Wednesday, April 30, 2008
Kolber Signs Off
At the stroke of midnight tonight, I may turn into a guest blawging pumpkin. So I send my thanks now to Dan, the other permaprawfs, and my fellow guest blawgers for lots of stimulating posts and conversations over the last two months. It's been a pleasure!
Old Media v. New Media: Sports and Politics
On Tuesday evening, HBO's Costas NOW hosted a live town-hall program that attempted to analyze the changing face of sports media. There was a panel on the Internet, featuring Will Leitch of Deadspin (the best and most popular of the sports blogs) and Buzz Bissinger, author of Friday Night Lights and, one of my favorites, A Prayer for the City. For those who did not see it or hear about it, Bissinger basically lost his mind in a profane, rambling, uncontrolled rant about how sports blogs are single-handedly responsible for the dumbing-down of American society. (Post-mortems here, here, here, here, here, and here).
It is not surprising that the program had an anti-blogger bent; Costas himself made comments in a newspaper story last month derogating all sports bloggers, as a group, as a bunch of unemployed morons living in their mothers' basements and writing while sitting in their underwear. And the antipathy between sports bloggers and mainstream sportswriters/sportscasters/sports columnists is ongoing and nasty and not going away any time soon. Bissinger gave it a face last night, although, since the messenger is the message, I doubt he convinced many people outside of the mainstream media members who already agreed with him.
But here is a question: Why do we not see the same new media/old media antipathy in the world of political reporting and political blogging? Political bloggers are just as critical of the political MSM as sports bloggers are of the sports MSM and they are just as likely to try to deconstruct poor political reporting (think of the Dan Rather takedown in 2004). But the only criticism directed at political bloggers tends to be their naked partisanship compared with the MSM's goal of objectivity. But to me, the partisan nature of political blogs just returns us to the original nature of political reporting (think of the Federalists and the Jeffersonians), which is not necessarily a bad thing.
Is the difference one of perceived qualification? Most political bloggers either already had established reputations as journalists and political commentators (Josh Marshall, Kevin Drum, Huffington, Andrew Sullivan, the folks at National Review). Or they have established reputations as scholars and academic writers (Drezner, Reynolds, Althouse, Kleiman). (Note that I am not including the best law-professor blogs, including this one, which I think are engaged in a slightly different exercise). Anyway, the typical criticism directed at bloggers as uneducated, unqualified, uncredentialed know-nothings does not work. In fact, what we tend to get in the political world is thoughtful stories of what blogs are doing to newspapers and how the different media are co-existing.
Does that explain it? Or is there some other explanation?
Summer Submissions at the Alabama Law Review
From my friends at the Alabama Law Review comes this announcement: This year, the Alabama Law Review is beginning a Summer Submission Reading Program. Alabama Law Review will be accepting special summer submissions starting Monday, May 19. If you submit in our special summer program, we will guarantee you either an offer or a rejection within two weeks of your submission to Alabama Law Review. In return, if we offer publication, we ask that you withdraw your article from consideration at other law reviews. In addition, we ask that, if you receive another offer of publication during the consideration period and have to withdraw, you notify us as soon as possible. To participate: 1. Submit your article to us through expresso 2. Send email@example.com a separate email with "Summer Submission (Your Last Name)" in the title, and include the link to your article in the body of the email.
From my friends at the Alabama Law Review comes this announcement:
This year, the Alabama Law Review is beginning a Summer Submission Reading Program. Alabama Law Review will be accepting special summer submissions starting Monday, May 19.
If you submit in our special summer program, we will guarantee you either an offer or a rejection within two weeks of your submission to Alabama Law Review. In return, if we offer publication, we ask that you withdraw your article from consideration at other law reviews. In addition, we ask that, if you receive another offer of publication during the consideration period and have to withdraw, you notify us as soon as possible.
1. Submit your article to us through expresso
2. Send firstname.lastname@example.org a separate email with "Summer Submission (Your Last Name)" in the title, and include the link to your article in the body of the email.
Parting Thoughts & AmLaw100 PPP
Well, it looks like this is the end for me (more specifically, the end of my month-long guest blog stint). Like any good houseguest, I don’t want to overstay my welcome, but I do want to thank my hosts, Dan, Orly and the rest of the gang at PrawfsBlawg. It’s been a fun month.
On May 1st, I turn into a grading machine (hopefully!) so that I can really begin the summer and start making progress on my next article. This summer, I’ll be writing a new article on international philanthropy (a follow-up to this article).
Before I go, I thought I’d just share some eye-popping figures with you. American Lawyer Magazine has just released its new AmLaw100 list and corresponding charts…. Here’s a look at the top of the 2007 profits per partner list:
1. Wachtell, Lipton, Rosen & Katz: $4,945,000
2. Cravath, Swaine & Moore: $3,300,000
3. Sullivan & Cromwell: $3,055,000
4. Quinn Emanuel: $3,010,000
5. Simpson Thacher & Bartlett: $2,875,000
6. Cadwalader, Wickersham & Taft: $2,725,000
7. Cahill Gordon & Reindel: $2,595,000
7. Paul, Weiss: $2,595,000
9. Milbank, Tweed, Hadley & McCloy: $2,525,000
10. Kirkland & Ellis: $2,475,000
11. Schulte Roth & Zabel: $2,355,000
12. Dechert: $2,355,000
13. Davis Polk & Wardwell: $2,300,000
14. Debevoise & Plimpton: $2,290,000
15. Skadden, Arps: $2,280,000
Just something to chew on as you enter the grading period and then the summer research months… Once again, many thanks.
Could GMU sue the ABA and win?
Law schools and litigation: what a combo. Yesterday, Geoff posted about profs suing students. Today, the question is: could a law school sue the ABA and win?
Here's the background. Via Orin, I found my way to USD Prawf Gail Heriot's sparky op-ed in the WSJ yesterday about how the ABA pressures schools like George Mason on diversity objectives. After reading it, I came across a post suggesting that GMU should sue the ABA under Section 1981. Since we have some civil rights experts in the audience, I was wondering: could this dog hunt?
The American Bar Association is continually threatening to pull the accreditation of George Mason University Law School for failing to adopt illegal racial quotas in admissions. That’s what San Diego law professor (and member of the U.S. Commission on Civil Rights) Gail Heriot notes in the Wall Street Journal. The ABA first forced GMU — one of the few law schools without a marked liberal bias — to use what the ABA itself refers to as “preferential affirmative action admissions program” to radically increase its minority percentage from 6.5 percent to 19 percent. But the ABA still wasn’t happy with the results, which were insufficiently extreme for the ABA’s quota-mongers (never mind that the qualified applicant pool for a law school of GMU’s caliber is lower than 19 percent minority, as is the percentage of non-white lawyers even in heavily-minority states like California, so it’s not as if having 19 percent minorities is a sign of discrimination. Indeed, the ABA conceded that GMU has long had a “very active effort to recruit minorities,” even before adopting racial preferences in admissions). So now the ABA is demanding what are in essence racial quotas.
The ABA’s actions violate 42 U.S.C. 1981 and the Supreme Court’s ruling in Gratz v. Bollinger (2003), which held in footnote 23 that racial quotas violate 42 U.S.C. 1981 (which bans both private and public discrimination) as well as the Fourteenth Amendment (which bans only governmental discrimination). Moreover, the ABA and its accreditors are liable for pressuring GMU to engage in racial discrimination under 42 U.S.C. 1981, which allows not only employers and other institutions to be held liable for racial discrimination, but also individual discriminators. And GMU and its president and law school dean, who were personally summoned to appear before the ABA in order for them to be pressured to maximize GMU’s racial quotas, have standing to sue over those quota mandates under Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344 (D.C. Cir. 1998), which held that the Lutheran Church had standing to sue the FCC to keep the FCC from pressuring it to take race into account in hiring employees for its religious radio stations in order to satisfy a ”diversity” mandate.
Anyone with relevant knowledge think Bader's claims stand a chance of success? My sense is that they wouldn't, putting aside the bombast and rhetoric about quotas, but I'd like to hear more.
Ravitch's Law and Religion, 2nd Edition
Congratulations to Frank S. Ravitch on the publication of the second edition of his casebook, Law and Religion, A Reader. Casebooks may not always get much respect from law professors (envy, yes -- I'd very much like to be an editor of a con law or law and religion casebook!), but the best of them are interesting and valuable enterprises, and I think this latest and much-expanded edition fits the bill. Among other things, kudos to Prof. Ravitch for remembering, in an area in which our focus is so often on the Supreme Court, that there are such things as "lower courts," and that their opinions in this area may be illuminating, if only by way of showing us how little the Supreme Court has actually given us.
Browse the whole thing!
Ritual and Scholarship
Later this evening, I'll be helping to lead a community-wide service in honor of Holocaust Remembrance Day. (For those of you in or near the 'Hassee, it will be at Temple Israel on Mahan at 630pm; all are welcome.) This powerful story in today's NYT about the rededication of a Torah from Auschwitz will be on my mind.
The story resonated with me on a separate level because of its brief allusion to the ritual associated with crafting a Torah scroll. It notes: "Its ornate Hebrew must be hand-lettered by specially trained scribes, and it is considered unacceptable if any part is marred or incomplete." While sitting in shul on Saturdays, I often lose myself in the essays at the back of the Etz Hayim book of the Torah in the pews. This past Shabbat, in particular, I was drawn to one by Stuart Kelman on the ritual production of Torah scrolls. (You can get a flavor of it at this Wikipedia entry, but it's not quite so detailed as Kelman's piece. On the other hand, this website looks promising.)
It's an amazing process, and naturally for someone as confused between the sacred and profane as I am, I was wondering what rituals prawfs-people adopt, if any, prior to engaging in scholarship or service or teaching. I understand that at some mission-oriented schools, prayers are made prior to faculty meetings, which often have an elevating effect on the tone and tenor of discussions. I also think I have heard that some professors say a prayer before each class. I'd be curious to hear if anyone has their own prayers or Wade Boggs-like "chai and chicken" rituals that help them write scholarship on a regular basis. It needn't be sectarian, just ennobling of purpose, a bit different from the "I write from rage" school of thought I was exposed to during my 1L torts class with this mysterious guy.
Sins of omission and commission in police work
In a recent post, Adam Kolber quotes a letter to a newspaper complaining about the verdict in the Sean Bell case in which the writer demands that “police officers … hold our interests and our lives above their own” and “accept the threat of harm as part of their jobs and their oaths. And they must demonstrate restraint even at the expense of their lives.”
Adam quite reasonably asks whether “it is fair to ask a police officer to value the life of someone else more than his or her own.” But there is perhaps a deeper incoherence in the letter writer’s demand: The difficulty is that police officers can endanger lives through inaction – “restraint” -- just as much as through action.
Police officers who do not swiftly intervene with violence in risky situations endanger lives by allowing communities to unravel in crime. The crime wave that hit New York City between 1968 and 1992 was arguably influenced by such sins of omission. Some such omissions are specific and deliberate – for instance, the police union’s “slowdown/sickout” of the Fall of ’68. But some observers – among them the historian Vincent Cannato – believe that slack police response during the 1970s and 1980s was the result of the NYPD’s new culture of refusing to take actions that could result in an accusation that they used unjustifiable force. Turning a blind eye to open-air drug markets, gang warfare, violent spouses, or rowdy nightclubs is a great way to insure that one will never be accused of encroaching on anyone’s civil liberties, especially if one believes that only “state action” and not private action can deprive people of their civil rights.
If Feminist legal scholarship has one central lesson to teach all of us, it is that private violence is just as much a deprivation of civil liberty as state violence. Police inaction threatens the most vulnerable – women, the elderly, the poor, and racial minorities – because these groups are most likely to be targets of private crime. Therefore, a cop who routinely gave plausibly violent people the benefit of the doubt (and the first shot) even when the risks of the cop’s inaction seemed to outweigh the risks of action would not merely sacrifice his own life. He’d also eliminate the fear of official violence that is a primary deterrent to criminal activity. Such a police force would be the domestic equivalent of the UN’s Blue Helmets in Bosnia or Rwanda – utterly useless for suppressing the private threat to civil liberties.
Adam is quite correct that it is preposterous to ask cops to take a bullet for civilians: No police force has ever been so saintly – certainly not for the pittance that NYC pays its Finest (starting salary being about 25k). But even if we could somehow induce cops to show a Christ-like inclination to turn the other cheek, should we do so? I would think that such sanctity might very likely cost more civilian lives than it would save.
None of these considerations exonerate the specific defendants in the Sean Bell case from the charge of being incompetently or even criminally trigger-happy. But the solution to such behavior is better training, not slogans favoring restraint above suppression of private violence.
Advertisement: Legal Writing Competition Sponsored by the Pacific Legal Foundation
To augment the ongoing efforts of the Program for Judicial Awareness to encourage legal scholarship related to Pacific Legal Foundation’s litigation objectives, we are pleased to announce three new awards, made possible by a generous grant from the John Templeton Foundation.
FOR LAW STUDENTS:
The John Templeton Foundation Essay on Freedom and Free Enterprise
The Program for Judicial Awareness invites students enrolled in law schools in the United States to submit original, publishable essays related to one or more of the Legal Objectives of Pacific Legal Foundation. The successful essay, suitable for publication in a law review or comparable academic journal, should draw together issues of public policy, matters of constitutional interpretation, and current legal precedent to postulate how statutes or policies should be applied in order to protect freedom and defend free enterprise. Submissions must be received by July 1, 2008, and the $5,000 award to the winning entry will be announced on August 29, 2008.
FOR NON-TENURED LAW PROFESSORS:
The John Templeton Foundation Academic Scholarship Award
This award encourages junior faculty members at American law schools to add to the body of legal-academic scholarship in support of freedom and free enterprise. Parallel to the student essay competition described above, entries should consist of original, publishable papers relating to one or more of Pacific Legal Foundation’s Legal Objectives. The entry deemed by the Program for Judicial Awareness to best meet these criteria will be awarded The John Templeton Foundation Academic Scholarship Award of $5,000. Submissions must be received by July 1, 2008, and the award will be announced on August 29, 2008.
FOR TENURED LAW PROFESSORS:
The John Templeton Foundation Academic Scholarship Award
Tenured professors at law schools in the United States are invited to submit proposals for research leading to the publication of a law review article or comparable legal scholarship. The thesis of the proposed research should relate to one or more of Pacific Legal Foundation’s litigation Objectives and to the protection or advancement of freedom and free enterprise. The proposal that, in the judgment of the Program for Judicial Awareness, best meets these criteria will be awarded the John Templeton Foundation Legal Research Grant. Proposals must be received by July 1, 2008, to qualify for the 2008 grant. For details, contact Cindy Turpin.
Is "You're a racist" an opinion, or a statement of fact?
Yesterday, I posted a story about a law professor who has sued several former students after they made what he characterizes as false accusations of racism. I don't know the professor involved, or anyone at the school. But it seems like this case is a dog.
Some of the comments to the original Above the Law story have already pointed out the interesting position the plaintiff will find himself in as a result of the constitutional elements of a defamation claim. Plaintiff will likely have to argue that he is not a public figure; the defendants can introduce promotional materials shipped out by the Dean at the school touting the plaintiff's national influence and prominence.
The more fatal problem seems to me that accusing someone of being a racist isn't a statement of fact, it's an opinion and therefore privileged. The heart of the defamation claim surrounds the accusation that this professor is a racist or behaved in a racist manner. But is this objectively verifiable? Is it "susceptible of being proved true or false susceptible of being proved true or false"? Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990). Suppose I announce that my neighbor, who is moving to the suburbs from our diverse urban neighborhood, is moving because he is a racist. How can we verify one way or another what the motives for his move might be?
Surprisingly, there is case law out there in which the accusation of racism was held to be actionable in defamation, but these cases may be a bit outdated:
Appellant contends that as a matter of law the article is not libelous, since Mr. Stone did not flatly state that plaintiff was prejudiced, and because it is not a statement of fact about plaintiff's conduct but a statement of opinion about his attitude. Where readers would understand a defamatory meaning liability cannot be avoided merely because the publication is cast in the form of an opinion, belief, insinuation or even question. A statement about one's attitude is defamatory if it tends to lower him in the esteem of the community. See Christopher v. American News Co., 171 F.2d 275 (7th Cir. 1948), where it was held actionable to charge that one is pro-Nazi.
Afro-American Pub. Co. v. Jaffe, 366 F.2d 649 (D.C. Cir., 1966)
I haven't seen the professor's complaint, so I don't know what the students said that he specifically questions, other than what's been reported in the press. While there may have been specific assertions of fact in the students' letters and communications regarding this professor ("He said . . . ", "He did ..."), had the students simply made a characterization of the professor as a racist, without asserting particular conduct, they would likely be safe from suit.
That the faculty and dean would ever let relations with minority students get to this point seems to reflect a fatal lack of communication at the law school.
Tuesday, April 29, 2008
Blue Dogs on the Bayou
This Saturday the Sixth Congressional District in Louisiana will hold a special election to fill the seat vacated by long-time Republican Congressman Richard Baker, who resigned to become head of the main lobbying group for the hedge fund industry. Needless to say, Baker’s salary should experience a nice bump up.
In recent years, especially since redistricting in 2000, the Sixth District has been considered a safe seat for Republicans. It comprises most of Baton Rouge, which is fairly diverse racially and politically, and surrounding suburban and rural parishes, which are mostly white and very conservative. But this year, “Blue Dog” Democrat and current State Representative, Don Cazayoux, is making a strong run for the seat. The national Democratic Party is apparently pouring money into his race. Cazayoux’s main opponent is Woody Jenkins, a wealthy, ultra-conservative newspaper publisher who, when running for the Senate in 1996, gained infamy for buying former Ku Klux Klansman David Duke’s telephone list and then trying to hide the purchase. The national Republican Party is apparently less enthusiastic about Jenkins, though he does have the endorsement of Louisiana’s conservative boy wonder Governor and possible John McCain running mate, Bobby Jindal, as well as a lot of grass roots support particularly in the outlying parishes. Voter turnout is expected to be the key to the race.
Should Cazayoux win, it will be a nice victory for the Dems and perhaps a harbinger of upcoming Congressional elections elsewhere in the South. It might also foreshadow the next Louisiana Senate race, in which the always vulnerable Blue Dog Democrat Mary Landrieu will attempt to hang on in the face of a national Republican effort to unseat her.
The (Academic) Politics of "Sustainability"
At Inside Higher Ed, Peter Wood has an interesting op-ed called Sustainability's Third Circle. Wood argues that the very concept of "sustainability" can, accordionlike, be narrowed to "hard core empirical questions" or expanded into a "sail for utopian dreams in which advocates imagine themselves transforming humanity itself by changing our appetites. On college campuses, you can find instances of both."
Wood criticizes those academic sustainability programs, often spearheaded not by actual academics but by various college administrators, that have "no science at all but a great deal of ideology." Some of those advocates have launched campus programs on sustainability that aim to explode the "myth" that sustainability is "mostly about the environment" in favor of a vision of sustainability that includes such "social justice aspects" as "fair trade," "living wage," "domestic responsibility," "water rights," "affirmative action," "multicultural competence," and "gender equity." Wood argues that while some of these aspects of social justice might indeed be reasonably included under the general rubric of sustainability, the programmatic blending of a raft of social justice issues with academic and popular sustainability projects, without much argument about when it is appropriate to do so, is evidence that "'sustainability' is more of a social movement, with its own symbols and passwords, than it is a nascent intellectual discipline."
Wood bites off a lot here, and it seems to me that his argument is potentially subject to lots of reasonable argument and criticism; of course, one would expect as much from an op-ed as opposed to a fuller exposition of his ideas. What a shame, then, that Wood's critics, in the comments section, mostly limit themselves to ad hominem attacks, general (and self-contradicting) arguments that Wood should be dismissed because he is an ideologue, ipse dixit statements that sustainability is "about ending human suffering," and utterly banal citations of Kuhn's Structure of Scientific Revolutions.
Read the whole thing. If you get that far and can take any more, I added my own lengthy comment to the discussion there.
Over to you, Frank!
Life and Death for Police Officers
Today's New York Times has several letters to the editor about the verdict in the Sean Bell case, where three police officers were acquitted on all charges associated with Sean Bell's death and the wounding of two others. Here's an excerpt from the first letter:
The verdict repudiates the very notion of police as protectors. . . .
If this situation is to change, we must compel police officers to hold our interests and our lives above their own. They must accept the threat of harm as part of their jobs and their oaths. And they must demonstrate restraint even at the expense of their lives. Our society is served only when they take bullets for us, not we for them.
True, police officers do accept increased risks of harm when they take their jobs. And, of course, their specialized training and ability to assess situations may even affect the way that the law is applied to them in some situations. But I don't think it is fair to ask a police officer to value the life of someone else more than his or her own. A police officer is not obligated to jump into the line of fire to save a civilian. In any event, it's hard to know how one would "compel police officers" to act differently under conditions where they believe that their lives are imminently in danger.
A Few Items of Interest
Here are a few items that may interest Prawfs readers:
- New Method of Crime Scene Analysis: A technology that examines distinctive "antibody signatures" rather than DNA to help at crime scenes (and is probably quicker and cheaper to analyze than DNA).
- Fujimori on Trial: Following former Peruvian President Alberto Fujimori's trial
Tyler CowenCarol Medlin Calls "Reverse Prostitution": (But is really) paying people to avoid unsafe sex.
- Genes and Racial Disparity in Beta Blocker Effectiveness: How certain gene variations that correlate with race may already inform appropriate pharmaceutical treatment for cardiac conditions
Arkansas-LR Law Prof Suing His Students for Defamation
Kashmir Hill at Above the Law relates a simmering controversy at the University of Arkansas-Little Rock School of Law. Professor Richard Peltz has filed a suit against two of his former students, accusing them of defamation. Here's Sunday's Arkansas Democrat-Gazette article on the dispute.
UPDATE: Professor Bainbridge weighs in:
I know no more of the details than what ATL and the links provided, so Ican;t comment on the merits of the suit. If Professor Peltz behaved as described in the article, however, his conduct was unprofessional and even moronic (in my opinion, a qualification I hasten to add just in case Professor Peltz is feeling really litigious). It’s perfectly legitimate for a law professor to dissent from the prevailing academic views on diversity. It’s perfectly appropriate to raise that dissent in class, as part of airing all sides of the debate. But being a jerk about it is just plain stupid.
Worse yet, being a jerk about such issues discredits legitimate dissent. The academic left will hold Peltz up as the exemplar of how critics of affirmative action think.
Voting, political protest, and meaningful judicial review
A lot of great commentary on yesterday's decision in Crawford v. Marion County Election Board, upholding as against a facial challenge Indiana's requirement that people present a government-issued photo ID in order to vote. Several people have drawn parallels between this decision and other, (generally conservative-leaning) decisions on voting rights and abortion rights, particularly in the consistent rejection of facial challenges and in requiring individual plaintiffs return later with more developed facts of particular harms.
The problem, of course, will be one of timing: Will a plaintiff who experiences a serious and particularized burden on her right from the ID requirement (or other burdens on the right that, as Miike Dorf argues, states are almost certain to dream up in service of partisan ends under the constitutional cover of yesterday's decision) be able to litigate her constitutional challenge in time to vindicate her right to vote in this election? In all likelihood, no.
The parallel I want to draw is with political protests at major events, such as national political conventions. A new strategy for local governments is to enact restrictions on political speech on the eve of the event, leaving little time for reviewing the restrictions. This happened with the Democratic Convention in Boston in 2004. The city established protest zones (apparently inconsistent with what protesters believed had been agreed upon in negotiations) several days before the Convention. The district court and the First Circuit both declined to issue a preliminary injunction, citing the timing concerns and the imminence of the event as a basis for being unable to fully perform a time-place-manner constitutional analysis and for not being able to grant an injunction that would ot leave the city sufficient time to draft replacement regulations. Judge Lynch wrote a concurrence in the First Circuit, chastising both the city and the protesters for failing to leave sufficient time to negotiate the protest rules and to fully litigate issues that cannot be negotiated.
Of course, the government has no incentive to negotiate or otherwise act in a timely manner if the lapse of time means its last-minute regulations remain in place for the immediate event. Even if they are struck down later, the immediate goal (limiting protests or voting for the instant event) has been achieved. And that is true in both the protest context and, now, in the voting-regulation context.
And here again is a situation in which the § 1983 constitutional damages remedy is utterly insufficient to provide review and relief. The protester has lost her liberty to speak (outside of a metal pen underneath a railroad trestle) once the Convention ends; the voter has lost her liberty to vote once the election is over. Given the rules for § 1983 damages, under which the court looks for concrete tort-like injury and does not compensate for the constitutional right itself, the plaintiff will receive little ($ 1 in nominal damages, in all likelihood) or nothing (qualified immunity lurks as an overwhelming defense) for her troubles in post hoc litigation, even if she successfully proves a violation. At best, she ensures that she will be able to exercise her right (to vote or to protest) next time, but that hardly seems like a meaningful remedy.
Monday, April 28, 2008
Proxy Season & Board Diversity
Well, if you haven’t noticed, proxy season is here. Companies have sent their glossy annual reports, ballots, and financial statements. Based on my annual informal poll of my Business Associations students, I’m guessing that many of you simply throwaway the annual reports and ballots you receive. However, I always take time to at least glance through the materials. This year, I’ll be returning ballots for Genentech, Goldman Sachs, and Northwestern Mutual.
The ballots solict my votes for members of the Board of Directors. Collectively, I’ll be voting for 21 men and three women (three are people of color), if I accept the company recommendations. These proxy ballots have me wondering: where are all the women?
Although this is obviously a small sample of companies in just three industries (biotechnology, financial services, and insurance), they closely reflect national figures. A recent study shows a severe underrepresentation of women in board rooms (about 17%), a similar underrepresentation of minorities (about 15%), with particularly low representation of Hispanics.
This is about more than tokenism. Board discussions are certainly richer when those at the table can bring varied backgrounds and perspectives to bear on relevant company issues. In fact, here’s an academic paper that finds “[a]fter controlling for size, industry, and other corporate governance measures… [a] significant positive relationships between the fraction of women or minorities on the board and firm value.”
Surely we’ve come a long way in board diversity, but we’ve still got a long way to go.
Dude, Where's My Blog?
Over at the Sports Law Blog, where I regularly contribute (or at least, where, when I have the time, I try to regularly contribute), we had a somewhat rude awakening this morning. Instead of seeing our blog when visiting its usual home, sports-law.blogspot.com, we saw the following message:
Blog has been removed
Sorry, the blog at sports-law.blogspot.com has been removed. This address is not available for new blogs.
Did you expect to see your blog here? See: I can't find my blog on the Web, where is it?
Apparently, we're not along among Google/Blogger blogs in pulling an overnight disappearing act (something which has apparently been going on for a while). As we work to get things straightened out, I'm reminded of the two-faced character of blogs. On the one hand, blogs are permanent. Anything you say in a snarky comment can easily come back to haunt you years later when someone "Googling" you reads your words out of context. On the other hand, blogs are incredibly impermanent. With the (mis?)click of a button somewhere in Googleland, 5 years' work and 2000+ posts can disappear.
A few years back, I was involved with another group blog dedicated to policy issues in my particular region (Northwest Ohio/Southeast Michigan), which, without notice, was deleted by its (founding) administrator. The domain name of the blog was quickly snapped up by an on-line casino hoping to profit off the reputation the blog had generated.
Apologies for this post's title to WordPressMax.
Why are grades private?
Why are an individual’s grades considered to be a private matter that others presumptively should not disclose or observe? The Federal Educational Right to Privacy Act (FERPA), for instance, prohibits disclosure of a student’s academic records without that student’s consent.
I ask because the ordinary justifications for a right to privacy have uncertain application to grades. On one theory, privacy protects “personal” information about a person that is properly relevant to only a tiny number of people who are personally connected to that person. On this view, privacy prevents voyeurism by the general public. On another theory, rules of privacy are like rules of evidence, barring disclosure of information that particular decision-makers ought to disregard: If employers ought not to make decisions based on an employees’ marital status or book purchases, then such information ought to be suppressed to purify the employment decision-making process.
But neither of these theories explains why anyone ought to be entitled to conceal their grades. In theory, grades are assigned based on fairly objective comparisons of otherwise unrelated students’ mastery of material presented in a completely public setting for completely public reasons. One need not be a voyeur to want to know how one’s potential employee, medical provider, legal counsel, guest speaker, candidate, etc, performed on an exam. The information is at least indirect evidence of diligence or capacity. So what exactly is the basis for giving individuals a federally protected right to conceal such information?
Is there, for instance, a persuasive theory that individuals should be able to control their self-presentation to the public by concealing information that is perfectly accurate, obviously relevant, but potentially embarrassing – say, one’s income, credit rating, and one’s grades? Is the idea that it is intolerable in a democracy to publicize individual’s lack of prestige too widely? That, absent a special reason, no one should have the basis for drawing too many fine social-educational distinctions among their peers? Or some other notion?
Whatever the theory, I tend to think that the justification for concealing one’s grades is different from, and much less analyzed than, the justification for concealing other sorts of information deemed “private.”
In (Partial) Defense of the Michigan Books Issue, and of Book Reviews Generally
Stephen Griffin has an interesting post at Balkinization lamenting what he calls "the sad decline of the Michigan Law Review's books issue." He argues that the review has recently ignored significant works in constitutional law and theory, while disdaining the con law-related books the editors have chosen to review recently. The comments, especially those by Kevin Jon Heller (pointing out that he pitched a review to Michigan, and asking whether Griffin has actually tried to review any of the books he mentions) and Sandy Levinson (arguing that all law reviews are displaying a sad decline in the number of book reviews they run) are especially interesting.
I think Sandy is right. With some exceptions, law reviews are not paying enough attention to the "front of the book" and "back of the book matter" -- essays, book reviews, occasional pieces of various kinds -- that don't fit the main article format but are nonetheless often the most engaging, instructive, and readable pieces in the book. In particular, book reviews not only perform the service of discussing and critiquing important book-length contributions to the law; they are also far more sharp and genuine expressions of the views of the reviewing author, and are superior in some sense to mainline law review articles in that space constraints force the author not to use the kitchen-sink approach (reviewing the entire history of the literature in the area, etc.) that so often bloats journal articles. Law review editors really ought to think about how the whole book looks and reads, and make room for shorter pieces and more innovative and unconventional projects, most certainly including book reviews. Too many journals don't even have a book review editor at all. (Incidentally, while we're talking about the back of the book, I think Columbia deserves praise for having and using essay editors in a fashion that has distinctly improved the overall product.)
But we can't simply lay the blame at the feet of the editors, as Stephen seems to do. I'm the incoming faculty advisor to my school's law review, and I've encouraged them to run more book reviews and think generally about the shape of the book. Have other faculty advisors done the same? And as Kevin notes, Michigan actually, and commendably, does accept short-form proposals for reviews. So perhaps the problem lies with faculty members who are not fulfilling their scholarly duty to engage important books in their fields by proposing and writing book reviews. The fault, dear Stephen, lies not in our stars. . . . I should also note that I proposed and published a review in last year's Books Issue of Kenji Yoshino's Covering. Maybe they didn't call the section in which they placed it "constitutional law and theory," but that's surely what the book involves.
One last point: Although I hope journals will run more book reviews, they should do it right. Those few journals that do habitually run reviews usually rely on soliciting pieces from prominent authors. Not only does this limit the potential number of reviewing authors to folks who are already part of the same elite conversation, but it gives rise to all kinds of self-dealing problems. A friend informed me, reasonably reliably, about a recent set of reviews in a prominent journal that were motivated variously by some students' desires to meet and flatter particular professors and, in one case, to get to know a particular judge in hopes of landing a clerkship. (Other anecdotal information, omitting specific names, is welcome from commenters with knowledge of such behavior.) We could do with much, much less of that kind of thing. Journals should not only accept submitted reviews, but should also allow and encourage more short-length proposals by would-be reviewers rather than wait for the full review.
I admit that this is a self-serving recommendation, since I'm about to pitch some law reviews on a joint review of recent/forthcoming books on judging by Jefferson Powell and Richard Posner. (And yes, I'm more than happy to hear from editors out there who might be interested in running my review.) But it's good advice nonetheless.
Since writing a "good" exam takes a fair amount of time, it's always good to get an early start. Aiming to have an exam done a few weeks before finals gives time for tweaking, proofing, and of course, printing, xeroxing and stapling.
But it also raises the possibility of a delicate situation. What do you do when a student, either in a review session or in office hours before the exam, asks you a question that is exactly the issue you test in an exam? What do you do when a student asks you how a hypothetical would turn out, and that is the very hypothetical you've used to construct the exam? This may be especially likely to happen when one bases exam questions on real-world scenarios with obvious implications for the subject area.
Handling such a question requires some care. You may think the student has hit the bullseye, because you've been thinking so much about that question or hypothetical in writing the exam and a grading key, but what if the student is really asking about something different? Being too quick to answer a question might tip you hat and give a particular student (if the question isn't asked in a public review session) an advantage. [Is this an "unfair" advantage?]
There may also be a temptation to be evasive, however. Fearful of revealing TMI, you might dodge the question. That seems unfair to the student. Similarly, you may get back up to your office after the review session and contemplate sending that question into the recycle bin. My guess is that's a bad idea, given that your second-choice question, pulled together late in the game, may not be as strong a tool for evaluation of student learning.
Is the Mich LR Books Issue in Decline? No.
Brian Leiter and Stephen Griffin appear to think it is. Methinks they doth protest too much. Griffin's complaint centers on the fact that in recent years a cluster of well-known con law theory books have not been reviewed:
Consider some of the better contheory books to be published over the last few years:
Jack Balkin, What Roe v. Wade Should Have Said (2005)
Sotirios Barber and James E. Fleming, Constitutional Interpretation: The Basic Questions (2007)
James E. Fleming, Securing Constitutional Democracy (2006)
Mark Graber, Dred Scott and the Problem of Constitutional Evil (2006)
Sanford Levinson, Our Undemocratic Constitution (2006)
Walter F. Murphy, Constitutional Democracy (2006)
Keith E. Whittington, Political Foundations of Judicial Supremacy (2007)
And yes I could go on from here and no I'm not trying just to list contributors to this blog! But it's really a shame. Perhaps the "Books" issue had to cut back on the number of pages, etc., but dissing contheory does not seem to me to be a good way to carry it out. And what books related to conlaw do they choose to review in the latest (April 2008) issue? Hint: not Jack Goldsmith's The Terror Presidency (2007) or Charlie Savage's Takeover: The Return of the Imperial Presidency (2007). No, the last two issues have featured scholars with the last name "Posner" and the current issue leads with "Yoo." A sad state of affairs.
It's not quite evident to me why, on the merits, Posner's name would be prima facie evidence of decline. He is by most accounts the most influential judge in the country. The complaint seems misplaced further because, for the most part, the way to get into the Books Issue is to pitch a review as Kevin Heller wrote in his comment; if the law professor market's not thrusting reviews into these editors' hands, it doesn't seem quite right for Griffin or Leiter to chastise them or for the student editors to go out and hunt for reviews of the books (that Balkinization authors have written), since that's often just a recipe for untutored cronyism. And in some cases, it appears from Sandy Levinson's comment on Balkinization, the student editors *are* asking for reviews of certain books and it's hard for them to get the targeted authors to agree to write the particular review.
Is there any reason for real worry? It's not as if the current issue (April 2008) is filled with slouches either in terms of the books reviewed or the reviewers of these books. Last, some of the books that Griffin mentions as "ought to be reviewed" may still be eligible for review in the 2009 issue. The MLR editors state pretty clearly that "the 2009 Survey, which will be published in April 2009, will include reviews of books published in 2009, 2008, and 2007."
The real issue, it seems to me, is with the supply and incentives for supply; some schools discount meaty review essays even though these days a review essay might be the same length as an article and make a more robust contribution to the literature too.
What next in the Sean Bell case?
I did not follow the bench trial of the three New York City detectives prosecuted for the early-morning shooting death of Sean Bell, an unarmed African-African American man. But like everyone else, I took notice of the judgment of acquittal handed down by New York Supreme Court Justice Arthur Cooperman last week.
So, while I cannot comment on the merits of the decision, I thought I would raise a few questions going forward:
1) I am intrigued by the idea, which I have seen in a couple of places, that this result is less about race than about police and the tendency of the law (and the judges and juries applying the law) to believe police and the resulting difficulty of convicting police officers, especially in shooting cases. Justice Cooperman was explicit that much turned on the greater credibility of defense witnesses (police) than prosecution witnesses (friends of the victim). Of course, a police shooting is statistically more likely to involve an African-American victim than a white victim, so we unfortunately find race just by backing up a couple steps. It still is "about race," but that term takes on more of a sociological than legal context.
2) The acquittal brought out, no surprise, Al Sharpton, acting as family counselor and protest leader. Sharpton called for public protests, including perhaps at Justice Cooperman's home. We often struggle with the question of how to criticize and protest judges on the substance of their decision. How should we balance two conflicting but undefinable concepts: judicial independence (which frees Justice Cooperman to make a decision apparently driven by the evidence, in the face of public opinion) and judicial accountability (the right to criticize and ccall judges to account even for individual decisions that produce injustice). Trial-court judges in New York are elected for 14-year terms and must stand for re-election, although Cooperman is expected to retire at the end of his current term, so he will not stand for reelection.
What do we think of staging a protest rally outside a judge's home? And why go to his home? Residential picketing usually targets doctors who work at abortion clinics, with the goal seemingly a combination of harassment and public shaming in front of the neighbors. Would the same technique work if the goal is to call attention to a judge's unjust ruling?
3) The defendants chose a bench trial (New York follows the majority approach that choice of criminal jury rests entirely with the defendant), which caused some speculation as to their strategy. One explanation was Cooperman's pending retirement and consequent insulation--or lack of accountability, depending on your perspective. One of Sharpton's more interesting comments during a weekend protest was that the three officers should have been required to have a jury trial, because they were public officials being prosecuted for action in the performance of their public duties.
I reject Sharpton's suggestion, although it reflects something interesting about how the public perceives juries and how that perception probably depends on which side in a case an individual supports. The perception is that juries are easily fooled, so a defendant who is going to obfuscate and hide the truth will want a jury, which will be less able than a judge to see through the smoke and mirrors. I heard this argument made in the early days of the OJ prosecution. Here, Sharpton suggests the opposite--that the officer defendants chose a bench trial because a jury would be better able than the judge to see through their (in Sharpton's view unbelievable) story.
I also think Sharpton's notion that the officers should have been "required to face a public jury" reflects a very different (and, I believe, incorrect) conception of the jury right. The jury right historically reflects an accused's right to choose to have the voice of the community, rather than the State, pass judgment on him--based on our distrust of the State. Sharpton would turn the right on its head, making it the community's right to pass judgment on those accused of breaching the community peace, a right that trumps any choices by the defendant himself. The jury is not about the individual's right to limit government in bringing its power to bear on the individual; it is about the community's right to prevent government (the judge) from ignoring the will of the community in a particular criminal case by guaranteeing that the community's voice will be heard, even if the individual immediately subject to the jeopardy of the criminal process does not want to hear that voice.
4) The next question in the case will be whether DOJ decides to pursue federal civil rights charges against the three officers. In some cases of excessive force in which the officers have been acquitted in state court, the feds have pursued charges (the Rodney King officers being the most obvious example), in other cases they have chosen not to pursue anything.
Under the Petite Policy, DOJ may pursue a successive prosecution only where the matter involves a substantial federal interest, the interest will remain unvindicated following the state prosecution, and the government believes admissible evidence is sufficient to obtain and sustain a federal conviction. For purposes of the second prong, DOJ presumes that the first prosecution (regardless of outcome) did vindicate that federal interest. The presumption can be overcome in a number of enumerated circumstances. Where the prior prosecution ended in acquittal, these circumstances include where the state judgment was a product of court/jury nullification; where there was corruption or some other defect in the integrity of the first trial; or where the state-court acquittal resulted from a failure of an element that will not be an element of the federal charge. And regardless of the outcome in the state prosecution, the presumption also can be overcome where: 1) the violation implicates a compelling federal interest, especially an enduring national priority; 2) the case involves egregious conduct, especially involving loss of life; and 3) the result in the prior prosecution was manifestly inadequate in light of the federal interests involved.
I do not know enough about this case or the internal workings at DOJ to predict what they will do. But it is not obvious the policy permits a federal prosecution here. The outcome rested substantially on Justice Cooperman's determinations as to the credibility of prosecution witnesses, a problem likely to plague a federal prosecution--and there is no "objective" videotape a la Rodney King. I have not seen any suggestion that the judge engaged in nullification here or that the process was otherwise compromised. Reports prior to the verdict described Justice Cooperman as tough on defendants, willing to convict police officers, and knowledgeable about the law.
Of course, this is a high-profile incident that has the public (or at least activists) riled up and angry at the perceived racially motivated crime and racially motivated unjust acquittal. And the conduct sounds egregious--50 bullets fired at an unarmed man by multiple officers. But should that alone warrant a federal prosecution?
Sunday, April 27, 2008
Weekend Trivia Challenge - The Nation's Oldest Law Review
Which law review is the oldest?
Answer below the fold ...
The University of Pennsylvania Law Review
According to its website, the University of Pennsylvania Law Review is the nation’s oldest, founded in 1852. It was originally published as the American Law Register.
Shakira is Smart
Whoa. Dude. Shakira is smart.
The Columbian-born triple-platinum recording artist tends to be famous for energetic pop music that is arguably too danceable. It is so drivingly rhythmic that even the nearly shameless will grip their chair in fear unless they are already a regular on a celebrity dance show. Last week Shakira did a sit down on National Public Radio to talk about her lobbying efforts on Capitol Hill for the Education for All Act. Not only did she know her stuff, but she delivered it with no ums and almost no ahs during the whole thing.
Hey, I mean no offense if you are a Shakira fan (or Shakira herself)** by pointing out that she's intelligent, but I am always shocked to find out that a celebrity is smart - especially the singer/dancer or actor variety. Alas, news of Shakira's brains is old news to Wikipedia, which reports that she speaks six languages and produces her own records. (She also writes her own music - not that that tells you anything.)
**Because she's nerdy enough to read this blog. On the other hand, it's probably intellectually beneath her.* Do not flame me on this point. I am still overwhelmed with trying to respond to the accumulated backlog of flames my guest stint on Prawfs has garnered me.**
SEIU and Union Democracy
There's a very thoughtful set of discussions going on at the Daily Kos, started by this post on "Union Strategy, Union Democracy." The post begins as a discussion of the blog ads by SEIU and its critics that have been popping up on progressive political web sites. Recently, SEIU's tactics have been attacked by rival union California Nurses Association/National Nurses Organizing Committee, which has accused it of top-down, antidemocratic organizing. As the post points out:
The SEIU and CNA are expressing a major strategic difference. The SEIU is emphasizing union density -- to have as many workers as possible in the same industry or same area be unionized, because then non-union employers have to raise their wages to compete, rather than undercutting the wages paid by union employers. * * * To achieve this, the SEIU under Andy Stern has become known for reaching cooperative deals with employers in order to reach the greatest number of workers; the CNA argues that these deals go too far and eliminate many of the benefits of union membership, limiting the gains a union contract will make.
The post also mentions the dispute between SEIU leadership and one of its largest locals, United Healthcare Workers-West (UHW). According to this recent New Republic account, UHW president Sal Roselli has complained that "Stern has made the union too undemocratic, that he has cut secret deals with employers, that he cares more about enlarging the union than serving its existing members."
As the Daily Kos post indicates, these issues are complicated, with many competing factual claims on all sides. But the controversies raise fascinating questions about the nature of union representation, and the pros and cons of different approaches. The Daily Kos post ends with this passage:
If the SEIU trustees the UHW, it will have cast serious doubt on its commitment to democracy -- which should be at the heart of representing workers. If, however, they embrace the debate, we might find in this moment of conflict a possibility for real advances, for a robust debate about how to take advantage of the opportunities unions might gain from a Democratic president, for involving workers in a debate about what direction unions should take, for producing healthy competition between different models of unionism as exemplars of each try to demonstrate their advantages to prospective members.
As I have noted recently, now is an opportune time to reconsider our notions of union representation. SEIU is a perfect example of the "union as provider of representation services" model. The Daily Kos post, including its many thoughtful commenters, provides a in-depth and balanced look into the costs and benefits of this new model. I encourage you to check it out.
Saturday, April 26, 2008
Hail to Alma Mater
Friday, April 25, 2008
Con law in unexpected places
For example, in George Clooney cinematic homages to His Girl Friday, every Cary Grant-Katherine Hepburn comedy, and movies depicting the minor-league backwaters of professional sports.
One of my colleagues was approached by a student in his Con Law I class, who had just seen the movie. According to the student (I have not seen the movie and probably will not until it comes out on video), one issue that arises is an attempt by Congress to regulate the new professional football league, including by requiring the teams to appoint a commissioner. (Can anyone who has seen the film confirm this?)
The ever-vigilant new law student (I always tell my 1Ls that a legal education changes the way you look at everything, even nostalgic slapstick comedy) wanted to know where Congress could get the power to tell a professional sports league how to run its business. The answer, of course, is the Commerce Clause.
But the interesting thing about that answer is that the story takes place in the 1920s, during the wild-west early days of professional football. And the prevailing view of the time was reflected in Justice Holmes' now-infamous decision in Federal Baseball Club v. National League, holding that professional baseball was not interstate commerce for purposes of the Sherman Act. And that decision at least intimates Holmes' (and the Court's) view at the time that professional sports were not interstate commerce for constitutional purposes, thus Congress lacked any power to regulate pro sports in the way apparently depicted in the movie.
Oh well. By now, we should be used to popular culture getting law mostly wrong.
Thursday, April 24, 2008
Job Market Timetable
As conversations this week with a number of the great fellows we have here at Harvard who will soon be going on the market have reminded me, the biggest question about getting ready for the job market is not only the "what" I should be doing, but the "when." To that end, I thought I would take a rough stab at presenting a sort of timetable for the job market.
A couple of caveats before I start. I don't mean this timetable to be some kind of orthodoxy, this is just what I aimed for and what seems to me to make sense. I would very much appreciate the views of others in the comments section. Second, and relatedly, do not panic if your own timetable is totally out of whack with the one I detail here; there are multiple successful paths to the job market. All times are in terms of the Faculty Recruitment Conference (FRC).
1.5-2.5 yrs before the FRC: Consider doing a fellowship. I posted extensively on this during my last blogging stint so I will just refer you to that. Eyeballing the interim hiring data reported by Larry Solum this year so far, it seems as true as ever that (especially at top schools) a fellowship or a PhD has become an important aid in securing a job.
1 yr before the FRC: (1) You need to pick a job talk paper and start working on it. This will realistically give you enough time to write it, circulate it, get feedback on it, revise it, mock job talk it, etc. In an ideal world it would actually give you enough time to write two major papers, one to put into the submission cycle in the Feb/March before the job market, and one for the job talk itself. That, however, is an aspirational goal. The job talk paper is what you cannot do without.
Figuring out what to write about is actually a very difficult and important part of the process. There are many things that are good papers, but not good job talk papers. For example, they are too doctrinal (or not doctrinal enough), they don't fit well enough into the type of academic you claim you want to be (you say you are interested in health care law, but you look like a con law person), or they are likely to piss off some important constituency at the law school who may be a gatekeeper of your candidacy, etc.
Other possible job talks seem promising but turn out to be, as Plato put it in the Theatetus, "wind eggs". There, Socrates describes himself as a midwife who delivers ideas rather than babies, but some of them turn out to be wind eggs, an empty egg that does not lead to a successful birth under anceient Greek embryology. You discover too late that the ideas are preempted, it is too long or short for a job talk paper, or it just "doesn't write." You need to build in time for all of this, which is why I recommend the long time frame.
(2) Network. Many sub-specialties in law have their own conference or conferences. For example, the health law teacher's conference is happening in June. This can be a great opportunity to meet people in your field, and get on people's radars as a promising person in your field. Generalist conferences can also be good, although possibly less bang for your buck.
6 months before the FRC: Line up your recommenders, which I posted about in more depth earlier. If possible, it is great to have your recommenders look at a draft of your job talk paper, so they can really speak authoritatively on what you are up to. The earlier you complete drafts of various things (the job talk paper, the research agenda, etc) the more likely you can get your busy recommenders to give you feedback.
3-4 months before the FRC: (1) Do a draft FAR form (the 1 page biographical form you submit to AALS). You should do a draft one and circulate it to your recommenders. Much of the FAR form is quite intuitive (one tip that I learned is to use the comments block after various sections to add or clarify -- I used mine to list other recommenders, other publications, and to expand on courses in the health law sector i wanted to teach). Other parts still remain very mysterious to me even now (e.g., I still am not sure what "law and medicine" is as opposed to "health care law" and "bioethics"). There is also lots of strategizing that goes into where to place things in the tiers of preferences, how many "big" (esp. 1L classes) vs. specialized one, how well it coheres with your research agenda, etc, although it is not clear that there are "right answers" here.
(2) Get the list of all the hiring chairs at all the schools you are interested in. Harvard and Chicago, I know, provide their students on the market with such a list the schools compile. Find out if your school does the same. Prawfsblawg has in the past made such a list by voluntary chair self-identification. Get the chairs' email and snail mail addresses. You'll need this for both the "package" I will discuss next, and to give your recommenders to let them know with whom they may want to put in a good word.
(3) Prepare a "package" to send to hiring chairs. The FAR form is short. The package is the long form version. It will definitely have a cover letter, your transcript, CV, a copy of one or more of your prior publications, a list of your recommenders. It may also include a research agenda and your job talk -- this will depend on how far along you are with each. I did not include my job talk in my package, in part because it was not "there" yet, and almost all the hiring chairs contacted me in the two-three weeks pre-FRC to see if I wanted to send it along then.
There was considerable debate on this blog about the utility of these things. The consensus, I think, is that it won't hurt, but it is not clear how much it will help (especially given the private cost to you of the photocopying and mailing, and larger cost to the environment), though I am a fan of them.
There is also a question of how many to send out, to whom, and when. I sent about 35. I sent it to the 35 or so schools I was most interested in, but I actually think these packages do the most work at schools that othrewise might not think you are interested. If people want to interview you and they didn't get the package they will ask for it (and sometimes they may just want e-copies of all elements anyways to make it easier to circulate).
I mailed mine out in mid-August.
[The calls start coming in to do FRC interviews during this period from mid-August to early October]
1 month before the FRC: You should try to do both a mock interviews and a mock job talk. You need to get used to having a 1-minute, 5-minute, and 20-minute version of the job talk, according to the setting. You also want to have practice answering both substantive questions about your work as well as questions about you, and your interest in the school. For fellows, Harvard arranges a series of mock interviews and mock job talks with faculty giving feedback. I think these are a wonderful asset, and more schools should consider doing the same if they want to promote their students on the job market.
2 weeks before the FRC: Try to take a small vacation, it may be the last one you'll get in a while.
The day before the FRC: Wander around the Woodley Park Marriot hotel where the conference is held to figure out in what tower different interviews are, and to practice getting back and forth between them quickly.
Bibles on the Bayou
Earlier this week, a federal district court judge in Louisiana ordered the rural Tangipahoa Parish School Board to stop allowing the Gideons to pass out pocket bibles to fifth graders during school hours. The ruling came in response to a suit filed by the local chapter of the ACLU, one of seven suits filed in recent years challenging such violations of the Establishment Clause. Other Tangipahoa School District practices challenged have included: (1) Disclaimers placed in science books stating that evolution is a theory that does not necessarily disprove creationism; (2) Schools allowing a minister to give out pizza and teach Christianity on school grounds during lunch periods; (3) Prayers said over the intercom, at school-sponsored events such as football games, and at school board meetings; and (4) Prayers led by a teacher in the classroom.
Two of the cases are still pending. In all of the others, the ACLU has won or obtained a favorable settlement. What is really remarkable is that despite their repeated losses in the courts, and the expenditure of tens or even hundreds of thousands of dollars in attorney fees, public officials in Tangipahoa simply cannot be deterred from their attempts to introduce religion into the schools. The School Board has already announced that it plans to appeal the bible case to the Fifth Circuit. In several instances, the ACLU has had to seek contempt sanctions against the School Board for refusing to comply with court orders. And the School Board continues to look for ways to impose its religious beliefs on public school students. It is a kind of defiance to federal law that is reminiscent of earlier battles over desegregation.
Adolescent sexuality and the law
Here are two recent criminal prosecutions that suggest a bizarre separation of official legal norms from ordinary social norms:
Item #1: Two teenagers -- a sixteen-year-old girl and a seventeen-year-old boy -- took racy pictures of themselves with their cell 'phones. They did not distribute the photos to anyone else. Under state law, these photos constituted child pornography -- and the teenagers were prosecuted under state law either for producing, directing or promoting a photograph featuring the sexual conduct of a child or possessing child porn. (see news item) The underlying behavior, incidentally, was not illegal under Florida law, which permits teenagers of this age to have sexual intercourse with each other (although not with an adult).
Item #2: A 12-year-old and a 13-year-old have sexual intercourse. Under Utah law, sexual intercourse with an individual under the age of fourteen is a second-degree felony. State prosecutors charged both children with sexual abuse of a minor, making the individuals simultaneously perpetrators and victims of sexual assault. (See state court opinion)
My visceral reaction to both cases is that the law has gone mad. On cooler reflection, it occurs to me that, in the area of adolescent sexuality, our criminal laws perpetuate norms that are at odds with the behavior of an enormous percentage of ordinary high school and middle school students. Roughly half of our teenagers have sex with each other. Roughly 8 percent of them do so before the age of fourteen. (see KaiserFoundation fact sheet) (Fewer photograph it, of course, but it is hard to see how the depiction adds measurably to the culpability of the act). The "madness" of the law is simply the curious gap between what our children actually do and what the laws says that they ought to do (or not do).
Two questions: Why? And what ought to be done?
As to why: Is the problem that obsolete laws remain on the books? Or that current prosecutors are simply distorting sensible laws by enforcing them in unforeseen ways? Or do our lawmakers actually adhere to official norms radically out of sync with the behavior of their children?
As to what ought to be done: Should courts respond by invalidating such laws (as applied) on the ground that such prosecutions are simply contrary to ordinary social norms, as reflected by facts on the ground of which the courts can take judicial notice? (The canonical citations would be Harlan's dissent in Poe v Ullman, Lawrence v Texas, Justice Powell's plurality in Moore v City of East Cleveland, etc). Or should constitutional law butt out, because norms are actually unstable in this area?
Virginia v. Moore and § 1983
In a near-unanimous decision yesterday in Virginia v. Moore, the Supreme Court held that the Fourth Amendment was not violated where police arrested (and conducted a search incident to that arrest that found cocaine) an individual for an offense (driving with a suspended license) that is not an arrestable offense as a matter state law. I leave it to Orin and others who know this area to deconstruct the opinion under the Fourth Amendment. I want to weigh in on how this affects my area--§ 1983 damages litigation.
It long has been recognized that a violation of state law by a defendant acting under color of state law is not actionable under § 1983. But several lower-court decisions had gotten around that with the idea based on the notion that when police commit an act prohibited by state law, they necessarily act unreasonably. Thus, consider a case I worked on as a district court clerk and which I use as an in-class illustration. Two Philadelphia Housing Authority officers, whose jurisdiction as a matter of state law is limited only to PHA property, conduct a traffic stop and search off of PHA property; the stop otherwise would have been lawful, since pretty much any traffic stop is, if conducted by these officers on PHA property or by an officer with proper jurisdiction. That seizure arguably violated the Fourth Amendment because it might have been unreasonable for officers to take action beyond what they know to have been their state-law-authorized jurisdiction. At the very least, the claim was cognizable in a § 1983 action and could go to trial. Yesterday's decision seems to reject that notion altogether. The violation of state law merely is a violation of state law, not cognizable under § 1983, and nothing more.
Wednesday, April 23, 2008
Stumble, Predict, Nudge: Amir & Lobel on Rationality and Policy
To stumble is human. Finding patterns of such stumbling and designing systems that can prevent common behavioral failures is increasingly an area of study of the legal community – asking how can policy implement insights from new social science research. In a forthcoming review essay in the Columbia Law Review, On Amir and I consider the promise, as well as challenges, of such implementation. In Stumble, Predict, Nudge: How Behavioral Economics Informs Law and Policy, we explore two new books which bring together some of the most significant and interesting new research on human fallibility and will prove extremely valuable to such efforts.
DAN ARIELY’S, PREDICTABLY IRRATIONAL: THE HIDDEN FORCES THAT SHAPE OUR DECISIONS (HARPERCOLLINS, 2008) is rich with concrete examples on how individuals make systematically poor decisions. Ariely’s case studies are all highly relevant to our daily lives. For example, in a series of experiments, Ariely finds new twists on the well-established placebo effect. He shows a placebo effect of the price of drugs, and consequently, the relative ineffectiveness of an equivalent, but marked down, or “on sale”, drug. In other sets of experiments, Ariely examines why the average person allows herself to steal office supplies or communal food, but would not steal the equivalent value of the items in cash. Dan Ariely, the Alfred P. Sloan Professor of Behavioral Economics at MIT’s Sloan School of Management, as well a founding member of the Center for Advanced Hindsight, presents in the book not only the latest social science research on the various forces that drive irrational decision-making in predictable patterns but also attempts to outline the systematic causes of such erroneous judgments and decision-making, opening the door to potential remedies of these failings. The research suggests for example that signing an honor code can bring forth awareness, or prime, individual standards of honesty and can curb subsequent dishonesty. The concrete examples as well as the broader processes analyzed in the book are thought-provoking and relevant to most any field of law.
RICHARD THALER & CASS SUNSTEIN’S, NUDGE: IMPROVING DECISIONS ABOUT HEALTH, WEALTH, AND HAPPINESS (YALE UNIVERSITY PRESS 2008) USES the insights of behavioral economics in order to develop both an overarching theory of the role of government and a myriad of practical solutions to core regulatory problems. Thaler and Sunstein argue that if behavioral economics teaches us that people do not always act in their best interest, then policymakers must rethink the tools of regulatory command to effectively change behavior. Nudge thus urges policymakers to design policies that improve people’s well-being through “gentle nudges” rather than paternalistic or coercive measures. Nudge builds on previous work in which Sunstein and Thaler argue that “libertarian paternalism” is not an oxymoron.
Our review essay examines both the conceptual implication that follow from adopting the field of behavioral economics into policy, including the balance between legal and non-legal control mechanisms and the boundaries between “liberal paternalism” and over-coercive solutions, as well as some of the books’ concrete policy suggestions. The essay warns against over claiming the ability to “improve decisions,” as reads the subtitle of Nudge, simply through identifying behavioral biases. The observations that people make imperfect decisions are well established in both books. The failures described consist of a broad range of behaviors and different underlying mechanisms. Individuals have limited information, are limited in their capacity to process large quantities of data, have limited attention span, calculation capacities, and memory resources. And perhaps most distinctly, they are limited in their willpower and emotional capacities. All of these fallibilities come into play in the cases examined by Ariely, Sunstein, and Thaler but the correction mechanisms in response to each vary significantly. The review essay will highlight the biases described in the books as caused by different mechanisms, including over- and under-usage of cognitive processes. Therefore, the prescriptive nature following these findings must be cautious and narrowly tailored to address each behavioral bias. We argue that Thaler and Sunstein at times overestimate the ability of choice architecture to solve the social problems with which they are concerned. We also inquire into the notion of “debiasing” and “libertarian paternalism.” The review contemplates whether there can indeed be a line between libertarian and non-libertarian paternalism and whether the involvement of government in correcting behavioral biases creates a slippery slope of more profound intervention in people’s liberties and choices.
We welcome your thoughts!
I've written here occasionally about the placebo effect, but here's a Reuters news article that indirectly addresses the opposite phenomenon: the nocebo effect. Much as one can have a positive result from a sham treatment or intervention if one expects it to have a positive result, one can have a negative result from a sham treatment or intervention when one expects it to have a negative result.
Well, that's about the best that I can do to explain this: "Police inhave arrested 13 suspected sorcerers accused of using black magic to steal or shrink men's penises after a wave of panic and attempted lynchings triggered by the alleged witchcraft. " Here's some more:
Purported victims, 14 of whom were also detained by police, claimed that sorcerers simply touched them to make their genitals shrink or disappear, in what some residents said was an attempt to extort cash with the promise of a cure.
The story certainly seems puzzling. Do people really believe that their genitals have been removed? Perhaps there is some sort of nocebo effect at play:
"But when you try to tell the victims that their penises are still there, they tell you that it's become tiny or that they've become impotent. To that I tell them, 'How do you know if you haven't gone home and tried it'," [Kinshasa's police chief] said.
Is there a nocebo effect, though, on third parties? Check out the concluding paragraph:
"It's real. Just yesterday here, there was a man who was a victim. We saw. What was left was tiny," said 29-year-old Alain Kalala, who sells phone credits near a Kinshasa police station.
Are Prawfs colonizing the Harvard Law Review?
No need to fear such a melodramatic interpretation. But the facts do warrant a shout-out to the good taste of the Harvard Law Review's editors for the current April 2008 issue. First is an article by guest prawf extraordinaire, Rick Hills, called Land Assembly Districts (written with Michael Heller). Next is a review essay by my law school mentor and Prawf Alum, Rob Howse, entitled, The End of the Globalization Debate. Congrats to both Rick and Rob; I'm looking forward to putting these on my to-read pile for the post-exam drafting pre-exam grading reprieve.
Law School Deans vs. Business School Deans
Surely being a law school dean is a tough job. But according to this WSJ online piece posted yesterday (updating a 2004 story) serving as a business school dean may be just as tough or even tougher. The article cites the usual pressures to fundraise (facing all deans) as part of the explanation, but also notes b-schools are currently experiencing curriculum upheaval “as ethics and global business become more important” and schools are falling over each other for executive education revenue. So is being a law school dean comparable? Not as bad? Worse?
According to the Association to Advance Collegiate Schools of Business (AACSB)--the business school equivalent to AALS--nearly 25% of business school deans have served for just a year or less. In fact, several of the “new” deans the article talks about (i.e., new in 2004) have already moved on…
Of course business school deans face similar U.S. News rankings pressures to law deans. I guess some may argue that for business schools the rankings pressure is even more intense. Although I’ve always heard and thought that MBA programs seem less beholden to the U.S. News tyranny than law schools because there are a variety of leading rankings and methodologies at work, such as U.S. News, Business Week, The Wall Street Journal, Forbes, and Financial Times all publishing their own lists. Multiple rankings must dilute the power of any one ranking, perhaps leading to a more sane system and decreasing pressure. But then again, I guess it’s possible that multiple rankings may increase pressure on administrators because they have to pay attention to even more factors/considerations/release dates/student furor. Imagine if The American Lawyer, National Law Journal, and Business Week also ranked law schools, would law school and law deans be better or worse off?
So, will law deans and business deans meet different fates? Are business school deans the proverbial canary in the mine for professional school deans that law schools will follow? Or, could this article just as easily have substituted the “law dean” for “business dean”?
How much is the job of a foreigner worth?
In my last post, I asked a basic policy question and mostly got denial in response. So I’ll try again, but in a kinder and gentler way.
Here is the question: How much is the job – or, more generally, the economic well-being – of a non-citizen worth?
The issue is plausibly raised by the debate over free trade. It is the widespread consensus of economists that eliminating barriers on goods and services delivered to the United States benefits the citizens of under-developed countries where those goods and services are manufactured or performed. Outsourcing jobs to India seems to be very good for India’s workers.
But free trade in goods and services might have some adverse effects on some Americans. Paul Krugman, for instance, argues that trade increases inequality between skilled and unskilled American workers. (See paper). The magnitude and causes of these effects are hotly disputed (by, among others, Lawrence Katz) and difficult to verify, because the data is apparently crude. But let’s assume some sort of distributively undesirable effect.
How should U.S. policymakers balance these effects? Should the welfare of non-citizens count at all? Or should we let Indians remain impoverished to prevent, say, a 15% drop in unskilled wages in the United States? The question is tellingly asked by "The Delmar Dog Butler: Is Outsourcing Killing America?", a must-see DVD produced by James Walsh, a University of Michigan Business School Professor. In the DVD, Walsh follows the career of Steve Relles, an engineer who is laid off by GE when his job is outsourced to engineers in India. Relles creates a business picking up the dog poop of neighbors’ pooches, and his salary drops from 50k to roughly 15k. Only his wife’s job allows the Relles family to pay their mortgage.
Walsh then travels to India to see how the Indians engineers are affected by out-sourcing. He interviews a young man whose life is transformed by his work at GE, despite what Americans would regard as an extremely low (15k) salary. Suddenly, the young Indian engineer can afford a moped, an apartment, and a marriage.
Walsh asks – and admirably does not attempt to answer – the question I ask here: How should policymakers balance these costs and benefits?
There are two basic approaches to this question. One is to grapple with it. The other is to deny that it exists. The latter approach involves the adamant denial that the citizens of under-developed countries are hurt by tariff barriers. On this account, there is no trade-off: Despite what virtually every academic economist says, everyone’s made worse off by globalization. This is largely the sort of response I received when I asked how Iraqi and U.S. lives ought to be traded off against each other. Several people simply said that the withdrawal of U.S. troops could not possibly lead to increased Iraqi casualties. It's all win-win, so why trouble oneself with unpleasant thoughts?
If you have an activists’ faith that your preferred policies cannot possibly hurt non-citizens, then, of course, there is no need to confront my question. I regard such zeal as a form of denial, although I envy such religious certitude. But for those of you with less faith and more doubt, I repeat my question: Suppose that it IS the case that trade is good for Indians but hurts some Americans? Suppose that there is a non-trivial plan that MoveOn.org is wrong about the effects of quick U.S. withdrawal – that the Iraqi casualty rate WILL spike? Just suspend your belief for a second: Assume that trade-offs of the sort I describe, if not certain, are at least plausible. How would you make them?
Would you, for instance, tolerate layoffs in the U.S. to prevent destitution – i.e., poverty unimaginable to any, even unemployed, American – in India? What's the right ratio between foreign and U.S. welfare?
Tuesday, April 22, 2008
Green Living: Let go of your stuff & find a reuse group
Through my yoga practice, I have learned to let go of many things, tangible and intangible. I teach consumer law and I am always struck by how little we question why is consumption in our society so high in the first place. In other words, why do we think we need so much STUFF. Well, spring has sprung, and it is time for some cleaning and recycling. I found this cool organization. Here is how they describe themselves: The Freecycle Network™ is made up of 4,341 groups with 4,906,000 members across the globe. It's a grassroots and entirely nonprofit movement of people who are giving (& getting) stuff for free in their own towns. It's all about reuse and keeping good stuff out of landfills. Each local group is moderated by a local volunteer (them's good people). Membership is free.
There are also many other reuse groups around the world, and you can find one in your area here.
Amputees by choice, enhancement, and the trans community (Oh My!)
The comments to an earlier post of mine that took on something of a life of its own, which suggested to me that this issue might be of more general interest to the blogosphere.
At the highest level of generality the question might be posed as such: what are the limits of the domain of the health care system, or the permissible ends of medicine? To put the matter more concretely, consider the following three cases:
(1) Adam suffers from Apotemnophilia, a condition in which people are obsessed with the idea of cutting off their limbs (for more on this condition, see Carl Elliot, Better Than Well, "Amputees by Choice" chapter, which describes the condition and attempts to get it included as part of the DSM-IV, the bible of psychiatry). The condition is often highly psychotherapeutically treatment resistant, and there have been a number of cases where patients, refused amputative surgery, have attempted self-amputations to their detriment. The apotemnophiliac patient often describes himself as feeling as though his body is "wrong," that the extra limb is not "him." This in turn may lead to obsessive thoughts about the limb and other forms of psychological suffering. Assume for the purposes of the question that the limb amputation is very likely to lead the person with the condition to become psychologically "normal" (scare quotes intentional to recognize how fraught this term is), that is, that he is likely to be able to live a life similar to that of someone who loses a limb involuntarily by accident. Should medical ethics bar a surgeon from removing the limb if all non-surgical options for treating the disorder have been exhausted and are unsuccessful? Should the state pay for the surgery, either directly or indirectly (for example by allowing its expense to count towards the medical deduction?)
(2) Ben is diagnosed with gender identity disorder. Although born as a biological male, he has had a strong and persistent gender identification of female, he feels persistent discomfort at being a male, and feels significant distress and impairment in social, occupational, or other important areas of functioning (these are some of the DSM-IV diagnostic criteria). For example, imagine his distress has lead to unemployment (because difficult to get hired due to other-gender behavior), and drug use, as well as severe depression. He decides he wants sex-reassignment surgery. Should medical ethics bar a surgeon from performing the surgery if all non-surgical options for treating the disorder have been exhausted and are unsuccessful? Should the state pay for the surgery, either directly or indirectly (for example by allowing its expense to count towards the medical deduction?)
(3) Carl is obsessed with his nose. He has been since he was 15. He thinks it spoils his face. He blames it for his lack of success in dating. He finds it hard to concentrate when working near other people because he thinks they are staring at him. Years of psychotherapy have not made this feeling go away. Finally, out of desperation, he consults a plastic surgeon to get a "nose job." Should medical ethics bar a surgeon from performing the surgery if all non-surgical options for treating the disorder have been exhausted and are unsuccessful? Should the state pay for the surgery, either directly or indirectly (for example by allowing its expense to count towards the medical deduction?)
This issue has come up as part of the session on enhancements I do in one of my courses, and also led to one of the most lively sessions of a conference on human enhancement we had at Harvard Law School's Petrie Flom Center. My views on the subject have also been informed (if only to make things more complicated) by a great panel I moderated on health care law issues for the trans community at Harvard Law School Lambda's conference on translaw issues, and the complex relationship between medicalization of the trans identity and getting access to health care and increased legal recognition.
The current state of play, as I understand it, is (1) as to amputees a doctor who performed the surgery might very well lose his license or at least be subject to significant critcism from bioethicists, and the state certainly would not pay for it or allow a tax deduction. (2) As to the trans person in distress, there are many doctors who would perform the surgery and it is generally accepted by medical ethics. A few states have in the past covered the surgery through Medicaid, and there is litigation pending as to whether it should be tax-deductible. As to (3) Many doctors perform "nose jobs," and bioethicists are usually fine with it so long as the payment comes from private funds and not the public fisc (althoug this may overstate the consensus). The operation is not generally tax-deductible, nor is it covered by Medicaid.
Is the current state of play normatively justifiable? What, if anything, distinguishes these cases from a normative point of view?
I mean this to open up a discussion, but let me examine a few initial possible grounds of distinction:
(I) Irreversibility -- It would be tempting to separate the amputation case on this ground, but all of these are irreversible to some extent. Especially for MTF trans people seeking the surgery, it appears to equally irreversible.
(II) Externalities: Arguably only the amputation case imposes third party externalities (beyond the cost of providing the surgery). During the conference Judge Posner asked whether this person could then demand ADA coverage, etc. I think this is a valid distinction, although perhaps we could get rid of it by imposing some kind of waiver condition as to the coverage of these statutes. If the issue is not externalities but moral hazard, it seems somewhat far-fetched -- it seems implausible that someone might amputate just get government benefit for the disabled.
(III) Wrong to choose a disability: We might argue that what is wrong with amputation is that it is wrong to for medicine to facilitate a choice to "disabled." This might either be argued (a) from a more Aristotelian or virtue ethic point of view, that the excellence of being human is to have all one's limbs. Or it might be argued on (b) a more welfarist ground, that overall welfare is decreased by the surgery. Or it might be argued for (c) on the ends of medicine
(a) may have difficulties distinguishing the trans case. Of course, I am not suggesting that to choose to be a member of the opposite sex is to choose to be disabled, but one is choosing to be a "disabled" (again scare quotes) member of the opposite sex, in that one cannot achieve pregnancy in the MTF case. It is unclear how good an argument this is. On the one hand, for purposes of ADA coverage, the Supreme Court treated "reproduction" as a major life activity, the substantial limitation of which gave rise to a "disability" in Bragdon v. Abott. On the other hand, many individuals voluntarialy choose to make exactly this choice, e.g., through getting one's tubes tied, and sometimes irreversibly (here the Sen/Nussbaum distinction between capabilities and functions might be useful, having a capacity versus choosing to excercise it). Does this argument problematically express a view on the "humanity" or "virtue" of those who are missing a limb not by choice? Does it thus problematically smack of "ableism"? I think not, but maybe others will disagree (this discussion has played out somewhat in bioethics, although with the added twist of choosing for a child, in the controversy over whether deaf parents should be allowed to use Prenatal Genetic Diagnosis to select a deaf preembryo for implantation).
On (b) the problem is that it is unclear how the calculus might come out. While losing one limb might both make you worse off and make others worse off because you are less productive, that has to be measured against a baseline of how good you and others are in your current apotemnophiliac condition. One can imagine that some obsessive thinking would be so persistent as to have worse welfare consequences for the individual and society, than the limb amputation. Some of this would turn on how the externality argument is resolved.
On (c) the question then becomes what is the proper ends of medicine. Is it "health" and what does that mean? If health means curing disease, simplicter? Well then we will have to define disease, and whether psychiatric disorders count, and whether they have to be part of the DSM-IV (we'd have a further argument about whether deferring to the psychiatric community, its internal processes, its biases, makes sense). The "nose job" would probably be excluded, unless it was part of something like body dysmorphic disorder.
On the other hand, there is the famously broad definition of the WHO constitution preamble, which says that health is "a state of complete physical, mental and social well-being, not merely the absence of disease or infirmity." On this definition, while the amputation surgery would decrease physical well-being, it may improve mental (and possibly social) well-being to a great extent. Can we trade one category for the other? The more the answer seems yes, the more this might collapse into a purely welfarist account, which leads us to interesting (and well-trod) questions relating to happiness versus well-being (Soma anyone?) This answer will lead us to put less stock in divisions between the three cases, and instead might focus on how much welfare is gained at how much cost (which mimicks, to some extent, the QALY approach to health rationing).
There are also attempts at intermediate definitions, such as Norm Daniel's "species typical functioning" approach.
The analysis for the purposes of determining whether there should be a prohibition on getting surgery X with private dollars vs. government subsidization of X (in some form) also seems to me crucially different, especially because the latter requires (to a greater extent) consideration of how the individual's needs compare to other individuals in the system, scarcity and choice.
This is all just tentative thoughts to get everyone going on something I've been thinking about as of late....
Monday, April 21, 2008
Don't know much about history, don't know much about geography
To the extent I still am feeling sheepish about thinking that Munich was in East Germany, I take slight comfort in the company of this L.A. Times reporter who thought George Washington only served one term as President.
The Complicated Relationship between Unions and Private Equity
To those who imagine unions as backwards, naive advocates of workers' rights, the SEIU is here to readjust your perception. Larry Ribstein discusses SEIU's latest efforts to put pressure on private equity funds: a California bill that would have restricted state pension fund allocations to private equity firms who have certain sovereign wealth funds (SWFs) as investors. The bill had a human rights spin to it, as it targeted sovereign wealth funds from countries with troubling human rights records. But as the WSJ points out:
[A] list of human rights violators that included Singapore and Abu Dhabi but not China raised eyebrows. It turned out that Mr. Stern included Singapore and Abu Dhabi because they invest with Carlyle [Group, a private equity firm locked in tough negotiations with SEIU]. China got a pass because its sovereign wealth fund invests with the Blackstone Group private equity firm, and the SEIU has negotiated janitorial agreements with Blackstone real-estate companies.
Larry Ribstein treats this as another example of labor attacking capital -- in this case, fruitlessly. He argues that since unions can't use the corporate governance techniques they use on public companies, they are to some extent stymied by private equity, and that this may cause additional problems down the road. He closes: "It seems that in coming years labor may increasingly have to decide whether to 'overcome' the capitalists or join them. "
I don't see the contradiction that Larry sees here. In fact, I think the SEIU bill is evidence that labor has already "joined" the capitalists -- at least when it comes to negotiating based on economic interests, rather than ideological principles. If the California SWF bill had really been about human rights, its list of targeted countries would not have had the internal contradictions. More importantly, the bill was not simply a case of labor attacking private equity -- a familiar, time-worn narrative. Instead, the bill was targeted at companies that have been intransigent in negotiations with SEIU. It was a case of SEIU attempting to hurt certain private equity firms -- and, by extension, to help others. Blackstone -- perhaps the most notorious private equity firm of this era -- was kept off the restricted list because it has a better bargaining relationship with SEIU.
Thus, I see this latest political effort by SEIU as evidence that unions are joining the capitalists, rather than trying to "overcome" them. The bill was not really part of a political struggle against capital. It was a continuation of SEIU's efforts to increase its membership and secure better terms for its members. It was no different that Sun and Netscape encouraging the government to sue Microsoft, or corn producers pushing for ethanol subsidies. Sure, there are principles at stake, but at root it is really economic competition and negotiation through another means.
I discuss these developments further in Mother Jones Meets Gordon Gekko: The Complicated Relationship Between Labor and Private Equity (forthcoming in the Colorado Law Review). I hope to have the article up on SSRN soon, once I have incorporated these most recent developments. If you are interested in a more general discussion of "unions as businesses," you can check out this In Brief forum on the subject.
Chabon on Price's Lush Life
Anyone can write a reasonably interesting review of a book that’s bad. It’s much harder to write an entertaining review that says why a book is good. The current issue of the New York Review of Books has a review by Michael Chabon of Lush Life, the new novel by Richard Price, that manages to do just that. If you haven’t read any of Price’s novels but have seen HBO's The Wire (many episodes of which were co-written by Price), you’ll have a sense of the gritty urban crime world of which he is master.
Criminal law types are bound to get a particular thrill from his work. As Chabon puts it, “[b]y now Price has the police procedural down cold, both in his technical knowledge of the workings of the criminal justice system and in his control over pacing and point of view.” What makes Price the truly exceptional novelist that he is, however, is his extraordinary ear for dialogue, “his ability to capture and reproduce the rhythm, tone, and evanescent vocabulary of urban life. . . . Resorting with miraculous infrequency to the use of dialect spellings and other orthographical tricks, Price gets his characters' words to convey subtle nuances of class, occupation, education, even geographical gradations of neighborhood, while also using them as a powerful vehicle for the transmission, in fits and starts, evasions and doublings back, of their interior lives.”
Both his insight into the criminal justice system and his ear for language are apparent in a typically well-rendered moment described by Chabon:
Late in the novel, two members of Price's Quality of Life Task Force, a squad of plainclothes who in their bogus taxicab patrol the Lower East Side and the novel itself like meaty Furies with flattop haircuts, apprehend one of the principals in the Marcus murder, a stick-up artist named Little Dap. The kid carries in his wallet a trophy from one of his muggings: a check made out by the cashless victim for a hundred dollars, drawn on a bank in Traverse City, Michigan:
"Hey, you jux [a synonym for mug] someone from out of state? That's a guideline felony."
"Classical guideline felony."
"Plus this whole area is historically landmarked," Lugo reminding Daley, "which makes it. . . "
"As in federal."
"And federal crime. . . "
"Means federal time."
"The fuck! It's just a check, man, I ain't even cashed it!"
"They'll just take him away from us, the Feds."
"I hate those pricks, everybody's bin Laden to them. Won't even listen to us."
"I don't feel too good," Little Dap slurred.
"You're kidding me."
"Where am I?" Lolling his head, then resting on the bars.
"About two inches from a supermax."
Those who don't learn from history . . .
(H/T: Andrew Sullivan)
Twice actually--history has forgotten that the 1936 Winter Games also were in Nazi Germany, in Garmisch-Partinkirchen. We also let
two a brutally repressive totalitarian Communist regime host: East Germany (Munich) in 1972 and (oops) the Soviet Union (Moscow) in 1980, plus a "less repressive" Communist regime in Yugoslavia in 1984.
Historically, in fact, the goal simply was to avoid offending the host nation. Thus, in part, did U.S. Olympic Committee officials, namely head Avery Brundage, replace Marty Glickman and Sam Stoller (two Jews) with Jesse Owens and Ralph Metcalfe (two African-Americans) on the 400-yard (these were pre-metric days) team (Jews being more offensive to Hitler than blacks). And we remember Owens in part for the political context of his on-field achievements--in a sense, his greatness embarrassed the host country. This also is why the U.S. boycott of rhe Moscow games in 1980 (and the U.S.S.R.'s responsive boycott of the Los Angeles Summer Games in 1984) was such a big deal politically--it infused politics in a way that embarrassed the host country.
I have not been surprised by the ever-increasing uproar over China hosting the Games and I hope the International Olympic Committee, which made the decision, is not surprised. We are more aware of, and concerned with, human rights issues than we were even 25 years ago. There are more people, organizations, and nations talking about human rights. And, with technology, more ways to talk and hear about it. The protests and calls for boycotts that have arisen around the Torch relay, the Opening Ceremonies, and the Games themselves were inevitable. The IOC historically either had a tin ear or was too arrogant to care. That cannot be the case any longer.
Sunday, April 20, 2008
How much is the life of a foreigner worth?
The question is particularly poignant today, because the politics surrounding withdrawal of troops from Iraq require one to identify the ideal ratio of U.S. citizens’ deaths averted to foreigners’ deaths averted. Sadly, no one wants to ask this question candidly.
Take withdrawal of our troops from Iraq. There seems to be a widespread consensus would result in increased mortality of Iraqis. No one can accurately determine how many more people would die in the wake of U.S. withdrawal from increased ethnic cleansing, deterioration of health and sanitation services, or even starvation. But does even the most avid proponent of immediate U.S. withdrawal deny that the death rate would worsen after the departure of U.S. troops, with resulting excess deaths? To deny this truism would be to pay an extraordinary compliment to the Bush Administration, by accepting their claims that Iraq is making progress towards stability – something that, I assume the MoveOn.org crowd would be reluctant to concede.
But let us be as optimistic as possible and assume that the effects of such a departure would be minimal – say, a mere 5% increase in Iraqi deaths from the intensification of ethnic cleansing, increased flow of refugees, breakdown of the health and sanitation system, etc. (I realize that a 5% estimate seems ridiculously low, but I am trying to be conservative in my guesses to appeal to the proponents of immediate withdrawal).
How many extra Iraqi deaths would a 5% increase entail? It depends, of course, on the base. Estimating the current excess mortality in Iraq as a result of the current civil war is obviously controversial. But, again, let us assume high figures, in order to win maximum agreement about the costs of our departure from the proponents of immediate withdrawal (who presumably think that the war is going very badly). One of the highest estimates comes from the 2006 Lancet Study , which estimated 655,000 excess deaths between 2003 and 2006, or roughly 220,000 excess deaths per year. The Iraqi Ministry of Health's rival study offers the lower estimate of 150,000 deaths over three years, or roughly 50,000 per year.
Let’s split the difference and say that an average of 135,000 Iraqis have been dying annually as a result of the invasion and ensuing civil disorder. A 5% increase in deaths would, therefore, constitute about 6,750 extra dead Iraqis. The United States has taken 4,000 mortal casualties over five years, or 800 U.S. deaths per year. This figure does not count civilian contractors, so let’s add a fudge factor of 25%, making the annual U.S. death toll of 1,000 per year.
It seems to me, therefore, that a supporter of immediate withdrawal would have to believe that one saved American life is worth at least six extra Iraqi deaths. (My guess is that an intellectually honest assessment of the costs of withdrawal would be much higher – more along the lines of 10:1 or 20:1 -- but, again I am trying to make my numbers as uncontroversial as possible).
Is there any way to defend the notion that an American’s life is six times as valuable as an Iraqi’s? if so, can such a defense offer a persuasive account of the proper ratio of value of foreign-to-American-lives that ought to guide U.S. policymakers? I’m assuming there is some limit to the greater weight that we accord to American deaths – that even the most adamant fan of MoveOn.org would agree that continued U.S. casualties would be worthwhile to avert, say, a Rwanda-style genocide. But what is that limit? That is, how many Iraqis’ lives are equal in worth to a single American’s – 10? 100? 1,000? 100,000?
Weekend Trivia Challenge - Top Cited Law Review Article of All Time
According to a 1996 study by Fred R. Shapiro published in the Chicago-Kent Law Review, which law review article is the most cited of all time in other law review articles?
Answer below the fold ...
"The Problem of Social Cost" by Ronald H. Coase
The Journal of Law & Economics, vol. 3, p. 1 (1960)
Not a big surprise, huh? Below is a list of the top 50. See Fred R. Shapiro, The Most-Cited Law Review Articles Revisited, 71 Chi.-Kent L. Rev. 751 (1996). The full list of the top 100 is in Shapiro's article.
By the way, Shapiro's article itself has done quite well, garnering 127 cites as of today. For comparison, the lowest ranked article to make Shapiro's top 100 had 204 cites.
Ronald H. Coase, The Problem of Social Cost, 3 J.L. & Econ. 1 (1960).
Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1 (1959).
Gerald Gunther, The Supreme Court, 1971 Term--Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1 (1972).
Charles A. Reich, The New Property, 73 Yale L.J. 733 (1964).
Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457 (1897).
Abram Chayes, The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281 (1976).
Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1 (1971).
Richard B. Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1667 (1975).
Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890).
Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 Harv. L. Rev. 1685 (1976).
Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089 (1972).
Frank I. Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of ‘Just Compensation’ Law, 80 Harv. L. Rev. 1165 (1967).
Marc Galanter, Why the ‘Haves' Come Out Ahead: Speculations on the Limits of Legal Change, 9 Law & Soc'y Rev. 95 (1974).
Joseph Tussman & Jacobus tenBroek, The Equal Protection of the Laws, 37 Cal. L. Rev. 341 (1949).
Stewart Macaulay, Non-Contractual Relations in Business: A Preliminary Study, 28 Am. Soc. Rev. 55 (1963).
John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920 (1973).
William W. Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv. L. Rev. 1439 (1968).
Owen M. Fiss, The Supreme Court, 1978 Term--Foreword: The Forms of Justice, 93 Harv. L. Rev. 1 (1979).
Henry G. Manne, Mergers and the Market for Corporate Control, 73 J. Pol. Econ. 110 (1965).
Frank I. Michelman, The Supreme Court, 1968 Term--Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 Harv. L. Rev. 7 (1969).
William L. Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer), 69 Yale L.J. 1099 (1960).
Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349 (1974).
Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 Yale L.J. 950 (1979).
Frank H. Easterbrook & Daniel R. Fischel, The Proper Role of a Target's Management in Responding to a Tender Offer, 94 Harv. L. Rev. 1161 (1981).
Henry M. Hart, Jr., The Supreme Court, 1958 Term--Foreword: The Time Chart of the Justices, 73 Harv. L. Rev. 84 (1959).
William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977).
Henry M. Hart, Jr., The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362 (1953).
H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593 (1958).
Laurence H. Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 Harv. L. Rev. 1329 (1971).
Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. Rev. 204 (1980).
John Hart Ely, Legislative and Administrative Motivation in Constitutional Law, 79 Yale L.J. 1205 (1970).
Roberto Mangabeira Unger, The Critical Legal Studies Movement, 96 Harv. L. Rev. 561 (1983).
Thomas I. Emerson, Toward a General Theory of the First Amendment, 72 Yale L.J. 877 (1963).
Alexander Meiklejohn, The First Amendment is an Absolute, 1961 Sup. Ct. Rev. 245.
Bruce J. Ennis & Thomas R. Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, 62 Cal. L. Rev. 693 (1974).
Lon L. Fuller, Positivism and Fidelity to Law--A Reply to Professor Hart, 71 Harv. L. Rev. 630 (1958).
Henry M. Hart, Jr., The Relations Between State and Federal Law, 54 Colum. L. Rev. 489 (1954).
Cass R. Sunstein, Interest Groups in American Public Law, 38 Stan. L. Rev. 29 (1985).
Richard A. Posner, A Theory of Negligence, 1 J. Legal Stud. 29 (1972).
Joseph L. Sax, Takings and the Police Power, 74 Yale L.J. 36 (1964).
Robert M. Cover, The Supreme Court, 1982 Term, Foreword: Nomos and Narrative, 97 Harv. L. Rev. 4 (1983).
Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 Buff. L. Rev. 205 (1979).
Lon L. Fuller & William R. Perdue, Jr., The Reliance Interest in Contract Damages (pts. 1 & 2), 46 Yale L.J. 52, 373 (1936-37).
Friedrich Kessler, Contracts of Adhesion--Some Thoughts About Freedom of Contract, 43 Colum. L. Rev. 629 (1943).
Harry Kalven, Jr., The New York Times Case: A Note on ‘The Central Meaning of the First Amendment,’ 1964 Sup. Ct. Rev. 191.
Lon L. Fuller, The Forms and Limits of Adjudication, 92 Harv. L. Rev. 353 (1978).
Thomas C. Grey, Do We Have an Unwritten Constitution?, 27 Stan. L. Rev. 703 (1975).
Frank I. Michelman, The Supreme Court, 1985 Term--Foreword: Traces of Self-Government, 100 Harv. L. Rev. 4 (1986).
Richard A. Epstein, A Theory of Strict Liability, 2 J. Legal Stud. 151 (1973).
William L. Cary, Federalism and Corporate Law: Reflection Upon Delaware, 83 Yale L.J. 663 (1974).
Damages for Loss of Stormtrooping
It must be the season for imperial stormtrooper-related litigation. On the boot-heels of the copyright dispute over the Stormtrooper uniform, an Illinois jury has apparently awarded hedonic damages to a plaintiff who claimed an auto accident cost him his ability to march with his fellow Stormtroopers.
The plaintiff in Pekin v. Parise, Case No. 06L-2287 (tried in Cook County Law Division Feb. 5-6, 2008), claimed that the defendant had run a red light and T-boned his vehicle. As a result, the plaintiff suffered a right tibial plateau fracture, which led to appx. $10K in medical expenses and raised a 15-20% possibility that the plaintiff would need a knee replacement in twenty years. According to the Jury Verdict Report, Plaintiff,
an avid "Star Wars" fan, claimed loss of normal life for his inability to "Troop" as vigorously as he had in the past, including inability to march as a "Star Wars" Stormtrooper in the Rose Bowl . . . .
Plaintiff was awarded $119,672.
Friday, April 18, 2008
The Oral Torah
In Passover, one of the greatest mitzvas is to tell the young children, through reading, singing and games, a story about rights and liberty. Hope all who are celebrating have a great seder - this card is may be a matter of personal taste, but everyone loves matzo balls!
Student Course Evaluations: What do you do?
So, I just finished teaching my final class of the semester! (Of course that means I have exam writing and exam/paper grading on the horizon, before the focus on research and writing.) But, today I wanted to ask the PrawfsBlawg community about course evaluations. We hand them out to students (to be completed during class meetings) anytime during the last two weeks of classes. Typically, I have waited until the very last class session to hand them out, usually doing so at the beginning of the particular session (the first 10 minutes), but this semester I waited until the very end of the very last class meeting of both of my courses. Is there a preferred strategy? This time around, I found waiting until the very end to be kind of awkward; it made the last class feel sort of transactional. When do you think is the best time to hand out student evaluations? How many other law schools do them online outside of class sessions?
I’m aware of a body of literature that seems to indicate that students are more likely to give high ratings to instructors who are easy graders or who are good looking. Also, my colleague Deborah Merritt has recently published a wonderful article, Bias, the Brain, and Student Evaluations of Teaching, detailing linkages between student evaluations and a professor's nonverbal behavior and discussiong the resultant implications for bias. I haven’t seen, however, anything recommending processes, procedures, or timing.
I would like to say many thanks to Dan and the Prawfsblawg community for having me as a guest again, and for allowing me to linger for a while.
After reading this NY Times piece (with pictures) on an amazing do-it-yourself home renovation, I’m feeling inspired to return to some work on my farmhouse. . .
Ideal Recreation for Academics: Learn to Fly
Yesterday, six of us in San Diego (four profs and two other friends) rented a VERY small plane and flew up for the day to Mammoth. The mountain had marvelous snow and was pretty much empty of other skiiers. In the evening, we were safely back at home. It occured to me that each faculty needs a few pilots. When we were at Yale, the need was even more pronounced as New Haven had a lousy airport. More than once, my favorite prof in the world flew himself and four or five of our colleauges to conferences in places like Cornell, to which it would take otherwise many wasted hours (sometimes a couple of transition days really in order to attend a full day of conferencing) of train/connections/driving. And the best part: it really doesn't cost more than other modes of transportation. In fact, the trip to Mammoth, split six ways, cost less than the fuel it would take to drive up there. AND, it is safer than getting on the highway!