PrawfsBlawg

A web pitch for a Webb VP pick

The folks at Politico have this new piece about possible VP picks for the Democratic nominee, and I cannot help but add my two cents: I strongly favor Senator Jim Webb as the VP choice for the Dems.  Let me explain as a matter of political strategy and policy substance:

Political Strategy: As detailed in his official and wikipedia bios, Senator Webb was born in Missouri and elected to the Senate from Virginia.  If the Democrats can carry both these swing states, they have a huge advantage getting to 270.  In addition, Senator Webb has an extraordinary resume, both in terms of military and (outside-the-Beltway) achievements, which should draw support from all sorts of people from all parts of the country.  For example, during the Reagan years, Webb became the "first Naval Academy graduate in history to serve in the military and then become Secretary of the Navy."  In addition, Webb "has authored eight books, including six best-selling novels, and has worked extensively as a screenwriter and producer in Hollywood."  In addition, Webb "taught literature at the Naval Academy as their first visiting writer, has traveled worldwide as a journalist, and earned an Emmy Award from the National Academy of Television Arts and Sciences for his PBS coverage of the U.S. Marines in Beirut."

Policy Substance: To my knowledge, Senator Webb is the only prominent national politician who has held a congressional hearing directly addressing the problems of mass incarceration (details here and here and here).  In addition, I believe Senator Webb is an avid supporter of individual gun rights, which is sure to become a campaign issue once the Supreme Court decides Heller.  I am not deeply familiar with Webb's other policy positions, but his insightful concern about mass incarceration suggests to me that he is a thoughtful observer of national policy problems.

Listing a con for Senator Webb, the Politico piece says "Blunt and unpredictable, he might be a reluctant campaigner."  With a nation clearly tired of politics as usual, I view "blunt and unpredictable" as a pro rather than a con.  And I think Webb's military resume and anti-Iraq-war stance should make him the ideal person to attack Senator McCain on all sorts of policy issues.

Cross-posted at SL&P

Torture and Necessity: Yoo's Worldview

Others have begun to delve into the legal arguments employed in(here), the institutional questions raised by (here), and John Yoo’s personal culpability for (here) the latest "Torture Memo," which became public this week. What initially strikes me about the memo, and the executive branch worldview it exemplifies, is the utter lack of recognition that principled legal constraints are in fact, well, constraints when it comes to torture and other interrogation practices.

The many critics of the administration’s practices and the administration apologists who provide the legal justifications for these practices see the world in what seems like entirely different ways. The critics recognize legal constraints as operable even during times of perceived national necessity. The apologists, such as Yoo in the latest memo, justify jettisoning constraints at just the point when they may be most needed to guide official action. When we are living in “normal” times, prohibitions against official torture do not have to do much work because nobody thinks it necessary to engage in the practice. But when something exceptional happens, like the events of September 11, prohibitions against torture go to work, because some officials will be tempted to resort to torture; after all, in as Yoo’s memo puts the point: “It may be the case that only successful interrogation can provide the information necessary to prevent future attacks upon the United States and its citizens” (19). But if legal constraints against the use of torture do not apply precisely when they are called upon to constrain official action, then they become useless constraints. One achieves precisely this view from Yoo’s memo. As the memo unfolds, we learn that neither Congress nor international treaties can “prevent the President from gaining the intelligence he believes necessary to prevent attacks upon the United States.” As I argue more fully here (and here), the problem with this approach is the role that necessity plays in purporting to trump legal constraints. Even if Yoo is right that “there can be no more compelling government interest than that which is presented” (65) by the supposed need for interrogational information from an enemy combatant, the very idea of legal constraint demands that methods employed to obtain that information be channeled by existing laws, not liberated from them.

Hannah Arendt first warned that:

The conception of human rights, based upon the assumed existence of a human being as such, broke down at the very moment when those who professed to believe in it were for the first time confronted with people who had indeed lost all other qualities and specific relationships – except that they were still human. The world found nothing sacred in the abstract nakedness of being human. (Origins of Totalitarianism p. 299).

The paradox Arendt identifies is that when human rights were most needed, they were least applicable. We seem to have stumbled into a similar paradox. Principled constraints on executive officials are said to apply precisely when they are least needed, and thought obstructionist when they are most needed to guide and constrain official action. It is a clever, one hesitates to call it “lawyerly,” trick to make law in essence disappear as legal constraint exactly when it is most needed.

You Don't Want to Miss Out on Law and Extraterrestrial Economics

Forgive me, but I’m going to take this opportunity to plug my humor blog, The Backbencher. Every Monday you can tune into The Backbencher to read my latest post.

I’ve re-posted a few of my Backbencher posts here on PrawfsBlawg, including my spirited defense of using words in class that I don’t fully understand, as well as my coverage of the 2008 AALS conference in New York.

But most Backbencher posts are available only on my Backbencher blog, including my explanation of how to improve your LSAT score without retaking the test. And then there’s my self-critical fashion review, “Can I Wear a Backpack Even if I'm a Law Professor?”

Some posts have nothing to do with the law whatsoever. I’ve done a scientific piece explaining the spread of disease within the family unit. I also broke news of an international financial scandal when I noticed I stopped getting Canadian coins in my change after the U.S. dollar plummeted and the exchange rate inverted. Perhaps my greatest contribution to society is when I spoke on behalf of most of the Earth's human population with my piece, “To America’s Financial Companies: Please Shut Up.”

The Backbencher is a revival of the brand name of the student-written newspaper some friends and I started in law school (which died when we left). The blog carries on some of that paper's tradition, but today's Backbencher has a more scholarly focus, summed up in its mission statement: A fresh voice for innovative innovation, rethinking reassessment, and changing how we go about making things different.

I'll be honest, it’s not as funny as a montage of whiffle-bat wielding toddlers and their groin-struck dads on America’s Funniest Home Videos. But my blog certainly is A LOT funnier than pun-laden circuit-court cases in the Federal Reporter.

So, enjoy. Set an RSS feed for it. And if you like it, let me know. And oh, don’t forget to check in on Monday, when you can read my post, “Why I am Afraid of Aliens.” Believe me, you’ll want to be there when I introduce the newest interdisciplinary legal scholarship movement that will be sweeping the nation: law and extraterrestrial economics.

Optimally Bad Teaching

When just-signed-off Joe Slater won the University-wide teaching award here at Toledo today, I was forced to remind him of the old maxim that if you never get pulled over, that means you aren't driving fast enough.  Speedy driving gets you where you need to be sooner, and once there, you can do useful (or fun) stuff.  You don't want to get a ticket every single time you drive, because that slows you down and quickly becomes cost prohibitive.  But if you aren't getting pulled over for warnings every once and a while, it means you probably are missing out.

Similarly, if you win the teacher of the year award, it means you're putting too much of your heart and soul into teaching.  Sure, everyone wants to be a good teacher, to help students have those lightbulb moments and be part of the transformative experience which is a J.D. education.  But if you're the best teacher, well, that means you must be missing out.

With my tongue squarely in cheek, I note that the effects of good teaching are particularly damaging for junior law professors.  Good teachers get assigned "first-year" and "bar" classes; first years are more needy than their more senior (and cynical) peers, and bar classes have larger enrollments than "electives."  Even if a good teacher dodges a bar class or 1L assignment, word gets around and students flock to whatever elective the teacher has undertaken.  More students means more exams and more exams means less time for adding footnotes to one's latest article.  From a career development perspective, it's best not to be a terrible teacher.  When students howl, at least at any law school that cares about students, a junior professor will have problems -- subject to interventions, micro-management of their syllabi or material selection, etc.  But if one comes out of the gate an exceptional teacher, one gets on a track that may make it harder to pump out articles at the rate of less pedogogically sound counterparts.  Maybe the best thing is to be a good teacher, but not too good.

God Denied Tenure; Low TCEs Cited

The story is here.

From the Subprime Crisis Department: Charitable Foundation Hit Hard

According to news reports, the McCune Foundation, one of the nation’s largest grantmakers with more than $600 million in assets (as of 2006), by my guesstimate among the nation’s 150 largest foundations by asset size, has suffered severe losses attributable to the subprime mortgage mess. Evidently, the southwestern Pennsylvania philanthropy suffered a $150 million loss and has temporarily suspended its grantmaking activities for the next several months. Evidently, the Foundation owned a large stake in National City Corp. whose stock went from a trading high of $38.32 a share to a low of $6.56 because of the subprime mortgage crisis.

Although the Foundation is required by §4942 of the Internal Revenue Code to continue to payout 5% of its assets each year, the Foundation’s total asset based has declined by about 25% which means about $7-8 million fewer grant dollars reaching the charitable stream. The McCune Foundation concentrates its giving primarily in the Pittsburgh area but makes grants nationally. Upon review of the Foundation’s most recent annual report, it looks like some public charities most likely to be effected may include the Carnegie Library of Pittsburgh, Carnegie Mellon University, Allegheny General Hospital, Children's Institute, Goodwill Industries of Pittsburgh, Pittsburgh Opera, Pittsburgh Life Sciences Greenhouse, Pittsburgh Zoo & Aquarium, and Social Innovation Accelerator. Since I clerked in the ‘Burgh, albeit nearly a decade ago, I remember many of these excellent organizations who will feel the sting.

Too bad McCune’s board didn’t follow the most basic lessons of Investing 101. I love the advice Yale’s investment guru, David Swenson, gives: “Stick to a simple diversified portfolio, keep your costs down and rebalance periodically to keep your asset allocations in line with your long-term goals.” Perhaps Pittsburgh area charities should chip in to pull together $20 to buy McCune a copy of Swenson’s book.

Michael Barone on Obama, Jacksonians, and Academics

On March 24th, I posted the observation that Obama might have trouble attracting "Republicrats," a term that I use to refer to the descendants of 19th century New England Republicans who are now living throughout the northern section of the USA, from Massachusetts to San Francisco, because Obama was dependent on the union vote. "Republicrats don't like unions," I noted.

Now Michael Barone has published a survey of the Obama-Clinton primary race indicating how Obama has won counties in which "academics" dominate and how Clinton has won counties in which "Jacksonians" dominate. It turns out that the "academic" counties are precisely the same as the Pietist diaspora that spread Republicrats across the great northern section of the US.

In other words, Obama depends on the Republicrat vote. Orrin Kerr thinks that McCain will be competitive in winning this vote (see his comment on my March 24th post). I doubt it. Sure, Republicrats might like McCain's abstract policies. But will they like the man himself? Barone notes that McCain in name, lineage, personality, vocabulary, and profession is an arch-Jacksonian -- Scotch-Irish, military, rowdy, libertarian in mores, and educationally lax (i.e., near last in his class at the Naval Academy). I do not see the intellectual descendants of the Adams becoming enthusiastic about such a guy. After the Gilded Age antics of Bush II, I think that the Republicrats will, for better or for worse, gravitate towards gravitas -- that is, earnest, pious, serious, New England-style Good Government.

But I'd be interested in what people think of the Barone article, which I regard as the best piece written on the Primaries so far.

And the Court saith, "it is more blessed to receive than to give"

Out of the 24 decisions handed down so far by SCOTUS this term, I award the coveted "Golden Blinkers" prize for most Senselessly Formalistic Statutory Interpretation to Watson v United States (06-571). 

Issued on December 10th, 2007, Watson held that receiving an unloaded gun in exchange for drugs is not “using” the gun  in a drug transaction under 18 U. S. C. §924(c)(1)(A).  This result could be sound enough: If the purpose of the statute is to penalize the combination of guns and drugs because the two together lead to violence, then it is plausible to believe that a sensible Congress would not want to impose a special sanction on someone who used guns as a form of currency to purchase drugs as opposed to, say, rubles, euros, or seashells.  (On the other hand, since undergoing leg surgery on Monday, I've been consuming the very drug (oxycodone) that Mr. Watson was selling, and I can assure the reader that anyone possessing the stuff ought to be kept far, far away from firearms -- or blogs, for that matter).

The wackiness of Watson is not the result but the reasoning:  Watson distinguishes rather than overrules Smith v. United States, 508 U.S. 223 (1993), a decision in which the Court held that  “use” includes “use as an item of barter.”  Smith had "used" the firearm by exchanging it for cocaine.  So, as the law stands now, if one exchanges a  gun for drugs, one "uses" the gun in a drug transaction and is eligible for a stiffer sentence, but, if one exchanges drugs for a gun, one does not "use" the gun and will get a lighter sentence.

Such a result, as a matter of policy, strikes me as utterly insane.

I can imagine that a sensible legislature might impose special penalties on both drugs-for-guns and guns-for-drugs. I can imagine a sensible legislature refraining from imposing such penalties on either transaction. But I cannot conceive of any sensible reason why a legislature would want to penalize giving guns but not receiving guns. The Court derived these results from the notion that firearms are not "used" unless they are "actively used" to further the forbidden transaction. Receiving a gun is just not "active" enough, but bartering away a gun is. The only thing wrong with this reasoning is that it ignores the overall policy reason for enacting the statute in the first place -- which is presumably to deter people from mixing drugs with guns. What possible difference should it make that a defendant is on the receiving end rather than the giving end?

I have an inkling that the Smith/Watson result is the product of the Court's increasing adherence to formalistic modes of interpretation that ignore the larger purpose of a statute to focus on the meaning of individual phrases taken in isolation from those larger purposes. Scholars and judges make familiar normative arguments in favor of such approaches -- e.g., reduction in administrative costs (Vermeule), reduction of judicial discretion (Easterbrook), disciplining of Congress (Scalia).

I do not intend to engage with the abstract merits of these approaches. I simply observe that the result in Smith/Watson seems to me a reductio ad absurdum -- preposterous, nonsensical, law-is-an-ass whimsy. If this is the fruit of the Vermeule/Easterbrook/Scalia approach to statutory construction, then count me out.

Pedagogy for beginners

A friend of mine from Harvard’s education school expressed surprise that law professors had no explicit course in teaching techniques.  It is a shame that pedagogical tips of the trade have to be discovered by trial and error or, at most, get passed down within faculties or existing academic social networks.  Can we use this forum to do better?  I'd like to ask people to share successful pedagogical tricks they’ve used in the comments section.  I think this would, in particular, benefit the whole new crop of people with little or no experience teaching law (myself included) that are about to start doing so.  To get us started, let me share a couple I've used.

First, I often produce an “agenda” like outline for my students which are elaborations of the list of topics on the syllabus, hard copies of which I pass out at every class.  When I am pressed for time, and especially when it is not a first year class, I will sometimes actually set out the fact patterns for the cases I will cover that day in the outline. I can then ask the students to take ten seconds reading the facts and jump right into holding.  True, students are losing out on the important process of picking out which facts are important.  However, when necessary it seems a fair trade off to have more time for analysis.

Two others tricks I use that I picked up from Jonathan Zittrain when he was my prof.

 

The first comes in when I’ve explained something rather complicated or get a sense that a number of students might not have gotten it, but am not sure.  Rather than asking “does anyone need this explained further?,” which is a question more likely to produce a false negative, I ask my students to cover their eyes, and raise their hands if they feel they fully understand it.

Because they can’t see one another, the social pressure not to show weakness is reduced.  The framing of the question also reduces the chance students on the fence won’t indicate their feelings, since the affirmative act is required to show understanding, not a lack of understanding. To be sure, it looks a little childish, so I normally preface it by saying "I know you are going to think this is silly, but," and the students seem to be good sports.

The second trick is feedback while the course is going on.  I print sheets of paper with a few questions on them and blank space for students to handwrite answers at the 1/3 and 2/3 point in the course.  Typical questions I ask include “tell me something I am doing in my teaching that you like.  Tell me something I am doing that you don’t like.” I sometimes ask more specific questions for things I am worried about like “please comment on the make-up (cases, philosophy papers, law review articles) of the assigned reading, as well at its length.”  The idea is that feedback should always be bi-directional.  Just as I am evaluating my students and (at least in response-paper evaluated course papers) trying to help them improve on their tasks, I want to give them an opportunity to help me in an ongoing way.  I think it is also useful, once I’ve taught a course a couple of times, as a reminder that different cohorts have different needs and take on a different mood, and I need to change up my game appropriately.

A new trick I am thinking of trying is some mechanism for more immediate free-flowing anonymous feedback.  One possibility is setting up some kind of anonymous emailer by which the students can feel free to give feedback or ask questions without any fear of identification.  While I could get IT services to set this up, it always leaves open the possibility that at an institutional level I could de-identify the students at some point, which might be chilling.  It would be easy enough to set up a hotmail account and give all my students the password such that they could email me from this account without me knowing who they are.  One fear I have is that the students might use this address to email one another anonymously. It is an unfortunate truth that the use of these kinds of systems has sometimes led to inter-student harassment, etc. I am wondering if others have experimented with this or other means of "real time" feedback?

As I said, I'd love to hear about other techniques people use...

Some more reading suggestions

I had the sense I would later forget these, so let me just flag some interesting looking law review articles and symposia that just came across my screen thanks to Brian Quigley at UTexas.

First, the new issue of Virginia LR contains not only our own Matt Bodie's paper on "Information and the Market for Union Representation," which I hope Matt will blog (more) about, but also a really neat and ambitious paper I read this past summer in draft by Tali Fisher and Issy Rosen-Zvi, entitled: Overcoming Procedural Boundaries.

Second, the new issue of the UC-Davis Law Review has a symposium on the 40th Anniversary of the 4th Amendment case, Katz. It contains contributions by, among others, Aya Gruber, Erik Luna, David Sklansky, and former guest-prawf Jonathan Simon. I'm not a 4th Amendment guy, but I did read Jonathan's paper in draft and very much enjoyed it when he came to present it to FSU on Valentine's Day.  He is able to juxtapose granular doctrinal analysis and broad social theory and the piece is evidence of sharp inter-disciplinary skills as well as powerful writing.

Last, the Feb 2008 issue of the Stanford Law Review has a cluster of  articles by young prawfs including: current guest prawf Glenn Cohen, Sasha Volokh, and Bobby Chesney.

From Analog to Digital

Every time my wife and I have moved house over the last nearly 20 years of our marriage, we’ve schlepped with us a huge stack of vinyl LPs.  Having long since switched over to CDs (though not yet to MP3s), we hardly ever listen to them.  Still, the idea of getting rid of these physical remnants of our youth has been too painful to contemplate.  Now that we are about to move again (this time from Baton Rouge, Louisiana to Montclair, New Jersey), we are once more confronted with the question of what to do with all that old vinyl. 

Those of you who are more techno-savvy than I will probably be able to guess the solution: we recently bought a USB turntable that allows you to turn old LPs into digital MP3 files suitable for playing on an iPod or burnable to a CD.  And so I’ve been spending the last couple of weekends playing old records I haven’t listened to in many years (though they once were embedded into my teenage and 20-something brain), and trying to decide which ones are worth converting. 

I was delighted to discover many pop albums I hadn’t listened to or thought about in years, but which still seemed to me fresh and interesting: by Joe Jackson, Van Morrison, John Renbourn and Pentangle, and Richard Digance, to name a few.  I was also struck by how other music that I cherished in my teens and twenties now seemed to me, in my own personal and subjective way, dated (no doubt many will protest): music by Elvis Costello; Crosby, Stills, Nash (though, less so, Young); Steve Forbert; Jackson Browne; and the Byrds.  Mind you, I’m talking about the music these folks produced prior to 1990 or so, and which happened to make it into my modest and not particularly adventuresome record collection.  For all I know, their music has continued to mature and change in the years since (though I doubt it). 

My younger son, 14-year old Jonathan, who has his own giant collection of iTunes, has been helping me with the somewhat tedious task of conversion.   And what does he get out of it?  Well, it always amazes me that he and his siblings and friends actually like so much of the same music that my wife and I like.    Certainly, when I was Jonathan’s age I wouldn’t have been caught dead listening to my parents’ music.   But somehow, in ways that still puzzle me, the music that we listened to in the 70s and 80s has become “classic” to our kids.

Signing Off and Music Bleg

The announcement of the new rotation (which includes my excellent colleague Geoff Rapp) and reference to the Magnetic Fields in posts below prompt me to sign off with my traditional (well, this is the second time) request for suggestions for Cool, New, and/or Really Good music in the alt-rock vein. And since I’m doing this on a blog, that’s what you kids call a "bleg" right?

I'll start.  Here are ten songs from the last couple of years that I would suggest downloading or otherwise buying (in no particular order):

1.  "The Nun’s Litany" – Magnetic Fields;  2.  "Acid Test" – Emma Pollack [saw her open for the New Pornographers earlier this year and she was great];  3. "The Bleeding Heart Show" – The New Pornographers;  4. "The Crane Wife 3" – The Decemberists;  5. "When Romance is Dead" – the Beautiful South (from, sadly, their final album);  6. "Fluorescent Adolescent" – The Arctic Monkeys;  7. "The Underdog" – Spoon;  8. "Dashboard" – Modest Mouse;  9. "Earth Intruders" – Björk (great concert);  and 10. "I’m Slowly Turning Into You" – The White Stripes

I’m also getting into some French music. I would recommend Zebda (Algerian, technically), Louise Attaque, and Les Rita Mitsouko. And my hip colleague Lesa Byrnes even turned me on to some fun German punk.

Your turn, and see you next time.

A Critical Tax Conference at FSU

Some of the nation’s leading tax law faculty members will be at Florida State College of Law on April 4-5 for the 2008 Critical Tax Conference. Event hosts are Florida State prawfs Joseph Dodge, Brian Galle and  Charlene Luke. The annual conference has been in existence for about a decade and is hosted by a different institution each year. The event allows tax scholars to present their works-in-progress for feedback from peers. From the schedule, it looks like there will be some conversation about the nature of critical tax theory as well. This year's presenters include:

Yariv Brauner, University of Florida

Kim Brooks, McGill University

Neil Buchanan, George Washington University

Joseph Dodge, Florida State University

Brian Galle, Florida State University

Wendy Gerzog, University of Baltimore

Lily Kahng, Seattle University

Sarah Lawsky, George Washington University

Leandra Lederman, Indiana University

Charlene Luke, Florida State University

Beverly Moran, Vanderbilt University

Henry Ordower, St. Louis University

Diane Ring, Boston College

Mildred Robinson, University of Virginia

Nancy Shurtz, University of Oregon

Nancy Staudt, Northwestern University

You can find a pdf of the conference schedule here. I believe the sessions are open at least to faculty and probably others too. (Note to BDG: I have diligently scrubbed this post of all the obvious tax prof conference jokes.)

When your parents are in town...

Do you invite them to attend your classes?

My parents are here, all the way from Israel, until the end of Passover. When I was little, I used to enjoy sitting in my mom's psychology lectures and hanging out in my father's research lab. But up until now, the thought of them sitting in one of my lectures has given me the chills. I actually would rather take them down to the famous Black's beach than have them in a front or back row. But I am loosening up on the issue. Recently, I have brought my folks to a faculty workshop (where I only introduced the speaker) and several other work events/dinners.  (I do plan to take them to Black's by the way, because it's simply a stunning beach and we were raised well.)

Friends as Fiduciaries

I am delighted to make available my paper, Friends as Fiduciaries.  I have just uploaded it to SSRN; it is forthcoming in the Wash. U. L. Rev.  Here's an abstract:

The Article argues that the law of fiduciary duties provides a good framework for friends to understand their duties to one another better, gives courts a useful set of rhetorical and analytical tools to employ when they are forced to entertain disputes that arise between close friends, and, finally, can help direct courts to furnish betrayed friends certain kinds of remedies that are most appropriate for achieving justice within that dispute context. This is not the first Article to make an effort to expand the reach of the fiduciary concept into new sorts of relationships that are not always considered within the ambit of fiduciary duty law. But the case for thinking of friends as fiduciaries is exceedingly persuasive and underappreciated, both in the law and in our lives.

Please e-mail me your feedback if you wish.  The research agenda is defended at length in Friendship & the Law, 54 UCLA L. Rev. 631 (2007); this is a second-generation effort to apply the insights of the first article into a specific area of the law.

Spitzer and Retributive Suffering

In this post, Prof. Ellen Podgor suggests that Eliot Spitzer may have already been punished enough (at least, enough that it may be a poor investment of state resources to seek to formally punish him).  I don't have a particular view on this issue (for one court's view of the topic, see United States v. Bergman, 416 F. Supp. 496 (S.D.N.Y. 1976)).  I do think, though, that it is worthwhile to flesh out some of the underlying theoretical issues. 

One can helpfully distinguish retributivist theories of punishment that focus on "deserved suffering" from those that focus on "deserved punishment."  The former "count" suffering from any source or from multiple sources, while the latter may only count state-imposed suffering.  Thus, if one holds the view that being pressured politically to resign from office and being shamed in the media are not state-imposed punishments, then these events arguably do not count toward the total suffering Spitzer must bare in order to get what he deserves (assuming, of course, that he is tried and convicted for some crime).

If one takes all suffering to count in the retributive calculus or at least all suffering caused by one's criminal behavior, then one may indeed believe that Spitzer has been punished enough.  There is still another important distinction, however.  Some retributivists take the currency of suffering to be experiential in nature.  On this view, punishment is intended to cause negative psychological states like distress.  No doubt Spitzer has suffered experientially.  On an alternative view, punishment is intended to deprive offenders of certain rights of citizenship (like the right to move about freely or the right to vote).  If one accepts this sort of objective view of punishment, it is not at all clear that Spitzer has been punished enough because he has not yet been deprived of one or more rights of citizenship.  He did not have a right to be free of political pressure, nor did he have a right to be free from embarrassing newspaper articles.  Thus, these negative events do not constitute pertinent rights deprivations and, therefore, do not constitute punishments on this view.

On this last distinction between subjective and objective views of retributive punishment, I do have a view.  In this draft article, I argue that a purely objective account of retributive punishment is at odds with our considered intuitions.  Plausible retributive theories should not be entirely objective in nature.  To the extent that subjective retributive theories also have counterintuitive implications, then, perhaps, so much the worse for retributivism.  (Incidentally, I also believe that  plausible consequentialist theories cannot be entirely objective, but you'll have to look at the paper to see why.)

Larmore on Taylor

Dan has already mentioned Charles Larmore's review, in the latest New Republic, of Charles Taylor's "A Secular Age."  Larmore finds the book "deeply disappointing".  Larmore is, no doubt, smarter and more learned than I am, but I was not "disappoint[ed]" (even if I was exhausted) by Taylor's book at all.  It is a fascinating and provocative read. 

Now, Larmore criticizes Taylor for writing a "book written by a Catholic for Catholics."  But, A Secular Age is not such a book.  (Though, even if it were, so what?).  I'm not even sure what Larmore is getting at by labelling Taylor an "ardent" Catholic (I don't know anything about the "ardor" of Taylor's faith), but I'm pretty sure that (contrary to Larmore's suggestion) Taylor's attention -- which Larmore contrasts with Weber's approach -- to the connections between our world and that of medieval Christianity is not merely a function of this "ardor". 

Larmore also points out some "slip-ups" in Taylor's book, but then proceeds to report, matter of factly -- but incorrectly -- that the "separation of church and state" "emerg[ed] in the seventeenth century after one hundred years of religious war in Europe."

Anyway . . .  here is a link to a bunch of posts, over at the "Immanent Frame" blog, on Taylor's book.  Check it out.

Statutory Stare Decisis

The Supreme Court often observes that stare decisis ought to have "special force" in the context of statutory interpretations.  The Court usually advances one of two rationales for the rule.  Sometimes, it claims that congressional silence following a statutory interpretation opinion reflects congressional acquiesence in it.  Other times, it claims that even apart from congressional acquiesence,  heightened stare decisis effect respects separation of powers by shifting policymaking responsibility back to Congress, where it belongs.  (If you are interested in a fuller explanation of both the doctrine and the criticisms of it, I have an article about this in the GW Law Review.)

Both of these rationales are subject to almost universal scholarly contempt.  (See here for a notable exception.)  Despite that contempt, the principle continues to have traction in the Supreme Court, which professed allegiance to it twice in the last three months. (See LaRue v. DeWolff and John R. Sand & Gravel).  It also continues to have traction in the courts of appeals, where, as my GW piece argues, it makes even less sense. 

So much for the influence of scholarship on the judges . . .

Visiting or Hosting a Visitor Next Year?

Dan Filler at the Faculty Lounge is attempting to collect information on law professors (and aspiring law professors) who will be visiting at other law schools next year.  If you are visiting yourself, or if your law school will be hosting a visitor, please pass that information along to danielmfiller@gmail.com.

"My Super Sweet 16" as a Law Teaching Tool?

Greetings and many thanks to Dan and his colleagues for inviting me to guest blog here at PrawfsBlawg. I teach Business Associations, Nonprofit Organizations, and a leadership development course (“Lawyers as Leaders”) at The Ohio State University Moritz College of Law. I’m looking forward to some fun posts and exchanges over the next couple of weeks.

When I teach Business Associations, I tend to incorporate pop culture references into my examples. (As my students know, I watch a fair amount of television.) Accordingly, I’m always interested in good news items allowing me to bring in relevant pop culture/business stories. Well, this one is a doozy.

The New York Times recently reported that the SEC has filed a complaint against Gary Milby who is alleged to have diverted at least $12 million in investors' funds (from 30 oil and gas limited partnerships) into offshore accounts and family trusts. What does that have to do with pop culture? Evidently, Milby and his daughter were featured on an episode of MTV’s vacuous “My Super Sweet 16.” If you haven’t seen the hit show on cable, it’s among the worst-of-the-worst “reality” shows that’s often painfully funny and the ultimate guilty pleasure (although once you’ve seen 3-4 episodes, you’ve seen them all). The show features a series of 15 year old girls (and an occasional boy) as they dream up, organize, and finally partake in their obscenely extravagant Sweet Sixteen parties. The kids in each episode are unfailingly portrayed as spoiled, temperamental, ungrateful, bratty, and arrogant. The parents are usually portrayed as superficial, easily manipulated, clueless, indulgent, reckless spendthrifts.

According to MTV’s website, Milby’s daughter’s affair “took the fairy-tale theme to glorious new heights.” Usually, only the guest of honor makes a horrendously tacky grand entrance. This time, horse-drawn carriages delivered all the party's guests to a castle-like tent; the b-day girl arrived in a helicopter. The soiree concluded with a fireworks display. Of course, no birthday party is complete without a gift: in this case, a new BMW. Mr. Milby was described as “a successful oilman.” During the episode, the daughter proclaims: "I love oil. Oil means shoes and cars and purses."

Well, it looks like government regulators and investors caught the episode and were not pleased. In fact, they became suspicious. If the government can show jurors a 30-minute video of Dennis Kozlowski’s wife’s birthday bash on Sardina, then perhaps law faculty can show a video clip of “My Super Sweet 16” in a Corporations class?

Must-Read New Republic articles

While on the road this past weekend, I had the chance to sit down with the 4/9/08 issue of the New Republic, and I highly recommend the following articles as especially thoughtful or funny or both.

• Cass Sunstein and Richard Thaler's excerpt from their new book on "choice architecture," entitled Nudge (Yale University Press). There's a great anecdote about designing urinals, which long-time readers of Prawfs know is an important theme here.
• Peter Miller's penetrating review of Samuel Kassow's book on the Oyneg Shabes archive and its implications for historiography. The book, published by Indiana U Press, is called, Who Will Write Our History? Emanuel Ringelblum, the Warsaw Ghetto, and the Oyneg Shabes Archive. Perhaps our guest this month, Adam L., has some grad school reactions to this essay?
• Charles Larmore's unforgiving review of Charles Taylor's gargantuan new tome. The review's title says a lot: "How much can we stand?"
• And last, Leon Wieseltier's shrewd assessment of Noah Feldman's latest NYTMag piece. My favorite line from Leon's essay: "I do not want The New York Times to become the voice of moderate Judaism, or of any Judaism. I want only that liberals desist from granting Muslims a reprieve from the rigors of liberalism." Another lively excerpt after the jump.

[Feldman] compares Islamic law to nothing less than "the American constitutional balance of powers." Philadelphia! But hold on. Reading Feldman's analysis, sharia begins to look rather unlike an apotheosis of progressive state-building. For the term "connotes a connection to the divine, a set of unchanging beliefs and principles that order life in accordance with God's will." It "is best understood as a kind of higher law." It is "a legal system in which God's law sets the ground rules." Political legitimacy in a regime of sharia is conferred not by the rulers or the ruled, but by "the scholars," who interpret--which is to say, invent--God's will, and appoint themselves: "judicial authority came from the caliph, but the law came from the scholars." In sum, a dictatorship of divines: malign or benign, but a dictatorship. (Today's Islamism does away with the scholars as "the constitutional balance to the executive," but demands "Islamic judicial review" of all legislation.) It may be that "shariah aspires to be a law that applies equally to every human being," but Feldman says little or nothing about its treatment of women and non-Muslims, or about the law of jihad.

Pole Taxes and Sexual Assault Victims

It is a busy time for state efforts to tax nude dancing establishments as a way to support sexual assault victims--what have come to be known as "pole taxes." A bill pending in the Illinois legislature would impose a $ 1 per patron tax on nude-dancing establishments, with the money earmarked to cover a $ 1.4 million budget shortfall for funding of rape-crisis centers in the state. (Details here and here). In December, Texas enacted a $ 5-per-patron tax designed to generate $ 25 million for sexual-assault prevention. But last Friday a state court judge enjoined enforcement of the tax on First Amendment grounds. Why target strip clubs? According to one advocate supporting the Illinois proposal, "Strip clubs perpetuate (the notion) that women are for sale" and "[w]e want the money to come back to the people it could potentially harm.”

There seem to be significant First Amendment problems here. The tax singles out expressive conduct and those who want to engage in that conduct, whether by dancing, sponsoring dancing, or viewing nude dancing. It singles out particularly unpopular expressive conduct, a point Jonathan Turley made as to the Texas law. And it singles that conduct out explicitly because of the misogynist, anti-equality message supposedly sent by nude dancing. The judge in Texas found the tax was content-based and failed strict scrutiny, because the state failed to link nude dancing to the rape-crisis programs being funded. Imagine a state tries to achieve the same result by taxing adult movie theatres and patrons--that is more obviously a tax on speech and more obviously tied to the message of that speech. But given the doctrinal treatment of nude dancing as expressive activity, the constitutional analysis should be the same.

There have been some valiant attempts to get around the First Amendment objections by casting the tax in neutral terms. In Texas, the argument was that nude dancing is a business that largely employs women and rape is a crime that largely affects woman. But, as Turley argued, no other largely-female industries (beauty salons? women's clothing retailers?) are subject to the tax. In Illinois, the argument was made that the men who go to strip clubs may have mothers, wives, and daughters, one in three of whom will experience some form of sexual abuse or assault at some point--so these men should support the tax. Of course, all men, including those of us who do not frequent strip clubs, may have mothers, wives, and daughters who may need the services of rape-crisis centers.

So why single out only strip-clubs and strip-club patrons, unless it really is all about the message sent by nude dancing and those who operate and patronize such establishments?

Out of Our Armchairs and Into the Lab

Greetings, and thanks to PrawfsBlawg for having me back for another go at the cyber-soapbox.  Last time, as I recall, I talked mostly about white collar crime.   This time, I plan to range a bit more widely.

One of the most intriguing books I’ve read in recent months is Kwame Anthony Appiah’s Experiments in Ethics, an engagingly-written exploration of how new findings in empirical psychology and neuroscience can illuminate age-old problems in moral philosophy.  Appiah’s writing is so good that he manages to breathe new life even into that old war-horse, the trolley problem – the thought experiment in which subjects are asked to decide whether it is morally permissibly (or even required) to flip a switch which would cause an out-of-control trolley heading toward five people tied to a track to change course and run down a different track with the result that just one person would be killed.  I have always been skeptical about the notion that we could learn anything interesting about the trolley problem by looking at MRI scans of experimental subjects thinking about it.  Appiah hasn’t necessarily convinced me otherwise, but he does do an excellent job of showing, more generally, how moral theorists can benefit from getting out of their armchairs and into the lab.  (Christopher Columbus Langdell notwithstanding, I suppose the same thing might be said about getting law professors out of the library.)

I’ve been thinking about what Appiah has to say in connection with a book I myself am writing, on the theory of theft law.  The book offers an argument as to why the mid-20th century consolidation of the various traditional common law offenses of larceny, false pretenses, embezzlement, extortion, receiving, finding, and the like, into a single undifferentiated offense of “theft” is misguided, in part because it fails to reflect the kind of moral distinctions that people intuitively make in their everyday lives.  Most of the book will consist of normative theorizing and policy arguments.  But, partly as a result of reading Appiah’s work, I’m also hoping to incorporate some empirical data on how real people (assuming undergraduate psychology majors qualify as such) would rate the relative seriousness of various theft scenarios.  To that end, I’ve been working with Kevin Grobman, a social psychologist here at LSU, to design a study that will test people’s intuitions about the wrongfulness of various forms of theft.  I’m also hoping to organize an AALS Criminal Justice Section mid-year meeting panel titled something like “Experiments in Criminal Justice Ethics.” I’d be interested in hearing about any new work of this sort that blog readers know about.

The Meat Market Is Like...The Meat Market

Perhaps inspired by one of my favorite Magnetic Fields Songs (or another one suggested by the comments), I thought that this is the best way to introduce this series of posts on the job market.  Many of my friends would laugh when I told them that I was going on "the meat market," but in truth it really is a lot like that other meat market, dating, especially internet dating. 

First, you post a profile online where lots of people will size you up. Once they have decided they like your profile, after a brief email or telephone chat, they invite you for a short first date.  Now, this is forward as (at least my) first dates go, given that they are inviting you into their hotel room, and there are multiple people participating (or at least watching!).  Sometimes there will be a fair amount of small talk involved, sometimes they’ll cut right to the chase.

If you wow them here, they ask their friends who might know you about whether you are what they are looking for (they may already have).  If you’ve kept them wanting more, they’ll invite you home to meet the family, be it in Charlottesville or Cambridge.  There, you will meet be welcoming older sisters, insecure younger brothers, and crazy uncles aplenty.

 

Eventually you will meet the paterfamilias, the hiring chair and the dean, who will tell you how long it will take them to evaluate whether you are fit to marry into the family.  If you are lucky, there will be a proposal; something shiny and expensive may be offered to entice you.  After evaluating your offers you will decide whether or not to walk down the aisle (with the possibility of divorce and re-marriage, i.e., the lateral market, always in the background).

Now beyond providing entertainment, this comparison is meant to be instructive in that there are a number of things that will get you into trouble in the dating market will also get you into trouble here.

First, tell the truth.  I’d rather describe myself as 6’0 rather than 5’9 (and a half, well, on a good day), but absent platform shoes people will soon find out the exageration and I will lose credibility.  The same is true here.  All readers are smart (and ethical) enough to avoid any actual misrepresentations, but it is the more subtle ones and accidental misunderstandings that are the problem, especially as the process evolves.  So, a hiring chair calls and gets you off guard to ask you how you are doing on the market, and you mention that you are still under consideration at Ridgemont U, which she mistakenly takes to mean you’ve been voted out of committee and are waiting for a faculty vote.  Further conversation suggests this misunderstanding without the hiring chair saying anything that directly states it.  It does not matter that you never said what she thought you said.  If you don't nip it in the bud, the misunderstanding will circulate potentially back to the hiring chair at Ridgemont U.  You cannot let that happen.  If you don’t catch the error fast enough don’t worry, there are plenty of times I corrected or added something by email after a conversation.  Just try to correct as quick as possible.

Second, don’t give out your number too easily.  Or, to put it more precisely, don’t give out the number you are likely to answer without thinking.  We are not talking about giving the fake phone number some of my, er, acquaintances, have on hand for the person at the bar that does not appeal to them but demands their number. What I did do, though, was to only give out my office number to hiring chairs.  This gave me a little more control, though it meant frequent calls in to my voicemail while traveling to job talks.  If you want everyone to call the same number, make sure you get into the habit of letting every number you don’t recognize go to voice mail.  Especially at the beginning of the FRC process when you might be getting a lot of phone calls let it go to voice mail.  That will give you 24 hours breathing room, especially on your office number, to decide what to say.  I would not take more than 24 hours though, or you'll seem rude.

Continuing the theme, learn how to say “no” politely but without substance.  While “it’s not you, it’s me” might be the old standby line, you actually want to say “no” with as little content as possible.  It might be tempting to blame something on geography or your significant other's needs, but the word might circulate around that you are not interested in city X, and some committees might read into that further; that because their city or town shares some characteristics or a state with city X, they may also count you out.  Perhaps this was cowardly or declasse of me, but at least as to "no’s" to the FRC meeting, I would respond to voice-mails from hiring chairs by emails.  The content was almost always the same.  “Dear Prof. X, Thank you very much for the offer to interview with you at the AALS conference.  I very much appeciate School Y's interest, but, unfortunately, I will not be able to meet with your committee at the conference.  When turning down actual job talk offers I’d call the hiring chairs at a time I was not likely to catch them in person, and leave a voice mail thanking them for the offer to visit, but suggesting “I just think there are better opportunities elsewhere.”  This is nice, and polite, as it ought to be. The goal is to be short on semantic content, like Chomsky’s “colorless green ideas sleep beautifully."  For turning down actual offers I’d call the deans, and leave voicemails if they were not there.  Be prepared for people to ask you who you are still considering, and depending on your comfort level or strategic considerations, you can tell them, or instead just offer to let them know once you finish your process).

Finally, one piece of advice my old friend Samantha gave me in my late teens, the first rule of dating is that “interested is interesting.”  People seem to think more of you, your intelligence, etc, when they are telling you about them and you look interested.  In every FRC interview, job talk visit, and offer conversation with the dean, people will at some point tell you something about the school that you already know or does not seem relevant.  Try not to look bored.  I’ll talk more about good questions to ask at different stages of the process below, but remember you want to always make the people you are talking about feel that you care about their school, and are interested in what they tell you, whether it be a comment on your paper or a discussion of how great a sports town place X is (when you really care about opera).

Oh, and because inquiring Prawfsblaw readers want to know, while I've ended up very happily partnered on the job front, I am still very much on the market in terms of dating. Therefore, perhaps you ought to consider all this better job market advice than dating advice?

Lovely to be back

Thanks to the Prawfsblawgers for having me back.  The last time I was here, I blogged about the merits of fellowships, and how they prepare you for the job market, as well as some of my substantive interests.

This time, in a sort of "Through the Looking Glass" style, I'll blog about the job market having gone through it, cue music. While there are lots of good resources already in the blogosphere about the job market, I hope to add to them by discussing some of the questions I see addressed left often. I should add a few caveats: First, as my father likes to say, "good advice and bad advice cost the same price." Second, as my social scientist friends like to say, there is a "small N problem," in that I will be speaking from my experience and the experience of a small number of other fellows and friends on the market this year to whom I talked. (Worse yet, the impressions will be subjective and less than informed since I can only present things from my point of view, not the faculty who had to resist the urge to throw tomatos at me during job talks, for example).  I hope some of this can be corrected by robust participation by other recent candidates and faculty in the comments section.

I'll also discuss some of my own work and some recent developments in health law and bioethics that might not have made it on to the radars of those who don't work in these areas.

Rotations

Just back from NYC where I presented Punishing Family Status to a wonderful group of faculty at Hofstra. Many thanks to my gracious hosts there: Joanna Grossman, Liz Glazer, Grant Hayden, Nora Demleitner, Bennett Capers, and Katy Kuh.

So it's the first of the month and time to wish all a Happy April Fool's Day. No joke: later this week, we celebrate 3 years of Prawfsdom! (Prawfsiness? Prawfsorialism?) Amazing.

This month we welcome for the first time Garry Jenkins (OSU, law and leadership), Adam Levitin (Georgetown, bankruptcy), Mark McKenna (SLU/ND, IP), and Andrew Torrance (Kansas, IP and biodiversity). I'm also excited to announce our returning guests: Nadine Farid (Gonzaga, IP), Glenn Cohen (who just accepted a T-T position at Harvard in bioethics and health law--congrats Glenn!); Geoff Rapp (Toledo, torts, corps and sports); and Stuart Green (LSU to Rutgers; crim law theory).

A few of our guests from March will continue to contribute to blogging infamy, for which I am  grateful. The others will sign off shortly with a collective Karaoke video on YouTube. To all, thanks for your glorious contributions. Except you, Jason Solomon, whose lassitude will inspire public lashings when you really do your stint later in the spring :-)

Garvey on "Institutional Pluralism"

In his address at the January 2008 Annual Meeting of the AALS, the new AALS President, Dean John Garvey (Boston College) discussed "institutional pluralism."  Here is a bit from a Boston College Law School-affiliated site:

In a speech in January at the 2008 Annual Meeting of the American Association of Law Schools (AALS) in New York Dean of Boston College Law School and AALS President John Garvey talked about shifting the axis of the legal academy’s discussion over diversity. Instead of focusing on diversity within law schools, Garvey talked about cultivating the differences among them. . . .

. . .  “Its not clear that Mill’s argument entails protection for dissent at every level,” Garvey said, adding that “a distinctive institutional culture is not inconsistent with individual freedom of inquiry.”

“Collaboration is not control,” he stressed.

In conclusion, Garvey acknowledged the “uncertainty” in his voice about his suggestions. Still, he said that he believed that thinking more about institutional pluralism would be healthy, both for students and for the intellectual life of the academy.

Garvey concluded, “Schools don’t need to compete on the same track to succeed.”

I have not been able to find a link to the full address, but it is reprinted in the March 2008 issue of "aals news."

We Must Use Big Words

As law professors, we must use big words.

Nay, allow me to restate, viz., it is incumbent upon us to deploy brobdingnagian lexemes.

Coming from a journalism undergraduate education, I grew up with a disdain for big words. If something can be said simply, so much the better.

But I have grown to have a different perspective as a law professor. When teaching class, if a big word pops into my head, I drop it like it’s hot.

Why? I figure it’s my responsibility. If we, the learned academics, don’t use the big words, who will? If language goes unused, it withers and dies. And, hey, there are many words out there, which, while no one really wants to use them, it would still be nice to keep them technically alive. Thus, someone must use them. That someone – especially when it comes to legal words – is us, the lexerati.

I’m doing my part. In fact, I’m liable to use big words even if I am not entirely sure what they mean. Many people would be mortified at the thought of misusing a word in front of a bunch of people. Not me. As a scholar, I figure, it’s my job to have new thoughts, to introduce original ways of looking at things, and, as I see it, to use words in entirely novel ways.

More than that, I figure it’s also my job to make up completely new words. So if something pops into my head, and it sounds like a word, I’ll just say it.

I’d give you some examples, if I could, but I can’t. How am I supposed to know what words I’ve made up or misused? No one is going to tell me they know better. Hello! I’m a law professor.

But I am confident that I’m using at least some words incorrectly. How can I be so sure? It’s a numbers game. Big words are so omniscient in my vocabulary, the odds are nanotesimally small that I’ve used them all correctly and that they all, in fact, exist.

A close friend of mine in law school – who was born with a severely reduced capacity for embarrassment* – once interrupted her federal courts class to ask what the word “precatant” meant. It was about the tenth time in as many minutes that the professor – one of the nation’s leading legal scholars, I might add – had dropped the word into the lecture. So finally, my friend couldn’t stand it anymore, and she just raised her hand and asked what the heck it meant.

Uproarious laughter ensued.

“You’ve never heard of the word?” the prof asked incredulously. He nonetheless obliged by reciting the definition of “precatant.”

Now, here’s the funny part: “precatant” is not a word. (The prof apparently meant “precatory.”) Or, I should say, “precatant” wasn’t a word, at least not until it was used by one of the nation’s leading legal scholars.

I think the English language will withstain.

________________________
* to whom I am now married