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Thursday, July 31, 2008

Are previously "under-taught" course now more taught in law school?

For my sign-off post to finish a month of sporadic guest-blogging, I thought I might return to a topic that I covered in a prior guest stint in this post, titled "What course is most "under-taught" in law school?".  That post generated lots of interesting suggestions, including:

  • Sentencing Law (my suggestion)
  • Disability Law
  • Information Privacy Law
  • Enforcement proceedings
  • Remedies
  • Insurance Law
  • Conflicts / Choice of Law
  • Limited Liability Companies
  • White-Collar Crime
  • Legal History
  • and all sort of transactional law

I seriously doubt that, three years later, many (or any) of these course are more taught now than they were three years ago when I asked this question initially.  That said, there has been lots of talk in recent years about law school teaching reform (as highlighted at Law School Innovation and elsewhere), but most of this talk has been about teaching methods rather than teaching substance.

Whether you like or dislike recent trends in law school teaching, I would love to hear another round or reactions to the question I put out way-back-when: What legal topic do you think should develop into an upper-level elective offered at most or all law schools in the coming years?

Posted by Douglas A. Berman on July 31, 2008 at 06:01 PM in Life of Law Schools | Permalink | Comments (16) | TrackBack

On Workshop Formats

I just workshopped two different papers in two different formats -- and had some ruminations on their differences.  One was an "incubator" workshop for works-in-progress at Hofstra (called Prawfsfest!, whose name gives me the creeps, I confess) and the other was an online Junior Scholars Workshop at The Glom for essentially complete papers.

Privacy vs. Publicity:  The Hofstra workshop was private.  There were about 12 people talking about the papers in a small room, in person.  Although what was said was not confidential,  neither was the conversation recorded or blogged about for all to see.  There was an informality to the comments as we went around the room talking about each paper.  By contrast, all that was said yesterday at The Glom was available for the universe to see (though some people sent me private nitpicky comments).  I had to maintain some informality in reply because people were at me from all angles in a short span of time; but the publicity of the format encouraged at least four formal responses that were posted online.  Both were useful to my work but I certainly felt the need to be more defensive when my paper was being criticized publicly.

Author Responses:  At Hofstra, the presumption was that the paper author was there only to listen, not to defend or reply.  This is remarkably hard but remarkably useful.  When you know you can't respond, after you are done boiling for a few minutes, you actually listen.  If I was being publicly skewered, I probably would have just burst -- hey, I have my own blog to respond! -- but the privacy of the venue helped make that strategy work.  So, too, The Glom couldn't really expect authors to shut up.  But I wonder if I didn't spend most of my time in that workshop getting defensive.  Indeed, I re-read my paper last night with the hope of re-working material in light of what was said and kept thinking to myself: "I can't believe s/he made that comment; the answer is right here on page X!"  As I incorporated changes from the Hofstra conference, by contrast, I rarely felt that way.  But this may just be my psychology -- and the Hofstra paper is still being refined for submission, whereas The Glom paper is already slated for publication.

Expertise:  At Hofstra, I presented a contracts paper to a room full of criminal law people.  Well, there were some con law people too.  And a corps person.  But no one really had relevant expertise. At The Glom, the audience was business and contracts law people -- and the paper was written for that audience.  Obviously, there are benefits to getting the experts to tell you what they think.  They know what they are talking about; and if they tell you about mistakes, you probably have mistakes.  But there were advantages to the "naive" audience too: these were smart people who can tell you if what you are saying makes sense outside your field.  And they probably resemble the students who will be passing judgment on your paper when it comes time to submission.  So it is still very useful to get a lay person's perspective.

Doneness:  Again, the Hofstra conference presumed you weren't done with the paper; The Glom assumed you were basically were.  Each have obvious merits and disadvantages.

There is more to say: At Hofstra, everyone had to comment on everyone's paper.  That was the price of admission.  That and flying to New York!  At The Glom, four people were assigned to talk about my paper and then it was a free-form discussion.  Some questioned whether we shouldn't have had at least one assigned commenter to get the discussion off the ground but it worked pretty nicely even without that.  On the other hand, one really needs people online to get the discussion started and motivate readers to chime in.  At Hofstra, almost no one provided written comments, so authors were left with their notes on what was said.  By contrast, at The Glom, there is a record of all that was said.

In short, there are many ways to do these things -- many of them useful, albeit in somewhat different ways.  But conference design matters and doing these two back-to-back helped me see that there is something to think about here. 

Posted by Ethan Leib on July 31, 2008 at 12:10 PM in Life of Law Schools | Permalink | Comments (0) | TrackBack

Thursday Morning Randomness: On the Naming of Supreme Court Cases

I once heard a story, although I forget from whom, about why Bush v. Gore is captioned "Bush v. Gore." After all, the particular lawsuit that ended up in the Supreme Court was captioned "Gore v. Harris" in the Florida state courts, since it was an attempt to contest Katherine Harris's certification of the election... according to the story, the Supreme Court's reporter of decisions -- Frank Wagner -- decided that the case "had" to be called Bush v. Gore, because that's really what it was. (In contrast, the Supreme Court's earlier per curiam decision sending the case back to the Florida courts was captioned "Bush v. Palm Beach County Canvassing Board.")

Anyway, this got me thinking about why we don't choose "appropriate" or "more accessible" case names for more major Supreme Court cases. After all, in the "old" days, it was common to do so -- just consider the Legal Tender Cases, the Slaughterhouse Cases, the Civil Rights Cases, the Chinese Exclusion Case, the Japanese Immigrant Case, the Selective Draft Law Cases, and the Gold Clause Cases, just to name a few, none of which are remembered by the names of the actual litigants, even where that's how they're memorialized in the U.S. Reports... (curiously, the Slaughterhouse and Civil Rights Cases are actually so captioned).

Why, except for Bush v. Gore, don't we do that anymore? Is Frank Wagner right (if the story is true) that cases should be captioned in a manner that makes them more publicly accessible whether or not it's a technically correct statement of the parties? If so, any suggestions for recent decisions of note?

Posted by Steve Vladeck on July 31, 2008 at 10:01 AM in Constitutional thoughts, Steve Vladeck | Permalink | Comments (9) | TrackBack

New Version of Retributive Damages up on SSRN

Just a note to highlight that there's a revised draft of my article, Retributive Damages, up on the funky new SSRN over here. The article, which sets out a normative theory defending punitive damages as an intermediate sanction from a retributivist perspective, is coming out in January 2009 in the Cornell Law Review. I just sent this new draft to the folks at Cornell.  I also recently sent the draft to a bunch of the people whose work I cite, use or criticize to make sure they are happy with the way I've characterized their work. I probably left out some people, so if you find yourself in the paper or  not in the paper but think you should be, I'd be most grateful for any suggestions to improve it.

As I think I've said here before, this paper is the first in a series on "retributive damages." I'm presenting the second one, Implementing Retributive Damages, tomorrow at 130pm at a SEALS panel I put together on trends in punishment and privatization. Also on the panel will be Prawfs' Jason Solomon, and Kenworthey Bilz (Northwestern), and Ric Simmons (Ohio State). Kenworthey will be discussing developments flowing from her work on the puzzle of delegated revenge, Ric will discuss themes from his work on "private criminal justice," and Jason will be talking about new developments in his revenge against the USNews rankings work in the civil recourse theory of tort law. Should be very exciting.

I should add parenthetically that it looks like, after the feedback I received at Prawfstra, I will probably be spinning off a short piece from the current version of Implementing Retributive Damages. The current working title of the spin-off is Pluralism and Punitive Damages after Philip Morris. Depending on dates, etc., I will be happy and grateful for the opportunity to come talk about any of these projects this coming year if you're looking to round out your faculty workshop series.

Posted by Administrators on July 31, 2008 at 08:53 AM in Article Spotlight, Criminal Law, Dan Markel, Retributive Damages, Torts | Permalink | Comments (1) | TrackBack

Prawfstra! wrap up and happy hour reminder

Just a reminder for those of you here at the SEALS conference: we will have a happy hour at Stir in the Ritz tonight at 9pm.

With some degree of luck, it will be more successful than the  happy hour we had scheduled in NYC last week, when, at around 8pm and after a delicious dinner at Crave, all the Prawfsfest! participants decided to pack it in after a long day of having their papers be Ristrophed, i.e.,  skewered with brio and grace. My apologies to anyone who showed up spontaneously--I was able to warn those who had RSVP'd beforehand.

In any event, many thanks again to our wonderful hosts at Hofstra, Deans Nora Demleitner  and Michelle Wu, and Professors  Katy Kuh, Bennett Capers, and Julian Ku. I'm also grateful to our presenters and observers -- Alice, Katy, Bennett, Julian, Ethan, Steve, Adam Kolber, Verity Winship, Mike Cahill, Michael O'Hear, Ekow Yankah, Adil Haque -- all of whom made it an extremely successful get together as we incubated papers in public law and legal theory. Thanks are also owed to Alice and Jameel, for introducing me to Brooklyn properly. And last, I give especial thanks to the Hofstra folks for the bucket of swag. I love a good emblazoned pen set!

The next Prawfsfest!s will be at UMiami in December, and at FSU and Southwestern in 2009.

Posted by Administrators on July 31, 2008 at 08:17 AM in Blogging | Permalink | Comments (1) | TrackBack

Wednesday, July 30, 2008

The Glom Workshops Friends as Fiduciaries

In connection with the Fourth Annual Conglomerate Junior Scholars Workshop, people are talking about my article Friends as Fiduciaries today -- and I'm trying to respond all day.  Long comments are up from Eric Goldman, Doug Moll, Curtis Bridgeman, and Brett McDonnell.  You can comment or school me here.

Posted by Ethan Leib on July 30, 2008 at 12:09 PM in Blogging | Permalink | Comments (0) | TrackBack

Race To The Top Project Begins

Over the last few weeks, I have been blogging about the possibility of creating a race to the top in legal education by using information on relative educational quality to fill out the U.S. News surveys of law professors, lawyers and judges.  Based on the significant interest expressed by many of you, what started as a thought experiment is now turning to a real one.

So let me announce a new project, Race to the Top, which will provide information to U.S. News voters in the next few months, leading up to the November survey.  Based on the public comments of deans in the past week, we are assuming that the proposed boycott will not materialize, but if it does, we will stay out of the way.

The project will be headed up by me and Mark Osler of Baylor Law School, who is a co-editor of the Law School Innovation blog.  By September, we will have the site up and running at www.racetothetoplaw.com, which will be based in Jim Chen's Moneylaw/Jurisdynamics Network.  I will be posting about the project again in October and November back here at Prawfs, with cross-posting at MoneyLaw, and Mark will be discussing it at Law School Innovation.

We are in the process of forming an Advisory Board of former deans, scholars and others, and I'm pleased to say that Nancy Rapoport, former dean of Houston and Nebraska, now at the University of Nevada-Las Vegas, and Daniel Rodriguez, former dean of San Diego and now at Texas, have agreed to be charter members.

People can sign up in advance to get a Voters’ Guide email when the U.S. News survey comes in, and we will send the info to as many U.S. News voters as we can, including law firm hiring partners.

You don't have to be a U.S. News voter yourself to be a part of this process. Maybe you are at a law firm -- sign up for the Race to the Top e-mail, and forward it to the hiring partner at your firm if you think law school graduates could be better prepared for practice, and that this approach – assessing schools based on relative educational quality -- might help achieve that. Law clerks to judges, and lawyers in state AG's offices (both also U.S. News voters), can do the same.

For this first cycle, we will focus on the super-elite market (Harvard, Yale, Stanford, likely Chicago) along the lines I have already described, as well as highlighting a handful of underrated and overrated law schools -- that is, schools where the quality of the J.D. program was rated lower or higher in last year’s U.S. News survey by law professors and lawyers than it should have been.

How will we determine this? From a few possible data sources: (1) the new Paul Caron/Moneyball chart, which should be out soon after the new Princeton Review guide is released in October, and reflects student survey data on teaching and curriculum. (2) Bar passage rates that are unusually high or low given the incoming credentials of the school's students. And (3) a curriculum that is particularly strong or weak in addressing the deficiencies of legal education identified by last year’s Carnegie Foundation and "Best Practices for Legal Education" reports.

We make no claim that this is any kind of scientific ranking scheme. We aim simply to offer a bit more information to U.S. News survey respondents than they have now, in the hope that it provides a vehicle for schools to move up in the rankings because they do an excellent job in adding real value for their students. We hope this kind of information will prove useful, and welcome your thoughts, either here or by email (jsolomon@uga.edu or Mark_W_Osler@baylor.edu).

Posted by Jason Solomon on July 30, 2008 at 10:46 AM in Life of Law Schools | Permalink | Comments (0) | TrackBack

Picture a Port

The city that never sleeps – this is the motto of Tel-Aviv. When I am here, I am at home. I love everything about this city, the good and the bad, the new and the old, the beautiful and the ugly. It is a city full of paradoxes and chaotic developments and something for every soul. The Tel-Aviv University campus, itself marvelous, familial and inspiring, is where I am getting my summer projects done. But Tel-Aviv at large, and its port in particular, is what gets my heart racing. Picture a port, waves hitting high, that is alive every hour of the day. Fishermen, runners, bikers, yogis, tourists, a mix of families of Orthodox Jews, Jaffa Arabs, Recent Immigrant Russians, Galilee Druze (especially at the gourmet farmer’s market on Friday) and yuppie Tel-Avivian trendsetters. Just a sample of things to be found on the port: in addition to the dozens of restaurants and cafes, bars, jazz clubs, small concert venues, event hangars, (you can see at least one wedding going on every day of the week), there is an amazing yoga studio (ElhaYoga), with three different classes going on simultaneously, all with views of the Mediterranean (perhaps some of you may equally appreciate that yesterday Shlomo Artzi was there during my morning practice), fashion and apparel stores, a gymbouri style kids activities center, galleries, a women’s only sex shop (called “sisters”), several spas, a free outdoor gym that is designed like a children’s playground, a bookstore, and, right now, a temporary performance hall featuring dance by Bat-Sheva paired with a Japanese animation movie.

I have been writing about my love of Tel-Aviv in my head for a few weeks now and then, a few days ago, a NYT article about the city captured a lot of my feelings, albeit from the perspective of a tourist (Henry Alford) rather than a native (I always will be! - even if for some reason I increasingly get mistaken as a tourist). The article has snippets of muses such as “the fear of the future makes the present more vibrant” (quoting the talented young Israeli writer Etgar Keret) or “we order is an elegant column of four layers of ingredients that sound all wrong for each other — crabmeat, feta, dates, harissa peppers — but are in fact Il Divo of food. I order a gin and grapefruit juice, and the juice is fresh-squeezed. Happiness trickles through my body as my companion and I watch the sun slowly slip over the edge of the Mediterranean; I contemplate having a T-shirt made that says, “I’m with Esther.”

I plan to write more about Tel-Aviv University and its wonderful law faculty, the campus and the dilemmas of publishing in English or Hebrew, to a local or international audience. But for now, I wanted to share the beat of the city that never sleeps. Oh, yes – and there is a big international conference coming up (in English), Law and Society in December 24-26, 2008. It takes place in Jerusalem , but Tel-Aviv is only less than an hour away.

Posted by Orly Lobel on July 30, 2008 at 05:23 AM | Permalink | Comments (0) | TrackBack

Tuesday, July 29, 2008

On Publishing and Professorial "Happiness"

One of the benefits of conferences like SEALS is the chance to have searching conversations with lots of folks you don't usually get to speak to, and then to reflect on those discussions. Here's one such reflection:

Increasingly, I've noticed that I tend to get introduced at conferences and the like as "prolific," a moniker that I believe the speaker usually intends as a positive -- as indicative of a productive scholar who writes a lot (and, to be fair, I do) in a discipline where publishing is generally valued above almost anything else, whether or not it should be.

But every now and then, folks ask me whether I think I publish "too much," which I take as asking whether I fear that the quality of what I publish is undermined by the quantity. Of course, I'm in no position to answer that question objectively, and would not dare to even try, save to point out that I'm not sure one could assume there is a negative correlation between quantity and quality without actually reading at least some of the writing...

Such questions do lead me, though, to reflect upon why I do what I do, including why, as I've discussed before, I am perhaps overeager in accepting symposium invitations and other chances to publish solicited papers, especially if, in the view of some, that's actually the mark of an un-careful scholar, and someone perhaps not to be taken as seriously...

I imagine that for most of us, writing, like blogging, is useful as means to an end. Where I think I may differ is in what the "end" is. For many, I suspect the end is the most prestigious teaching job they can find, or at least a job at the most prestigious school in a particular geographic region. So the brilliant essay that takes three years to fine-tune, but that ends up in a top-tier journal, might be the most expedient way of realizing that goal. I think that's laudable, and s a very important part of the world in which we live.

I like to think, though, that I write for a slightly different reason: I write to be a part of the conversation, because that to me is what is so rewarding about academia. I see a symposium as a chance to spend a day (or two) with lots of very smart people having lots of really fascinating conversations, many of which take place in bizarre short-hand. [For just one current example, consider the symposium currently underway over at OpinioJuris on Ben Wittes's new book.]

I see a conference as a chance not to show-off about where my latest piece is being published, but as a chance to find out what the next hot topic is in my fields of interest (indeed, even in fields I don't usually pay attention to). I love panels that consist of a dialogue among the speakers (like the one I was lucky enough to participate in this afternoon on "Affirmative Visions of the Judicial Role"), rather than (or at least in addition to) seriatim presentations of papers that the audience probably has not read.

So construed, I see writing as a further piece of that puzzle -- as adding to the conversation, even if the paper I write does not become Larry Solum's "download of the week," or the hottest constitutional law piece on the August and February submissions markets.

To be clear, my point here is not to advocate publishing anything and everything, nor is it to advocate quantity over quality.  I think both are important. What I resist, though, is the implicit assumption that the two are inversely correlated. To that end, I wonder sometimes if some of us have lost sight of why we do what we do... I do this job because I love it, and because it's fun. And part of what's fun is writing, even if it's a 15-page Green Bag essay and a 25-page symposium response, rather than a 60-page lead article. And while I recognize, as I must, that we all do this job for different reasons, at the end of the day, I wonder why that can't be one of them?

Posted by Steve Vladeck on July 29, 2008 at 04:58 PM in Blogging, Steve Vladeck, Teaching Law | Permalink | Comments (3) | TrackBack

Duke Lacrosse at SEALS

Tomorrow I will be at SEALS, hosting and moderating a panel titled The Phases and Faces of the Duke Lacrosse Controversy. This will be a moderated conversation about the multiple facets, details, and issues of this still-ongoing legal controversy. Panelists include KC Johnson of Brooklyn College (author of a bestselling book on the case), James Coleman of Duke Law (who chaired a University committee that investigated the case), Michael Gerhardt of UNC Law, Lyrissa Lidsky of Florida Law, and Angela Davis of American/Washington College.

I hope to have an audio file to post here later in the week and the proceedings will be published in the Seton Hall Journal of Sports and Entertainment. I hope to write more about the many and varied issues implicated in this case. And I think it would make an interesting single-topic seminar to explore the multiple angles raised by one controversy, akin to the class on Wal-Mart.

If you are at SEALS, I hope you can check the panel out.

Posted by Howard Wasserman on July 29, 2008 at 12:02 PM | Permalink | Comments (0) | TrackBack

ExpressO Delivery Confirmations

At the short-lived Anonymous Articles Editors Blog that popped up last March, a law professor left the following comment:

I and at least one colleague at my top tier law school submitted paper copies by mail this go-round because we perceived a break-down in the electronic system last fall, with articles submitted by ExpressO never even downloaded by most journals.

This comment seems to be based on a misunderstanding of the information that ExpressO gives to authors, but it reflects a flaw in the ExpressO delivery system that would be easy to fix.  The "Author's View of Delivery" page on ExpressO gives four columns of information for each journal:  (1) Delivery Date (the date the author hits "submit"), (2) Confirmation of Receipt, (3) Expedite Date, and (4) Withdraw Request.  The Confirmation of Receipt column is misleading.  When a journal editor opens a submitted article, the editor apparently is given an option to send a confirmation receipt to the author.  If the editor clicks that option, then the date appears for that journal's row in the confirmation of receipt column.  Many journals don't click on the confirmation receipt option, which creates the impression in authors that the journals haven't received the article.  I only figured out the significance of the column by getting rejections (many) and acceptances (one) from journals that had not sent receipt confirms.   The ambiguity about delivery stresses out law profs in a big way, and leads to misperceptions like the one reflected in the comment above.

In the short term, it would be very positive for law prof wellbeing if all journals would click on the confirm option.  In the long term, ExpressO should modify its system to report delivery to the author as soon as the article is opened by a journal.  I can't think of any good reason why this information should not be made available to authors automatically.

Ben Barros

Posted by propertyprof on July 29, 2008 at 11:13 AM in Life of Law Schools | Permalink | Comments (2) | TrackBack

"Pervasive Surveillance" and the Limits of Video Evidence

During last Friday night's Critical Mass bike ride in New York, a uniformed NYPD officer, seemingly out of the blue, tackles a rider, sending him flying off his bike. The rider (the last of a pack to ride past the officer, who was standing in the middle of the street was arrested and held on charges of attempted assault and resisting arrest. The event was caught on video and the video uploaded to YouTube, where it has been viewed more than 113,000 times. (H/T: Frank Pasquale at CoOp). This is a great example that I have to add to that paper on video evidence.

Frank argues that the fact of video is a good thing, that if "the moment hadn't been caught on tape, it's quite possible the victim here would be facing criminal charges, and the policeman in question could be plotting another assault." This reflects an argument that Ric Simmons made in an article last year, that Orwell's vision was wrong, because the reality of modern technology is that "it is the people who are watching the government, not the other way around." Both are correct, as far as it goes. This is one of those examples that "looks bad;" the officer was placed on modified assignment and we can expect the video will persuade the prosecutor to drop any charges and the City to settle any subsequent § 1983 action.

But this example also illustrates the limits on video as proof, if this incident ever becomes the subject of criminal or civil litigation. While our brute-sense impression of the action depicted in the video is that the officer clearly used unreasonable and excessive force, there is much the video does not necessarily show. Why did the officer pick this guy out and what was his reason for acting (Frank notes this was "seemingly without provocation--the video just does not tell us), which will be a key question in litigation? Did the rider say something to the officer? Did the officer reasonably fear the rider was coming at him? Was the rider carrying something that caught the officer's eye (given the video's angle, we never see the front of the rider or his arms)? From the video alone, we simply do not know. And those gaps must affect how we use the video as trial evidence, as evidence on summary judgment, or simply in evaluating the conduct of everyone involved. This is what I and others find so problematic with the Supreme Court's decision in Scott v. Harris, the high-speed-chase video case. The majority too-readily accepted that the video told the whole story for purposes of summary judgment, not considering limits on what the video can accurately and fully show.

This incident turns Scott on its head, because the video viscerally shows not justifiable force, but excessive force. In my current, longer project on video evidence, one issue I raise is how a court on summary judgment would and should deal with a civil-rights plaintiff's motion for summary judgment against a police officer where the video appears highly favorable to the plaintiff/citizen. It is easy to watch this video and conclude that the officer obviously used excessive force (just as it was easy to conclude the opposite in Scott). And it may be easy to try to decide we can get there without even the need for fact-finders. But if we stop to consider what the video does not show and the video's dependence on other evidence to tell a complete story, summary judgment becomes inappropriate. And if it does get to trial, the court must carefully ensure that the jury recognizes the limits of the story told by the video and considers the video in context and in conjunction with the other evidence that completes the story. Of course, the City probably will settle any § 1983 action, in part because it anticipates the visceral reaction a jury will have to the video.

The Critical Mass example shows that the opportunity and power of people to videotape the events they witness provides additional evidence to use in determining what happened and whether a constitutional violation has occurred. It thus is important that the public retain broad rights to record such video footage. Frank (and Ric more generally) are correct on this. But when video becomes evidence to be used in litigation or government decisionmaking, those inherent limits on video as an evidentiary source cannot be ignored.

Posted by Howard Wasserman on July 29, 2008 at 07:54 AM in Article Spotlight, Culture, Current Affairs | Permalink | Comments (9) | TrackBack

Monday, July 28, 2008

Can we explain why (and should we care that) SCOTUS gets its first negative rating?

This short story from the folks at the ABA Journal,  headlined "Supreme Court Gets First Negative Approval Rating," has me thinking about the dynamics (and significance) of SCOTUS popularity.   Here are the latest SCOTUS polling numbers:

Only 39 percent of U.S. voters approve of the way the U.S. Supreme Court is handling its job, while 43 percent disapprove, the first negative approval rating for the court in five years of polling.

The court got its highest approval rating in May 2007, when 58 percent approved of the job being done by the court.  The Angus Reid Global Monitor noted the results.

In the latest survey, conducted by Quinnipiac University, 42 percent said the court is moving in the wrong direction while 33 percent said it is headed in the right direction.  Twenty-five percent said the court is too liberal, 31 percent said it is too conservative and 33 percent said it is about right.

For lots of reasons (including question-wording biases), I am wary of making much of the absolute numbers in poll data regarding legal issues.  But if the same question is being asked the same way, trends in this data may be worth watching.  And the trend in SCOTUS approve/disapprove numbers are quite dramatic:  as detailed here, in April 2007, a full 58% approved and only 27% disapproved of how the Supreme Court handles its job; only fifteen months later we get the current 39/43 split.

Perhaps the two most discussed end-of-term cases, Heller and Kennedy, can explain these polling data.  I suspect everyone could find something they did not like in these rulings, and that dislike may be most salient when lay persons respond to a poll question about SCOTUS job performance.

Of course, the broader question is whether these kinds of poll questions and results are of any value and significance.  I am not sure how I feel on this front, but I suspect that some staffers inside both presidential campaigns view these numbers as meaningful for some reason.

Posted by Douglas A. Berman on July 28, 2008 at 02:36 PM in Constitutional thoughts | Permalink | Comments (2) | TrackBack

AALS Plenary, Call for Talents, and Legal Education: The Musical

I am looking for suggestions / self- or other-nominations of law professors who use singing as part of their classroom teaching. Turns out, many do and students love it! HLS's Dean Bob Clark for example is well-known for having composed approximately 50 jingles that he then sung to his corporations classes. The Committee on Curricular Reform is planning to showcase some of these musical talents at the AALS plenary on teaching this year in San Diego.

Following the success and great interest (record attendance according to the AALS administrators) of last year’s plenary session on Rethinking Legal Education for the 21st Century, this year the Committee on Curricular Reform is organizing a three hour plenary session of demonstrations, panels and discussions, entitled Workshop on Redesigning Legal Education. Here is a brief description put forth by our committee chair, Vanderbilt’s Dean Ed Rubin:

Getting down to specifics this year, we will address some of the most promising -- and most troublesome – possibilities in legal education: the integration of academic and skills training, the use of technology in the classroom and beyond, the assessment of student learning, the lessons that pedagogic theory offers about standard, often unexamined legal teaching methods, and the appropriate level of formality or informality between the classroom teacher and the students. At the core of these various issues, which will be presented through suitably varied formats, is a central question: What should law professors do to be effective teachers? Should they incorporate simulations into lecture classes, ask students to answer classroom questions en masse over the Internet, employ evaluation devices during the course of the semester, alter their approach in light of contemporary psychological theories, sing a song at the beginning of class? The workshop will offer a (necessarily brief) overview of path-breaking developments on these topics, and provide resources for further exploration.

The program itself will include segments on assessment (organized by committee member, and my former dean, Dan Rodriguez (Texas), learning theory (organized by Bill Sullivan), integration of clinical and skills training in academic programs (organized by Larry Marshall) and demonstration of technology in the classroom (organized by Larry Cunningham).

To warm things up, we are planning a short segment at the beginning of our program of “legal education and song singing” or “musical law teaching,” followed by a brief discussion about pedagogic distance -- how informal a teacher should be with her students? I am in charge of organizing this first part and I am looking for suggestions as to those fabulous courageous teachers who use the technique of singing songs about torts, contracts, common law cases, law and policy as part of their teaching. You can either post comments or email me directly with names. The workshop as a whole is a rich and exciting program and I am sure many will find it highly relevant to their work as teachers and educators. Stay tuned!

Posted by Orly Lobel on July 28, 2008 at 10:45 AM | Permalink | Comments (13) | TrackBack

Negotiating Protest

The AP reports (via First Amendment Center) about negotiations taking place between Denver police and certain protest groups to establish rules and details about parades and parades for next month's Democratic National Convention. Similar negotiations are underway between protesters and police in Minneapolis and St. Paul in advance of the Republican National Convention. The goal of such negotiations is to "make sure everybody is on the same page to clear up any misunderstandings and rumors that are out there." As a police spokesperson said, "Instead of a bullhorn (on the streets) you’re having a conversation across the table." Of course, by negotiating all the rules in advance, protesters bind themselves to play by the government's rules, although those rules are increasingly restrictive and inconsistent with vigorous public expression and the fullest opportunity for individuals and groups to engage in meaningful speech. Last week, a district judge in Minnesota rejected challenges to limits on parade routes outside the convention center.

Timothy Zick has done some great work criticizing what he calls "negotiated management," through which protester and protest target (the government) agree to minute details as to the timing, routes, locations, participation, and all aspects of large-scale expressive events. The result is that public expression is less spontaneous and more controlled and the message carries less "sting." This is a part of the broader problem of what Zick calls the "institutionalization" of public contention, which has routinized and neutered public protest and speech. Ironically, negotiation makes confrontation and violence between police and protesters more likely, since even the slightest deviation from the precise protest/parade guidelines (which, of course, the protesters agreed to) likely will be met with massive police resistance, crowd disperals, and mass arrests.

My current project (hopefully to be submitted early next month) looks at the connection between video and civil-rights enforcement, particularly in cases of police confrontations at protests. In it, I use Zick's arguments as a starting point to discuss the increasing importance of video as an issue in civil-rights disputes arising from protests-gone-wrong. First, the media presence (and media recording of these events) at such protests tends to be greater, because the high potential for conflict from a larger, tightly managed protest with a heavy police presence is a media draw. Second, protesters themselves are capable of capturing protests-gone-wrong on video. The recording then can be disseminated (through YouTube, blogs, etc.) as part of its group's protest message ("Look at how we were stopped from speaking out") and can be used as evidence in the § 1983 First Amendment actions that inevitably follow the indiscriminate mass arrests and police crackdowns against otherwise peaceful protesters who step out of line (literally) or whose numbers overwhelm police.

For all the talk about unprecedented protester access and establishing conversant relations between police and protesters, expect both conventions to contain more of what we saw in Philadelphia in 2000 and New York in 2004. And expect much of it to be captured on video.

Posted by Howard Wasserman on July 28, 2008 at 07:27 AM in Current Affairs, First Amendment | Permalink | Comments (2) | TrackBack

Saturday, July 26, 2008

Using a class blog instead of TWEN

For a variety of reasons, I have never been a big fan of propriety law-school-support technology like TWEN.   Though I did begrudgingly utilize the Lexis Blackboard for a few years, more recently I have begun developing a class blog to support and supplement each of my courses.  (My most successful class blog experience was with this death penalty course blog, and I have just created this shell for my first use of a blog with a required Fall 1L course.)

Because I have not used TWEN or Blackboard for a few years now, I am not in a great position to compare an contrast the current state of those technologies with the class blog experience.  But I am in a great position to request input from other law professors and/or from law students concerning their views on the pros/cons of TWEN and the pros/cons of blogs as a law school teaching technology.

Posted by Douglas A. Berman on July 26, 2008 at 03:19 PM in Life of Law Schools | Permalink | Comments (2) | TrackBack

Attack ads and going negative

Nate Oman at CoOp talks about and links to two of the masterpiece political ads: Lyndon Johnson's 1964 "Daisy" and Ronald Reagan's 1984 "The Bear" (the first political ad that ever really stuck with me and still the best of my lifetime). Nate labels both as "attack ads," but I am wondering why (especially as to the Reagan ad). What makes something an attack ad--is it oversimplifying an opponent's position Is it mentioning (or alluding to) an opponent and his position at all? Is it a complete absence of any reference to the candidate's own positions in favor of criticism of the opponent's position? Is it that it is somewhat personal? Something else? And note that at least "The Bear" probably is not an attack ad under many of those definitions.

This is a narrow question subsumed in a broader one: What constitutes "going negative" in a campaign? This issue bothered me during the 2004 presidential election, when John Kerry was accused of going negative for ads and comments that criticized President Bush's performance in office. But that seemed strange (and unfair), because, by definition, a challenger runs against the incumbent's past performance and only can do that by talking about what the incumbent had actually done in his time in office. Is criticism of the opponent per se negative?

By the way, if you watch the ads, the length was cut in half from 1964 until 1984--and at 1:00, Daisy now feels really long.

Posted by Howard Wasserman on July 26, 2008 at 02:54 PM in Culture, Current Affairs, Law and Politics | Permalink | Comments (0) | TrackBack

Friday, July 25, 2008

"Save the World On Your Own Time"

That's the title of Stanley Fish's latest book.  In the book, as the dust jacket says, Fish argues that "the only goal appropriate to the academy is the transmission and advancement of knowledge.  When teachers offer themselves as moralists, political activists, or agents of social change rather than as credentialed experts in a particular subject and the mthods used to analyze it, they abdicate their true purpose. . . . Those who do this will often invoke academic freedom, but Fish argues that academic freedom, correctly understood, is the freedom to do the academic job, not the freedom to do any job that comes into the professor's mind."  He is, in short, an anti-Gutmann, an anti-Nussbaum (although, wrongly in my view, he doesn't mention either of these scholars).

I'm only a third of the way through the book, but it's a great read so far.  I hope to put up a series of more substantive responses to it (and yes, as always, I'm looking for a law review that might be interested in a review of this very timely book).  I make note of it now because it seems pertinent to many of the questions we've been airing in the past few days, and some that have lurked behind our discussion: Are religously affiliated schools proper "academic" enterprises in the sense in which Fish uses the word?  Is the "academic" enterprise necessarily as narrow as he suggests, or should we have a broader conception?  Should an "elite" education be measured by any other metrics than the most academic ones?  Is there any room for a pluralistic conception of the mission of higher education, or is there only a narrow definition of "academic" and a series of other schools, focused on religious mission or social change or any number of other values, that may be fine but aren't "academic" as such?  And are law schools, which mix intellectual inquiry and practical training, really part of the academy in the first place? 

I think Fish is too monistic in his view of the university, and hope to expand on that point soon.  In the meantime, however, let me say that Fish is characteristically spirited and fun and, so far in my reading, has made many incisive, if repetitive, points.  He is particularly useful in arguing that the academic enterprise, in its seeking after truth, should eschew a sense of urgency, which is the realm of politics, in favor of a certain sense of timelessness -- a point I have made here before, and probably a sticking point for law schools and much legal academic writing, and for the endless and distorting quest for "novelty" among both authors and law review editors. 

And it's all very Fishy, written with a tremendous sense of joie de vivre and Peck's bad boyishness.  After the jump, a few quotes.  Note, in particular, the quote questioning whether law schools belong in the university at all, the discussion of whether it would have been right for academics in the '50s to make any positive declarations about segregation, and the very anti-Nussbaumian argument that reading novels doesn't make you a better person.

"Moral capacities (or their absence) have no relationship whatsoever to the reading of novels, or the running of statistical programs, or the execution of laboratory procedures  . . . . "

"Anyone who asks for more [than academics in a narrow sense] has enlisted in the 'we-are-going-to-save-the-world' army along with Derek Bok . . . ."

"[I]sn't the university primarily a place for the unfettered expression of ideas?  The answer is no.  The university is primarily a place for teaching and research.  The unfettered expression of ideas is a cornerstone of liberal democracy; it is a prime political value.  It is not, however, an academic virtue, and if we come to regard it as our primary responsibility, we will default on the responsibilities assigned us and come to be what no one pays us to be -- political agents engaged in political advocacy."

"If you're not in the pursuit-of-truth business, you should not be in the university."

"[W]hat about professional schools and professional training? . . . [I]f students [at such schools] are taught methods and techniques in the absence of any inquiry into their sources, validity, and philosophical underpinnings[,] that professional school is not the location of any intellectual activity and is 'academic' only in the sense that it is physically housed in a university."

"The judgment of whether a policy is the right one for the country is not appropriate in the classroom, where you are (or should be) more interested in the structure and history of ideas than in recommending them (or dis-recommending them) to your students."

"In the 1950s the legal and moral status of segregation was a live political question working its way through legislatures and courts, which were (and are) the proper venues for adjudicating the issue.  Faculty members were free to air their views in public forums and many did, but those who used the classroom as a soapbox were co-opting a space intended for other purposes."

"[A]s for ethical judgment in general, no doubt everything you encounter helps to shape it, but reading novels by Henry James is not a special key to achieving it; and indeed -- and there are many examples of this in the world -- readers of Henry James or Sylvia Plath or Toni Morrison can be as vile and as cruel and as treacherous as anyone else."

Posted by Paul Horwitz on July 25, 2008 at 09:59 AM in Books | Permalink | Comments (5) | TrackBack

Thursday, July 24, 2008

Still more on religiously affiliated schools and institutional pluralism

I really appreciate the recent posts -- by Paul, Jason, and Gordon -- on religiously affiliated law schools and law schools' "missions" generally.  (For what it's worth, Paul's experience at the religiously affiliated law school at which he recently visited is -- whaddya know! -- very much like my own experience at Notre Dame Law School.)

A few months ago, Madisonian.net hosted a forum on law schools, and I contributed this post, on "institutional pluralism":

. . . this might not be the forum for thinking-out-loud about what a “Catholic law school” should be, what precisely should be its distinguishing features, etc.  In my view, the project of building such a law school — an engaged, open, critical, and distinctively Catholic law school — is not an exercise in nostalgia, reaction, or retrieval.  The project is, in my view, a new one.

It’s also, I think, an exciting and worthy one, and I’m inclined to think that it should be regarded as such by the legal academy generally, not just by co-religionists and the like.   It is not just “not a bad thing”, it is a good thing, that there be distinctive law schools.  Our commitments to diversity need not, and should not, lead us to insist on homogenization at the level of institutions.  Quite the contrary — the same commitments that push us to respect and learn from diversity in many academic settings might also push us — and the AALS, and the ABA — to stay our hand from requiring that each institution look and act in precisely the same way.

Garvey fleshes out a number of reasons — reasons that I find persuasive — why we might think that institutional pluralism in the academy is a good thing.   It seems to me that we ought not to resist, but instead should welcome, not only law schools that have focused on serving underserved populations, or law schools with a particular strength in a specific subject-matter area (for example, Lewis & Clark in environmental law), or even law schools with a particular animating point-of-view (Law & Economics at George Mason?), but also law schools that are distinctive in being meaningfully animated by a shared — even if contested — religious tradition.

Posted by Rick Garnett on July 24, 2008 at 10:48 AM in Life of Law Schools | Permalink | Comments (8) | TrackBack

Gordon Smith on BYU

Over at the excellent business law blog, Conglomerate, Gordon Smith, who just finished his first year as a professor at BYU and has taught at five other law schools, is good enough to share some thoughts on mine and Paul Horwitz's posts from yesterday on BYU and other religiously affiliated law schools.

On religious affiliation, he says in part:

"Finally, the most distinctive aspect of BYU Law School is the religious affiliation. Jason makes the obligatory disclaimer: "And no, it's not for everybody with its religious affiliation and fairly conservative faculty, administration and student body ..." Can't we say "And no, it's not for everybody ..." about every law school? Wisconsin is not for people who hate snow. Lewis & Clark is not a great place for people who hate hanging around environmentalists. Chicago is pretty uncomfortable for stupid people. So, yes, BYU is distinctive on religious grounds, but as Jason observes, most people figure that out long before they set foot in the building."

I'm glad Gordon made this point because I was confused not to hear a defense of BYU from our Yale friends yesterday, who had been defending their school in part on "different strokes for different folks" grounds. If you want moral relativism, go to Yale; if you want a little more moral certainty, go to BYU.

And in defense of religious homogeneity, he says:

"[T]he notion of "religious homogeneity" is a placeholder for a much broader accusation of lack of viewpoint diversity. While I am not going to pretend that BYU has no challenges with regard to diversity, I was impressed with the passion of my first-year law students last fall in Contracts on all sides of the issues we covered in the course. (By the way, I was using the Wisconsin materials, so we weren't ducking tough values issues!) The empirical point is hard to verify, but my impression was that religious homogeneity actually enabled or encouraged many of those discussions. Why? Because the students were required to examine the implications of their (assumed) shared beliefs. They could not pass off their disagreements on the simplistic ground that they held different values than their classmates. This was real learning, not indoctrination."

Read the whole post here.

Note also BYU 3L's comment on my prior post, making the case that being one of ten non-Mormons at BYU has its downsides.

Posted by Jason Solomon on July 24, 2008 at 08:55 AM in Life of Law Schools | Permalink | Comments (15) | TrackBack

Wednesday, July 23, 2008

Q: What do you call that guy who hangs around with musicians?

A: A highly skilled world-class athlete.

Drummers, vindicated at last.

P.S.: The answer is 16 -- one to change the lightbulb, and 15 to tell you how much better Steve Gadd would have done it.

Posted by Paul Horwitz on July 23, 2008 at 08:34 PM in Paul Horwitz | Permalink | Comments (3) | TrackBack

Just How Good Are Non-Religious Law Schools?

Jason's posts, however many qualms I may have about them, continue to be thought-provoking, and his latest post , about BYU Law School, is no exception.  What has me thinking this time is the anonymous commenter who notes the "religious homogeneity" of BYU, which I am assuming is accurate, and adds, "I guess there should be places for people who are really into religious homogeneity. That homogeneity, which I admit to finding a little creepy, very likely explains a lot of the satisfaction-based results reported above. I'm sure Regent Law students are also highly satisfied with their educations - it's the rest of us who are not. That said, BYU is a rigorous school that has quality students and faculty, no doubt. It just may not be a great model for anyone else."  And a second anonymous commenter, or perhaps the same one, adds that it may be that "there's not much we can learn [from a religious law school like BYU] about educating diverse student bodies at mainstream law schools."

I have always assumed -- and commenters are free to disagree with me on this -- that religious law schools, while they may get a bump up in the US News rankings due to the kinds of self-selection and satisfaction effects discussed by the commenter(s), also face a ceiling in the rankings: without the ability to attract a broader set of constituents, they can only rise so far.  In my view, there are at least a few under-ranked religious law schools, although conversely I think that many religious law schools are better at achieving some brand distinction and serious loyalty than are many of their peer schools.

But my own experience from visiting at one genuinely religious law school, and from some visits to a couple of others, is that these can be incredibly strong academic institutions, precisely because they share such a strong common mission.  The school I visited at had a deep commitment to the mission of the law school, saw that mission as both intellectual and practical (especially to the extent that it involved offering genuine help to others), and had a strong sense of professional and general ethics that suffused every class and every discussion.  That mission was shared by both faculty and students, so the sense of connection between and among the entire community was palpable.  Not every student or faculty member shared the same religious faith -- I did not -- but the sense of allegiance to an underlying worldview concerned with ultimate ends, or at least to the possibility and value of such a worldview, was widely shared by people within and outside the faith.

That experience, combined with Jason's posts, leads me to ask, somewhat for purposes of provocation but also with a geninue question behind it, whether we are again mistaken to be looking at the usual "super-elite" schools in thinking about what makes for a great law school.  Perhaps we should be looking specifically at the religiously affiliated schools -- and perhaps we might ask, is a great legal education possible  outside the religiously affiliated law schools?

One answer to this question might be the old answer to the question whether you believe in infant baptism: "Believe in it?  Hell, I've seen it!"  But I do mean to suggest that one of the great and perhaps underlooked qualities of the religiously affiliated law schools is a profound sense of shared mission that unifies faculty and students alike.  That common cause can, in the best instances, be deeply tied to a questing intellect and a sense of underlying values, and can thus provide the kind of mystical marriage between practical skills, ethical values, and intellectual rigor that we keep hoping for in the best of our law schools.  And none of it need be the kind of warmed-over bien-pensant liberalism that I see, somewhat over-simplistically, as the result of the usual attempts to mix values and intellect at the top secular law schools. 

Again, I don't want to overstate things.  I had a great legal education at two secular law schools; I don't think there was much of a common mission at either place, but that can also be a virtue.  Of course, too, there are mediocre religious institutions.  And, in any event, I believe very strongly that one need not have any single picture of what a university or law school is supposed to believe or do.  But I do mean to suggest that a great religious law school brings particular qualities to the table that should very much inform our picture of what it means to be a "great" or "elite" institution -- and that it might not be so easy for secular law schools to reproduce those qualities. 

Posted by Paul Horwitz on July 23, 2008 at 05:10 PM in Paul Horwitz | Permalink | Comments (10) | TrackBack

Flexing the Mind Muscle

Making decisions, even about the simplest thing such as what sandwitch to have for lunch, may reduce our short-term ability to solve problems, articulate arguments, and write articles. Check out On Amir's piece in Scientific American: The brain is like a muscle: when it gets depleted, it becomes less effective.

Go to fullsize image

Posted by Orly Lobel on July 23, 2008 at 03:37 PM | Permalink | Comments (0) | TrackBack

Judge McConnell on "pervasively sectarian"

Today, in an opinion written by law-and-religion scholar Michael McConnell, the United States Court of Appeals for the Tenth Circuit ruled that Colorado violated the Constitution when it refused, on the ground that the school is "pervasively sectarian", to permit otherwise-qualified students to use publicly funded scholarships at Colorado Christian University.  Here is a link to the opinion.  The court found "the exclusion unconstitutional for two reasons:  the program expressly discriminates among religions without constitutional justification, and its criteria for doing so involve unconstitutionally intrusive scrutiny of religious belief and practice."  Any reactions?

Posted by Rick Garnett on July 23, 2008 at 03:32 PM in First Amendment | Permalink | Comments (3) | TrackBack

Just How Good Is BYU Law?

It seems to me the answer is very good, and underrated by U.S. News survey respondents.

So if you look back at the Paul Caron/MoneyLaw chart I posted last week, on which schools have the biggest differential between the Princeton Review ranking and U.S. News ranking, BYU is one of a handful that appears to be underrated by U.S. News. If you're looking for underrated and overrated lawschools, based on "value added" for students or relative educational quality, this chart is a good place to look.

A few things of note about BYU, drawn from a variety of sources:

(1) Appear to be very intentional about what they want students to learn, and that there are different pedagogical approaches on how to get there. See, e.g., the unusual and important emphasis on problem-solving. Some evidence that this translates into better outcomes. BYU is one of the schools that has used data from the Law School Survey of Student Engagement to try to improve student experience.

(2) Great emphasis on skills like interviewing and counseling. See, for example, this presentation by Larry Farmer there.

(3) Carnegie emphasizes importance of "acting as a lawyer," either through simulations or clinics. Princeton Review reports that clinical has "really blossomed" in past few years, but ABA fall 2007 data shows only 23 people participating in clinics (5.9 per 100 students), but 514 in simulations (111! per 100 students). Need more info on what exactly is going on here. BYU?

(4) Strong emphasis on and success in teaching professionalism.

(5) Sky-high ratings in Princeton Review survey on "Professors Accessible" (90) and "Professors Interesting" (96) which according to LSSSE leads to greater student engagement and self-reported gains in analytic ability. Value added.

(6) Top 25 legal writing program (#22 in US News).

One interesting thing to notice is how many religiously-affiliated law schools are in the high "value added" category in the Caron/Moneyball chart, which may have something to do with greater attention to training ethical professionals who see lawyering as a calling, not just a job.

And no, it's not for everybody, with its religious affiliation and fairly conservative faculty, administration and student body -- but I'm guessing students can figure that out for themselves. Also, it's 66% male (2007 data) -- that sounds like a lot of guys to me. But we're just supposed to help prospective students judge BYU's academic quality. Also the students there work really hard -- which can of course lead to better learning outcomes, but also can take its toll without the proper support.

Currently, BYU's rating (scale from 1-5) from law professors is 2.8, and from lawyers and judges it's 3.3. My sense at the moment is that in ranking the academic quality of BYU's program, it ought to get a "4" from law professors, and a "4" or "5" from lawyers and judges. The reason for the difference is that law professors are to take scholarship into account, and lawyers and judges are directed by U.S. News to particularly focus on preparation for practice. Would welcome thoughts, particularly from those with more first-hand knowledge.

Posted by Jason Solomon on July 23, 2008 at 11:19 AM in Life of Law Schools | Permalink | Comments (29) | TrackBack

Tuesday, July 22, 2008

Roger Ebert the Writer

Roger Ebert is best known as half of the pair of film critics who brought movie reviews to television.  Time Magazine has an interesting article about Ebert's departure from the show that made him a celebrity.   As Ebert's announcement explains, Disney "has decided to take the program named 'Siskel & Ebert' and then 'Ebert & Roeper' in a new direction. I will no longer be associated with it."  Ebert's co-host Richard Roeper is also leaving.  So the program's name seems to need a change -- as does its use of "thumbs up or down."  The "thumbs" trademark belongs to Ebert and Gene Siskel's wife, and Ebert will take the trademark with him out the door.

One benefit of Ebert's departure is that he will have more time to write.  I have long thought that Ebert is one of our great national writers.  He was one of the first national reviewers to put his archive up on the web, and his reviews are terrific examples of writing.  N.Y. Times film critic A.O. Scott wrote a great tribute to Ebert's writing in April.  Referring to Ebert's extensive body of work, he wrote: "It is this print corpus that will sustain Mr. Ebert’s reputation as one of the few authentic giants in a field in which self-importance frequently overshadows accomplishment."  A horrific series of operations for cancer and then complications from the treatment robbed Ebert of his voice and threatened to silence his pen.  But he has returned to reviewing at his previous pace, and his reviews are (if anything) more introspective and enlightening than before.

Now Ebert has started a blog called, simply, "Roger Ebert's Journal".  He has recents posts on Werner Herzog and his arguable "madness," as well as Studs Terkel and "Triumph of the Will".  Perhaps most notable are his recent posts that touch on his illness: "In search of redemption" and "When a movie hurts too much".  For those who have been moved by William Stuntz's posts on his struggle with cancer, these entries offer similar illumination.

I haven't seen Ebert on television for many years now, but I tend to read him regularly.  Here's a wish that his writing will continue on for many years to come -- regardless of his TV presence.

Posted by Matt Bodie on July 22, 2008 at 04:20 PM in Culture | Permalink | Comments (6) | TrackBack

The Dark Knight and the MPAA

The Motion Picture Association of America has long been a target of criticism for its secret, often-arbitrary, moralistic, and frequently non-sensical movie ratings. The focus is totally on sex, nudity, profanity, and (as of recent years) drug use, while violence often gets a free pass. The board often focuses on individual words, scenes, or shots in isolation, ignoring context and the work as a whole. The result is that a rating often turns on whether the image of an orgasm lasts for five seconds or ten (some version of this story was told about Boys Don't Cry) or whether the nudity was "sexually oriented." And the board has long been accused of being much tougher on independent films than studio releases. Much of this story was told in the documentary This Film is Not Yet Rated. But despite years of criticism, nothing has changed much.

But I wonder if the Dark Knight could be the tipping point. The film got a PG-13 rating, but just about every review and commentary I have read has included a line that the rating was inappropriate, given the overall tone and themes of the film, as well as some of its violence. Some commentators have gone so far as to directly warn parents against letting young teens and tweens see the movie and to criticize the MPAA for giving it the lower rating. Of course, since the ratings process is secret, we do not know why the movie received what it di. But all the facts are in place to support every criticism and conspiracy about the MPAA: the movie has dark and violent themes, but no sex, drugs, or dirty words; it was released by a major studio; it is a franchise movie, based on characters with which young teens and tweens are familiar; and it was intended as a summer blockbuster and an R-rating would have seriously cut into audience and profits.

The PG-13 rating famously was created in 1984 as a middle-ground category between PG and R, after Indiana Jones and the Temple of Doom. That summer blockbuster movie received a PG rating despite similarly dark and violent themes that scared the target audience and outraged parents, viewers, and commentators. If Dark Knight produces similar parental outrage, the solution will not be an additional rating category--additional categories would be pointless. Any solution will (finally and mercifully) require a more fundamental change to the system.

Posted by Howard Wasserman on July 22, 2008 at 11:35 AM in Current Affairs, Film, Law and Politics | Permalink | Comments (6) | TrackBack

Monday, July 21, 2008

Yahoo's Eleven

Yahoo's board has reached an agreement with investor-advocate Carl Icahn.  Icahn will drop his proxy challenge, and he and two others will join the Yahoo board.  One member of the current board will exit and two new board slots will be created, moving the board from nine members to eleven.  Icahn and former AOL CEO Jon Miller have been tabbed to join, leaving a slot for one of Icahn's original slate of ten. 

Silicon Alley Insider tries to put a good spin on the move:

If you're so inclined, you could view this as Jerry and co caving: If they were ultra-confident that they were going to win the proxy vote next month, they wouldn't have given Carl a thing. On the other hand, they can now go back to the business of trying to fix/save Yahoo, and get an experienced Internet mind (Miller's) to offer some advice. That seems like a pretty good trade to us.

Plus, they hopefully can keep Icahn from his officious meddling.  To me, that's the best reason for the deal -- quiet things down and get the spotlight off of management.  Also, Icahn won't be looking to sell his big stake as soon as possible.  But the move may also signal Yahoo's willingness to sell itself.

Regardless, I'm disappointed that Icahn's inept proxy battle has ended with him on the board.  What message does that send?  It must be demoralizing to Yahoo employees.  They have no real voice in the company's future, but they have to sit on the sidelines and watch as a wealthy investor buys some stock, trashes the company, and gets put on the board -- all in the space of two months.  And he doesn't even use email.

Of course, the question now becomes: who from the slate of Icahn directors will take the one remaining spot?  As a professor, I hope Lucian Bebchuk is the nominee.  But part of me hopes it's Mark Cuban.  After all, I'd love to keep using this quote: "Is there anything more fun than sitting around, growing your hair, drinking a Bud while listening to Jethro Tull and pondering how to change the balance of power in the search world and unseat Google ?"

Posted by Matt Bodie on July 21, 2008 at 04:46 PM in Corporate | Permalink | Comments (1) | TrackBack

Friends as Fiduciaries: Comments at The Conglomerate

In connection with the Fourth Annual Conglomerate Junior Scholars Workshop, several comments on my paper Friends as Fiduciaries will appear on The Conglomerate on July 30.  I'll be making an effort to engage my critics in the comments there (though I may be on the road for some of the day).  If you have thoughts on the paper that you'd like to share, now is the time.  After the workshop, I'm hoping to put the finishing touches on that paper, slated for publication in the Wash U L Rev in early 2009.  I'm looking forward to getting comments from the business law community, not the place I tend to call home.

Soon thereafter, I'll be sharing the next piece in my friendship and the law research agenda: Friendship as Relational Contract.  But not before that paper get improved by the participants in the upcoming Prawsfest! event in NYC this week.

Posted by Ethan Leib on July 21, 2008 at 12:35 PM in Article Spotlight | Permalink | Comments (0) | TrackBack

Profiles in Courage; Or, Tenure By Another Name

While I'm copping stuff from the NYT Week in Review section, I also enjoyed yesterday's piece on think-tank conservatives rethinking conservatism. Not so much for its content, which has been written about elsewhere, but for this kicker:

Indeed, to [libertarian blogger Megan] McArdle, the possibility of a Republican defeat holds a certain romantic appeal. “Younger people are kind of excited about being in the wilderness,” she said, evoking the pre-Reagan years when Republican thinkers plotted their revolution at nonprofit organizations and in bars instead of in the Executive Office Building and congressional majority offices. The longer you’re in power, the more you want to preserve it. “That’s where the Republicans are right now, and it’s demoralizing for think tankers.” Desperation has a way of focusing the mind. As Ms. McArdle said, “When they’re out of power, they have to think in a clearer way.”

If I may generalize slightly, one sees lots of standard criticisms of the institution of tenure online, and with particular frequency among online writers and commenters of a conservative leaning. Some of those critics hold out think tanks as worthy alternatives to the modern university. Although I think many of the most common criticisms of tenure are weak, I'm all for criticizing that institution. But tenure and its weaknesses -- self-satisfaction, the lack of meaningful metrics for good work or consequences for bad work, etc. -- are present in all kinds of shapes and forms. Some version of those weaknesses will be inevitable wherever ambition, intellectualism, hucksterism, easy money, and laziness cohabit. And I couldn't find a better expression of that conclusion than the amusing view that a sinecure at a DC think tank, as opposed to a job at the EOB, is life "in the wilderness."

Posted by Paul Horwitz on July 21, 2008 at 10:57 AM in Current Affairs | Permalink | Comments (0) | TrackBack

On "Smart" Lawyers

I haven't been reading Jason's series of posts about "super-elite" law schools, but it strikes me that this piece, which I was going to excerpt anyway, may be something of a response to his own comment on his latest post. The New York Times yesterday linked to an interesting piece in The American Scholar by William Deresiewicz, The Disadvantages of an Elite Education. Here's a particularly relevant snippet:

The first disadvantage of an elite education . . . is that it makes you incapable of talking to people who aren’t like you. Elite schools pride themselves on their diversity, but that diversity is almost entirely a matter of ethnicity and race. With respect to class, these schools are largely—indeed increasingly—homogeneous. Visit any elite campus in our great nation and you can thrill to the heartwarming spectacle of the children of white businesspeople and professionals studying and playing alongside the children of black, Asian, and Latino businesspeople and professionals. At the same time, because these schools tend to cultivate liberal attitudes, they leave their students in the paradoxical position of wanting to advocate on behalf of the working class while being unable to hold a simple conversation with anyone in it . . . .

But it isn’t just a matter of class. My education taught me to believe that people who didn’t go to an Ivy League or equivalent school weren’t worth talking to, regardless of their class. I was given the unmistakable message that such people were beneath me. We were “the best and the brightest,” as these places love to say, and everyone else was, well, something else: less good, less bright. I learned to give that little nod of understanding, that slightly sympathetic “Oh,” when people told me they went to a less prestigious college. (If I’d gone to Harvard, I would have learned to say “in Boston” when I was asked where I went to school—the Cambridge version of noblesse oblige.) I never learned that there are smart people who don’t go to elite colleges, often precisely for reasons of class. I never learned that there are smart people who don’t go to college at all.

I also never learned that there are smart people who aren’t “smart.” The existence of multiple forms of intelligence has become a commonplace, but however much elite universities like to sprinkle their incoming classes with a few actors or violinists, they select for and develop one form of intelligence: the analytic. While this is broadly true of all universities, elite schools, precisely because their students (and faculty, and administrators) possess this one form of intelligence to such a high degree, are more apt to ignore the value of others. One naturally prizes what one most possesses and what most makes for one’s advantages. But social intelligence and emotional intelligence and creative ability, to name just three other forms, are not distributed preferentially among the educational elite. The “best” are the brightest only in one narrow sense. One needs to wander away from the educational elite to begin to discover this.

Are these observations especially relevant with respect to law school? How worthwhile is it working towards Jason's "super-elite" law school, defined by the qualities that he says make it "super-elite?" Granted that one important aspect of law and legal practice is analytical excellence, and that it may be a sine qua non for much legal practice. But do people who have tested well for analytical intelligence, and attained some success as a result, tend to over-value it in the law as compared to other kinds of intelligence -- the ability to work with others, creativity, emotional intelligence, and so on? Is it any wonder that so many graduates of the top law schools end up climbing the standard rungs from law review to clerkship to the Peter Principle points of either unhappy non-equity partnership or unproductive tenure -- while many other law school graduates, who are neither the tops of their class nor graduates of elite law schools, become rainmakers, superb mediators, top trial lawyers, the developers of innovative legal arguments, and agents of social change? Is there a point at which the criteria we so often value in the constantly insecure world of legal, and legal academic, ranking are not meaningful criteria for the development of meaningful legal skills, but merely measures of how well "people like us" talk to people like us?

As a side note, a quick-and-dirty Westlaw search for "emotional intelligence" in the same paragraph as "law school" yields a little over 50 results. A similar search substituting the words "first in his [or her] class" within the same paragraph as "law school" turns up around 240 results. What do you think we value?

Posted by Paul Horwitz on July 21, 2008 at 10:39 AM | Permalink | Comments (32) | TrackBack

Technological Bleg

Help--I am looking for a technological suggestion.

Next week, I am moderating a roundtable discussion at SEALS and I want to audio-record the proceedings (for later transcription and publication). The conference itself cannot do any recording. Is there a way I can do this myself on the relatively inexpensive, using something strong enough to pick up both people who are miced and people in the audience who probably will not be miked?

Any suggestions are welcome.

Posted by Howard Wasserman on July 21, 2008 at 08:16 AM | Permalink | Comments (4) | TrackBack

Prawfstra! and a NYC Happy Hour

As mentioned last week, about a dozen of us are going to be in the NYC area this Thursday and Friday for Prawfsfest! at Hofstra, aka Prawfstra!  I'm very grateful to Hofstra's Dean, Nora Demleitner, for hosting us so generously. Attendees include: Ethan Leib (Hastings); Katherine Kuh (Hofstra); Steve Vladeck (American); Bennett Capers (Hofstra); Adil Haque (Rutgers Newark); Julian Ku (Hofstra); Michael Cahill (Brooklyn); Alice Ristroph (Seton Hall); Michael O'Hear (Marquette), Verity Winship (Cardozo); Adam Kolber (San Diego, visiting at Brooklyn);  Ekow Yankah (Cardozo); and me. The basic setup of Prawfsfest! is an intensive workshop for 2 days where 9-12 people circulate draft papers in advance (usually related to public law and legal theory in our case), and then we have just over an hour to devote to questions about each paper. (Unlike many conventional workshops, there is less back and forth between the presenter and the questioners; most time is spent on trying to get the questions out and if there's time, the presenter will respond to the questions toward the end of the hour). Given this setup, the focus is on trying to incubate works before they are ready for prime time. Prawfsfest! at Hofstra will be the third such get-together (we've also had them at U-Miami and Loyola LA in 2006 and 2007 respectively).  U-Miami, Florida State, and Southwestern laws schools will be hosting the next three in December and in 2009.

In any event, I hope you can come join this motley crew for drinks and snacks this Thursday night at 9pm on July 24th. NYC area prawfs are especially invited but all readers of the blog are welcome to join as well. We will gather for drinks at Crave on 42nd, which is on 42nd in Hell's Kitchen (b/w 11th and 12th on the west side of mid-town Manhattan). Please feel free to bring a "+1" or a colleague. We will probably be there until around 11pm. The management has promised us the Happy Hour specials, which look good, and they have some bar food if you're in the mood for some high-end snacks. If you get a chance to let me know you're coming, that would be great, but if not, just please show up even if you didn't RSVP. See you Thursday night at 9 at Crave on 42nd!

Posted by Administrators on July 21, 2008 at 07:46 AM in Current Affairs | Permalink | Comments (0) | TrackBack

Is Chicago a Super-Elite School...and Better than Yale?

For the last two weeks, I have been blogging about the annual U.S. News survey of law professors, lawyers, and judges, and how we might use that survey to create a real race to the top in legal education. On Thursday, I offered a sample "Voters' Guide" to the U.S. News survey that focused specifically on what I called the "super-elite market" -- the schools from which the very best law students can choose, and which also happen to be the top three in the U.S. News rankings: Harvard, Yale, and Stanford.

Two things have occurred to me since, though, that caused me to rethink the precise definition of this market. One is that I got a lot of interesting reactions to my posts, with one common reaction coming from my terrific colleague and friend, Christian Turner. Before joining us in the great red state of Georgia, Turner was the president of the Stanford Law Review, and then lived in this old, hollowed-out industrial town in Connecticut for a few years where he worked for a firm with lots of Yale grads, and also clerked for a man who is a federal appellate judge by day, and a legendary Torts professor at Yale... also by day, and whose first name, if I'm recalling correctly, rhymes with "Speedo". So Turner has a unique perspective on all this, and made the point that there can be different kinds of schools for different kinds of students with different kinds of goals, and that's probably a good thing. None of which I disagree with.

Implicit in this is the idea that not everyone who goes to a top school wants to go work at Cravath or Skadden right afterwards, and if they're lucky enough to not be in as much debt as some of their colleagues, maybe they won't have to. So let's think about such prospective law students: superstars at elite colleges and universities, theoretical bent, not sure whether they want to practice law but might for a while, might well want to be a law professor someday, gee it would be great to clerk on the Supreme Court. A few college friends who ended up going to Yale come to mind. So I started thinking: if someone like that were to ask my advice on where to go to law school, what would I say?

The other thing is, I started thinking about Brian Leiter again, as I often do (note to wife: time to consult a divorce lawyer), and I thought: what would Leiter think of my super-elite market definition?

I don't think my alma mater, Columbia, or NYU has enough of the intellectual students I'm talking about, and Northwestern seems to increasingly be marketing itself as the elite training ground for business lawyers. I think Northwestern's efforts are terrific, but it doesn''t get them into this super-elite club. It did occur to me, though, that Leiter might think I'm leaving someone out, and that just might be a smallish private school -- like Yale and Stanford -- in the neighborhood of Hyde Park and the city of Chicago.

So how does the University of Chicago compare? It's got the superstar faculty, intense intellectual atmosphere, top students. Are the students engaged and satisfied with the education there? Now I've acknowledged that Stanford's high student satisfaction ratings might be a product of better weather, sunnier outlook in Palo Alto as compared to New Haven. But the weather ain't so great in Chicago either, as I understand it, and the environment is pretty intense there, and yet the Chicago students' feelings about the teaching there are, shall we say, much closer to Stanford, and highly distinguishable from Yale.

Princeton Review survey (scale from 60 to 99) says:
Stanford: Professors Interesting: 98. Professors Accessible: 97.
Chicago: Professors Interesting: 99. Professors Accessible: 90.
Harvard: Professors Interesting: 82. Professors Accessible: 63.
Yale: Professors Interesting: 69. Professors Accessible: 67.

So what would I say to the superstar, theoretically-inclined prospective law student? That Yale is at best the third choice for aspiring Supreme Court clerk/law professors, behind Stanford and Chicago, and unless you take a lot of clinical credits, you are not going to get much "value added" to prepare you to practice law either, relative to the education you'd get at other institutions.

Remind me, fellow law professors, lawyers and judges, why do we keep ranking Yale the No. 1 law school in America? Yes, they have a darn good faculty in terms of scholarly productivity and impact -- is the faculty that much better than Stanford and Chicago such that their education can be worse, and they still get a "5" in the rankings survey?

It's time for a change. Vote "3" (max) for Yale in November's U.S. News survey. Because we're competitive, gosh darn it, even though we're supposed to be more collaborative, and so it's not OK that the Carnegie Foundation studied legal education as part of a comparative study of professional education that has also been looking at the training of doctors, nurses, clergy, and engineers, and concluded that -- well, they put it more nicely than this but -- we kind of suck.

Because it's time to send a message that law schools need to do a better job of educating lawyers. And we can send that message and create a race to the top on educational quality by rewarding those law schools who really add value for students, and punishing those who don't. As one well-known Hyde Park resident says, "Yes we can." And with your help, yes we will.

Posted by Jason Solomon on July 21, 2008 at 12:01 AM in Life of Law Schools | Permalink | Comments (39) | TrackBack

Sunday, July 20, 2008

Is LA Gov. Jindal about to flip-flop on capital child rape?

As reported here at SCOTUSblog, tomorrow "is the deadline to seek rehearing in Kennedy v. Louisiana (07-343), though there has been no indication the state of Louisiana will seek rehearing...."  I will be very disappointed if Louisiana does not petition for rehearing, especially given that, as detailed here, Governor Bobby Jindal has stated in this official press release that the Supreme Court "got this case wrong, plain and simple" and that he "will do everything [he] can to see that this decision does not stand."  I am hoping that Governor Jindal will stay true to his word and have his state at least ask the Justices for rehearing in Kennedy.

I am not sure that the Justices will or even should grant rehearing in Kennedy, but I am sure that there are lots of justifications for Louisiana filing a rehearing petition.  The Washington Post stressed in an editorial discussed here why the error the Kennedy decision made about federal law alone justifies rehearing:

The Supreme Court's legitimacy depends not only on the substance of its rulings but also on the quality of its deliberations. That's why we think the court needs to reopen this case -- even though we supported its decision.... [T]his is an opportunity for the court to show a little judicial humility. Before the court declares its final view on national opinion about the death penalty, it should accurately assess the view of the national legislature.

Moreover, as some commentary has highlighted, both major candidates for President disagreed with the Kennedy court's ruling, and recent poll data (discussed here at The Volokh Conspiracy) indicate that a significant majority of Americans support child rape being a death eligible crime.  In other words, the assertion that there is a national consensus againt capital child rape looks much worse now than it did just last month. 

Whether or not there is a reasonable chance that the Supreme Court grants rehearing and/or reconsiders the merits of its decision, I think it is very important for Governor Jindal to follow up his blustery court-bashing with an actual legal filing.  As I have suggested in this prior post, it would be sad and telling if Gov. Jindal's comments were only intended to score anti-SCOTUS political points and he does not have enough conviction in his own assertions to bring his complaints directly to the Court.  (Notably, Gov. Jindal's slogan on his official website is "I'm asking you to once again believe in Louisiana."  I will never again believe in him if he does not have his state petition for rehearing in Kennedy.)

Some related recent posts (from SL&P):

Cross-posted at SL&P

UPDATE:  No flip-flops; as detailed here, Louisiana has now petitioned for rehearing in Kennedy.

Posted by Douglas A. Berman on July 20, 2008 at 05:00 PM in Law and Politics | Permalink | Comments (3) | TrackBack

Saturday, July 19, 2008

Selective Exceptionalism?

Adam Liptak’s series on “American Exceptionalism” in the NY Times, the latest installment of which treats the exclusionary rule, connects in some counterintuitive ways with the relatively recent brouhaha about the Supreme Court’s deployment of foreign sources of law. The debate about relying on foreign sources of law has generally seemed to pit those on the left in favor of things like limiting the death penalty against more conservative members of the Court and Congress who are unwilling to rely on international consensus as an indication of what America should do. The topics that Liptak has chosen to discuss, however, indicate that simply polling the world community would not uniformly lead the Court to more liberal results, at least according to our conception of what “liberal” means in the United States.

The Fourth Amendment’s exclusionary rule, prohibiting the admission of evidence obtained through illegal searches and seizures, is a perfect example. As Justice Clark explained in Mapp v. Ohio (1961), which applied the exclusionary rule to the states, the rule functions not simply as a principle of evidence but instead as a “constitutionally required—even if judicially implied—deterrent safeguard.” By punishing the prosecution for obtaining evidence in an illegitimate manner, the rule thereby dissuades police officers from engaging in such conduct in the first place. The exclusionary rule thus furnishes a kind of restraint on governmental intrusion into privacy that would generally be lauded by liberals or libertarians. As Liptak points out, however, other courts—most notably, a Canadian appeals court, the High Court of Australia, and the European Court of Human Rights—have refrained from adopting such an exclusionary rule.

Some of the examples of contravening legal regimes that Liptak cites demonstrate the perils of relying on foreign sources without placing them within the appropriate comparative framework. Although Australia, like the United States, boasts a common law heritage, it notoriously lacks a bill or charter of rights—hence, the considerations that the U.S. Supreme Court is obliged by the Fourth Amendment to take seriously are not similarly available to Australian judges. The European Court of Human Rights, while influenced by U.S. rights jurisprudence, hears appeals from both common and civil law countries, which necessarily boast very different kinds of procedural safeguards for defendants. As Amalia Kessler’s article “Our Inquisitorial Tradition” illuminates, due process may valuably assume disparate shapes within the common and civil law traditions. Hence, the ECHR may justifiably be unwilling to insist upon principles like the exclusionary rule that might fit better within a common than a civil law system. These concerns, as well as others derived from comparative law, should encourage us, in general, to evaluate the relation between any particular instance of American exceptionalism and its justification within the legal system of which it forms a part. In doing so, we may find that selective exceptionalism is not as anathema as it might sound.

Posted by Bernie Meyler on July 19, 2008 at 11:15 AM | Permalink | Comments (1) | TrackBack

Friday, July 18, 2008

Tales from a new jury system

In case you missed it, here's an interesting story about Korea's new jury system -- and how citizens and the system are adapting to it.

I've written about  jury systems around the world in this recently published essay.  It appears that contrary to the information I had at the time of writing, Korea is asking jurors to produce unanimous verdicts (though since the jury verdicts are never binding for now -- even when unanimous -- it is hard to know what Korea will do about unanimity when and if they choose to keep the jury system as a permanent and/or mandatory feature of its criminal justice system).

For what it is worth, it looks like New Zealand is just now backing off unanimous verdicts (though NZ was excluded from my survey of big democracies because of its size).  That leaves only the US, Canada, and some jurisdictions in Australia keeping the unanimity rule in the criminal jury.  My defense of supermajoritarian conviction rules for the US is here.

Posted by Ethan Leib on July 18, 2008 at 11:59 AM in Article Spotlight | Permalink | Comments (0) | TrackBack

The Virtual Conference Cocktail Party

After hearing of a fifteen-foot-high Cass Sunstein being stationed on a screen behind the other participants at a recent conference panel, I started to wonder whether virtual attendance at professional events might soon become the norm. Between our awakening guilt over climate change, the astronomic rise in fuel prices, and the economic and operational woes of the airlines (sidebar vent: US Airways recently cancelled my flight, failed to rebook me, and told me the best option was “ground transportation”), it seems like Skype and other forms of remote convening could become increasingly appealing. The NY Times even reported a recent boom in student enrollment in online classes due to the increased costs of physically commuting to a university venue.

If the incidence of online conferencing does indeed increase, will these events include a cocktail hour? With Skype-like technology, it seems plausible that most aspects of the conference as currently conceived could be fairly easily transmuted into a virtual form. Speakers could continue to deliver their talks or papers and audience members could chime in with questions. At flesh-and-blood conferences, however, social events and the informal conversations that arise are sometimes as important for participants as the official presentations. How, exactly, would the coffee break and the conference reception be adapted for online enjoyment?

I’ve never graduated to a “Second Life,” but even I can imagine a virtual cocktail hour, one that might almost be preferable to its traditional counterpart. We’ve all been caught in The Awkward Conversation at such events, hoping for a friend or acquaintance to intervene heroically. Perhaps, the shoe on the other foot, we’ve had the discomforting suspicion that our interlocutor didn’t really have to go to the bathroom. The online cocktail conversation market could be quite a bit more efficient. Conference attendees might be asked to identify their preferences for kinds of conversations—short or long; in their field or not; centered around a particular issue; and so on. They could then arrange themselves in pairs or groups with separate videoconferencing “rooms.” Perhaps on the main conference screen, attendees would be able to see the arrangements of individuals as they shifted about, and opt to move to another conversation or ask a particular person a question if so inclined.

As with any kind of online interaction, this model of the conference cocktail party might cut down on productive forms of chaos and partake of some of the other downsides of online social interaction. And would the conference budget have to extend to reimbursing participants’ home beverages and snacks? That’s more than the airlines would do….

Posted by Bernie Meyler on July 18, 2008 at 10:50 AM | Permalink | Comments (1) | TrackBack

Women and service in the academy

Insider Higher Ed had a short column examining several recent and forthcoming studies of the increased school and university service and committee responsibilities given to women (especially newly tenured women) which, while important and potentially influential, distract from their scholarly work that remains the coin of the realm in academe. The studies suggest this is a new, if less overt, barrier to women's advancement in education, at least for those who want to be scholars rather than administrators. (H/T: Matt Yglesias, via Kay Steiger at Campus Progress).

Steiger has an interesting take on it: This is a product of the continued (although improving) underrepresentation of women in the academy. The urge is to give the women who are there powerful leadership roles by putting them on important committees and projects. The school's need to show itself as women-friendly demands that women be represented on public-face-but-time-consuming committees, such as appointments. All of which gives women power, but arguably of the wrong kind. Because, as one commentator in the Insider Higher Ed piece said, "You might move to a new job with your third book. You don’t move with your third university commission report."

Thoughts?

Posted by Howard Wasserman on July 18, 2008 at 08:40 AM in Life of Law Schools | Permalink | Comments (1) | TrackBack

Johnny Sack is a Union Boss, Apparently

You may remember Vincent Curatola from "The Sopranos" -- he played a rival boss to Tony who suffered the indignity of attending his daughter's wedding in federal custody.  Now, Mr. Curtola is still living off his Sopranos fame by portraying a mobster.  Well, at least he seems to be a mobster.  Watch the video and judge for yourself.

Problem is, Mr. Curatola is also portraying a union leader.  The gist of the ad, sponsored by the innocently named "Coalition for a Democratic Workplace," is that workers will be threatened and intimidated by mobbed-up union bosses if Congress passes card-check legislation.  Mickey Kaus is a big fan of the ad, posting that it "seemed effective to me, but I'm pre-convinced."  But to me, the ad is an absurd caricature of unions and their leaders.  Frankly, I find it offensive.

I've posted before about the Employee Free Choice Act -- the legislation that would require employers to recognize a union if a majority of employees fill out cards attesting to that desire.  Providing a statutory mechanism for unions to be recognized through card-check would put unions on the same playing field as other service providers.  The current system of the NLRB secret-ballot elections allows employers to initimidate their workers through captive-audience speeches and predictions about a dire future.  (Employers are, as Catherine Fisk memorably put it, the "anti-seller" in this market.)  There is a lot if research out there about the effects of this employer intimidation.  The scholarly literature has much less discussion of union intimidation, particularly mob-related intimidation.  This is not to deny that the mafia has had control over certain unions.  But there is little evidence that mob bosses would use card-check certification to expand their reach. 

There is room for concern about union intimidation.  As I have written, there is also room for concern that employees are not getting the information they need in the course of a representation campaign.  A recent essay by Sen Arlen Specter and Eric Nguyen provides some hope that compromise legislation is possible here.  But the efforts to reach a sensible solution will be harmed, not helped, by ads such as the one above. 

Posted by Matt Bodie on July 18, 2008 at 12:34 AM in Corporate | Permalink | Comments (18) | TrackBack

Thursday, July 17, 2008

The Justices, balls, and strikes

It seems fair to say that, among legal scholars, Chief Justice Roberts's reference to the work of baseball umpires, and his suggestion that the work of the Court's justices should resemble, somehow, that of umpires, has not been greeted with wild approval.  But, according to this news story, it appears that the Chief Justice was spot-on and prescient.  A bit:

The United States Supreme Court heard oral arguments yesterday in the case of Wright v. Dreckman, which calls into question professional baseball player David Wright's 2005 check swing against the San Diego Padres and whether or not the resulting strike call should be upheld.

. . .  Thus far, legal and baseball experts remain uncertain as to how the court will rule in Wright v. Dreckman.

"I think this decision could go either way," Baseball Tonight legal analyst John Kruk said. "Several of the justices, such as [Antonin] Scalia, are originalists who believe in the strict interpretation the baseball rulebook as it was first written. That document clearly states that a decision on the check swing ultimately falls on the umpire. However, there are those pragmatists on the court, such as Justice Breyer, who believe in the living, flexible rulebook."

Added Kruk: "And then there is Justice [Samuel] Alito, who is an idiot, and moreover has never watched a baseball game in his life."

(HT:  The Onion.)

Posted by Rick Garnett on July 17, 2008 at 02:20 PM in Constitutional thoughts | Permalink | Comments (4) | TrackBack

Stanford, Harvard, Yale: A Sample Voters' Guide for This Fall's U.S. News Survey

I think it makes sense to start at the top.

Because we have a relatively well-defined market -- the schools that, for students with a choice to go anywhere, are the ones from which to choose. The schools which have been the top three in the U.S. News rankings for years: Harvard, Yale, Stanford. Let's call it the "super-elite" market.

Because if a school at the top of the rankings can do an inadequate job at their mission to prepare their students for the practice of law, and continue to ride high with their prestige intact, attracting the best students, then what are the schools down below to think? If we can just be like that prestigious school, then we can ride high in the rankings as well.

On the other hand, if something about the incentives facing these institutions were to somehow change, and such a prestigious school were to actually pay a penalty for doing an inadequate job in fulfilling its educational mission, then perhaps things might change for the rest of law schools as well. Those that add more value for their students might be rewarded, those that add less would be penalized, and in the long-run -- perhaps starting in just a few years -- students overall would be better prepared to practice law. We could have a real marketplace where law schools actually competed on price and quality -- like any other service provider -- and we might just see a race to the top in legal education.

As I've been blogging the last few weeks about my proposal to differentiate among schools based on "value added" for students when law professors, lawyers, and judges fill out the U.S. News survey, one common and natural reaction is: "Well, how are you possibly going to do that? I mean, Harvard, Yale, Stanford -- you've got to give all of them a '5', right? They're all great schools." Consistent with this sentiment, last year's scores for the schools in the survey of academics were Harvard (4.8), Yale (4.8), Stanford (4.7), and the scores on the survey of lawyers and judges were 4.8 for all three.

Indeed, if the question was to assess the "reputation" of these schools -- as I think it used to be, but may have changed without anyone noticing -- the "all 5s" solution for the Big Three would make sense. But the question is to assess the "academic quality" of each school's "program." U.S. News says further: "Consider all factors that contribute to or give evidence of the excellence of the school's J.D. program, for example, curriculum, record of scholarship, quality of faculty and graduates." And respondents need to make every effort to differentiate within the relevant market in order to provide any useful information.

Below is a first cut at a Voters' Guide to the annual U.S. News survey for this market. Bear in mind that although it is not comprehensive, I'm not sure that anything like it -- actually comparing the "value added" and particularly the education one receives at competitor schools -- appears anywhere else, and for the purpose of the U.S. News survey, we actually don't need that much information to get us to the relative ordering among these three schools.

The Super-Elite Market: Harvard, Yale, Stanford

We can break down relative academic quality into two main elements: scholarly quality, and educational quality. I'm not going to try distinguishing among Harvard, Yale, and Stanford on scholarly quality. Brian Leiter's analysis of the scholarly impact of faculties puts Yale at #1, Harvard #3, and Stanford #4. If scholarly quality was the only criterion, I would have a hard time giving them all anything other than a "5."

The good news is that assuming (as I do) that the goal of a school's J.D. program is to prepare students to practice law, then it turns out to be fairly easy to differentiate in the super-elite market on educational quality, or relative "value added" for students. As I explain below, Stanford is the best, Yale is the worst, Harvard is in between. So the overall recommended rating for each school is: Stanford 5, Harvard 4, Yale 3.

Educational Quality

Overview: I've proposed that we think of relative educational quality as being about teaching, overall classroom experience, curriculum, and preparation for the bar. To take this last element first, bar prep should not be a major factor at this level of school, except that Yale grads tend to underperform in passing the bar, given their LSAT scores and undergraduate records. So, for example, in the July 2006 bar exam in NY (the data used for current U.S. News rankings), Harvard grads passed at a rate of 97.1%, while Yale was down at 91.2%. Perhaps it has something to do with the fact that they don't have to take Property, I don't know.

Teaching: The 2008 Princeton Review's Best 170 Law Schools reports the following ratings from students, on a scale between 60 and 99.
Stanford: Professors Interesting: 98. Professors Accessible: 97.
Harvard: Professors Interesting: 82. Professors Accessible: 63.
Yale: Professors Interesting: 69. Professors Accessible: 67.

Perhaps you can discount the difference a bit between Stanford and Yale because students are just happier in Palo Alto than New Haven, but that can't explain all the difference.

Classroom Experience:
The average class size during the first year is: 60 students each for both Yale and Stanford, 80 for Harvard. At Yale, students also have one small section of about 16 students, and at Stanford, one small section of 30 people. No small section besides LRW at Harvard.

Harvard is a big school, Yale and Stanford are relatively small. Harvard has consistently received terrible marks in the "professors accessible" category, no doubt in large part because of the school's size. One thing to note is that of the many visitors Harvard brings in every year, those it has hired recently have received previous accolades for their teaching. This is probably not a coincidence, given Dean Kagan's focus on improving the student experience. In the last few years, Harvard has also expanded its reading groups for 1Ls to allow for more student-faculty contact. Harvard's website says that the school currently offers more than 100 upper-level classes of 25 or fewer students, and over 80 small seminars -- no doubt an attempt to convince prospective students not to be scared away by the school's size.

Required Curriculum: At Yale, students take courses in Constitutional Law, Contracts, Procedure and Torts during the first semester. Yale students are also expected to take a course in Criminal Law and Administration, as well as professional responsibility. Other than that, students are on their own.

Harvard just finished its first year under the revamped curriculum -- would love to hear from students about the new classes. Essentially, Harvard now does the standard first-year curriculum -- a semester each of civil procedure, torts, contracts, criminal law, property, but also a course in legislation and regulation, a course in International Law (Public International Law, Comparative Law, International Economic Law), and a January-term course called "Problems and Theories." Unlike Yale and Stanford, Harvard does not require Constitutional Law, though most students take at least one semester's worth in the second year.

This new "Problems and Theories" course gives students the opportunity to work, alone and in teams, on problem-solving in the context in which disputes arise, not simply analyzing appellate cases after the fact. This approach is much like the case method in other professional schools, particularly business and public policy school -- and in focusing on problem solving, collaborative work, and a different kind of case method, is consistent with the Carnegie report and uses "best practices" of legal education. This gives Harvard a curricular edge over Yale, though of course the implementation will matter a great deal. Stanford seems to be using a similar approach with its new simulation courses in the upper-level, but hard to tell how widespread these courses are yet.

At Stanford, the first semester is fairly standard, with civil procedure, contracts, criminal law and torts, in addition to legal research and writing. In the spring, students take constitutional law and property, and then can take 2-4 electives during the second semester.

Legal Research and Writing: At both Harvard and Stanford, the course is taught by fellows who teach for a few years before going on the law teaching market. The curriculum at Harvard seems fairly standard, but at Stanford, the fall semester is taught as a simulation, using things like mock client interviews, depositions and exhibits -- thereby teaching the interaction between factual investigation and the development of a legal theory for a case. If executed well, this could be an excellent approach, consistent with best practices -- would want to hear more from students on this. At Yale, there is no separate legal research and writing class. There is a legal writing component to the small section of the doctrinal class, and this is now overseen by a legal writing professor and 3L TAs who provide feedback. Will want to hear more from students and employers about whether this way of teaching LRW at Yale is working well. For years, Yale has been at a real disadvantage by making no real attempt to teach standard LRW, and disserved their students who are expected to know how to write such memos.

Upper-level curriculum:

Clinics: Yale and Stanford are the schools traditionally strongest here, and at Yale, students can start in their second semester of first year. Harvard seems to be making efforts to catch up, though -- their website indicate that the number of people taking clinics has doubled in the last five years.

Playing the role of lawyers -- simulations and clinics: The numbers below indicate in which schools students are getting the most experience not just "thinking like lawyers" but actually acting like lawyers either in simulations or clinics. This was something highlighted as particularly important (and not done enough in legal education) for training professionals by the Carnegie report. As you can see from the numbers below, Stanford and Yale clearly do a better job on this score, though more recent data should show Harvard catching up on clinics. Note that the high Stanford number on simulations may well be a result of the fact that the fall semester of their first year legal research and writing course is taught as a simulation; query whether those numbers are counted in Stanford's total.

Positions filled in simulation courses per 100 students:
Stanford 57.2 Harvard 21.9 Yale 12.8

Positions filled in clinics per 100 students:
Stanford 30.3 Harvard 25.7 Yale 83.6

Opportunities to Specialize: Yes at Harvard, no at Yale and Stanford (as far as I can tell). Harvard's specialized "programs of study," developed in the last few years, are: law and government; law and business; international and comparative law; law, science and technology; and law and social change. Not totally clear, though, how much coherence there is in each of these areas other than being a list of relevant courses, and some streamlined and better academic advising (no small thing, to be sure). So Harvard probably doesn't get a huge bump here for this.

Joint degrees: Appears to be particularly encouraged and easy to do at Stanford, relative to Harvard and Yale.

Recommendations

Stanford: Small size, and culture of commitment to teaching and accessibility to students puts Stanford at the top. Jury still out on whether Dean Larry Kramer's vision of a "3-D" curriculum where students work in interdisciplinary teams will have anything more than an isolated effect (interesting class here and there). But if done to sufficient scale, it seems like a promising approach. Unlike Harvard, which revamped its first-year curriculum, Kramer's view has been that the first year is fine; it is the upper-level that is the problem. Though this view certainly has merit, employers now know that when they get a Harvard student, that student will have had some exposure to dealing with statutes and regulations, as well as international legal materials -- not necessarily the case at Stanford, though students can take such courses as electives in the first year.

Last year's rating among academics: 4.7
Last year's rating among lawyers and judges: 4.8
Recommended Rating in Fall '08 Survey: 5

Harvard: Revamped curriculum and aggressive faculty hiring, in part to increase student-faculty contact, raises would probably would have been a "3" five or ten years ago. Still a big school, though, so students need to compete for their professors' attention -- to challenge Stanford, need to continue aggressive hiring, let in fewer students, or both.

Last year's rating among academics: 4.8
Last year's rating among lawyers and judges: 4.8
Recommended Rating in Fall '08 Survey: 4

Yale: Both teaching and curriculum are relatively weak at Yale. Perhaps the relatively recent additions of Christine Jolls and Heather Gerken, both of whom won teaching awards at Harvard, will help change the culture on teaching a bit. Not having a separate legal research and writing class seems odd (but that may just be the failure of my imagination), and the lack of a required course in statutory analysis is a weakness, particularly for a school that justifiably trumpets its contributions to public law over the years, and has perhaps the leading scholar of statutory interpretation (Bill Eskridge) on its faculty.

On the other hand, the ability to participate in a clinic in the second semester of first year allows Yale students to integrate the learning of doctrine, skills and professionalism -- the approach recommended by the Carnegie Foundation -- early in their law school career. Clinical education appears to be the real strength at Yale, and that's obviously quite important. Indeed, it may be that the writing experience and feedback that those who participate get is superior to that in a traditional LRW course.

Last year's rating among academics: 4.8
Last year's rating among lawyers and judges: 4.8
Recommended Rating in Fall '08 Survey: 3

Would welcome thoughts on this sample voters' guide, both on style and substance. If you're interested in getting involved or otherwise supporting the "race to the top" project, let me know (jsolomon@uga.edu). Thanks.

Posted by Jason Solomon on July 17, 2008 at 09:21 AM in Life of Law Schools | Permalink | Comments (30) | TrackBack

Grading Student Certainty

Just a quick post based on a conversation I had with a colleague the other day: he mentioned that he might give three questions on an exam and ask students to answer all of them. But he also asks them to choose one of the questions they think they did the best on so that will be worth twice as much. E.g., three questions worth 25 points each, but the one question chosen by the student to double up on will in fact be worth 50 points, while the others remain at 25 points each, for a total of 100.

update: I neglected to mention that the student also gets the choice to diversify, such that each of the n questions count for 1/n of the exam points, so students have the choice to avoid making a decision wrt their confidence levels.

I thought this was pretty interesting and hadn't heard of its use in the annals of law teaching. As far as I can tell, the skill underlying the choice of which question to select is figuring out one's own confidence levels in an answer. I can imagine that this might be a helpful skill for lawyers to have in a few situations, such as when a client asks you what the law is on a particular area and you need to be able to assess your confidence levels on the fly. But I'm not really sure that's typically how life in law practice works. Moreover, it's hard to understand what a student might do to prepare in advance of being asked to make such a selection.  How do you develop stronger confidence levels without distorting what you study simply to create a strong suit? Do you solve that "problem" simply by not telling students in advance that this selection strategy will be used on the exam?

That said, if you think of grading as simply a sorting and signaling device, then it's less of a big deal, but still: what are we trying to signal by testing the relative competence of one's selection of confidence levels? I can't tell yet if this is an assessment strategy worth considering adoption in my own courses;  I'm not sure the gains outweigh the benefits costs: am I missing anything?

Posted by Administrators on July 17, 2008 at 09:01 AM in Teaching Law | Permalink | Comments (6) | TrackBack

Is Blogging Just Another Boys' Club?

In my last post, I asked Do Women Blog?, and more specifically, do female law professors blog anywhere close to their numbers in the academy. Two comments prompt me to ask another question, which will hopefully generate more discussion. The first comment is from Orin Kerr. The second is from a female law professor who emailed me off-line and who agreed that I could post her comment without attribution. Read on, and you'll see why.

Orin Kerr commented:

I would flip the question and ask, what is it about men that attracts them to blogging? I would think the reason is that men love to hear themselves talk. They think they have something important to say; writing a lot becomes a way of showing off one's importance. Women usually have this baggage less often, so they're less likely to waste their precious few hours of free time in front of a computer blogging.

And this is what a female law professor emailed me off line, with one deletion to conceal identifying information:

Do Women Blog? Yes, as your readers have pointed out. But in numbers disproportionate to
their representation in academe. Why? Jeff Lipshaw is on to something -- there really is no time.
Between teaching, scholarship, and home, those with families (or those who just prefer to have
a life that isn't completely oriented around the job) have a hard time fitting blogging in. I
am amazed that other women -- Orly, Laura, Angela Onwuachi-Willig (who, curiously, your readers
failed to mention in their roundup of women lawprawf bloggers)-- can find the time. Perhaps it
is easier after tenure, or when the kids are old enough to fend for themselves. In any event, it is not something I feel like I could take on now.

Dan also raised issues that I am particularly sensitive to as a woman of color -- blogging makes
you incredibly visible (to the rest of the academy and to your own faculty). Certainly,
it would be great to bring my work to the attention of those at other institutions, but the risk with
blogging is that the blogging itself would be visible to my own faculty. I would be deeply worried (and perhaps I am overly paranoid) that blogging would be seen as "wasting time" I could be devoting
to my scholarship. Further, the quick posts and responses typical in the blogosphere seem
like they could come back to bite you. Suffice to say, I would not want blogging to come
up as a centerpiece of my tenure review.

Anyway, those are my thoughts. The fact that I didn't post suggests how paranoid I am about
blogging, but there you are.

I think both Orin and the female law professor raise important points. So at bottom, is blogging just another boys' club? Or, based on the comments above, should we be asking more difficult questions about blogging, the academy, and gender?

Posted by Bennett Capers on July 17, 2008 at 08:23 AM in Blogging | Permalink | Comments (4) | TrackBack

Irony and context

As you would expect, a cartoonist, Tom Toles in the Washington Post, captures the context debate. (H/T: Kathleen Bergin at The Faculty Lounge):


C_07162008_520_3

This reflects an additional about what about the importance of context. It is not just cartoon v. factual reportage. It also is the place in which a comment or image appears. Yes, there is a difference between The New Yorker and American Racist Monthly, just as there is a difference between The Daily Show and Bill O'Reilly and The New York Times or Wall Street Journal. All these sources and contexts together are important to a rich, complete public dialogue. And I believe that the sophisticated and unsophisticated alike can tell the difference. And the ones who do not--such as G. Gordon Liddy--probably are being willfully disingenuous.


Posted by Howard Wasserman on July 17, 2008 at 08:04 AM in Current Affairs, First Amendment, Law and Politics | Permalink | Comments (2) | TrackBack

Wednesday, July 16, 2008

Bikini-clad reporters and academic freedom

After leaving Chicago last year, I don’t keep up much on the goings-on in that city, great city though it is. But earlier today, I ran across a juicy local news item. About a year ago, Amy Jacobsen, formerly a reporter for local Chicagoland station NBC 5 was covering the disappearance of area woman Lisa Stebic. Some time thereafter, CBS 2 ran a feature that included videotape footage of a bikini-clad Jacobsen poolside at the Stebic home. Recently, Jacobsen sued CBS 2 for defamation (although she didn’t sue her employer for wrongful discharge over the flap, at least not yet). This part isn’t particularly legally interesting. Even in light of the high “actual malice” standard that would likely apply to her claim, Jacobsen might be able to show that CBS 2 knowingly (and, she claims, falsely) edited the feature to make her seem romantically involved with Lisa Stebic’s husband, Craig.

What did catch my eye about this case (besides the hilariously tabloid-y title of the feature, “Bikini-clad Reporter Filmed at Home of Missing Mom”) is that Amy Jacobsen also named as a defendant Michele Whedon, an associate professor of journalism at Northwestern. The basis for suing Whedon appears to be a few relatively innocuous sound bites she provided for the CBS 2 feature. Specifically, “While [Jacobsen’s conduct] is not a heinous crime, it erodes all our credibility as journalists”, and “It’s going to make [the public] question what else she has done”. I’m not a torts guy, but this commentary seems to fall well short of defamation, especially under the high “actual malice” standard that would likely apply given Jacobsen’s status as a public figure. Whedon’s comments are opinion, so not really falsifiable, and they’re not even making any particularly negative characterization of Jacobsen, but are more generally about the implications of her conduct.

Some thoughts on why this case strikes me as particularly concerning from the perspective of academic freedom are after the fold.

Of course, plaintiffs rope in borderline-plausible defendants at the complaint stage all the time, but this seems different to me because of that common reaction to news items, “Hey, that could be me!” Now media outlets aren’t exactly breaking down my door for comments on cases of import (though I hope that someday some might), but I do have many colleagues who often comment on live cases in the news media. After all, it is a pretty standard thing for professors to do.

But if merely providing public commentary could render one subject to a defamation suit, it may well chill this form of dialogue. Consider Whedon’s case. Even if (or, more likely, when) she is dismissed as a defendant, merely being named as one is invariably costly, more so considering that law profs don’t earn at the same rate as practicing lawyers. It also has costs in terms of time and distraction, and since profs don’t get paid for providing commentary on news programs (right?), the risk averse but possibly rational reaction might be to stop providing commentary altogether. Why risk getting sued for such a small upside?

One might say, though, that this is simply a single outlier, and that it’s not likely to influence how academics interact with media outlets. But then again, I heard of this case not because I constantly comb the internet for vaguely sleazy-sounding local scandals (I swear), but when a colleague sent an email to the faculty with the subject header “Risks for On-air Commentators”, related the whole story, and concluded with the well-meaning but still ominous sign-off, “Be careful out there.”

But then even if one thinks this is a concern, what is to be done? The judge could sanction Amy Jacobsen and/or her counsel if (or, again, when) he dismisses Whedon as a defendant, sending a message to others who may be inclined to go after academic on-air commentators. And in California, we have an anti-SLAPP (Strategic Lawsuits Against Public Participation) law that creates a damages remedy against any plaintiff who is deemed to have sued a defendant solely to attempt to preclude them from exercising rights of speech or petition, and this lawsuit seems like a decent candidate (though I don’t think Illinois has a similar statute).

I doubt this single case will chill professors from rendering on-air opinions (ego alone will guarantee that this practice will continue), but it still bothers me, particularly because there’s not much to be done to prevent defamation plaintiffs from naming commentators as defendants just for the nuisance (and future deterrence?) value.

Posted by Dave_Fagundes on July 16, 2008 at 02:57 PM in Culture, Current Affairs | Permalink | Comments (9) | TrackBack

Socrates and Obediance to the Law

As Brian Tamanaha recently noted, it sometimes seems as if Plato anticipated most of the major issues in the philosophy of law.  One of these issues is the question of when, if ever, it is appropriate to disobey the law.  This issue is presented squarely in the Crito, where Socrates and Crito debate whether Socrates should flee into exile or should accept the jury’s sentence of death.  Crito has easily bribed his way into Socrates’ jail cell, observing to Socrates that he has done the warden “a good turn” (43a8).  The strong implication of the discussion in the Crito is that it would have been equally easy to bribe the warden to let Socrates escape to go into exile.  But Socrates ultimately refuses to go into exile, and accepts the death sentence.

Socrates’ argument in the Crito presents two related problems.  First, speaking through the personified Laws of Athens, Socrates appears to take the autocratic position that it is always unjust to disobey the command of the law.  This is problematic because it appears to remove all other moral considerations from the issue of obedience to the law.  Second, Socrates’ position in the Crito appears to be contrary to some of the positions that Socrates takes in the Apology.  In the Crito, Socrates argues that he must obey the death sentence imposed by the jury, but in the Apology he suggests that he will not obey a command from the jury to stop engaging in philosophy. 

These problems are well established in the literature on the Crito.  The typical way out of both is to argue that Socrates was being hyperbolic in the Crito, and that he would have disobeyed a law that required him to not engage in philosophy because obedience would have been inconsistent with Socrates’ commitment to his personal god.  In this post, I want to develop a different argument as to why Socrates blanket statements about obedience to the law should not be taken at face value.  I will suggest that there is another scenario where Socrates might also disobey the law:  when obedience would be contrary to obligations owed to family and children.

This argument is counterintuitive, because Socrates appears to strongly reject the relevance of obligations to his children to the issue of whether he should accept his sentence or flee.  Crito initially suggests to Socrates that he should flee in part because of his obligations to his sons:

What’s more I think you’re also betraying those sons of yours by going away and deserting them when you could bring them up and educate them.  So far as you’re concerned, they must take their chances in life; and the chance they’ll get, in all likelihood, is just the one that orphans usually get when they lose their parents.  No.  Either one shouldn’t have children at all, or one ought to see their upbringing and education to the end.

(45c-d).  In response, Socrates powerfully dismisses the relevance of concerns about his children:

As for those other considerations you raise about loss of money and people’s opinions and bringing up children – they, in truth, Crito, are appropriate considerations for people who readily put one to death and would as readily bring one back to life again if they could, without thinking; I mean the majority of people.

(48c).  As a result, it is easy to take Socrates at his word and come to the conclusion that he “clearly supposes that considerations about prestige or children are not relevant to the consideration of whether or not it is just for him to escape.” (Harte, Verity (2005), “Conflicting Values in Plato’s Crito”, in Plato’s Euthyphro, Apology, and Crito:  Critical Essays, Rachana Kamtekar, ed., 229-59, at p. 238.).

Socrates’ dismissive comments, however, are not the last word on this issue.  Towards the end of the dialogue, speaking as the Laws of Athens, Socrates returns to the impact that his decision to accept the sentence or flee will have on his children:

“Is it that you want to live for your children’s sake, then, to bring them up and educate them by taking them to Thessaly and making foreigners of them, so they can enjoy that privilege too?  If not, will they be better brought up and educated here without you, provided that you’re still alive?  ‘Of course,’ you may say, because your friends will take care of them.  Then will they take care of them if you go to Thessaly, but not take care of them if you go to Hades?  If those who call themselves your friends are worth anything at all, you surely can’t believe that.”

(54a).  In this passage, the Laws of Athens make the case that it is best for Socrates’ children if Socrates accepts his sentence of death.  If Socrates takes his children into exile, then they would become foreigners, which the Laws clearly see as an undesirable fate.  If Socrates leaves his children in Athens, then they will be raised by his able friends, including Crito, whether or not Socrates flees into exile or stays and is executed.

Immediately after this passage, the Laws go on to tell Socrates not to be concerned about his children, and to focus on what is just.  This admonition by the Laws, however, begs the question of what is the just course of conduct for Socrates to take.  In this particular instance, there was no conflict between Socrates’ obligations to his children and his obligations to the laws.  Socrates was devoted to Athens, and for his children life as a citizen in Athens would be preferable life as a foreigner in another city.  Socrates was also an old man.  It is not necessary to give full credit to Xenophon’s assertion that Socrates provoked the jury into sentencing him to death to avoid the pains of old age (Socrates’ Defense to the Jury, 6-7) to recognize that his time to be with his children would likely be limited.  Accepting his sentence therefore was plausibly the best outcome for his children.

What if it the factual scenario had been different?  Imagine that when he was convicted, Socrates was in his early 20s, and that another nearby city was nearly as attractive a society as Athens and offered citizenship to Socrates and his children.  In these circumstances, a serious conflict would arise between Socrates’ obligations to his children and his obligations to obey the laws.

Would Socrates, confronted with these circumstances, say that it was just to remain in Athens and accept his sentence of death?  It is impossible to say for certain, but if considerations about Socrates’ obligations to his children were truly irrelevant to the issue of justice, then there would have been no need for Socrates to return to the issue at the end of the Crito.  His contemptuous dismissal earlier in the dialogue would have been sufficient to address the issue.  Socrates did return to the issue, and established that there was no conflict between his obligations to his children and to the laws.

If Socrates’ broad language in the Crito is seen as being hyperbolic in his assertion that disobedience to the law is always unjust, then his language dismissing the relevance of his obligations to his children can also be seen as hyperbolic.  In this reading of the Crito, Socrates’ broad language is addressed to the correct course of conduct for Socrates in his particular circumstances, rather than the issue of just conduct more generally.  Because there was no conflict between Socrates’ obligations to the laws, the god, and his children, it was just for Socrates to obey the law and accept his sentence.  If circumstances had changed, however, the outcome may have been different, and it may have been just for Socrates to disobey the laws.

Translations from C.D.C. Reeve, The Trials of Socrates

Ben Barros

Posted by propertyprof on July 16, 2008 at 01:59 PM in Legal Theory | Permalink | Comments (4) | TrackBack

We've Got the U.S. News Survey!

Or at least a copy from last year. Unfortunately, with Bob Morse out of the office last week, we had to go on what their website said, which was simply to judge the "quality" of each school's "program."

Here's what the question actually says: "Identify the law schools you are familiar with, and then rate the academic quality of their J.D. program at each of these schools. Consider all factors that contribute to or give evidence of the excellence of the school's J.D. program, for example, curriculum, record of scholarship, quality of faculty and graduates."

The bad news is I need to tweak my proposed conception of "value added," I think. Things like career services, alumni network, possibly some extracurriculars seem like they're outside the scope of the question of "academic quality."

The good news is that with scholarship in the mix, one could create a Voters' Guide with relative quality assessments for both scholarly and educational excellence. Still questions about the weight to be given to each, but voters could decide for themselves. Leiter and I could live together happily ever after.

What do you think -- with this description of the question, is the answer to rate the "academic quality" of each J.D. program in the U.S. News survey with 50% of the rating based on scholarly quality, and 50% educational quality? I'm inclined to think that for this particular forum (U.S. News rankings for students and employers), 50-50 overweights scholarly quality, but I'm guessing others may disagree.

Posted by Jason Solomon on July 16, 2008 at 01:34 PM in Life of Law Schools | Permalink | Comments (0) | TrackBack

Do Women Blog?

Do female law professors blog? I mean, I know a few of them do. Orly Lobel is one of the regular PrawfsBlawg bloggers, and several other women, including Katy Kuh, Liz Glazer, Miriam Cherry, Laura Appleman, and Elaine Chiu, have guest blogged here. But do women really blog anywhere close to their numbers in the academy? Skimming the list here, women are decidedly in the minority. (By my count, Orly is one of nine regular bloggers, and of the ten guest bloggers, only one is female.) And yet looking at the AALS faculty composition data, faculty under 50 (most bloggers are under 50, right?) are roughly equally split in terms of male female. So I'm curious. Do female law professors blog? If so, where? I know about the Feminist Law Professors blog , but where else? And if female law professors really are underrepresented in the blogosphere, why? Enquiring minds want to know.

Posted by Bennett Capers on July 16, 2008 at 08:43 AM in Blogging | Permalink | Comments (21) | TrackBack

Paul Caron, Moneyball, and the Most Important Chart In the History of Legal Education

I’ve been talking about how to compare "value added" across law schools for the annual U.S. News survey of law professors, lawyers and judges, which amounts to 40% of the overall rankings. Yesterday, I laid out the kind of data we’d want to see in a Voters’ Guide to U.S. News. One reaction has been: sure, that would be nice, but it seems like a lot of work. And in the absence of the ABA, AALS, Carnegie Foundation, U.S. News, Princeton Review, or Vault (market opportunity here) funding such an effort, it will never happen. Which may or may not be right.

But we can create the race to the top right now, without any additional work, thanks to Blog Emperor and Moneyball guru Paul Caron. A basic Moneyball principle is the use of data-driven analysis to identify things that are systematically overvalued or undervalued. The chart below, created by Caron and an assistant, does that.

This fall, if it’s the day the survey is due, and you have 10 minutes to fill it out, here’s what you ought to do:

(1) Look at the chart below (click to enlarge).
(2) Give everyone in the top half a 4 or a 5, and the bottom half a 1 or a 2.
(3) Put “don’t know” for the rest or leave blank.

Princeton_review_v_us_news_2008_3

Source: Paul Caron, TaxProf Blog, October 22, 2007

This would be infinitely better than what we do now, because when the rankings come out, the “value-added” schools would gain, and the “value-not-add-so-much” schools would lose. The race to the top would be on. Why?

Here’s how the chart works. To create the Princeton Review "rankings," (Princeton Review itself does not do rankings -- they do ratings), Caron added up the following ratings from The Princeton Review: Professors Accessible/Interesting, Admissions Selectivity, Academic Experience, and Career Preparation. So The Princeton Review data includes basically everything U.S. News does, absent a few low-weight items such as volumes in the library, and the high-weight items, which are the surveys of law professors (25%), and lawyers and judges (15%). But the surveys amount to noise -- all they have done over the last few years is replicate the rankings from the previous year! So they make no real difference.

So the difference between the Princeton Review ranking and the U.S. News ranking is attributable to what is in the Princeton Review -- and not U.S. News. And that is mostly the professors accessible/interesting ratings, and responses by students in questions having to do with the "academic experience" (range of available courses, school's research resources, good mix of theory and practice in the curriculum, open to diverse opinions, how intellectually challenging the coursework is), and "career preparation" (how much does the school encourage practical experience, opportunities for externships, internships and clerkships, how prepared do you feel to start practice). In addition, Princeton Review has average starting salaries of graduates, which U.S. News does not.

Basically, the schools at the top of the chart are ones where the teaching is rated very highly, and students feel very prepared for practice. The bottom half of the chart, the school does particularly poorly on both these metrics. This chart, then, tells you what schools are doing a particularly good and bad job of adding value for students, relative to their competitors.

The key lesson here? Assessing “value added” on a relative basis by school is not only knowable; we actually know it for many schools. So we just need to present the data in a convenient and user-friendly way for survey respondents, and then the rankings will move for at least a handful of schools, beginning next spring – and then we get our race to the top, beginning next summer. Caron's chart tells us: it can be done. Which is why, in my humble opinion, this chart might well be the most important in the history of legal education.

Posted by Jason Solomon on July 16, 2008 at 12:45 AM in Life of Law Schools | Permalink | Comments (14) | TrackBack