” is not persuasive and should be discounted.

To the extent that there is a democratic principle that animates electoral vote reform it is this one: Our President should be elected by a national popular vote, not an Electoral College system.  To realize this principle without offending our written Constitution probably requires a constitutional amendment, since the Electoral College is a non-optional method of presidential selection in the document that constitutes our political ground rules.  This, of course, presents some problems for Choice C, favored by the left: it is effectively an end-run around amending the Constitution, the one true and proper way to abolish the Electoral College once and for all.

But Choice C has a more important deficiency from the perspective of democratic principle (because clever lawyers have made perfectly plausible arguments – arguments likely to be rejected by a Republican Supreme Court, mind you – for the interstate compact’s constitutionality).  It doesn’t change the status quo at all.  A vote for Choice C has the exact same consequence as a vote for Choice A from the perspective of the real world.  Both leave the California voter right where they found her – and neither brings the country any closer to meaningful Electoral College reform.  Voting for Choice C is a bit like symbolically voting to reprimand the current President for his handling of the war.  It does nothing to bring about the end of the war.

The best that can be said for a vote for Choice C is that, perhaps, it is a vote consistent with the principle.  But that is a thin reed on which to hang an argument to vote for a plan that accomplishes nothing practical towards bringing about the realization of the principle.  More, there is no reason California cannot back out of the compact as soon as it decides that it is no longer in its own interest to participate.  It barely serves as a meaningful commitment or intention to reform.

But maybe the left is onto something by highlighting just how violative of the principle Choice B is.  To be sure, it is likely that in the short term California’s electoral vote distribution under Choice B might contribute to making it statistically more likely to produce an electoral vote winner that is a popular vote loser.  But there is no guarantee that this result will follow over the long term by making the change to the district-based electoral vote distribution in California. 

Certainly, it makes no sense to evaluate the plan – as so many have – by abstracting from one state’s move in the direction of proportional vote distribution to assessing what the country would look like if all states adopted the method of district-by-district distribution.  Political theory can’t be done through this bizarre application of Kant’s categorical imperative, assessing one state’s action through imagining the plan being generalized to all states.  Californians have to assess the plan on its own terms.

And one can certainly imagine some benefits to Californians who embrace the principle emerging from adoption of Choice B.  A change to Choice B for California might stimulate a real movement among Democrats to abandon the Electoral College in the one right way it can and should be done – through constitutional amendment.  Destabilizing the purported “fairness” of the status quo may trigger real reform.  Or consider that a change to Choice B might stimulate meaningful districting reform in California and result in more competitive districts; if the President is suddenly at stake in districting design, districting reform might seem much more pressing. 

Less speculatively, a change to Choice B will likely give presidential candidates more reason to go to California and focus upon its citizens, make them campaign promises, and attend to the needs of the most populous state in the union.  The nay-sayers on this point emphasize that virtually all the congressional districts are designed to give a single party dominance, so no more effective competition will result from making the change to Choice B.  But just because most districts are locked up for a party for congressional races doesn’t mean that party’s presidential candidates will win the district.  After all, the gerrymandered districts are gerrymandered to ensure the success of the congressional representatives; and different issues come into play when voters choose a national leader.  Indeed, the same Californians who gave all their electoral votes to a Democratic presidential candidate elected a Republican Governor; the context of an election matters.  Many Californians are free thinkers and can think for themselves beyond party identification. The state that gave all its electoral votes to Clinton, Gore, and Kerry, FDR, LBJ, and Truman also gave all its electoral votes to Bush the First in 1988 and to Reagan, Ford, Nixon, and Eisenhower.

There may be something naïve about thinking that the gerrymandered districts can be unlocked from party dominance.  After all, in 2004, only 59 of the country’s 435 congressional districts “split” their vote between one party’s congressional candidate and the other party’s presidential candidate (though there were only about 35 districts that were deemed competitive in that year).  But even a few swing districts will give presidential candidates a reason to court voters of the left and the right in California.

In sum, the short-term effects of a move to Choice B for the 2008 election seem reasonably clear; but the long-term effects are very hard to predict.  All these other important results that might follow from adoption of Choice B are not only consistent with the principle (or, at least, they are as consistent as Choice C is); they also have substantial democratic justifications of their own that might encourage a principled voter to look well beyond 2008.

There may yet be one other principle that could clearly sustain a vote against Choice B: voters are being lied to in its promotion and advertisement.  The “Citizens for Equal Representation” who support Choice B and are responsible for getting it before California voters are misinforming voters about its motivations.  And a different Kantian-inspired morality of truth-telling may support the idea that voters should oppose those who lie to them.

But this principle is not really a democratic one, quite.  And, in any case, it might be a hard principle to live by as a voter.  We’re lied to all the time.  Moreover, voters will be and have been lied to about the democratic credentials of opposing Choice B and endorsing Choice C just the same.

In the final analysis, speaking in the high-minded and self-righteous discourse of democracy is inappropriate in this context.  Urging people to vote for Choices A or C is urging them to preserve the current state of affairs, which no truly democratically- principled individual should be able to do without feeling quite dirty in the process.  Admittedly, there is a conception of fairness that recommends against endorsing Choice B – but it is not a purely democratic one and it is predicated on a short-term vision about the 2008 election in particular.  Ultimately, the fact that electoral reform will require us to talk in partisan terms should not be surprising: we’re talking about politics, after all. 

I have no trouble voting against Choice B because it is so obvious to me that I couldn’t live with the consequences in the short term.  But that is the Democrat in me speaking, not the democrat who has worked through the principles and knows what they demand that I do.  That democrat thinks the decision is guesswork on the democratic principles, so he feels fully comfortable deferring to his partisan partner on this one.

Ethan J. Leib, author of Deliberative Democracy in America (2004) and co-editor of The Search for Deliberative Democracy in China (2006), is a professor of constitutional law and legislation at the University of California’s Hastings College of the Law in San Francisco. 

Posted by Ethan Leib on August 31, 2007 at 12:01 PM in Current Affairs | Permalink | Comments (9) | TrackBack

Howdy

Hey kids,

Nice to be back here at PrawfsBlawg.   Since I've got a new gig here at the University of Tennessee (go Vols!), I figured that during my stay here I'll eventually blog a little about what it's like to once again be the new kid on the block.  And also maybe a little of this and a little of that.  But definitely professional wrestling.

In the meantime, enjoy the Labor Day weekend.

Posted by Alex Long on August 31, 2007 at 09:01 AM | Permalink | Comments (2) | TrackBack

Thursday, August 30, 2007

World Jury Systems and a Book Review on Deliberative Democracy

I've uploaded two shorter works to SSRN.  The first is a book review I published a few months ago in Perspectives on Politics about two recent books that target the deliberative democracy enterprise.  The other is a research note entitled "A Comparison of Criminal Jury Decision Rules in Democratic Countries" and will be published early next year in the faculty-edited Ohio State Journal of Criminal Law.  Although the title pretty much says it all, here's the abstract:

In this age of renewed interest in comparative constitutionalism and more focused attention on the legal regimes of foreign democracies, it is astonishingly difficult to learn about other countries' jury systems. There is no central, short, and easily-accessible English source to which scholars and policymakers interested in how the criminal jury functions worldwide can turn for basic facts about the jury systems in use in democratic countries. This paper hopes to fill that gap in part by furnishing jury system information about the twenty-eight democracies (excluding the United States) that have been consistently democratic since at least the early 1990s and have a population of five million or more (with allowance for Mexico and South Africa).

If you catch any errors in the jury paper, please e-mail me.  Because I was collecting data on countries whose languages I don't speak or understand, I often had to rely on secondary sources and imperfect translations.

Posted by Ethan Leib on August 30, 2007 at 11:41 PM in Article Spotlight | Permalink | Comments (0) | TrackBack

Thursday Music Blog

And so it ends.  Thanks to Dan and his fellow Prawfspeople for letting me spend some time here.  It's been great.

I thought I would end with a final music post.  In honor of my departure and in the spirit of High Fidelity, I considered doing a post about the top five goodbye songs (my contribution would be "Saying Goodbye" by the muppets).  But I've decided instead to give y'all a chance to make some music recommendations.

Here's the idea: recommend some music that you love.  It can be something obscure or something more popular--for instance, I think Kelly Clarkson's Breakaway is a great record (yeah, I said it).  Here's my recommendation:  Sun Kil Moon's Tiny Cities.   Mark Kozelek, Sun Kil Moon's lead singer and chief songwriter, has a real knack for reworking songs.  In 2001, he put out a phenomenal collection of AC/DC covers.  On Tiny Cities, Kozelek covers 11 Modest Mouse songs.  It's seriously good stuff.  Here's a weird video with Sun Kil Moon's version playing in the background.  Compare it with the original version of the song.

What do you recommend?

Posted by Zachary Kramer on August 30, 2007 at 08:39 PM | Permalink | Comments (6) | TrackBack

Nice To Be on Board

I wanted to say hello and thank Dan for inviting me to guest blog over here.  I usually write over at MoneyLaw.  By way of introduction, here is a post I recently put up there about the US Civil Rights Commission's report on affirmative action in law schools.

Posted by Sam Kamin on August 30, 2007 at 05:57 PM | Permalink | Comments (0) | TrackBack

Heading for The HILS

Signing off now.  I have enjoyed blogging tons, and thank Dan and his crew for having me here this month.  I can't wait to blog more, and hope I get the chance to do that some time soon. 

But before I go, I'd like to share with you some really exciting news.  My colleague, Holning Lau and I co-direct the Hofstra Institute of Law & Sexuality ("HILS," or, as I like to call it, "The HILS").  Our first project, which we're really proud of and thrilled about, is the organization of a year-long colloquium series, which we call the Colloquium on Law and Sexuality.  We've got a great bunch of great speakers presenting this year, including some existing leaders in the field of law & sexuality (e.g., Mary Anne Case, Dale Carpenter, Russell Robinson), as well as some emerging talent.  A couple of this month's guest-blawgers are presenting, too!  See our official postcard here: Download hils_colloquium

We are pretty confident that the colloquium is going to be a big hit.  Everyone at Hofstra's really excited about it, and for that matter, so is my mom.  Holning and I are eager to line up speakers for next year's colloquium series, and have already got a few folks who've submitted proposals to us. If you're working on, or plan on working on, a piece that relates to law & sexuality, please let us know and we'd love to showcase your work.

Love, Liz

Posted by Liz Glazer on August 30, 2007 at 11:44 AM | Permalink | Comments (1) | TrackBack

Are you now or have you ever been a member of a debate team?

My colleague and Prawfs Alum, Lesley Wexler, asked me to post this important announcement:

Jim Speta , a law professor at Northwestern, is trying to identify law professors who debated in high school or college.  He's seeking to make the case that debate provides skills and interest that lead students to consider law school, in order to support the expansion of the National Association of Urban Debate Leagues, which has been bringing debate back to urban high schools.  Many law professors are already involved with the UDLs.  UDL participants are over 80% minority students, and we hope that (among other beneficial effects) urban debate will increase the pipeline of minorities to law schools and the profession.  If you'd like to hear more, please e-mail Jim at j-speta@northwestern.edu.

Posted by Dan Markel on August 30, 2007 at 10:36 AM in Life of Law Schools | Permalink | Comments (1) | TrackBack

Wednesday, August 29, 2007

Hear Ye, Hear Ye

Every once in a while, a really interesting post pops up on Prawfsblawg that, for one reason or another, doesn't get quite the feedback it deserves (related points in Alexi's post here).  Perhaps the post appeared during grading season or on a long weekend or got quickly mixed in with several other posts.  I'll start: I would be interested in hearing more about Rick Garnett's post on the costs and benefits of changing casebooks.

So, I hereby call upon Prawfs' permabloggers, current and former guests, and readership to post comments  here that reference other posts that could use some renewed life.  Self-nominations are fine.  If you reference this post itself, however, the streams may cross in a vortex of self-referential chaos, and the world will never be quite the same. 

Posted by Adam Kolber on August 29, 2007 at 11:16 PM | Permalink | Comments (0) | TrackBack

Blog Citation and Readership

As my guest stint draws to a close, I've decided to make my last hurrah a little Prawfs navel-gazing.

First, for those interested in the ability to blogs to move beyond the Internet and into scholarship: my colleague Michael Fischl recently wrote a great essay called The Other Side of the Picket Line: Contract, Democracy and Power in a Law School Classroom.  It is a great read and has the added benefit that he cites to Prawfs (fn. 34, for those interested) which he characterizes as "a popular blog for legal academics."  There you have it, folks, in black and white.    If its been pointed out already here, I apologize and see below.

Second, its useful to search these blogs more often.  The other day I was searching for an entry by Orly Lobel last year on the Connecticut Wal-Mart symposium.  Couldn't find it, but I did find her very useful entry that I had not read on banning laptops in the classroom.  Worth re-reading as we enter the new semester.  I am sure there are many other useful posts out there, but I fear they are hard to find.  I guess that is an argument for more regular reading, but if blogs were more easily searchable (at least to novices such as myself) that would be a great thing.

I also reflected on the repetitiveness in the discussion of the issues we face.  My post on the issues  raised by the changes in the first year curriculum is an example.  It seems like we have the same discussions, but fail to go to a higher level (much less reach agreement -- I'm not too hopefully on that).  I think that our little space in academe could really use some serious thinking about these hard issues; especially the ones where we seem to be continually reinventing the wheel.    I know that there is some hard thinking going on through AALS working group on the first year curriculum, and I'll be at the panel on that subject at AALS this year, but perhaps there is something to Larry Solum's call for a professional association of legal scholars.  Solum was writing in response to the dearth of peer reviewed journals, but I think that other issues (skills vs.  doctrines, theory vs. practice, articles vs. books, etc.) might get a more thorough and intellectual airing in the context of such an association. 

Signing off and thanks to the members of Prawfs for including me this month!

Posted by Alexandra Lahav on August 29, 2007 at 01:34 PM in Blogging | Permalink | Comments (2) | TrackBack

The New Zing! in Proxy Battles over Corporate Combinations

The active M&A market, fueled by hedge funds and private equity, has been a hot topic of discussion in the press and corporate circles.  In fact, we are already seeing some of the bloom come off the rose, as interest rates rise and money becomes tight.  But there has also been a quieter sub-development in the last few months surrounding an aspect of these corporate combinations -- namely, the shareholder votes that are (sometimes) required to approve these mergers.

The legal developments, not surprisingly, have come from Delaware, where Vice Chancellor Leo Strine has authored three recent opinions on the subject:

  • In re Topps Co. Inc. Shareholders Litigation (June 14).  Topps had been embroiled in a divisive battle between its long-time family management and a group of dissident shareholders (discussed by Fred Tung last year).  A new board with representatives of both groups had been formed, and the company had engaged in various strategies to sell all or part of the business.  Ultimately, the board had proposed a merger with Tornante, a privately-held company founded by Michael Eisner.  (Yes, him.)  Shareholders sought to enjoin the merger vote on grounds of faulty disclosure.  VC Strine held that the company had failed to disclose several critical factors to shareholders, such as the willingness of Tornante to retain current management as well as the seriousness of a competing bid.  The shareholders' vote was enjoined until they received the appropriate disclosures. 
  • In re Lear Corp Shareholders Litigation (June 15).  In this case, the vice chancellor enjoined a shareholders' vote regarding a proposed cash-buyout merger because the company had failed to disclose the CEO’s financial situation that made a buyout personally favorable to him.  VC Strine concluded that shareholders were “entitled to know that the CEO harbored material economic motivations that differed from their own that could have influenced his negotiating posture”. 
  • Mercier v. Inter-Tel (August 14).  In this case, VC Strine allowed the directors to push back a scheduled proxy vote on an all-cash proposed merger.  Although he recognized that directors have restricted authority under the Blasius standard for actions involving the shareholder franchise, the vice chancellor concluded that the directors had reasonably sought more time in order to persuade shareholders on the wisdom of the deal.  (A Wachtell, Lipton memo believes that Strine creates a new test: the postponement is proper if it served a "legitimate objective" and was "reasonable in relation" to that objective.  However, the M&A Law Prof Blog believes that the vice chancellor "pines here for a 'legitimate objective' test but ultimately acknowledges that this is a reading that cannot currently be wholly jibed with the 'compelling justification' standard of Blasisus/Liquid Audio.")

The Mercier case provided the legal grounds for Monday's announcement by the Topps board that it was postponing tomorrow's scheduled Tornante merger vote.  The justification?  Topps stockholders need more time to "evaluate recent developments when deciding how to vote their shares," including the apparent collapse of the competing bid.

Other commentators have noted the importance of Vice Chancellor Strine's opinions to the process of board decisionmaking.  However, also notable is the respect that these decisions give to the role of shareholders in the mergers and acquisitions process.  In all three cases, the court seeks to protect and enrich the information provided to shareholders in making their decision.  This information is also at the heart of my recent paper, Workers, Information, and Corporate Combinations: The Case for Non-Binding Employee Referenda in Transformative Transactions.   In this paper, I make the case for a non-binding employee vote to be held before the shareholders' vote.  One purpose of this vote would be to give more information to the shareholders, potentially by raising red flags over issues such as those in the Lear and Topps cases.

With exceptions such as the merger between Hewlett-Packard and Compaq, the shareholder vote has not been a critical part of the mergers & acquisitions process.  These recent cases, however, signal a bigger role for shareholders in the future.

Posted by Matt Bodie on August 29, 2007 at 12:25 PM in Corporate | Permalink | Comments (0) | TrackBack

Tuesday, August 28, 2007

On Larry Craig

One of the advantages of being associate dean is that I don't have a lot of time to browse through the blogosphere.  So today I missed what must have been quite the feeding frenzy about Larry Craig and his not so excellent adventure in a bathroom at the Minneapolis airport.  But with Wolf Blitzer screaming at me at the gym today I had no choice, as a gay man, to think about this sad episode.

In particular, this event has forced me to think about my attitude toward outing.  Now of course Larry Craig outed himself -- assuming he is gay, which apparently has been whispered around Washington for 25 years now.  But either way he was still outed, which got me to thinking.  Is that unwilling disclosure just something something I should snicker at, with a "gotcha" attitude?  Or does that suggest some kind of deep-seated self-loathing (that, ironically, Craig may suffer from himself), along the lines of "I'm laughing at him getting caught because fundamentally there is something nasty about being gay?"

I think ultimately I'm glad he got caught/outed, for the reasons a number of gay activists sought to out gay conservatives in the 1990's.  This man apparently opposes every major piece of gay rights legislation -- at least according to the one blog I did read today, Andrew Sullivan's --  and the third goal of his "Mission Statement" on his Senate website is to "defend and strengthen the traditional values of the American family."  Now all of that is his right, and I can respect decisions to oppose any or all of the gay-rights agenda on principled grounds that don't effectively cut gay Americans out from equal citizenship (although opposition on some of these issues seems inconceivable to me on any grounds other than basic dislike).  But the combination of that opposition, his use of what have become gay-baiting code words, and his apparent unwillingness to come out is really too much.   If Senator Craig is gay, and if he's going to oppose employment non-discrimination and the rest of the gay rights agenda, then he really needs to do so from a position of honesty.  He was apparently unwilling to do that, and for that reason I think it was ultimately good that he's been called on it.

I don't buy the "protect the wife and children" defense, either.  As any gay man who's been married and/or fathered a child can attest, it doesn't help the wife and kids to live a lie -- let alone to live whatever level of double life he apparently lived in Washington.  Indeed, now that his lie has blown up in all their faces, we can all see the damage his dishonesty has done.

What it boils down to is either a sad story -- a man trapped into living a lie as a married, traditional family-values defending conservative -- or a bad story --  a man who willingly entered into that lie in exchange for whatever power he may enjoy as Senator and local muckety-muck.  If it's the latter then he will deserve whatever political comeuppance he will suffer, and I'm glad it will happen.  If it's the former, then at the very least he could have had the decency to keep his homophobia to himself, and, to my mind, that indecency disqualifies him for any sympathy.  And of course none of this speaks to his post-arrest activitions, which range from the literally unbelievable ("I guess I should have thought to get a lawyer") to the bizarre (blaming his guilty plea on the Idaho Statesman's investigative reporting) to the  morally indefensible (snapping his Senate business card on the investigator's table and saying "What do you think about that?"). 

As I go to dinner tonight and wonder whether pecking my partner's cheek as we're walking out will buy me or him a cracked skull, I'll think about you, Senator Craig, and I'll say a little prayer.

Posted by Bill Araiza on August 28, 2007 at 11:48 PM | Permalink | Comments (17) | TrackBack

Unconscious Discrimination Twenty Years Later

The Connecticut Law Review is hosting a symposium on November 2, 2007 celebrating, revisiting, critiquing and moving forward the ideas presented in Charles Lawrence's influential article The Id, The Ego, and Equal Protection: Reckoning with Unconscious Racism.   Speakers include: Charles Lawrence, Mari Matsuda, Gowri Ramachandran, The Hon. Janet Bond-Arterton, Catherine Smith, Amy Wax, Samuel Bagenstos, Devon Carbado, Valerie Purdy-Vaughns, James Forman, Elizabeth Emens, John Tehranian, Eva Jefferson-Paterson, and Angela Onwauchi-Willig.

It promises to be a great symposium with some real leading lights and young soon to be leading-light scholars.   Last year Orly Lobel attended the law review's symposium on Wal-Mart and was favorably impressed (I wanted to link to her blog on the subject but can't find it).   Anyone interested in this symposium should contact the Connecticut Law Review.

Posted by Alexandra Lahav on August 28, 2007 at 03:57 PM | Permalink | Comments (0) | TrackBack

Pain Control Using fMRI

A couple of days ago, the NYT ran an article  on the use of real-time functional magnetic resonance imaging (fMRI) to treat pain and perhaps a host of other symptoms like addiction and depression.  The technology works like a kind of high-tech biofeedback:

Here’s how Omneuron uses fMRI to treat chronic pain: A patient slides into the coffin-like scanner and watches a computer-generated flame projected on the screen of virtual-reality goggles; the flame’s intensity reflects the neural activity of regions of the brain involved in the perception of pain. Using a variety of mental techniques — for instance, imagining that a painful area is being flooded with soothing chemicals — most people can, with a little concentration, make the flame wax or wane. As the flame wanes, the patient feels better. Superficially similar to an older technology, electroencephalogram biofeedback, which measures electrical feedback across multiple areas of the brain, fMRI feedback measures the blood flow in precise areas of the brain.

By giving users feedback about their pain, the technique attempts to create a visual representation of an individual's pain.  That's pretty impressive!  But imagine if we could make interpersonal judgments of pain.  That could really change the way we identify malingerers and the way we calculate damages in court.  As I've noted, I think that neurotechnologies may someday move us in that direction. (X-posted.)

Posted by Adam Kolber on August 28, 2007 at 11:00 AM | Permalink | Comments (7) | TrackBack

Finally! Why AlGo Took So Long to Leave

As of yesterday, Gonzales' resignation became official.  At one level, I see the resignation as a puzzle (in addition to being a great relief).  After all, AlGo defied months of intense bipartisan pressure and betting on when he'd leave. Remember when Slate's Gonzo-meter predicted with 95% confidence that he'd be gone on a particular day in April?

So what took almost six months for him to do the right thing, to permit the slim chance of restoring the veneer of competence and fair-dealing to the head of Department of Justice? Here are some possibilities:

a) Gonzales wanted to show that he wasn't caving to any pressure in particular, but wanted to go on his own time, even if his foot-dragging impeded the President's ability to faithfully execute the laws.
b) Gonzales wanted to take advantage of the Bush Administration's legendary August vacations.
c) Gonzales wanted to find a cushy job at Boeing (or equivalent) and  it takes some time to arrange a soft landing, even for the Attorney General, when Senators from both parties want to put your head on a spike.
d) Gonzales didn't want to leave office until James Comey revealed the true story of AlGo's botched manipulation of an ailing hospital bed-stricken John Ashcroft.
e) Gonzales didn't want to leave until David Lat had completed his coverage on Shanetta Cutlar.

Honestly, I have no sense why he actually waited so long to leave. His own brief statement reveals no substantive information. Any informed speculation?

As to the successors, there are a few candidates from the Republican side that would be much less terrible: notwithstanding Michael Chertoff's difficulties at DHS, I think he'd be much better at Justice. The problem is that moving Chertoff away from DHS now might instigate higher transition costs than is worthwhile, especially for a department of DHS's scope and responsibilities, assuming that Chertoff has improved on the job at DHS (I can't really say that he has).  Clement's move from the SG to be Acting AG is a good one as predictable and competent apparatchiks go; my choice (were I Republican) would be for Comey, but I see that as about as likely as selecting Eugene.   

Update: I see now that Emily and Dahlia at Slate were intrigued by the same question I was, and they offer their own reasons for AGAG's slow  departure. Check it out.

Update 2: Thanks to JHA at TVC, I see that there's a short WaPo profile of Paul Clement that you may want to look at, especially if you wonder whether Clement will turn out to be predictable.

Posted by Dan Markel on August 28, 2007 at 07:56 AM in Law and Politics | Permalink | Comments (10) | TrackBack

Monday, August 27, 2007

Which Law Blogs Do Faculty Read?

Interesting news from Jay Brown, at the "Race to the Bottom" blog.  Discussing the question whether blogging is "worth it", and the challenge of deciding whether or not a blog is a "success", Brown notes:

Another measure of success, however, is whether the blog is read by the right audience.  This, of course, requires identification of the right audience.  In the law blog area, it could be decision makers, lawyers within the speciality area of the blog, and other segments of the public.  Thus, a law blog could be very successful even with low overall traffic so long as it is read by the right audience. 

For law faculty who blog, a critical audience is likely to be other law faculty.  In general, however, there is no way to measure a blog's success among academics, anecdotal evidence aside.  (Some evidence can be obtained by observing number of visits from IP addresses of academic institutions' networks or through direct feedback from faculty.  Even this information, however, does not permit a relative comparison.) 

That, however, has changed. . . .

What are the top ten law faculty blogs read most frequently by those with an edu IP address according to Justia? The Workplace Prof Blog (#2), PrawfsBlawg (#3), TaxProfBlog (#4), The Conglomerate (#7), Legal Theory Blog (#9), Religion Clause (#10), Mirror of Justice (#13), Sentencing Law and Policy (#16), and Truth on the Market (#17) (Concurring Opinions is next and is ranked #19 in the top 200 law blogs visited by those with an edu IP address).

Brown also has some thoughts about what, if anything, this top-ten list means.  (The answer might well be "not much", since the list does not include obviously successful blogs like Volokh, Instapundit, Leiter, Bainbridge, Althouse, etc.)

UPDATE:  The discussion of this list, and the methodology, in the Prawfs comments and elsewhere, seems to point pretty clearly toward the conclusion that the list is -- to quote Bainbridge -- worthless.

Posted by Rick Garnett on August 27, 2007 at 01:39 PM in Blogging | Permalink | Comments (8) | TrackBack

What is the animating theory of the law School curriculum?

My post on changes in Civil Procedure (and the 1L curriculum generally) and Bill Araiza's post on the third year of law school brings up the obvious question -- what is the law school curriculum intended to achieve?

There are several schools of thought about what the first year of law school is all about.  The first is the "skills" thesis.  This is the idea that the goal of the first year of law school is to introduce students to the fundamental skills of the profession and that they can learn the substance later.  What type of things count?  There is room for reasonable disagreement, but I imagine its something like the ability to read a case closely, understanding theories of interpretation and types of legal reasoning and argumentation.  Under this theory, the substantive doctrine taught is less important than these fundamental skills.   A "skills" civil procedure class could include either personal jurisdiction or Erie, as both are complex doctrinal structures that have evolved through case law and teach basically the same skills set.  The class would also include some aspect of the federal rules that are more rules-based, such as pleadings (though that will be changing given the Supreme Court's recent decision last term in Twombly) or whatever strikes your fancy (discovery, summary judgment, post trial motions) to teach interpretation, statutory construction and close reading of rules.   

I'll call the second theory the "proficiency" thesis.  This is the idea that the goal of the first year is to inculturate students by teaching them fundamental doctrines and values on which will (1) build their understanding of the structure of the American legal system and (2) allow them to have educated conversations in a professional context.  This is the excuse I give my students for teaching Pennoyer. I tell them the story recounted by Linda Silberman of a homeless man who, to prove he was really a lawyer, recited the holding of Pennoyer v. Neff.    This type of civil procedure class would need to include both jurisdiction and Erie, for obvious reasons.

The 1L curriculum is a little bit of both - most of us want to teach basic skills and we think certain substantive doctrines or types of arguments or what have you are essential to a well rounded legal education.   I think people are more likely to disagree on the latter (what doctrines are essential?) than on the former.   As we think about this more deeply, I think we will find that what doctrines one thinks are essential are formed largely by one's own experience as a 1L.   But I was surprised to see in the comments to my last post some people who took the view that the purpose of 1L year is almost exclusively  skills-oriented.  I disagree.  What we teach is important, not only how we teach it.

Posted by Alexandra Lahav on August 27, 2007 at 11:42 AM in Life of Law Schools, Teaching Law | Permalink | Comments (1) | TrackBack

Sunday, August 26, 2007

Sunday Music Blog

My plan for today's music blog was to say something about the new Rilo Kiley record, Under the Blacklight (which is a strange but oddly satisfying album).  But instead I want to mention a singer-songwriter from Little Rock named Christopher Denny. I was going to see him play last night, but he was playing in one of the few bars in town where you can still smoke and I don't like having to Febreze all my clothing after going out.  So I didn't go.  Is that a lame reason not to see live music?

I didn't hear about Denny until yesterday, when my friend told me about his show at the smoky bar.  My friend described him as a cross between Bob Dylan and Roy Orbison.  Although he is only twenty-three, Denny has an incredibly mature sound.  Denny's debut album, Age Old Hunger, was released this month.  The eleven-track record includes nine originals and three covers (two Johnny Cash songs and one Kris Kristopherson song).  You can here some it of here.  You can buy it here.  You can read about him here

Let me know what you think.  Enjoy!

Posted by Zachary Kramer on August 26, 2007 at 01:02 PM | Permalink | Comments (3) | TrackBack

Friday, August 24, 2007

Third Year Blues

Liz's post a few days ago, which in turn cited an earlier post of mine (this is how you can goose your citation numbers, by the way), talked about increasing the number of skills courses in the law school curriculum.  Her post raises an important issue in legal education -- what to do with/about the third year of law school.

We all know the scare you/work you/bore you to death saying about law school.  But I sense there is a lot of reality about students being bored to death in the third year.  In a real sense, students have outgrown us by that time.  They've been exposed to what most of us do -- thinking about law in a pretty conceptual sense, have gotten better at it (or not), and are looking forward to the next stage of their careers.  For the great majority of them, that next stage will be practice of some sort.  As much as we'd like them to become, in effect, advanced graduate students, by the third year most students have taken at least one step away from close reading of appellate cases, and toward practicing trial skills, or working with legal documents, or counseling clients.  At least that's where they want one of their feet to be.

The problem is that that's where most of us are not.  I suspect that most law professors, except for clinical faculty, simply don't have that much interest in preparing our students for legal practice beyond getting them adept at reading cases, understanding jurisprudence or legal history, or getting a handle on some substantive law area.  (All those skills are important, of course -- but they're really not enough.)  And of course it's a lot of work to tie what what we do in the classroom to how students will actually practice, and for most of us the professional payoff and the self-gratification lies elsewhere.

Some of this gap can be made up by skills faculty, adjuncts, and off-campus externships.  But I'm coming to believe that non-skills faculty teaching upper-level classes do have some responsibility to do more than repeat teaching patterns from the first year.  There are a lot of really interesting things profs can do -- from an administrative law professor creating a semester-long problem that requires students to, well, act as an attorney in an administrative proceeding, to a family law attorney setting up a dispute that requires a negotiation, complete with unhappy and contentious clients.  Again, these all take a lot of work; it would be a lot easier for me simply to walk into my Admin Law class and have a socratic dialogue about Chevron.  It would probably be more interesting for me, too.  But as I think more and more about law teaching, and see the disengagement of too many third-year students, I am coming to believe that we need to do more than what we're doing, and more than what makes us as professors not bored in class.

Posted by Bill Araiza on August 24, 2007 at 08:10 PM | Permalink | Comments (4) | TrackBack

Big Changes in Civil Procedure Part II: The Incredible Shrinking First Year Course

Before I delve into civil procedure, those of you who have submitted/are submitting articles this fall may like this post on Concurring Opinions on the subject of law review submissions.

And now, the incredible shrinking civil procedure course.   The movement to reduce credit hours for first year courses has been on the march for some time now.   People have given various reasons for this.  Some say professors want to teach less.  That explanation only applies to those  schools that determine teaching load by course.  Professors at schools that determine teaching load by credit will prefer to increase the credits of any single course to avoid prepping more courses.   The more academic reason is the desire to add more and more things into the first year curriculum.  Some of you may recall Harvard's announcement to include international law in the first year and a problems course.   

So whereas civ pro used to be a 6 credit two semester course, in many places it has moved to a 4 credit one semester course.   This means that civil procedure professors now need to cut more and more from the curriculum.  What should go, pleadings and discovery or Erie or due process?  What can other professors then assume about the civil procedure background of students?  I've heard that many upper level students taking federal courts courses don't know what Erie is.   While Erie questions don't come up that often in practice, the doctrine does lay an important foundation for understanding our federal system that a student likely won't get elsewhere.   Similar arguments can be made for every aspect of the course.  Shouldn't students have a basic understanding of the values and theoretical underpinning of the adversary system?  Don't students who intend to be either litigators or transactional lawyers need a realistic sense of the stages of the lawsuit, the costs of each stage and the rules surrounding settlement of suits?  (That is, something more than "suing is really expensive").   And shouldn't they know something about privilege doctrine so they don't inadvertently waive the privilege for their client?  Unless professors coordinate, the students may never learn these things in upper level courses, but they can't all be fit into a 4 credit class.   I know, because I've tried.  Yet coordination is difficult because of academic freedom concerns -- why should my decisions as a civ pro professor in the first year dictate what my colleagues cover?   

I think this is a serious problem as we try to shove more and more into the first year curriculum and the trend is certainly towards a permanent reduction in civ pro teaching hours.  I don't think there's any going back.  But it does place a real burden on upper level teachers that should not be ignored.  And it is a genuine loss for students.  I've heard that in student post-grad surveys, civ pro was one of the more useful courses for practice.   And it is, after all, our mission to prepare students to become lawyers.

I wonder if professors teaching other first year areas, such as contracts, torts, criminal law, property, and constitutional law (for some schools anyway) feel the same way.

Posted by Alexandra Lahav on August 24, 2007 at 11:00 AM in Teaching Law | Permalink | Comments (20) | TrackBack

The Legal Scholarship Blog

Thank goodness for the free digital canopies at the Tallahassee Airport.

Just a quick note: a few weeks ago I posted a note about the development of a blog devoted to listing the 411 of legal conferences both domestically and internationally.  Turns out the people behind that blog from U. Dub have now joined forces with the folks at Pitt's School of Law, and together they have put together a wonderful website called the Legal Scholarship Blog, which tracks both conferences and workshops and provides links to some other helpful sites. Check it out.

Update: check this cool link out also, which has tons of information for your research dean. I wonder: now that this info is being so readily compiled and available, will the position of research dean become obsolete?? I think not if the role encompasses cajoling faculty to actually write, put their writing up on SSRN, promote their writing, organize workshops, etc.  But if the research dean serves to be strictly "a resource," then maybe they are obsolete...I'll wait for Bill Araiza and Jim Rossi to weigh in before deciding of course.

Posted by Dan Markel on August 24, 2007 at 09:49 AM in Life of Law Schools | Permalink | Comments (0) | TrackBack

Everyone's a Winner (or, Friday Music Blog)

I don't mean to invade Zak's niche, or steal his Sunday thunder, but I had to share Nixon Peabody's amazing non-theme song (hat tip: Dave Lat).  This is one of those rare songs with the power to stay in your head for well over a week. You'll thank me later; enjoy:

Posted by Liz Glazer on August 24, 2007 at 09:14 AM | Permalink | Comments (4) | TrackBack

Nostalgia circa 1995

You've probably already seen this, but if not -- here's a trailer for a movie that should bring back memories.  (And here's a far more in-depth Wikipedia site than I expected.)  Maybe Tetris will be next? 

Posted by Matt Bodie on August 24, 2007 at 12:51 AM in Culture | Permalink | Comments (1) | TrackBack

Thursday, August 23, 2007

Reprints!!

I am doing my best to put together a reprint list for the not so distant future. So far I have a bunch of legal theory and criminal law prawfs on it and a few other sundry types. That said, if you're interested in being on the list regardless of your specialty, please drop me a line with your name and address. If I have enough reprints I will send them along this round. If I don't have enough now, I'll know for the future so please accept a preemptive apology.Thanks much!

Posted by Dan Markel on August 23, 2007 at 11:02 PM in Dan Markel | Permalink | Comments (0) | TrackBack

New Year's Resolutions

Now that it's Fall in New York, I've been thinking about my (academic, or I guess, Jewish) New Year's resolutions.  One of the comforting elements of this job, I think, is its cyclical nature.  That cyclical nature provides a natural time, at the beginning of each semester and, perhaps especially, at the beginning of an academic year, to reflect on the year before.

I've already shared with you one of my resolutions for this year, inspired by Bill Araiza's post on the ABA annual meeting. I'm feeling pretty honest this evening, as I look forward to the weekend before I begin my second year of teaching, so I'll let you in on a few more:

(1) Don't respond to students' emails with long, comprehensive, publishable, treatise-worthy responses (this resolution was inspired by William Birdthistle, here; also, some consider this practice a revolution);

(2) Dedicate time to writing every single day, no exceptions, even if all I write on a particular day is boring, background material;

(3) Spend at least a few hours every day unconnected to the internet;

(4) Write parts of final exams as the semester progresses, instead of saving this process for the end of the semester;

(5) Ditto for the review sessions;

(6) Email at least one person per month, randomly (as in, someone I've never met), with comments to a piece they posted recently on SSRN; and

(7) Perhaps most importantly, remember that I am not a fraud, I do have something worthwhile to contribute, and I deserve to be where I am.

That's all I've got. Anyone else feeling honest?  Of course, I understand the inclination to post anonymously on this topic, so feel free.  As I discussed with a colleague earlier today, it might be fun to look back a year from now and see how successfully we've stuck to our resolutions. C'mon . . .

Posted by Liz Glazer on August 23, 2007 at 10:53 PM | Permalink | Comments (0) | TrackBack

"Exile on Bay Street"

Here's a nice piece from Alec Scott, a very nice and talented guy who graduated from the University of Toronto's law school a year before me and ultimately left law for journalism.  The piece is in the fairly standard genre of lawyers, or former lawyers, complaining about the intolerable life of the big-firm associate, but it's very well done -- and made me curious, I must admit, about the concealed identities of some of the classmates that he mentions!  Here's a nice paragraph discussing one classmate who faces conflicts between his life at a large firm and his life at home, as a new father.  Substitute a few names -- the law school, the firm -- and this description of law firm life in Toronto works equally well just about anywhere else:

“If you want to be a success downtown,” New Father carps, “then go to U of T, take all the corporate law courses, work your ass off, go to Oslers, work your ass off again, and 20 years from now you can look around and say, ‘I have more money than God.’ But let me ask you something: what’s in your photo album?”

An enjoyable and interesting article -- especially if you're reading it from behind a desk in some gargantuan office tower somewhere, in between billable hours.  For the Canucks among us, it also provides, in spots, a nice picture of a now faded and disappearing community in Canada, the old gentleman's club of lawyers at white-shoe firms in previous generations: "cryptic-crossword doers, streaky bridge players," veterans of "boozy dinner parties at . . . cottage[s]."  Not that different, really, from the equally faded characters who populate Louis Auchincloss's stories about the New York firms.  (Hat tip: the Canadian law blog Precedent: The New Rules of Law and Style.)      

Posted by Paul Horwitz on August 23, 2007 at 04:00 PM in Article Spotlight | Permalink | Comments (0) | TrackBack

Big Changes in Civil Procedure: Part I

Two big things are happening in the civil procedure teaching world right now: the restyled rules and the shrinking civil procedure course. There has been a very good discussion on the civpro listserv about these issues in the last couple of days and I think the issues are worth sharing with the wider community.  In this post, I’ll concentrate on the new rules.

The new “restyled” Federal Rules of Civil Procedure will almost certainly be coming into effect December 1. For those of you that don’t follow the FRCP, nearly every rule has been rewritten for clarity and style. The changes are supposed to be merely stylistic, but of course there is a debate about whether this is in fact the case. Edward Hartnett has written a nice essay arguing meaning has been changed by the style revisions and advocating that the changes be rejected.  Personally, I think that the new rules are easier to grasp and make nice use of bullet points (seriously, look at the rules and you'll see what I mean).   

The question for teaching the subject is how to teach the rules now that they are in flux.  It is pretty rare that an entire subject matter changes (only Bankruptcy comes to mind a course that has experienced such wholesale change in the recent past).  Lawyers and judges, intimately familiar with the old rules and about to begin interpreting the restyled rules, are going to use the old rules and the interpretations that have grown around them to interpret the new rules. They must, since the new rules specifically state that they were not meant to change the meaning of the old rules. Or is this point also debatable? The new rules will have superseded the old rules, after all.  In any event, this issue militates in favor of teaching both the old and the restyled, side by side, at least while the interpretation of the restyled rules is in flux. Just as the ancient forms of pleading used to be taught in civ pro and have slowly been edged out.  If the point of the restyling was to simplify matters, it is clear it hasn’t done that – at least for law professors and students. 

On the plus side, as an astute professor wrote on the civpro listserv yesterday, the interaction between the rules offers a great opportunity to show students interested only in “learning the rules” that there is a lot more to law school than that. For me as a teacher, that is the real benefit of restyling.    I've found that one of the main tasks of teaching civil procedure has been to communicate to my students that skills (close reading, argumentation, reasoning, etc.) and basic background knowledge (values, history, theories of interpretation, types of arguments)  is much more important than the ability to memorize a set of rules.   Initially students often prefer a course where there is a "right answer" that they can simply learn, and they find it frustrating that it is not the answer that matters but the process that got you there.  I'm looking forward to have a concrete illustration of this point in the restyling process to use in my teaching.

You can download the restyled rules here or look at any FRCP supplement published in 2007, both sets should be in there.
 

Posted by Alexandra Lahav on August 23, 2007 at 11:31 AM | Permalink | Comments (4) | TrackBack

Sexual Orientation and the Law Blog

My friends Sara Benson and Bill Turner have started a new blog, the Sexual Orientation and the Law Blog.  You can access it here.

Surf over, do some C.V. Stalking, and give them lots of comments.

Posted by Zachary Kramer on August 23, 2007 at 11:01 AM | Permalink | Comments (0) | TrackBack

The Opposite of Marquette: When Budgets Dry Up

I'm glad Rick was able to start a thread on Marquette's good fortune.  Here's a related question and some context. As some of you may have heard, the Florida legislature has announced drastic cutbacks in its support for higher education in this current year, and the  FSU College of Law (like other Florida units) is now trying to reduce costs without impairing the provision of a high-quality education to its students and without jeopardizing the basis for FSU's increasing reputation as a strong research environment. 

Next week, the faculty at my law school will be discussing the budget cuts for this year. My question is for both those of you who might have been involved in cost-cutting in a law school atmosphere and, um, those of you haven't: what are the best places to make cuts in the law school budget?

Here are some things we're already doing in no particular order: freeze on overnight shipping/mailing, reducing the allocation available to faculty for travel and research assistance,  and keeping salaries  at current levels.  That said, we're still committed to giving scholarships and hiring new faculty we need for future years.  By the by, I've heard some departments are cutting off phone service to faculty or alternatively are cutting off voicemail and just buying faculty answering machines, which are not a recurring charge --  this is one of my favorite examples of low-hanging fruit.

I'll leave for another post my reflections on whether legal education is something taxpayers should have to subsidize, but in the meantime, as long as we're constrained in what we can charge students, we're somewhat tethered to the grants we get from the legislature.  What's particularly unnerving about this experience is that the schools plan a budget, have it authorized, and then find out, during the fiscal year, that the budget is now changing because state revenues aren't as flush as projected.  Brian Galle has tried to explain to me that Florida's constitution prevents the legislature from acting in a less apparently asinine way, say by, allocating future expenditures based on revenues already received.  Maybe I'm hopelessly uninformed but relying totally on current revenue streams to run a government's balanced budget program doesn't make sense.

Posted by Dan Markel on August 23, 2007 at 12:13 AM in Life of Law Schools | Permalink | Comments (8) | TrackBack

Wednesday, August 22, 2007

More on Moving Away From Winner-Take-All Electoral Vote Distribution

The NYT has also come out against the proposed reform to change how California distributes its electoral votes.  The chorus is loud, as I discussed here.  What I like about the Editorial at the NYT, however, is that it is self-consciously partisan.  Its argument is simple: this is a power grab by Republicans and that is why we should all oppose it.  Consider these choice quotes:  "A prominent Republican lawyer in California is doing it the wrong way, promoting a sneaky initiative that, in the name of Electoral College reform, would rig elections in a way that would make it difficult for a Democrat to be elected president . . ."  "If California abandons its winner-take-all rule while red states like Texas do not, it will be hard for a Democratic nominee to assemble an Electoral College majority, even if he or she wins a sizable majority of the popular vote. "  "It is actually a power grab on behalf of Republicans."  "If voters understand that the initiative is essentially an elaborate dirty trick posing as reform, they are likely to vote against it." 

A few things about the Editorial that strike me as wrong, though:  The editorial proclaims, "This bad-faith initiative is yet another example of the ways in which referenda can be used for mischief and a reminder of why they are a bad way to resolve complex public-policy issues."  Put to one side the fact that initiatives and referenda are actually different processes.  Is that right?  The NYT has a preferred answer to how to attack the Electoral College:   "Opponents of the initiative announced yesterday that they are sponsoring their own, rival initiative, which would commit California to a national plan that aims to ensure that the winner of the national popular vote becomes president. That idea makes much more sense."  Wait, so a competing initiative might have the right answer to Electoral College reform?  So referenda are good if you approve of their proposals?  Yes.

Of course, given my views about how to discuss this issue,  I commend the NYT for its openly partisan Editorial.  Still, the page just can't resist appealing to principle: "No principled elected official, or voter, of either party should support [the initiative]."  But what is the principle?  That's what I'm seeking in all these articles and failing to hear.  Saying, as the Editorial does, "It is about whether to twist the nation’s system of electing presidents to give one party an unfair advantage" doesn't answer the question because most reforms at some point in time (indeed, even at their adoption) can very easily give one party a seeming "unfair" advantage.  Perhaps the principle is just that when parties act for their self-interest, they should be repudiated?  That can't be it; we'd be doing a lot of repudiating as voters.   

To the extent there is a principle embedded in these discussions, it is that the popular vote nationwide should be electing the President.  But no one reliably shows (so far as I've seen) that the plan Republicans are proposing will, over the long term, take us any further from the ideal state of affairs than the current alternative, which is the winner-take-all system.  More importantly, the proposal seemingly favored by the Republicans' opponents -- the contingent interstate compact -- changes NOTHING and may itself be unconstitutional for its effort to devise an end-run around Article V, the obvious way to abolish the Electoral College.  Voting for the compact proposal is a vote for the status quo.  It is like a non-binding resolution admonishing the President for his handling of the Iraq war.  It is merely symbolic.

Now I'm not saying we shouldn't oppose Republicans.  I think we should.  But I think so for partisan reasons; my deep principles don't tell me clearly why their proposal is really less "democratic" than preserving the current system, whose "democratic" credentials are certainly questionable.

Posted by Ethan Leib on August 22, 2007 at 12:22 PM in Article Spotlight | Permalink | Comments (5) | TrackBack

Workshops etc. this fall at FSU's College of Law

Notwithstanding the budget cuts we're facing across Florida, there are still plenty of interesting things going on, especially at the FSU law school this fall.  The juniors are continuing their own incubator workshop series and we'll be having a philosophy reading group as well as a new crim reading group;  more generally, our excellent external workshop series moves apace, with over 20 speakers coming to break bread with us and share wisdom. The workshop series schedule appears after the jump.  If you're a prawf who will be in T-town or nearby on those dates, let me know and we should be able to squeeze you in for lunch.

Speaking of wisdom, I'm particularly keen to hear David Schmidtz' presentation on the History of Liberty later this fall. Schmidtz is visiting FSU's law school this fall from the Philosophy and Economics Departments at the University of Arizona, where he heads the Philosophy of Freedom program. Not only a fellow Canadian by origin, he's also prone to writing philosophy of the sort that connects to the big questions, much like this wonderful essay. He joins Joseph Sanders, one of the leading torts and scientific evidence scholars in the academy, who will also be visiting us for the fall semester. We're very glad to have them both.

FALL 2007

         Thursday, September 6 - Professor Kristen Hickman, University of Minnesota. Topic: In Search of the Modern Skidmore Standard (Rossi)

Thursday, September 13 - Professor Suja Thomas, University of Cincinnati. Topic: Why the Motion to Dismiss Could be Unconstitutional (Wexler)

Friday, September 14 - Professor Heidi Hurd, University of Illinois. Topic: The Morality of Mercy (Bridgeman)

Monday, September 17 - Professor Randy Abate, Florida Coastal. Topic: TBA (Ruhl)

Thursday, September 20 - Professor Paul Robinson, University of Pennsylvania. Topic: What Distributive Principles Should Guide Punishment? (Markel)

   

Thursday, September 27 - Professor Joseph Sanders, University of Houston Law Center. Topic: A Norms Approach to Jury 'Nullification': Interests, Values and Scripts

   

Thursday, October 4 - Professor Daniel Rodriguez, University of Texas School of Law. Topic: Is Administrative Law Inevitable? (Rossi)

Monday, October 8 - Professor Royal Gardner, Stetson Law School. Topic: TBA  (Ruhl)

Wednesday, October 10 - Professor Erin O’Hara, Vanderbilt Law School. Topic: TBA  (Wexler)

   

Thursday, October 18 - Professor Gabriel J. Chin, University of Arizona. Topic: TBA (Markel)

   

Thursday, November 1 - Professor Matthew Stephenson, Harvard Law School. Topic: TBA (Seidenfeld)

   

Thursday, November 8 - Professor Julian Juergensmeyer, Georgia State University College of Law. Topic: TBA (Ruhl)

   

Thursday, November 15 - Professor Peter Strauss, Columbia Law School. (Distinguished Scholar in Residence during week of November 13-16) (Galle)

   

Thursday, November 29 - Professor David Schmidtz, University of Arizona (Department of Philosophy). Topic: The History of Liberty

 

SPRING 2008

Thursday, January 17 - Professor Margaret Blair, Vanderbilt Law School. Topic: Assurance Services as a Substitute for Law in Global Commerce (Rossi)

Thursday, January 24 - Professor Thomas Stratmann, George Mason University Economics Department. Topic: TBA (Falaschetti)

Thursday, January 31 - Professor Ethan Yale, Georgetown Law Center.  Topic: TBA (Galle)

Thursday, February 7 - Professor John Mayo, Georgetown University School of Business. Topic: TBA (Falaschetti)

Thursday, February 14 - Professor Jonathan Simon, University of California-Berkeley. Topic: TBA (Markel)

February 20-21 - Professor Jutta Brunnée, University of Toronto (Journal of Land Use & Environmental Law Distinguished Lecturer). Topic: TBA (Markell)

Thursday, March 20 - Professor Pamela Samuelson, University of California-Berkeley. Topic: TBA (de Larena)

Thursday, March 27 - Professor F. Scott Kieff, Washington University-St. Louis. Topic: TBA (de Larena)

April 4-5 - Critical Tax Conference (organized by Dodge/Galle)

Thursday, April 10 - Professor Rick Geddes, Cornell University Department of Economics. Topic: TBA (Falaschetti)

Monday, April 14 - Professor Suzanne Scotchmer, UC-Berkeley (Goldman School of Public Policy). Topic: TBA (Falaschetti)

Posted by Dan Markel on August 22, 2007 at 12:01 PM in Funky FSU | Permalink | Comments (0) | TrackBack

Pain Imaging

There is lots of litigation over the amount of pain people experience.  Yet, it's very difficult (both conceptually and technologically) to assess a person's pain and to compare it to the pain of others.  Nevertheless, such determinations are made everyday by judges, juries, administrative agencies, doctors, insurers, etc.  I have a soon-to-be published symposium article on the subject, entitled "Pain Detection and the Privacy of Subjective Experience."  In the piece, I discuss the possibility that advances in neuroimaging may someday improve our assessments about whether others are in pain and how much pain they are experiencing.  Here's a link to the abstract (scroll down to get the full text).  It's too late to make changes, but your feedback is quite welcome.

Posted by Adam Kolber on August 22, 2007 at 11:10 AM | Permalink | Comments (2) | TrackBack

Cover Letters to Hiring Chairs

An applicant to the meat market emailed me to ask: what would "an example of an ideal cover letter from an AALS candidate to the chair of the faculty appointments committee look like?  Just curious what is considered 'vital' in these letters."

I suspect some chairs might like the research agenda integrated with the cover letter.  In any event, I think that's what I did a few years ago, and so I had a brief introduction with a description of my recent articles and then explained what I planned on writing for a few more paragraphs, followed by a paragraph detailing my teaching interests.  If there were a special reason to be at the school because of a family connection to the area or such, I might mention that up front or at the end, especially if the school is in a place different from where you reside. 

But many of our readers are probably far more savvy about this.  If you've been a hiring chair or sat on a committee, what do you think a cover letter to an appointments committee chair should look like?

And in case you're wondering: our list of appointments chairs for 2007-08 can be found here at this link.

Posted by Dan Markel on August 22, 2007 at 09:54 AM in Life of Law Schools | Permalink | Comments (3) | TrackBack

C.V. Stalking, or Career Due Diligence?

Okay, so sometimes, I spend hours a considerable amount of time looking at other prawfs' official webpages.   And I don't think I'm the only one.  Someone I met at SEALS (whose name rhymes with Man and who invited me to blog here) called this "career due diligence."  He was kidding, but only a little.

Often, when I look at others' webpages, I feel pretty inadequate.  But then I go back for more the next day.  And the day after that.  Why?

Is there something to be gained from this activity?  Do I do it (or does "your friend" do it) because I crave a sense of community?  In that way, is it similar to the inexplicable urge to spend hours a few minutes a day on Facebook?  Does the fact that I may have been inspired, as a result of such stalking, to change the format of my C.V.,  or to add to it a few more lines of content (Download C.V..doc ) outweigh the guilt(y pleasure) I feel when stalking?  Do you stalk?  Why do we?

Posted by Liz Glazer on August 22, 2007 at 08:53 AM | Permalink | Comments (13) | TrackBack

Tuesday, August 21, 2007

Hiding the Ball -- In a Different Sense

During my first class of the semester yesterday I had a recurrence of a feeling that prompted me to post something here on Prawfsblawg a couple of stints ago.  I'm too lazy to find it in the archives, so I'll rephrase it here -- and anyway, I suspect my experience was at least slightly different this time around so a different expression of the idea probably makes sense.

So what do we do when we teach?  What I mean is, do we seek to impart everything we know, or only the partial story, on the theory that our students aren't ready for the fuller understanding of the material  thatwe might have -- and, importantly, that we might be holding back.  This came up for me as I was teaching the state action doctrine yesterday.  I took the material farther than what the obvious, first-blush reading of the case might suggest to a student.  But at some point I stopped, thought about it for (literally) a second, and decided not to add a couple of more complexities.  I'm sure we all do this.

This strikes me not only as perfectly reasonable, but pedagogically necessary.  No third-grade teacher would assign one of Gordon Wood's books to an American history class, and the analogy, while purposely extreme, seems to hold, at least when dealing with students taking an introductory class in a law school.  But our students are adults, and I still wonder what we owe themn when we hold information back.  Pretend that what we're telling them is everything?  Give a quick disclaimer to the effect that there's a lot more to it what they're getting, but this is all they need for now?  Or a general disclaimer at the start of the semester?  Hint that there's something more, and even explain the something more, even if that something more potentially undermines their hard-won partial understanding?  Suggest further reading for those interested?

I suppose the reason I think about this is because we force our students to puzzle through the problems the cases present, yet we rig the process if we tell them they've arrived before they get to whatever level we've gotten to.  It seems to me that insisting that the students struggle through the information requires more in the way of disclosure about what we're not pointing them toward than simply lecturing to them but explaining that we're not giving them the full, complex story, whether because of time or other constraints.  Yes, you've figured it out, we tell them after a long slog through a case.  But they really haven't.

Ultimately, this is probably more of an issue for the professor than for the student.  By hypothesis, the students are working at capacity just to get to their fairly basic level of understanding, so for them the dynamic of the class is that they learn as much as they can, leave the rest, and hope that what they've learned is enough for whatever learning goal they have set for themselves.  But it would seem to me that truly effective teaching requires a consciousness of this issue on the part of the teacher, and a plan for dealing with it.

Posted by Bill Araiza on August 21, 2007 at 09:45 PM | Permalink | Comments (1) | TrackBack

Marquette hits the jackpot . . . again

Coming on the heels of a $51 million gift last May, Marquette University Law School just announced another major gift:  $30 million from Joseph J. Zilber, Milwaukee philanthropist, real estate developer and Chairman of the Board of  Zilber Ltd., a real estate holding company.  (HT:  Empirical Legal Studies blog.)  Congrats to Dean Kearney and everyone else at Marquette.

So, an end-of-summer question:  If a generous donor dropped $30 million (all at once, let's assume) on your law school, how -- in your view -- should your school's (let's assume) responsible-yet-visionary administration use that money?

Posted by Rick Garnett on August 21, 2007 at 03:16 PM in Life of Law Schools | Permalink | Comments (7) | TrackBack

Monday, August 20, 2007

Summer Skills

For those of you who've wondered "Where in the World is Liz Glazer?" (Danny, Zak, and my mom), I didn't get the chance to blog at all last week because I taught an intensive one-week course in Business Drafting in Hofstra's Summer Skills Institute. While I teach and research at the intersection of First Amendment and Property laws, my former life was spent as a transactional real estate lawyer (a short former life, but a former life still), and that has allowed me to teach - with some street cred, even - Business Drafting and Transactional Lawyering courses.

I thought the message in Bill's post about the ABA Annual Meeting was important: the gap between academics and practitioners is too large, and that we would be well-advised to bridge that gap. After I read Bill's post, I resolved to get involved in at least one ABA section and to try my best to attend next year's annual meeting.

While some of the gap-bridging can be done outside of the classroom, some of it can be done from inside the classroom, as well. In January, the Wall Street Journal lamented law schools' focus on intellectual debate, and advocated increased practical skills offerings. I'm not sure I agree that law schools need to shift their focus away from intellectual debate, but increasing the number of "practical" courses in law schools (and these could take the form of clinics, corporate drafting courses, courses that map on to firm departments (e.g., real estate, appellate advocacy) as opposed to areas of scholarly interest (e.g., torts, contracts, evidence), trial advocacy skills courses) may not be a bad idea (both pedagogically, and because students seem to enjoy these types of courses).

I really enjoy teaching Transactional Lawyering and Business Drafting; it is an experience entirely different from teaching heavily doctrinal and theoretical courses like Property or First Amendment (which I also enjoy teaching very much). Teaching practical courses gives me a sense of connectedness with the real world. I find that, instead of calling upon academic perspectives, I call upon former clients' business motivations and the front page of the Wall Street Journal when answering students' questions. But after a week in "the real world," I am glad to be back in the library. Stay tuned this week for posts about, inter alia, my Facebook profile, internet-stalking, and the importance of "business plan statements" in scholarly writing.

Posted by Liz Glazer on August 20, 2007 at 07:49 PM in Teaching Law | Permalink | Comments (1) | TrackBack

Welcome to the Blawgosphere

One of our thoughtful commenters, Jeff Yates, has started up his own blog, Voir Dire, with a colleague at the University of Georgia in political science. Here's its plan:

Voir Dire - “to speak the truth.” VDB covers topics such as social science approaches to law and legal institutions, legal doctrine and legal policy implementation, and profession issues for academics. On occasion we dabble in the areas of pop culture, politics, and social issues, but for the most part we are not interested in becoming a pundit blog. VDB is designed as an online forum for the exchange of information on our core topics and research and teaching generally. Our aim is to advance discourse on these topics and highlight research and academic news that we find interesting.

Its first few entries look very promising -- and they offer the best of what academic bloggers can do well: actual commentary on scholarship.

Posted by Ethan Leib on August 20, 2007 at 07:46 PM in Blogging | Permalink | Comments (5) | TrackBack

Zoom in the Spotlight. You could be too.

Over at TaxProf, my classmate/colleague/dinner companion/prawfs alum, Brian "Zoom" Galle, has written a very moderately funny post about how he ended up in the legal academy. Check it out.

A variety of the blawgs in Caron's Empire perform the valuable task of introducing new law faculty to the relevant specialists, but mostly in the 3d person.  If you're a reasonably new prawf at a law school (ie., been tenure-track for three years or less) and keen to write something up like Zoom's for the more generalist prawf audience, we'll be happy to post your tale. Please be sure to make them at least as reasonably entertaining as Galle's, and about as long.  Remember: the only thing you have to lose is your privacy.

Posted by Dan Markel on August 20, 2007 at 02:11 PM in Life of Law Schools | Permalink | Comments (1) | TrackBack

Updates to Family Ties and SSRN

Over the weekend, SSRN finally approved my posting of two new revised and final versions of some of my recent scholarship.  Over here you can find -- if SSRN has worked out its technology glitches -- my recent piece in the Texas Law Review: Wrong Turns on the Road to Alternative Sanctions: Reflections on the Future of Shaming Punishments and Restorative Justice

And here you can find the final version of Criminal Justice and the Challenge of Family Ties, which  I worked on with Ethan and Jennifer Collins, and which appeared last week in the August issue of the University of Illinois Law Review.  As I think I mentioned earlier on the blog, we are in the midst of writing a sequel to the Illinois piece that addresses the burdens or "taxes" -- as opposed to the benefits and privileges discussed in the Illy piece -- placed on family members  in the criminal justice system.  I reiterate this now because, over the weekend, I received a helpful and welcome email from someone who read the Illy piece with some suggestions for future inquiry. On the encouragement of some editors in the publishing industry, we are looking into publishing as a book our research and analysis on the benefits and burdens placed on family members in the criminal justice system; consequently, if you do read the Family Ties piece and have reactions or suggestions, please do send them along so we can revise accordingly. Many thanks.

Posted by Dan Markel on August 20, 2007 at 10:59 AM in Criminal Law | Permalink | Comments (0) | TrackBack

Spammity Spam

Over the last year or so, I've noticed increasing use of an annoying spam technique.  It seems that some spammers have been dating their emails several days (or sometimes years) into the future.  While these emails get picked up by my spam filter, they sit at the top of the filter.  Such "spam on top of spam" (or "spammity spam") is particularly time-consuming.  In order to find the occasional email wheat mixed in with lots of spammity chaff, you have to selectively delete future-dated emails from your filter, otherwise it's harder to find the more important emails that sit below.  In the good old days (after spam but before spammity spam), you could just take a quick glance at your spam filter without having to maintain it.  Granted, this kind of email maintenance is not exactly a hardship.  But that's the nature of spam.  It's a thousand little distractions that add up to a modest annoyance for a particular email user.  Multiply a modest annoyance times the millions of people who use email, and we have a major distraction.  (Perhaps you could have your email program automatically delete future-dated emails, though I think legitimate emails are sometimes future-dated due to computer glitches.)

Some have proposed fighting spam with a kind of bounty system.  Here's one way it could work:  In order to receive email from a source that I have not already approved, I require you to post a few cents along with your email (say 2 cents but I suppose we could let the recipient pick a higher or lower number).  If you're not willing to post the money, your email doesn't get through to me.  If you post the 2 cents, then I get your email and have the option of claiming your 2 cents.  Such a strategy might well put spammers out of business.  By contrast, you would never claim the bounty from your friends and colleagues (at least not if you want to maintain them as friends and colleagues).  True, this might complicate the work of charitable organizations.  But we've never made postage free for snail mail.  Also, if the bounty systems are created by ISPs or email-service providers, I imagine that First Amendment concerns are unlikely to arise.  I'm sure there are lots of alternative ways of structuring this (for example, rather than posting a bounty, your email-service provider could charge a fraction of a cent for each email that it is asked to process).   My only expertise in this area is that I receive spam; so you may well have a better or more detailed proposal to suggest.   Maybe the transactions costs are too high to implement a system like this.

Posted by Adam Kolber on August 20, 2007 at 09:24 AM | Permalink | Comments (0) | TrackBack

Sunday, August 19, 2007

Sunday Music Blog

I've been feeling nostalgic lately.  I think it has something to do with seeing the new first-year students wander the halls during orientation.  As I watch them, I can't help but think about my first night in Little Rock a little over a year ago, when a friend and I went to see half of a set by Margot and the Nuclear So and So's, a truly wonderful band from Indianapolis.

We only saw half of a set because the band's lead singer walked off the stage halfway through the set.  His complaint: the crowd wasn't paying close enough attention to the music.  It was such a deliciously rock 'n roll moment that I was willing to overlook the fact that we missed out on a good deal of good music.

Margot and the Nuclear So and So's debut full-length album, The Dust of Retreat, is simply brilliant.  I've seen a couple of reviews refer to it as chamber pop (for instance here).  I don't know what that means (Eric Fink, do you have any thoughts?).  But I'd group them with Bright Eyes, Arcade Fire, the Decemberists, and Neutral Milk Hotel.  So check them out and let me know what you think.  Enjoy!

Posted by Zachary Kramer on August 19, 2007 at 11:28 AM | Permalink | Comments (7) | TrackBack

Saturday, August 18, 2007

On California's Effort to Move Away From Winner-Take-All

Two important articles have appeared trying to analyze the effort underway in California to change electoral vote distribution from winner-take-all to a more "proportional" distribution.  Vik Amar takes up the issue in a Findlaw column yesterday -- and Hendrik Hertzberg covers the beat at The New Yorker.  Both articles attempt to make a principled case for why this move of reform is misguided.

Ultimately, I'm underwhelmed with any principled arguments these authors try to make.  In the final analysis, there is really only one good reason to oppose these efforts: partisan considerations.  It is undoubtedly true that in California, the effort will benefit Republicans (now and for the foreseeable future).  If you don't like that outcome, you should probably oppose the measure.  Although the authors are quick to point out that Democratic efforts to accomplish the same move away from winner-take-all in North Carolina is just as problematic from their standpoint of "principle," it is no accident that their articles focus on the California case.  One might assume these authors would vote for the measure in North Carolina, where it would help Democrats get electoral votes they wouldn't otherwise be able to capture.  (To be clear: I don't really have a basis for that conjecture -- just my gut.)  The principles just aren't fully clear -- and are very hard to disentangle from partisan preferences.

After the jump, I'll say a few things about Amar's individual arguments.  But, most generally, my provisional view is that this political issue is best left discussed in a nakedly political way.  The standpoint of principle is hard to take seriously -- and, in any case, very possibly cuts in favor of the reform, the intentions of the supporters, notwithstanding.

A few specific points about Amar's arguments. 

First, his claim that changing the electoral rules by initiative might violate Article II's requirement that Electoral College votes be allocated by state legislatures.  Sure, perhaps this a reading the current Court might embrace based on Bush v. Gore.  But if the reform helps Republicans, that isn't a likely result.  More, Bush v. Gore's status as a "for-this-day-only" case makes it unlikely to serve as good precedent.  Third, when voters are acting through the initiative, they are acting as legislatures (at least that's how the California Constitution sees it) -- and there is approximately a zero percent chance that the Court will rule the initiative process itself unconstitutional.  Finally, whatever you think about what the Court might do based on Bush v. Gore, you still need an argument of principle that Bush v. Gore is right on this point, something I have the sneaking suspicion Amar doesn't quite believe.

Amar's second point is part self-consciously partisan (perfectly appropriate, I think).  But then he returns to principle: "One cardinal rule about Presidential electoral reform today ought to be that it must not predictably and intentionally disadvantage one party over the other."  As a rule of principle in electoral reform, that can't be a guiding light.  All reform will have some predictable results -- and it is not reasonable to expect any political mobilization to occur unless a party sees that it has something to gain.  In any case, if the demographics or ideological commitments of California voters change over time, there may be long-term unintended consequences of helping the Democrats.  True, there may be something particularly squalid about this particular group's motivations (and dishonesty) in the California case.  But the reform still has to be judged on its own merit if one is taking the high road of principle, not based upon who happens to support it.  It is more fair to allocate votes in a non-winner-take-all distribution?

Here Amar also has an argument.  It amounts to highlighting that most congressional districts (the basis of how the proposed electoral votes would be distributed) are themselves essentially locked up for one party or the other -- so the proposal will "oppress" the minority in any given district just as the minority in California as a state is "oppressed" through the current system.  So whatever "equal representation" claim the initiative supporters make has to be counterbalanced by the indisputable point that individual districts are just as much locked up for one party or other as the state is more generally.

There is something to the last argument -- but it is flawed because it addresses itself to the rhetoric of the intitiative supporters rather than the reality that no "equal representation" is perfect and we have to compare relative second-best options.  In short, the choice isn't between Amar's proposal for a national popular election and the electoral college; the choice is between a winner-take-all electoral college vote distribution and more fine-grained methods of distribution.   [Update: On my first reading, I missed the parenthetical where Amar notes that the legislature is actively considering the national popular plan -- through the conditional state compact method-- so there are really three options on the table.  I'm still skeptical that that method is preferable on principle to the initiative proposal for reasons I hope to explore in a second post.]

This post is getting long, so maybe I'll do a second one on why principle might recommend going with the initiative proposal.  Still, whatever principle tells us here, I think is ultimately weaker than partisan considerations will be because the execution of the principles is sub-optimal.

Posted by Ethan Leib on August 18, 2007 at 10:05 PM in Article Spotlight | Permalink | Comments (6) | TrackBack

Statutory Interpretation Quiz

As a statutory interpretation teacher in Arkansas, I was excited to see that Arkansas Governor Mike Beebe might call a special legislative session so legislators can fix a law passed during the most recent  legislative session, which ended in May and is not scheduled to meet again until January 2009 (Arkansas has a part-time legislator that only meets for 60 days every other year). 

The law in question was intended to raise the minimum age to marry to 18.  Prior to the new law, the minimum age to marry was 16 for girls and 17 for boys.  Also, the new law was supposed to create an exception so that pregnant teenagers who are under 18 can marry with parental consent.  I have pasted the text of the law below.  Can you spot the error in it?  The answer is after the bump (I like bump more than jump). 

"In order for a person who is younger than eighteen (18) years of age and who is not pregnant to obtain a marriage license, the person must provide the county clerk with evidence of parental consent to the marriage."

Instead of creating an exception for pregnant girls who are under 18 to get parental consent for marriage, the extraneous "not" in the law establishes that any child who is not pregnant can marry so long as the child's parents consent to it.  In other words, a toddler can get a marriage license if the toddler's parents give their consent--assuming, of course, that the toddler isn't pregnant.

Posted by Zachary Kramer on August 18, 2007 at 12:07 PM | Permalink | Comments (2) | TrackBack

Thursday, August 16, 2007

China's version of CCTV

I know less about the tech-and-privacy debate than I should, but this New York Times article caught my eye.  Not because I'm at all surprised that China would "enact[] a high-tech plan to track people" -- after all, why wouldn't the PRC enact such a plan, if it could? -- but because the "20,000 police surveillance cameras" that are being installed "will soon be guided by sophisticated computer software from an American-financed company to recognize automatically the faces of police suspects and detect unusual activity."  Later on:

The role of American companies in helping Chinese security forces has periodically been controversial in the United States. Executives from Yahoo, Google, Microsoft and Cisco Systems testified in February 2006 at a Congressional hearing called to review whether they had deliberately designed their systems to help the Chinese state muzzle dissidents on the Internet; they denied having done so.

Thoughts?

Posted by Rick Garnett on August 16, 2007 at 05:20 PM in Criminal Law | Permalink | Comments (1) | TrackBack

Is the Originalism/Non-Originalism Divide Meaningful?

Co-blogger Rick Garnett finally shamed me into reading Stephen Griffin's post on originalism at Balkinization.   The point of the post (other than giving some useful historical context for the development of originalism) seems to be to suggest that the originalism/non-originalism is not meaningful or is flawed.  Admittedly, there isn't really much of an argument in the post, so much as a suggestion. 

But even the mere suggestion is provocative enough to require further elaboration, I'd think, largely because it does seem useful to divide theories of constitutional interpretation on the basis of the modalities of interpretation they privilege.  Even if many of us are, say, Bobbitian pluralists now (and think original meaning is important, along with precedent, history, text, structure, prudential considerations, ethical considerations), I'd think the originalist/non-originalist line would be useful in helping us create a hierarchy of different modalities.  I spell this out somewhat in my essay on The Perpetual Anxiety of Living Constitutionalism.  But I don't really think that lacking a unified account of the constellation of modalities and their position in the hierarchy appropriate to constitutional interpretation is a strike against non-originalism.  It is unified in its belief that both "exclusive originalism" and originalisms that prioritize or privilege historical forms of interpretation are misguided.  Griffin may not like this because it may seem to prop up originalism as the status quo position.  But that is really an ideological agenda; conceptually, it strikes me as sensible to distinguish theories on this register.

But I haven't seen the full argument.

Posted by Ethan Leib on August 16, 2007 at 04:08 PM in Constitutional thoughts | Permalink | Comments (0) | TrackBack

Summer of Recalls

    Toy recalls from major brands have been front page fodder this July and August.    First it was Thomas the Tank Engine, then Dora, now Barbie.  Even Elmo -- Elmo! -- was touched by the lead recall.  It seems that no beloved character is immune.  Well, almost none.  Toys manufactured in the U.S. or Europe are more likely to be safe, because they have greater quality control in manufacturing.  They are also more expensive and harder to obtain.    
    The recalls illustrate the tension between dueling aspects of American culture and expectations.  Americans love to buy cheap goods and lots of them.  If you need proof, I present to you Exhibit A: Wal-Mart.  Exhibit B: Target.  Exhibit C: Toys 'R Us.   And so on.  Consumers know that many of these cheap goods are of low quality, but we still expect certain aspects of first world quality.  Or, to put it differently, our standards may have lowered but we still have standards.  For example, consumers expect no lead paint in their toys (lead paint has been banned for use on toys and furniture in the U.S. since 1977; lead ingestion is extremely dangerous to children).   It seems clear that Mattel's oversight of its Chinese factories was lacking.  In response to the second major recall, Mattel announced that it will now test every batch of toys (I am not quite sure what this means, but it sure sounds good).      
    The brands that sell Chinese manufactured toys have an interest in rebuilding trust with consumers.  But will consumers, who lack information about Chinese manufacturers and are wary of company promises avoid Chinese-made toys?  And, given the structure of the toy market in the United States, do they actually have that choice?  According to the New York Times yesterday, toy makers in the U.S. are already seeing an uptick in volume.  Just wait until Christmas.  Unless, of course, the "summer of recalls" is forgotten by Thanksgiving.

Posted by Alexandra Lahav on August 16, 2007 at 03:35 PM | Permalink | Comments (0) | TrackBack

Course Preparation Project: Part 5: Planning for the First Day

Well, it's the middle of August, which means that for most law profs, classes are right around the corner.  If you're new to teaching, perhaps you have a few butterflies about that first time you walk into a room with 20, 40, 80, or 120 students looking at you, waiting for you to speak.

The first day can be tough, even for experienced profs.  How much material should be covered?  What sorts of introductions should be made?  Some profs prefer to start by calling on someone: is this a good attention-grabber or too Kingsfieldian?  Should the syllabus be discussed, or is this unnecessary?  What policies should the teacher establish?  And are there any (non-medicinal) tips for settling the nerves before you walk in?

Rather than breaking this topic down by subject, I'll ask that you post your comments in response to this post.  But feel free to discuss substantive issues that may be germane to a particular course.

Posted by Matt Bodie on August 16, 2007 at 01:53 PM in Teaching Law | Permalink | Comments (9) | TrackBack