PrawfsBlawg

Justice Souter to Retire

So says AP, NPR, and Bashman.

So who is his replacement going to be? I call Sonia Sotomayor of the Second Circuit--Latina woman, 55 years old--or Diane Wood of the Seventh Circuit. Comments open, as always.

Ye Olde Exam Archive

I've really enjoyed guest blawging this month. In signing off, allow me to promote my archive of past exams. There are exam materials for torts, various IP classes, and media and entertainment law. Maybe you will find some of them useful as problems. As a warning, my exams tend to be heavy on plot and subpar photoshopping. 

For example, here's what you'll find for torts: A maverick scientist tries to save a posh ski resort from a mountaintop nuclear power plant spinning out of control in Atomic Avalanche. A new surgical intern gets a crush on a neurosurgeon who has dreamy good looks and disconcerting hand tremors in Cray's Oncotomy. A failing New England lumber company tries to turn its dangerously antiquated equipment into a tourist attraction in Ye Olde Sawmill. And you get top-secret security clearance to go along for the ride when torts travel to the far side of the moon in The Sirius Incident. 

In closing, I want to thank the Prawfs, of course, and I also want to thank all the PrawfsBlawg cawmmenters. The best thing about blawging on Prawfs is getting all the feedback – all the deeply thoughtful reactions and all the hilarious heckling. In particular, I wanted to give a shout-out to my law-school classmate Paul Gowder, a frequent Prawfs commenter – and one who falls into both of the aforementioned categories. Once he finishes up his Ph.D., I hope he'll go on the law teaching market. 

And I hope I'll be back on Prawfs in the not too distant future. In the meantime, I'll be on my blogs, Pixelization and the Backbencher. Have a great summer, everyone!

Poetic Justice

One of my colleagues here at SMU, Tom Mayo, reminded me that today is "Poem in Your Pocket" Day.  To honor this day, please share by posting or citing a legal opinion that includes a poem.

Here's part of the opinion in a 1986 criminal trespass case in New York, People v. Sergio. The New York Times re-printed the opinion on Dec. 20, 1986 (see 1986 WLNR 835359).

‘Twas Game Six of the Series when out of the sky,

Flew Sergio's parachute, a Met banner held high.

His goal was to spur our home team to success,

Burst Beantown's balloon claiming Sox were the best.

The fans and the players cheered all they did see,

But not everyone present reacted with glee.

“Reckless endangerment!” the D.A. spoke stem.

“I recommend jail--there's a lesson he'd learn!”

Though the act proved harmless, on the field he didn't belong

His trespass was sheer folly, and undeniably wrong.

But jail's not the answer in a case of this sort,

To balance the equities is the job of this court.

So a week before Christmas, here in the court,

I sentence defendant for interrupting a sport.

Community service, and a fine you will pay.

Happy holiday to all, and to all a good day.

 

Judge Gerald Lebovits of the New York City Civil Court, who criticized the Sergio opinion here, published a more detailed analysis of the inclusion of poems in judicial opinions in the Georgetown Journal of Legal Ethics last year, available here.

 

The Death of Portfolio

I hold here in my hands the last issue of Conde Nast's Portfolio.  Fittingly, the lead article on its website is "The End" by Michael Lewis.  To me, both that article and the magazine created much higher expectations than they actually fulfilled. 

The website is still encouraging readers to "SUBSCRIBE NOW," but you get this prompt if you try to.  Sad.  My subscription runs out in October -- guess I won't be expecting a check back for those five missing issues.

In-Class Exercise: Guess My Politics

A while back I posted about the question of whether law professors ought to disclose their political convictions in class. There was a good discussion in the comments. As I wrote then, my personal preference has been to be plain about my beliefs rather than dance around them. 

It turns out that if disclosure is my goal, I'm doing a lousy job.

Some weeks ago in my Media & Entertainment Law class – in conjunction with a unit on political side-taking by the press – I decided to do a different sort of feedback exercise. I asked students to scratch down on a blank sheet of paper what they figured my politics were, and to hand it back anonymously. When students were done, I wanted to discuss the results right away. But since I didn't want to stop class to read all the papers, and since couldn't ask for a show of hands and preserve anonymity, I asked a volunteer to survey the class opinion while I was out of earshot.

I walked out of class, and then I came back about a minute later. When I opened the door, I had never seen my students having so much fun. They told me to go away – they were still discussing it.

When the verdict came back, I was told that students were all over the map. There was a weak consensus that I am socially liberal but fiscally conservative. A very animated class discussion then ensued.

After class, going through the written responses, I found that a few students thought I was conservative, a few thought I was liberal, many thought I was somewhere in the middle, and one thought I was a narcissist for undertaking the exercise.

I think that last student had a point. In doing something like this, there is a real danger of veering off into self-aggrandizing irrelevance. On the other hand, I think there is something healthy about students being invited to try to deconstruct, criticize, and even pigeon-hole their teacher's viewpoint. Especially since I do roughly that to many of the authors of our assigned reading.

But the real benefit to doing the exercise was what I learned about my own teaching. Like watching yourself on videotape, there's an opportunity through this kind of feedback to learn some surprising things.

The most shocking comment I received was from a student who wrote, "I think [you are] conservative (more or less) on family values in re: marriage and children, i.e. one man, one woman ... I think you're rather neutral on the subject of homosexual/lesbian marriage, i.e., you wouldn't go advocating for or against it, but maybe you rather would prefer it not happen."

I was floored by this. I am a strong advocate of marriage equality. And it concerns me greatly that students might see me as privately squeamish about gay relationships or marriage. It has inspired me to post a GLBT "safe space" sign in my office.

At any rate, I think it was a worthwhile undertaking. Given the imposition on the class and the attenuated relation it has to the subject matter, however, I think I'll hold off on doing it again for at least a few years.

Adversarial Journalism

Dan Solove writes, quite pessimistically, about the death of newspapers and a collateral effect of the death of newspapers: the loss of serious, objective, neutral journalism, being replaced by a largely partisan press. Dan cites the argument that this marks the return to the journalism of the early Republic--when there was a Federalist press and Republican press--and away from what really was a late-19th century/20th century development. But Dan argues that the result is "We're being overloaded with talk radio, cable TV shout fests, endless tirades in the blogosphere -- what strikes me as endless blather, screeching, shouting, ranting, and raving."

At least for the moment, I am a bit more sanguine. Dan's complaints about blather, etc., are well-taken, but they are not uniquely by-products of a partisan press. They are by-products of infotainment and the desire to make news entertaining. But I am not convinced that journalism cannot be partisan without also be good, thoughtful, and rational. We rely on adversarialism in so many other contexts--the legal system and judicial process, the political system; only in journalism have we adopted the notion of the essential neutral investigator. Can the system work if, rather than The New York Times as the "paper of record" (and I am not suggesting that The Times is perfectly neutral or objective in its news coverage, only that it is trying harder than Fox News or TPM), we have a competition between partisan-but-high-quality news sources--such that public debate looks a little more like adversarial litigation? Will the public be sufficiently informed? Will the government be sufficiently watched and checked against abuse? Can and does the "truth" emerge from the collision of competing arguments in the press the same way (we presume) it emerges from the collision of competing parties in litigation?

A commenter on Dan's post makes the good point that partisan press outlets (especially on the web) typically lack the resources and skill to do the difficult investigation and information-gathering that newspapers historically have done. That is true now; but maybe they will have the capacity in five years. So the question is: if partisan outlets eventually develop the ability to investigate and uncover and check and report, does the media work if reporting is a competition between rational and quality (not screaming blather) adversarial outlets?

Prawfsfest! in the Hassee

Tonight marks the onset of Prawfsfest! 5, our roving public law/legal theory workshop for early works in progress.  The gathering takes place this semester here in Sweet Sassy Tallahassee over the next few days at FSU. I'm very grateful to Deans Don Weidner and Wayne Logan and the administrative support team here at FSU for their help and energy.

In attendance, we'll have: Zak Kramer (Penn State); Rob Kar (Loyola LA en route to Illy); Carissa Hessick (ASU); Andy Hessick (ASU); Bill Araiza (Brooklyn); Lesley Wexler (FSU); Brian Galle (FSU/Georgetown/GW); Erik Knutsen (Queens); Dave Fagundes (Southwestern); Paul Horwitz (Alabama); and Beth Burch (FSU); Amelia Rinehart (FSU), and me.  Should be a lot of fun.

The next Pfest! will be at Southwestern in LA in December.

A Law School Oral (Argument) Exam: Should an Oral Component be Added to the Law School Examination Process?

This will be my last post here at PrawfsBlawg, and I again want to thank Dan Markel for having me as a guest blogger for the month of April. I also want to thank the PrawfsBlawg readers for your helpful comments on my posts. 

In the wake of the Carnegie Report, law schools and law professors across the country are funamentally re-evaluating the way that legal education is being conducted. Recently I read a great article, From Grimm to Glory: Simulated Oral Argument as a Component of Legal Education's Signature Pedagogy, 84 Ind. L.J. 589 (2009) by Lisa T. McElroy. In the article, McElory "propos[es] that law professors regularly use simulated oral argument exercises to supplement traditional Socratic dialogue, [thus] meet[ing] head on the concerns expressed by Best Practices and Carnegie that over-reliance on the Langdell method neither mimics law practice nor nurtures student learning."

The article got me thinking that, at least in one way, law school is an enigma wrapped in a paradox. Throughout the semester, law students, more so than maybe any other students, learn material through their oral participation in class, under some version of the Socratic method. At the same time, law students (at least in substantive classes) complete written work for evaluation throughout the semester less so than maybe any other students. And yet, when the end of the semester rolls around, these same law students are tested almost exclusively based upon the quality of their writing and almost never based upon the quality of their oration (besides minor bumps up or down for class participation).

Of course, it wasn't always that way. As Ron M. Aizen notes in Four Ways to Better 1L Assessments, 54 Duke L.J. 765 (2004):

Today, first-year law students typically receive course grades based entirely, or almost entirely, on single end-of-course essay exams. Using a single exam to measure law student performance contrasts markedly with earlier practices at American law schools. From the early- to mid-nineteenth century, students were generally assessed far more frequently than they are today. For example, at the Litchfield Law School, the first professional American law school, students took weekly oral exams. Harvard examined students orally or in writing both weekly and "at the end of each text or topic." Michigan hired recent graduates and young lawyers to oversee daily oral and written examinations. Cornell, Penn, and Columbia combined frequent, often daily, quizzes with more cumulative assessments, such as end-of-term, annual, and graduation exams.

In the late 1800s, however, law schools began to use final exams as the sole measure of student performance. At Harvard in the early 1870s, students were for the first time required to pass annual exams to receive their law degrees. This innovation was introduced by Dean Christopher Langdell, who also popularized the case study method. The case method and the sole final exam allowed law professors to teach and evaluate large classes of students--and high student-faculty ratios were financially advantageous. Dean Langdell's economical model was eagerly embraced by other American universities. By the end of the nineteenth century, the use of single exams to assess student performance had become widespread among American law schools.

In the wake of the Carnegie Report, many have proposed and/or implemented some form of the pre-Langdellian practice of students completing written and oral assignments throughout the semester. I haven't, however, seen anyone proposing some form of oral examination at the end of the semester to match the oral learning that takes place throughout the semester. 

One reason would seem to be that most law professors would have no idea how to give an oral exam because we don't have formal education degrees and we weren't given oral exams in law school. A second reason would seem to be that it is not possible to give oral exams in classes subject to blind grading (i.e., the vast majority of law school classes).

But assuming that a professor could get a pass on blind grading in a class or that the professor were teaching a smaller class not subject to blind grading, what might an oral examination look like? My initial thought was to transform Professor McElroy's simulated oral argument technique into an exam. A professor could prepare something like a moot court problem with materials, have students prepare a brief, and have them participate in oral arguments. Such an oral exam would actually be an oral/written exam and allow students to be evaluated based upon both the quality of their writing and oration.

Do any readers have any thoughts about how a law school oral exam might look and whether it makes sense to add an oral component to the law school grading process? In doing research, the only discussion I found on the subject was in Oral Examinations as a Method of Evaluating Law Students, 51 J. Legal Educ. 130 (2001), where John M. Burman describes how he observed oral examinations of law students in Russia (which seem a lot like high school extemporaneous speaking competitions) and then applied a similar technique at the University of Wyoming College of Law:

Russia

Oral exams are scheduled for a time and date....All the students who wish to take the exam arrive at the appointed time, most dressed as for a court appearance. The testing procedure then goes something like this. Five students enter the classroom while the others wait in the hall. Each chooses one question from about fifty; the questions are typed on separate slips of paper and placed face down on the desk. Each student is then allowed time to think about the answer (without books or notes). As soon as one of the five is ready, she meets with the teacher. After she answers the written question, along with any followup questions, the teacher assigns her a grade, which is then entered into the student's grade book and on the official grade sheet that is later given to the administration. The student then leaves the room. As one student leaves, another enters and selects a question, and the process repeats itself, for hours, until each student has met with the teacher. 

Wyoming

I scheduled the oral exams for the second-to-last week of class. Instead of the cattle-call approach used in Russia, I took a more organized approach. I prepared and distributed a set of general instructions for the exams, which we then discussed in class.

I instructed each student to sign up to meet with me for twelve minutes. Thirty minutes before the appointed time, the student could pick up the exam from my secretary. The exam was similar in scope and content to written exams. It contained a fact pattern followed by three questions. The exam was open-book. Students could consult whatever sources they wished to outline or otherwise prepare an answer to the written questions. They were also instructed to expect additional questions from me.

I began each session by telling the student to begin wherever he wished. Most began with the first question, but others elected to start with the second or third. I found that I invariably began asking clarifying questions within a couple of minutes. Such questions are helpful in determining the depth of a student's knowledge. And an Are you sure? question yields interesting results. On the one hand, it may cause a student to reflect, perhaps take another approach, and demonstrate his knowledge. On the other hand, it allows students who are not well informed or prepared to confirm their lack of knowledge. To virtually eliminate the possibility of cheating, I use several different exams. My secretary rotates them randomly so a student does not know which exam she will have until it is time to pick it up.

I took copious notes during each exam so I could review my impressions later, as well as explain to students where they had done well or poorly. At the end of each day's exams, I classified the exams from best to worst and assigned tentative grades. At the conclusion of all exams, I reviewed my notes and the tentative grades before assigning final grades. Students were then able to get their grades from my secretary before finals, and several met with me to discuss where they had gone astray.

Socio-Economic Rights III (and mandatory ADR)

As I have written earlier on this blog, the South African Constitutional Court has issued probably the world's most significant cases enforcing socio-economic rights.  In my first post, I described how the South African Constitutional Court in 2000 ruled that the government had a constitutional obligation to develop a policy to protect the homeless, rather than abandon them.  There were, however, some problems with the Court's remedy and with its implemention.  My second post showed how the Court in Treatment Action Campaign saved thousands of lives by ordering the government to provide a pill to HIV infected pregnant women that prevented the transmission of HIV to the fetus.

In a recent case called Occupiers of 51 Olivia Road, the Constitutional Court added another bow to its arrow.  The Court addressed the city of Johannesburg's effort to evict 400 men, women, and children from two devastated buildings. (Recall that there are hundreds of thousands of homeless in South Africa because of Apartheid's racist travel, work, and other restrictions) The city did not, however, propose alternative accommodations.  The Court eventually ordered the city of Johannesburg to "meaningfully engage" with the representatives of the "squatters" to negotiate a mutually agreeable solution.  The Court explained that the city had to act in good faith, and take seriously the constitutionally significant housing problems faced by the squatters.  The Court therefore evened the dispute resolution playing field, in terms of the power imbalance between the municipality and the impoverished.  

Eventually, Johannesburg found alternative accomodations for these individuals, and it could proceed with city "regeneration."  By requiring the city's representatives to truly listen and respond to the plight of these often ignored individuals, the Court developed a procedural mechanism for resolving the dispute without imposing its own substantive remedy.  The decision has great significance for further South African cases and for other international contexts. In my next posts, I will address a major theme in my new book -- the relevance of these socio-economic rights and other cases to American constitutional jurisprudence. 

Law Professors: Lou Dobbs is on Our Side

A couple of weeks ago, Lou Dobbs discussed what he called "an apparent threat to America's sovereignty," namely certain remarks made by U.S. Supreme Court Justice Ruth Bader Ginsburg. I will warn you, her words are shocking. But I feel you need to see them. This is the actual transcript of what she said at a symposium at the Mortiz College of Law at Ohio State University.

RUTH BADER GINSBURG, SUPREME COURT JUSTICE: Why shouldn't we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor.

Don't you see? Lou Dobbs is not just fighting against foreign influence, he is fighting for law-review-article influence. 

This is, indeed, a truly grave "threat to America's sovereignty." We need America's sovereignty to continue to be held, as it always has been, by America's law professors.

I hope all of you professors will join me in roundly condemning Justice Ginsburg and supporting Lou Dobbs – as he has supported us. And if Justice Ginsburg continues her assault on America's sovereignty, let us band together and fight back. We have the power write a bunch of really confusing scholarship about the Third and Ninth Amendments, and we should not be afraid to use it!

Online Antitrust Symposium at Truth on the Market

The folks over at the Truth are having a three-day online symposium entitled: "Section 2 and the Section 2 Report: Perspectives and Evidence."  Here's the relevant info:

The proceedings will begin on May 4 and continue officially through May 6.  We’ve organized the symposium across the three days so that each day will have a different emphasis.  The first day, Monday the 4th, we’ll discuss some introductory themes and set the context with some more-broadly-oriented perspectives on the Section 2 Report, including the enforcement perspective from inside the antitrust agencies and economists’ views, among others.  The second day, Tuesday the 5th, we’ll devote to the general Section 2 standards debate.  And we’ll finish up on Wednesday the 6th focusing on specific substantive areas, tracking the Section 2 Report and its substantive content in greater depth and detail.

The participants are: Alden Abbott, FTC; Tim Brennan, University of Maryland; Dan Crane, Cardozo/Michigan Law; David Evans, LECG/UCL/Chicago Law; Herbert Hovenkamp, Iowa Law; Keith Hylton, BU Law; Bruce Kobayashi, George Mason Law; William Kolasky, WilmerHale/former DAAG; Thom Lambert, Missouri Law/Truth on the Market; Tad Lipsky, Latham & Watkins/former DAAG; Geoffrey Manne, LECG/Lewis & Clark Law/Truth on the Market; Howard Marvel, Ohio State; Bill Page, Florida Law; Michael Salinger, BU/LECG/former Director, Bureau of Economics, FTC; and Josh Wright, George Mason Law/former Scholar-in-Residence, FTC/Truth on the Market. 

It's a terrific group of participants -- congrats to Geoff and Josh on putting together a great event.

Law School Auctions Benefitting Public Interest Law Fellowships

Many of us are either writing or grading exams these days. As others have already noted, grading and writing exams are certainly not the most interesting two of the more challenging parts of our jobs. For some of us, the end of the semester is often the time when we host events that we "donated" to our law school's auction.  These auctions, as Jessica Silbey blogged on Concurring Opinions last year, aim to raise funds for students who are interested in doing public interest work.   

These events can be a lot of fun and provide great opportunities for students and their professors to celebrate the end of the school year.  A soon-to-be colleague of mine, Liz Glazer (Hofstra), for instance, will be hosting a cocktail party at her apartment tonight for students who successfully bid on her event at Hofstra's Public Justice Foundation (PJF) auction.  A couple of weeks ago, I hosted a "Crawfish and Shrimp Boil" for students who were brave enough to eat very, very spice food.  They too won the event at SMU's Association for Public Interest Law (APIL) Auction.  

I'm curious - what other types of auction items have you donated or events have you hosted? Importantly, I'm wondering whether the economic downturn has affected the support that these auctions generally receive?  SMU's APIL students were lucky to have escaped it. They raised more than $65,000.  

The Old Switcheroo

In light of Senator Arlen Specter's decision to switch parties, readers may enjoy this list, which is now in need of updating, on senators who have switched parties during their terms of office.  In the modern era, they include Strom Thurmond (although my laptop is giving me an error message for putting "modern" and "Strom Thurmond" in the same sentence), Richard Shelby, and Ben Nighthorse Campbell, all of whom switched from Democratic to Republican.  The list omits those who switched from the Democratic to the Republican party while serving in the House or elsewhere and later served in the Senate, such as Jesse Helms, Trent Lott, Elizabeth Dole, Phil Gramm, Lauch Faircloth, and Norm Coleman; an expanded list can be found here.

No word yet on whether these individuals are also considered by their colleagues to be or have been unprincipled, untrustworthy, and acting out of no reason other than political self-preservation, and certainly not because their party had changed around them.  I'll keep you posted if any GOP official adds a clarification along these lines.  

 

How the Law and the Sciences Think About Knowledge

In my posts this month, I have looked at how to improve the way social scientists and empirical legal scholars produce empirical knowledge. I want to focus this week on the legal side of this issue. Those who buy the arguments I have made so far should agree that evidence based systematic reviews are a superior way for academics and policy makers to assess what is known about a particular problem. But can we use these reviews in litigation setting?

Empirical evidence has long posed a problem to the adversarial, common law system. As Tal Golan points out in Laws of Men and Laws of Nature, courts have struggled for at least three centuries with how to use complex scientific evidence in the courtroom, and the problem is only going to get worse in the years to come. Lay judges and lay jurors have never had the epistemic competence to understand technical scientific and empirical evidence, and thanks to the technological revolution of the past three decades the volume and sophistication of such evidence is only going to grow. Some sort of reform is inevitable, and I think a shift towards courtroom-EBP is the way to go.

Yet the history of the law's use of science is little more than a history of failed reforms. Why should we expect a different outcome this time? After all, we're all familiar with Einstein's famous quote about Quixotic endeavors. I am actually optimistic, but I am still fleshing out fully the reason for my optimism. So I want to present it here as a tentative claim, and I look forward to seeing what people have to say about it in the comments.

My basic claim is this: The rise of EBP reflects a change in scientific epistemology. In particular, it reflects a move away from what was effectively an adversarial model towards a more collaborative approach. In other words, earlier efforts at reform failed in no small part because of the strong similarities between legal and scientific epistemologies. Both relied on adversarial approaches, so when reformers called on the law to adopt non-adversarial approaches, they were calling on adversarial legal actors to behave less adversarially than the scientists. That lawyers and judges resisted should come as no surprise. But EBP reflects a fundamental epistemological shift, and as a result it provides a real opportunity for reform.

That is my claim, and I'll defend it briefly here. But it is a working hypothesis, and I am eager to get people's thoughts about it.

That law's epistemology is adversarial does not require any explanation on this blog. Each party is called on to find its own experts and its own evidence. Each party presents its case, and the other side tries to punch holes in it during cross. We have introduced some "inquisitorial" practices--screening under Daubert, special masters, Rule 706 experts--but our approach remains predominantly adversarial. Even the order of evidence reflects the adversarial mindset: the two sides of the scientific story are not presented at the same time but during each party's presentation of all its evidence. (Although this might be changing a bit with the development of hot-tubbing.) The system relies, perhaps implicitly, on the "marketplace of ideas" metaphor. Let the two sides duke it out, and at least more often than not the right answer will prevail. 

That the sciences have been essentially adversarial is perhaps less clear. There have always been famous rivalries, such as that between Newton and Leibnitz, and scientists are professional skeptics, trained to constantly push, prod, and poke holes in the works of others to see what survives. But there is still a common belief that scientists, unlike partisan experts, share a common goal: discovering the truth, not proving (or "proving") a pre-determined outcome.

And at some level, this is surely true. But the day-to-day practice looks much more like something adversarial. Experts often become wedded to a particular perspective for both sincere and cynical reasons (the effect of corporate sponsorship on research, particularly on medical and pharmaceutical research, is becoming an important issue). And as a result, debates in the empirical literature can take on a partisan feel similar to that in the courtroom. The analogy is far from perfect--academic scientists are surely in general less outcome-oriented than courtroom experts, and the "jury of their peers" is far more epistemically competent--but I think it captures the basic feel of academic debates.

As a result, it is not surprising that the law resisted efforts to introduce the "independent expert" into the courtroom. Scientists do not resolve empirical questions by looking to one expert to synthesize the literature but by debating constantly among themselves. How could they ask lawyers and judges to act in a more centralized and collaborative manner than they themselves do?

But evidence based policy is a powerful move away from such an adversarial approach. By bringing together an entire literature, and by developing rigorous and objective ex ante standards, EBP reflects a substantially less adversarial and more collaborative epistemology. And thus for the first time it offers up a qualitatively different way of assessing what we do and do not know. For the first time, empirical disciplines can look at the law's dueling experts and say: "No, we really do produce knowledge in a fundamentally different way."

In my next post, I will look at how to reconcile the EBP's non-adversarial bent with the norms that our adversarial procedures seek to protect.

Privilege or Punish: Criminal Justice and the Challenge of Family Ties

Exciting news: my book with Ethan Leib and Jennifer Collins, Privilege or Punish: Criminal Justice and the Challenge of Family Ties, is officially out. 

Oxford University Press is offering a 20% off deal with this promo on its website.  Amazon is also selling it here. You can see the cover and the book's description here.  There are some testimonials here from Dan Kahan, Jonathan Simon, Bob Wesiberg, Michael O'Hear, and Rick Hills.

I should add that we are very keen to spread the book around, so if you're interested in reading the book but can't afford the price (or can't get your library to buy a copy), please email me and I'll send you a PDF of the book for free. You just have to promise to read it! And you can't use it for non-commercial purposes or we'll sick the OUP lawyers on you. 

Alternatively, if you let me know you're interested in buying a hardcover, I can acquire a batch at 40% off, which brings the price down to a more manageable 45$.  We're hoping lots of people (academics, law students, and civilians) will be interested in reading it -- and perhaps reviewing it. If you are interested in reviewing it, please feel free to let me know and I can tell you of some outlets and venues that might be interested. I can also ask the good folks at Oxford to send you a review copy if you send me your mailing address. For what it's worth, my mother-in-law, perhaps a partisan to the cause, mentioned that it was written accessibly for non-lawyers. I hope she's right.

In related news, there will be a roundtable on the book at Law and Society in May featuring Melissa Murray, Alice Ristroph, Don Braman, Tommy Crocker, and Naomi Cahn.  Additionally, there will be another panel at SEALS in August. Last, there will be a Feature on the book in the Yale Law Journal sometime next year, which will include a handful of essays from a number of folks, as well as a piece by us, tentatively titled, Rethinking Criminal Justice and Family Status. I'll have more info on these panels and discussions in the coming weeks.  There are many people who helped make this book possible, including many writers and readers of this blog. We are profoundly grateful for that assistance and encouragement.

Great Idea of the Day

Fly a large airplane in the morning over lower Manhattan with a fighter jet escort, all for "photo-ops," and with no advance notice to the public. As a Newsweek blog described it, "Air Force One Photo-Op Scares the Crap Out of Manhattan."

Assigning Cases Decided Mid-Semester?

In constitutional law this week I'm teaching a Supreme Court standing case from this Term, Summers v. Earth Island Institute, to supplement the students' casebook. I decided the case was valuable enough to add it, even though we will cover it well out of turn from our other coverage of standing, which our casebook placed at the start of this semester. Was this case covered in many con law courses this semester? What criteria do professors use--or from the student perspective, appear to use--when deciding whether a hot-off-the-press case or other legal authority is worth assigning as a mid- or end-of-semester supplement?

The Professorial Second Opinion: Should Law Professors be Able to Change Student Grades After Exam Conferences?

From the movie Clueless :

Mel: Cher, what's this all about

Cher: My report card?

Mel: The same semester?

Cher: Uh-huh.

Mel: What'd you do? Turn in some extra-credit reports?

Cher: No.

Mel: You take the mid-terms over?

Cher: Uh-uh.

Mel: You mean to tell me that you argued your way from a C+ to an A-?

Cher: Totally based on my powers of persuasion. You proud?

Mel: Honey, I couldn't be happier than if they were based on real grades.  

Many law schools preclude professors from changing student grades based upon "errors" that those professors made during the grading process. At my law school, John Marshall, professors cannot change grades based upon qualitative errors, such as failing to notice that a student addressed a hearsay exception on an Evidence exam, but they can change grades based upon computational errors, such as assigning 5 points to a student's discussion of a hearsay exception but failing to add those points to the student's final score (In this way, my school is like Federal Rules of Evidence 606(b), which precludes jurors from impeaching their verdicts based upon qualitative errors, such as failing to consider the plaintiff's comparative negligence, but allows them to impeach their verdicts based upon transcription errors, such as finding the plaintiff 10% negligent, but reducing his award by 40% based upon bad handwriting).

I suspect that there are two main reasons that many law schools generally preclude professors from changing student grades. First, blind grading rules the roost in law school, and if we routinely allowed professors to change grades, it would re-introduce the possibility of biased grading that it was designed to eradicate. Second, law students like to argue. This is why many of them came to law school in the first place. If law schools readily allowed professors to change grades, the number of exam conferences would greatly increase (which wouldn't necessarily a bad thing) as would the contentiousness of those conferences (which would necessarily be a bad thing).

These are certainly strong reasons to preclude grade changes, but it is no doubt extremely difficult for the professor, and, of course, the student, when the professor has to explain that the student deserved a B but got a C because of a mistake that the professor made. Now, maybe this doesn't happen very often (I've only heard of one such case in 1.5 years of teaching), meaning that the benefits a change would accomplish would not outweigh the burden the change would impose. But if the problem is more prevalent, what might be a way to allow for the correction of obvious grading mistakes without facilitating the problems addressed above?

In The Professional Responsibility of the Law Professor: Three Neglected Questions, 39 Vand. L. Rev. 275 (1986), Monroe H. Freedman hints that there should be "due process in grading" and notes that he uses the following review procedure (which apparently his school does not preclude):

The review procedure works as follows. If the student is not persuaded that the grade I have was a fair one, he or she can elect to have the grade reviewed by a committee of three students from the same class. I pick one of the three committee members, the student picks the second, and those two pick a third. I then explain to the committee how I arrived at the grade I gave. The student then explains to the committee why the grade should be higher. The committee then chooses between my grade and the one the student considers appropriate. The committee must choose one of the two; it is not permitted, for example, to split the difference between the two grades.

The committee uses whatever standards its members consider fair. I impose no criteria. The committees, however, have tended fairly consistently to review the challenged grade in the context of other grades given in the same exam. (I make it clear to them that I cannot lose: either they affirm my grade, or they validate my review procedure.) The process has taken an average of two or three hours of my time a year.

I could see a law school that currently precludes grade changes adopting this procedure because it would (partially) preclude claims of biased grading and, if Professor Freedman's experience is representative, it seems that it wouldn't (really) increase the number or contentiousness of exam conferences. Of course, such a procedure only addresses cases where there is a genuine disagreement between professor and student over grading, not the situation where professor and student agree that there was a grading error.

 

Professor Freedman found that his procedure did not produce the negative result of students always affirming his grades, but I would have to imagine that students would readily agree to a grade change when both professor and student agree that there was a grading error. Thus, such a procedure in such a circumstance would in effect be the professor changing the grade, which reintroduces the possibility (or at least the perception of the possibility) of biased grading (and if the students rejected the grade change, wouldn't they, in effect, be saying that the professor was biased?).

But this seems to me to only be a problem if the student reviewers engage in non-blind grading. In other words, if professor and student agree that there was a grading error, three students could be appointed to review the exam, and they could engage in "blind grading" in that they wouldn't know the student involved, the initial grade, or the proposed new grade. Of course, one might argue that without the input from professor and student that Freedman's procedure provides, the students wouldn't know how to "grade" the exam. I imagine that the solution would be to give the students 3 exams that received scores (1) about the same as the initial score, (2) about the same as the score the exam "should have gotten" without the error(s), and (3) somewhere in between the actual and "deserved" score. Using these guideposts, the students would assign a score to the exam that would or would not change the grade. Of course, this could be done by another professor as well, under what might be called a professorial second opinion. 

So, what do readers think? Should law professors be able to change student grades, and if so, under what circumstances? Or, as Richard Heny Seamon notes in Lightening and Enlightening Exam Conferences, 56 J.Legal Educ. 122 (2006), is it "arguably unfair...to change the grade of a student who requests an exam conference without re-scoring exams of students who do not request conferences but whose exams might contain clear scoring errors?" Of course, the best way to "solve" the issue is to avoid the issue to the greatest extent possible, and I'm sure that many professors follow the same technique as Seaman:

I try to mitigate this arguably unfair situation by automatically re-scoring all exams with scores that fall within two (and, for some courses, within three) points of the next higher grade cut-off. For example, if I have decided to award a grade of “A” to all exams that have scored between 96 and 100 points (where 100 points is the highest score), I will re-score all exams with scores of 94 and 95 points; and, if the point range for “A.” is 90-95 points, I'll re-score all exams with scores of 88 or 89 points, etc.

Legal Scholarship Jams

Let me set the scene for you. It’s Friday night. I am in my office, and no one else is in the building. I am trying to get psyched up and energized to move forward with the law-review article I am writing. So what do I do? Diet Dr. Pepper? Check. Socks pulled up all the way? Check. Now I plug my iPod into my desktop Bose speakers and blast – I mean freaking BLAST – Ozzy Osbourne's “Crazy Train” … OH YEAH!!!!!!!!!!!!!!!!

As law professors, we’ve all got to do our part to fill up the scholarship aquarium outside the dean’s office. For many of us, that means reaching beyond the Red Bull to a fussed-over collection of legal-scholarship-psych-up music.

If you’re staring at a blank document, try a dose of Metallica’s “Enter Sandman,” Guns N’ Roses’ “Welcome to the Jungle,” or Sammy Hagar’s “I Can’t Drive 55.” (Query: Does Hagar’s posited judicial authority assert a predominantly retributivist model of punishment, or are we seeing a wrong turn on the road to restorative justice?)

If hard rock’s not your thing, there’s no better way to get the NRG up! than a little Debbie Gibson, “Electric Youth”:

Zappin' it to ya
The pressure's ev'rywhere
Going right through ya
The fever's in the air
Oh yeah, it's there!
Don't underestimate the power
Of a lifetime ahead
Electric youth!
Feel the power!

Multiple-choice exams: Clean copy of the rules?

Colin's terrific series of posts (too many to link to) about exams and grading suggests this is a good forum to raise an issue about exam set-up:

In a multiple-choice and short-answer exam in rules-based classes (in my case Civ Pro and Evidence), should you provide students with a clean copy of the rules and statutes? I have been doing M/C in Evidence for six years now and never have provided copies of the rules; my justification has been that I am trying to simulate trial, where quick response is required and there is no time to flip through a book and read the rule. This year I also am doing M/C in Civ Pro and am less sure that not giving the opportunity to find and read the rule is more difficult and less realistic, since there rarely will be a situation in which you will get asked a question about, say, the discovery rules or the diversity statute, and not have a chance to look it up.

Thoughts? Does it make the exam too easy? Is Civ Pro different from Evidence?

Coming Out of the Closet: How Arizona v. Gant Could Lead to the Shrinking of the Scope of Searches Incident to Lawful Home Arrests

In Chimel v. California, 395 U.S. 752 (1969) the Supreme Court held that a search incident to a lawful home arrest may only include "the area 'within [an arrestee's] immediate control' - construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence." According to the Court, there were two justifications for allowing such searches: (1) "When an arrest is made, it is reasonable for the arresting officer to search the person arrested [and the area within his immediate control] in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape;" and (2) "it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person [or within his immediate control] in order to prevent its  concealment or destruction." The Court, however, was quick to note that "[t]here is no comparable justification...for routinely searching any room other than that in which an arrest occurs - or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself."  

Twelve years later, in New York v. Belton, a majority of the Court found that "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." It was, however, Justice Brennan's construction of the majority opinion in his dissent that his since predominated. According to Brennan, the majority "adopt[ed] a fiction - that the interior of a car is always within the immediate control of an arrestee who has recently been in the car." While in Belton, a single officer searched a vehicle when there were four unsecured arrestees, Justice Brennan found that the majority's conclusion "would presumably be the same even if Officer Nicot had handcuffed Belton and his companions in the patrol car before placing them under arrest, and even if his search had extended to locked luggage or other inaccessible containers located in the back seat of the car."   

Two years after Belton, relying upon Terry v. Ohio, 392 U.S. 1 (1968), the Court found in Michigan v. Long, 463 U.S. 1032 (1983), that an officer may also "search a vehicle's passenger compartment when he has reasonable suspicion that an individual, whether or not the arrestee, is 'dangerous' and might access the vehicle to 'gain immediate control of weapons."   

Seven years after Long, the Supreme Court extended the scope of the search incident to a lawful home arrest in Maryland v. Buie, 494 U.S. 325 (1990), holding "that as an incident to [an] arrest...officers c[an], as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which and attack could be immediately launched." Then, relying upon Terry, the Court found that officers can also conduct a protective sweep of the rest of the home, but only when there are "articulable facts which, taken together from rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene."   

All of this takes us to the Court's opinion in Wednesday in Arizona v. Gant. In Gant, officers arrested Gant for driving with a suspended license and searched his automobile incident to that arrest only after handcuffing and locking Gant in the back seat of a patrol car, i.e., the situation identified by Brennan in his dissent in Belton. But Brennan's presumption was wrong. The Court noted the two Chimel justifications and found that Brennan's reading of the Belton majority opinion fulfilled neither because Gant obviously could not access the passenger compartment of his vehicle. Accordingly, the Court "reject[ed] this reading of Belton and h[e]ld that the Chimel rationale authorizes police to search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search." Later, the Court rephrased this holding in a slightly different manner, concluding that "[p]olice may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest." (thus incorporating the automobile exception into its holding) 

Before this rephrasing, the Court also disposed of the State's suggestion that a broad reading of Belton was "[]necessary to protect law enforcement safety and evidentiary interests." According to the Court, this is the case because "[o]ther established exceptions to the warrant requirement authorize a vehicle search under additional circumstances when safety or evidentiary concerns demand." Specifically, the Court noted that officers in cases such as Gant can still search the vehicle if Long and/or the automobile exception applies. Interestingly, the Court then noted:

Finally, there may be still other circumstances in which safety or evidentiary interests would justify a search. Cf. Maryland v. Buie, 494 U.S. 325, 334...(1990) (holding that, incident to arrest, an officer may conduct a limited protective sweep of those areas of a house in which he reasonably suspects a dangerous person may be hiding).  

Now, of course, this "established exception" would not apply to the arrest of the driver of a vehicle, which is why the Court used a cf. cite. But, it seems to me that, through this citation, the Court inadvertently showed the invalidity of the "adjoining area" holding in Buie.

Like Brennan's construction of the majority opinion in Belton, the holding in Buie "that as an incident to [an] arrest...officers c[an], as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which and attack could be immediately launched" is a fiction. When police arrest and handcuff a suspect in a room such as bedroom, that suspect cannot access certain adjoining areas that could be fifteen (or more) feet away. See, e.g., State v. Roberts, 957 S.W.2d 449 (Mo.App. W.D. 1997) (upholding an "adjoining area" search of a closet and kitchen and living room areas that were respectively seven to ten feet and fifteen feet away from the handcuffed arrestee).

Of course, the twin Chimel justifications of preventing the arrestee from accessing weapons and/or evidence were never the basis for the "adjoining area" holding in Buie. Instead, this holding was based upon the possibility of other people launching an attack on officers from adjoining areas. But if this possibility was not sufficient to uphold the Belton fiction, why should it be sufficient to uphold the Buie fiction?

Just as officers in cases such as Gant can still search the passenger compartment if Long applies, officers completing a home arrest can conduct a protective sweep of the rest of the home if there are "articulable facts which, taken together from rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene." Just as officers in cases such as Gant can still search the arrestee's vehicle if the automobile exception applies, officers completing a home arrest can search the rest of the home if they procured a search warrant in addition to an arrest warrant (or if the plain view doctrine applies, etc.).

This analysis indicates the Court should eliminate the Buie fiction for the same reasons it eliminated the Belton fiction, especially because individuals enjoy a greater expectation of privacy in their homes than they enjoy in their vehicles. Seemingly the only basis for a distinction between the two fictions is the Court's statement in Buie that

unlike an encounter on the street or along a highway, an in-home arrest puts the officer at a disadvantage of being on his adversary's 'turf.' An ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings.  

Of course, that language was used in support of the "protective sweep" portion of Buie, not the "adjoining area" portion, and this makes sense. An officer likely won't know the configuration of a home, justifying protective sweeps of other rooms based upon reasonable suspicion. But this knowledge gap does not support suspicionless searches of areas adjoining the arrest room, whose configuration is readily observable by the officers. 

Undocumented Immigrants and Loss of Parental Rights

The New York Times recently featured the stories of unauthorized immigrant mothers whose parental rights to their children have either been terminated or at risk of being terminated as a result of their incarceration in jail or detention centers.  One mother, for instance, was apprehended two years during an immigration raid of her workplace and has since been serving time in prison for identity theft. While in jail, a couple petitioned to adopt her son (to which she did not give consent) and the court approved the petition several months later without her knowledge.

This news article highlights one of the troubling consequences of increased immigration law enforcement in the U.S. on immigrant families and the communities in which they reside.  One part of the opinion is worth quoting. In terminating the woman's parental rights, the judge stated that, "[h]er lifestyle, that of smuggling herself into the country illegally and committing crimes in this country, is not a lifestyle that can provide stability for a child."  

I was perturbed by this statement and chose to include it here because it points to an area that may be explored further: the intersections between family law, criminal law and immigration law.  In recent years, a number of legal scholars have focused on exploring the relationship between family law and criminal law.  Among them are Prawfsblawg's Dan Markel and Ethan Lieb, who, along with Jennifer Collins, have authored a book and several articles addressing the role of family ties in the criminal justice system.  Jeannie Suk has examined the concept of the home and family privacy as it relates to domestic violence enforcement and the operation of the Fourth Amendment, while Melissa Murray has considered the way in which criminal law and family law work cooperatively to structure the normative contours of intimate life. 

The work that is being done in this area is incredibly interesting and timely.  As the NY Times story makes clear, the impact of regulatory systems -- whether through the criminal law, immigration law, or both -- on families will raise important questions about parental rights, privacy and our understanding of family life.  

Iowa Gay Marriage -- the Latest

The gay marriage dispute is still a big deal here in Iowa as next week approaches when such marriages can actually occur.  Some county recorders have indicated they may refuse to grant marriage licenses to gay couples despite the Iowa Supreme Court decision, and despite the fact that new official forms have already been drawn up (referring to Party A and Party B, and leaving the reference to bride or groom optional).  Apparently, the state Attorney General has threatened to discipline such recorders.  In addition, some state magistrates have said they might stop performing any weddings.  Moreover, gay marriage opponents argued that the governor should stop the ruling with an executive order, but that would not be legal.  Hopefully, whatever happens next week, any continuing debate that occurs can be civil and at least focus on real options (whether one agrees with them or not) such as a constitutional amendment, or perhaps religious exemption clauses.   

What is Quality Empirical Work, Part 2

In my previous post, I examined the difficulty of defining what quality means for the type of (observational) work that makes up much of empirical legal scholarship. Here I want to turn my attention to the problem of measuring quality even if there is an accepted definition.

This will be my last methodological post. Next week I'll turn my attention to the more legal side of the problem. That acadmics should use more rigorous methods for producing and interpreting empirical results should not be controversial. But the issue is more challenging in the legal setting, since court cases are not just about the truth. So next week I'll look at how to balance the empirical superiority of systematic reviews with the other normative goals of an adversarial legal system, and consider how (if at all) to incorporate such reviews in legal disputes.

But for now, I want to continue looking at how to define and measure quality. Again, the key challenge we face is the greater methodological complexity of observational studies. Randomization eliminates all sorts of potential confounders, so in the absence of randomization observational papers have to develop clever ways to mitigate their effect.

I want to make two points here: 

1. First, that measuring the quality of observational studies is difficult, even if there is no disagreement over what "high quality" means. 

2. Second--and perhaps more important--that this difficulty does not reflect a weakness of systematic reviews but a strength. If we cannot agree on how to measure certain quality components, that is important information for us to have--information we must have to appreciate the epistemic limits of what our models can tell us. 

The basic problem we face is the following. Most empiricists can agree on the types of confounders that pose problems, but they will often disagree about (1) whether it is present in a particular problem and/or (2) what the proper solution is to use when it is present.

Here's an example of the latter issue. (Those not interested in a technical example can jump to the next paragraph without losing anything.) All empiricists would agree that self-selection bias is often a problem. But what is the best solution? Should we require that studies use some sort of matching program like MatchIt or create a synthetic control, and in the absence of such admit that the question cannot be answered? Or is propensity score matching, despite it flaws, good enough? Or can we set the bar even lower and just require a lot of potential selection covariates?

In other words, every problem has a host of solutions, some of which may be more appropriate in some settings than others, and each with its own costs and benefits. At one level, guidelines could simply say: "Is self-selection a problem? If so, does the study address it well?" At the very least, such a guideline introduces transparency by forcing the reviewer to explicitly state her views on the paper. But it nonetheless leaves a lot to the reviewer's discretion and judgment, the very thing systematic reviews were designed to limit. 

On the other hand, guidelines that prescribe specific solutions will be harder to make, less widely applicable, and possibly too "narrow-minded" (excluding "sufficiently" good alternative approaches). But judgment is better restricted--at least at the level of applying the guidelines, though such terms demand more judgment at the time of construction.

And this is just one of the many challenges of measuring quality. I just want to briefly note some of the others:

1. How to score a particular item. Do we adopt a binary approach ("good/bad") or something more continuous (1-5). But if something more continuous, how do we decide how many points to use, and what distinguishs a 2 from a 4? Binary approaches are blunter but more objective.

2. How to score a study. Some have advocated using a single aggregate quality score that can be used to weigh studies and results by quality. But others have pointed out several flaws with such an approach, arguing instead for a component-by-component score. But if the number of components is close to the number of studies, this could prove intractable. 

3. How to empirically verify the guideline terms. As I've discussed before, this requires meta-evidence about whether particular quality terms in fact matter. In observational settings, the number of relevant quality criteria may exceed the number of studies, rendering it impossible to isolate individual effects of quality terms on the results.

4. What studies to include. Study quality will vary. Should all the studies be included but some how "weighted" to reflect quality, or should studies only above a certain line be used? And what would that line look like when using a multidimensional quality score? Like all decision rules, this is ultimately more a normative than empirical question, and one that is tied to whatever definition of quality we are using.

Thus my first point: these are not easy questions. But it is essential that we address them, though almost no work whatsoever has taken place along these lines in the social sciences.

And this segues into my second point. It is possible that empiricsts will find compelling solutions to all these problems. And if so, fantastic. But what if they cannot? Does this imply that sysmteatic reviews are impractical?

No--emphatically no. Failures to answer these questions are answers: they point us to blind spots that we must acknowledge. If knowledge comes from the synthesis of a literature, as I believe it does, then failures to agree on how to synthesize reflect "known unknowns." To turn our back on these questions because we cannot reach answers is to engage in willful blindness.

If we reach answers to these questions, our ability to produce meaningful knowledge will grow. And if we fail to reach answers, then we will have a better understanding of the limits of our knowledge, which is important knowledge in and of itself.

A Casual Casebook: The Canon of American Common Law

This summer I am planning to put together a casebook that is for leisurely reading, rather than a law-school course. My tentative title is "The Canon of American Common Law." 

It is an idea of mine that started with the thought that it would be exciting to give a special award to the first-year law student with the highest combined grade-point average in the three common law courses: Contracts, Property, and Torts. A good name would be the Holmes Award. But what would be a suitable prize? A perfect token, I thought, would be a book of the classic common-law cases. I think such a book would also be nice to have available for casual students of the law – people who would like to do some exploring in the law – but who are not looking for three years of law school.

Below is my very-rough draft table of contents, along with a list of “on the bubble” cases that are deserving, but that I might leave out to keep the size of the book manageable. I would be very grateful for your comments. Do any of the cases fail to qualify as classics? Am I grievously leaving something out? Am I close to closing in on a canonical list? Or am I way off?

Contracts:

Wood v. Boynton

Webb v. McGowin

Raffles v. Wichelhaus (The Peerless Case)

Hamer v. Sidway

Lucy v. Zehmer

Wood v. Lucy, Lady Duff-Gordon

Hawkins v. McGee

Peevyhouse v. Garland Coal & Mining Co.

Hadley v. Baxendale

Property:

Ghen v. Rich

Pierson v. Post

Brown v. Voss

Hannah v. Peel

Moore v. Regents of the University of California

Vanna White v. Samsung Electronics America, Inc.

State v. Shack

Boomer v. Atlantic Cement Co.

Torts:

Vosburg v. Putney

Garratt v. Dailey

Fisher v. Carrousel Motor Hotel, Inc.

Ploof v. Putnam

Katko v. Briney

Vincent v. Lake Erie Transportation Co. 

Byrne v. Boadle

Palsgraf v. Long Island R.R. Co.

Summers v. Tice

Tarasoff v. Regents of University of California

U.S. v. Carroll Towing Co.

Vaughan v. Menlove

Rylands v. Fletcher

Escola v. Coca-Cola Bottling Co. of Fresno

On the bubble:

Dougherty v. Salt

Taylor v. Caldwell

Brown v. Kendall

I de S et ux. v. W de S

Indiana Harbor Belt. R. Co. v. American Cyanamid Co.

Lumley v. Gye

MacPherson v. Buick Motor Co.

Stone v. Bolton

You’ll notice there are a few English cases in the mix, but they are ones that, I think, are nonetheless, classics of American common law, generally because of their entrenchment in the American 1L curriculum.

Also, you’ll notice I have not included any U.S. Supreme Court cases. That’s another casual-casebook project – but a worthy one. I plan to take that up separately.

A Consequentialist Justification for Torture?

The New York Times wonders whether history might judge the Bush Administration's repeated use of torture (including 266 applications of waterboarding on two al-Qaeda detainees) favorably if it could be shown that torture yielded high-value information that kept the U.S. safe.  The NY Times reports: "In a twist this week, Mr. Cheney, a fierce defender of secrecy as vice president, called for the release of more classified memorandums that he asserted prove the effectiveness of the coercive techniques."  

The NY Times raises the idea that a truth commission might examine this question.  Admittedly, that kind of a truth commission would differ from the understanding that transitional justice scholars have of truth commissions, or the mandates of any of the truth commissions that have operated elsewhere these past two decades.

Military interrogators generally believe that torture does not produce valuable information. Those tortured in the Spanish inquisition, after all, claimed they were in concert with the Devil, and those tortured by the Khmer Rouge confessed to being in concert with the capitalists.  Independently of the question whether the causation Cheney claims ever could be established, should violations of international criminal law be permissible based on this consequentialist logic? If so, why not extend that logic into domestic police operations? Or as an assessment of the legality of other constitutional violations?

I have long thought that the ban on torture protected not only the tortured, but also the torturer.  The humanity of the tortured and the torturer become intertwined. That, too, is a consequentialist justification, I suppose: namely, refusing to torture protects our collective humanity and dissuades another rallying tool for terrorist recruitment.

Or, perhaps, we might be better served by a return to good-old-fashioned deontology and moral imperatives. Don't torture because ... torture is wrong, point final. What sort of country discusses the possible merits of repeated, systematic acts of torture?

Colorado death-penalty vote

The Colorado House of Representatives has voted -- narrowly -- to repeal the death penalty.  According to this story, the person who cast the last and deciding vote, Rep. Ed Vigil, did so on the basis of "moral appeals he had heard, including from Archbishop Charles Chaput, the senior Roman Catholic clergyman in Colorado."  If this is true -- that is, if Rep. Vigil voted as he did because he was moved by such appeals -- then should we have any concerns (even if we welcome, as I do, the legislative repeal of capital punishment) about his vote?  (No, we should not.  But . . . why not?).

The Flex (or Variable Credit) Course in Law School: A Viable Option or Oil and Water?

Last month, I was talking to a colleague who is on my law school's curriculum committee when he raised a topic that took me back to my days as a law student: the dearth of 2-credit law school classes. He noted that a number of students had raised the concern that they only needed to add a 2-credit course to graduate or complete their dance card for a particular semester, but there were no 2-credit courses that filled the bill. This led me to remember that several fellow students raised a similar objection when I was in law school. Now, two possible responses to this objection are that: (1) it's not that big of a deal for students to take the extra credit hour, so no change needs to be made, and (2) if the proposed solution is to reduce some elective classes from 3 to 2 credit hours, that solution could constitute throwing the baby out with the bathwater because students wanting to take these classes and needing 3 credit courses could lob a similar objection. I thought, however, that a third response, the flex or variable credit course, might be a viable solution, and I wonder whether any readers have taught such a class in law school.

Now, I don't believe that the law school I attended, William & Mary, had flex or variable credit courses, but I know that the College of William & Mary does. The concept is fairly simple: At the start of class, students in a variable credit course can decide whether they want to take the course for 2 or 3 credit hours (at William & Mary, students can also take the course for 1 credit hour). Thus, students in the same class can be taking it for a different number of credit hours and be expcted to complete a different number or quality of assignments. In doing some brief internet research, I found that several colleges allow students to take flex or variable credit classes (some examples include Syracuse, Hawaii, and Oregon).

I wasn't able, however, able to find any inidcation that any law school offered flex or variable credit courses. I would guess that there are two main reasons. First, with the strict law school curve, it would be difficult to place a student taking a class for 3 credit hours on the same curve as a student taking the same class for 2 credit hours. Second, this problem could be further complicated if, as with most law school classes, the class at issue were subject to blind grading.

It seems to me, though, that for the "smaller" classes (such as seminars) that are often not subject to blind grading and the law school curve, there wouldn't be any issues with a flex or variable credit course. For instance, if I were teaching a seminar with a 25-30 page paper requirement for students taking the course for 3 credit hours, I could require a 15-20 page paper for students taking the course for 2 credit hours. Or, if I had a paper and an oral presentation requirement for 3 credit students, I could simply remove the latter requirement for 2 credit students. I could also require slightly less in the way of class participation for the 2 credit students than I require for the 3 credit students.

So, have any readers taught a flex or variable credit class in law school? How did it go? Do readers think that such a class could work in law school, either in a larger or smaller classes, or do you think that the two would go together like oil and water?  

University Bookstores and the Intellectual Life of Campus

My school, the University of North Dakota, recently declined to renew its contract with Barnes & Noble to run the campus bookstore. Instead, they’ve signed up with Follett. So we are in the midst of transferring control of the bookstore from one megalithic operator to another. This seems to me a real shame. I have nothing against B&N or Follett. I am sure they are generally very good at meeting contractual expectations while maintaining a profitable and tidy operation. But there are few things so wonderful as a bookstore that is neither tidy nor profitable.

As an undergrad at the University of Texas at Austin, I must have spent, cumulatively, at least a solid week browsing aimlessly in the cluttered aisles of our Co-op Society bookstore. They had, as one guy I talked to remembered, “every book in the world.” I recall once looking through a whole table of scholarly books on theoretical mathematics. Not that I understood any of it. But I felt very academic just leafing through. And it wasn’t just the books. There’s something inspiring about spectrum-ordered rows of art supplies. And I loved the fact that if I ever needed to pick up a scalpel, a stethoscope, or a box of 25 microscope slides, the bookstore was there for me.

Okay – if I wax any more tweedy, I’m going to make some one nauseous. I get that. But hey, I’m a law professor. I like the smell of books and coffee.

The last time I was down in Austin the bookstore had pared down to a neat little operation, renting out most of their A-list retail space to Barnes and Noble. What a bore. I hear Barnes and Noble has since left, but the old every-book-in-the-world Co-op hasn’t returned.

Watching UND switch from one mega-retailer to another, I feel like we are missing the chance to extend the university experience with a truly great bookstore.

I understand the new bookstore managers are interested in learning from the law faculty what books they ought to carry for law students. I would like to tell them to keep expanding their selection until at least half of the shelf inventory experiences no year-to-year turnover.

Hmmm. I don’t think they are going to go for that.

A Major Election, A Court, and (on another note) the Holocaust

Today is election day in South Africa.  This is significant as South Africa is an economic and military powerhouse in Africa.  The African National Congress, Mandela's party, is likely to win but it's presidential candidate, Jacob Zuma, has some "skeletons" in the closet.  He was acquitted of sexual assaut charges within the last few years, though his story of what happened is troubling.  He was also subject to corruption charges but those charges were dropped within the last few weeks because there was some evidence suggesting the charges had a political motivation.  Critics, however, claim the charges were dropped due to pressure from Zuma and supporters.

Once elected, Mr. Zuma will likely get to appoint 4 of the 11 Justices on the well regarded Constitutional Court.  Some people are concerned he may appoint political cronies or individuals who aren't the most qualified.  Indeed he has recently criticized the Constitutional Court vigorously.  But there's another problem.  The Constitutional Court issued formal accusations against an important provincial judge, and Zuma supporter, who allegedly lobbied two Constitutional Court members in the Zuma corruption matter.  The provincial judge then accused the Court of acting improperly by going public.  A special court has been appointed to resolve the matter since the Constitutional Court is essentially a party.  So there will be more fireworks to come.  Nobody, however, said democracy was always pretty and there is no doubt that the popular vote will be honored.  Zuma is also popular with a segment of the population and was a prisoner with Mandela on Robben Island.

(Addendum:  I do want to mention something connected to the posts on Holocaust Remembrance Day.  My brilliant Drake Law colleague, Professor Cathy Mansfield, has written and produced a beautiful and poignant opera about the Holocaust that was premiered here in Iowa earlier this year with an orchestra, an incredible cast of singers, etc.  It's called "The Sparks Fly Upwards."  If you want to learn more, go to www.thesparksflyupwards.org) 

What is Quality Empirical Work, Part 1

In this post, I want to start to flesh out some answers to the challenges posed by evidence based legal empirical scholarship I raised earlier, or at least examine how to go about addressing them.

The key problem we face is the methodological complexity of observational work. The appeal of the randomized clinical trial is that (at least in theory, if not always in practice) it frees the analyst from having to think about who is in the various groups. As long as a few key steps are taken--blinding the analyst to treatment status and outcome, for example--random assignment and exogenous treatment eliminate much if not all of the potential sources of bias.

This strong argument in favor of randomized trials has led groups like the Cochrane and Campbell Collaborations to classify non-randomized, observational studies as--for all intents and purposes--unreliable. It is an attitude strongly reflected in the epidemiology literature on evidence-based practices as well

But the unpleasant truth is that experimentation, or its analogs, is not always possible, for several reasons (which I made in my earlier post, but I want to expand on a bit here): 

1. A randomized trial may be politically or ethically impossible. This is, of course, a problem that toxicologists face: they cannot randomly poison some people and not others (though, as evidenced by the Tuskegee experiments, this has happened in the past). But it is also hard--though not impossible--to randomized police interventions.

2. A randomized trial may be technically impossible. RCTs are impractical for studying, say, the effect of exposure to a particular drug or chemical over ten years. Maintaining control conditions for long periods of time is simply too hard a task, even if theoretically possible.

3. A randomized trial can measure only certain effects. As Heckman and Smith demonstrate, RCTs are effective at measuring the average difference between treated and untreated groups, but not other relationships of interest, such as the variation in response.

4. People know they're being tested. Levitt and List have shown that people, sensing that they are being experimented upon, consciously adjust their behavior. As a result, experimental of behavior are harder to interpret.

5. We just don't have time to wait. Experiments often take time to conduct. If we need to know what the relationship is between x and y, and we need to know it quickly, we need observational work if no experiment has already been conducted.

As a result of these factors, it is essential to figure out how to identify and aggregate high-quality observational work rather than facially dismissing it as insufficiently rigorous. To do so is to define large swaths of important issues of public policy to the realm of "unknowable." Perhaps in the end we'll discover that this is the right thing to do, but we are not there yet, and those making this point have by no means met their burden of proof (and I believe that they bear it).

So that forces us to ask the key question: what is a high-quality observational study, and how do we measure it? In this post, I just want to point out the difficulty of the first question. In my next post, I'll turn to the second half.

At first blush, "what is quality?" appears to be a trivial question. At the very least, high-quality study is one that controls for all potential sources of bias, and does so in the most efficient (i.e., precise) way possible. But it quickly becomes clear that the triviality is ephemeral.

In particular, how do we balance the two key traits, accuracy and precision. An instrumental variable approach, for example, reduces or eliminates bias in the presence of certain defects (such as endogeneity), but does so in a way that leads to less precise estimates (larger standard errors). Should we always prioritize unbiasedness? This seems to be the view of most economists, but it need not be the best answer. After all, which is more helpful to a policy planner: an unbiased estimate of 7, with a confidence interval of -10 to 24, or a slightly biased estimate of 5, with a confidence interval of 4 to 6? 

In other words, the tradeoff between bias and efficiency is not a trivial matter, despite the general lack of attention it receives. Thus while the components of quality may be easy to define, assembling those components into a workable and measurable definition of "quality" is much harder. In fact, there is likely no one definition; instead, it will turn on the type of question being asked, the nature of the data, and how the results are intended to be used.

What is essential, then, is that we start thinking about this issue more and addressing it more explicitly in empirical work. 

This is rarely done in original studies. What is surprising is that it appears to be an overlooked issue in the literature on how to develop quality gudielines. Rather than developing a definition of quality and then deducing the standards from it, most quality guidelines simply bring together a collection of terms thought to be correlated with an inchoate sense of "quality," but likely drawn from several different, and possibly contradictory, conceptions of it. As a result, it becomes unclear what, if anything, such guidelines are measuring. And so it should come as no surprise that different guidelines reach different conclusions, given that they almost surely are implicitly measuring different things. 

It is impossible to screen for quality if we do not know what quality is. And if empiricists have not yet reached any sort of definition, how can we expect non-empiricists? At some level, this points to a gaping whole in Daubert. Daubert asks a lay judge to assess whether a result is sufficiently reliable--whether it is of sufficient quality. Yet if a judge asked me "what is a reliable study?" I could not give him a generally agreed-upon answer, and I do not think I am alone in this. I find this very disturbing.

Up next: even if we agree on a definition of quality, how do we evaluate it?

 

Live Chat on Investigating (and/or Prosecuting) Bush Administration Officials

Hi all -- Just wanted to flag that I'll be doing a live chat today at 1:30 p.m. (EDT) over at WashingtonPost.com on whether (and to what extent) Congress and/or the Obama Administration should investigate and potentially prosecute Bush Administration officials. My own views are a bit complicated, but it should be a fun discussion!

An interesting church-state anniversary

Henry VIII acceded to the throne of England 500 years ago today.

The "Seminar Exception": Is It Defensible To Remove Smaller Law School Classes From The Grading Curve?

Here's something that gets the goat of many law students: uncurved law school classes. At most law schools with grading curves, students taking classes with roughly more than 30 students will be graded according to the grading curve. Students taking classes with about 30 students or less will not be graded according to the grading curve. So, what happens in these smaller classes (usually seminars)? Well, according to Robert M. Lloyd, Hard Law Firms and Soft Law Schools, 83 N.C. L. Rev. 667, 678 n.62 (2005):

At my institution, a report showing the average grade in each course is circulated to the faculty at the end of each semester. These show the grade disparity very clearly: in Spring 2003, 14 of 18 upperclass exam-graded courses had a mean grade below 3.3, while only one of 16 paper-graded classes had a mean grade below 3.3....All of the anecdotal evidence from other law schools confirms that higher average grades in Softer courses is a universal (or near universal) phenomenon in American law schools. For example, one U.S. News top-fifty law school provided me with a semester grade report listing two seminars in which all students received A's....While some of this grade disparity is due to schools giving more grading discretion in smaller classes and non-exam-based classes, many schools have actually mandated higher mean grade ranges in "seminars." (emphasis added).

Now, this gets the goat of many law students because some 2Ls and 3Ls load up on these smaller classes, "artificially" inflate their GPAs, and end up with higher class ranks than students who outranked them after 1L year and then took mostly curved classes in their last two years. The question is whether uncurved classes are defensible. My (tentative) answer is that they are not.

It seems to me that, as Barbara Glesner Fines noted in Competition and the Curve, 65 UMKC L. Rev.879, 893-94 (1997) there are three main grounds upon which these "seminar exceptions" might be defended:

These “seminar exceptions” may be based on two rather divergent rationales:one relies on the randomness of ability, the other relies on the educational effectiveness of these classes. The first rationale exempts small classes from a curve because these classes do not provide a statistically significant sample--there is less likely to be a random distribution of ability in these classes, so we cannot expect a curve to result. Even if there is a random distribution of ability, many seminar classes allow such a degree of flexibility in the products by which students are measured (e.g. seminar papers) that we do not trust our ability to adequately differentiate student ability in these settings. The operative assumption here is that the purpose of law school is to test the ability of students to perform rather than to teach the students to perform ably.

However, given that these seminar exceptions usually do not completely eliminate the requirement of a curve, but rather increase the required means or broaden the distribution requirements, another rationale seems equally likely. This rationale accepts the legitimacy of higher grades when instructional effectiveness is higher. The rationale is well supported by educational literature. Students do truly learn better in smaller rather than larger classes. Students do learn better when they have more formative evaluation (such as rough drafts, practice arguments, etc.). Students do learn better when they have the ability to choose their topic of study (as is often the case in seminars).

In other words, smaller classes should not be curved because (1) they might not contain a random distribution of students, (2) it is difficult to distinguish students in such classes given the flexibility of grading measures; and (3) instructional effectiveness is higher.

 

There is some merit to each of these arguments, but I think that there are also some problems. With regard to argument 1, here are my thoughts. First, aren't the current policies at most law schools underinclusive? I have two examples from when I was in law school: (a) I took a moot court class in law school with the other 31 students who had made the Moot Court team, and (b) I took Federal Courts along with many other members of Law Review, Moot Court, and the top 10% of the class. Both of these classes were curved. Neither had anything close to what I would call a random distribution of students, and I doubt that they are the only examples. If law schools are worried about certain classes not having random distributions of students, shouldn't they just review the GPAs/class ranks of students in particular classes and see whether the law school curve needs to be altered or removed from that class?

 

Second, how did most law schools reach (about) 30 as the magic number where there is no longer a statistically significant sample of students? 168 students graduated in my law school class, and classes with fewer than 30 students were uncurved. Here at John Marshall, where I now teach, classes with 30 or less students are also uncurved, but the overall class size is much larger. From what I have heard, most schools cut off their curves at about the same number, regardless of their overall class sizes. How can 30 be the magic number when overall class sizes can vary by hundreds of students?

 

Third, accepting the argument that there might be random distributions of students in smaller classes, wouldn't we expect a non-insignificant number of those classes to result in mean grades below the law school mean? And yet, based upon the data compiled by Lloyd (and my own personal observations), noncurved classes almost always end up with mean grades significantly above the law school mean. It thus seems to me that the remedy of taking smaller classes off of the curve is worse than the ailment it is intended to cure.   

 

With regard to argument 2, here are my thoughts. Initially, doesn't the flexibility of grading measures help (albeit in a different way) to counterbalance the statistical significance problem mentioned above? Most "larger" law school classes contain one point of grading: the final exam. Most "smaller" law classes (at least the ones I took) had at least three points of grading (class participation, some type of presentation/oral argument, and a paper). I always feel a bit uncomfortable giving students grades on a curve based just upon the final exam. Conversely, I would imagine that I would feel much more comfortable distinguishing between students if I had several points of grading (I haven't yet taught a seminar).

 

Also a related argument to argument 2 is the argument raised by Jeffrey Evans Stake in Making the Grade: Some Principle of Comparative Grading, 52 J. Legal Educ. 583, 601 (2002):

For a class of thirty students,...forcing the scores onto a curve will be troublesome because some of the intervals will contain very few students. For classes of the size that are common in law schools and for grading scales with more than a few intervals, forcing a specific percentage of students into each interval is riskier than mandating a standard deviation because each of the intervals involves only a portion of the class, whereas the standard deviation relates to the whole class. With the whole class, small variations will average out in a way that is not likely when an interval includes only a few students.

In other words, if a professor needs to give a certain percentage of Bs (or Bs, B+s and B-s), it can be arbitrary to force the professor to make fine distinctions where intervals might contain only 1, 2, or 3 students. This seems to me to be a valid criticism, but it seems to me that the remedy is removing intervals and not removing the law school mean. In other words, if curved classes at a school require a 3.0 mean and 10% of students getting a B-, a professor in a class with 20 students shouldn't have to adhere to the 10% B- requirement, but it seems that the professor should have to adhere to the 3.0 mean requirement.

 

Finally, with regard to argument 3 here are my thoughts. First, aren't the current policies at most law schools underinclusive? I give an ungraded midterm in each of my classes. On most of my midterms, the mean grade is in the low to mid 60s (out of 100). In my Criminal Procedure I class this semester, my students blew that mean away, beating the previous high mean by over 10 points. But even if these students repeat their performance on the final, they are still stuck on the curve despite one conclusion being that instructional effectiveness was higher than (my) usual in this class (of course, another argument is that I didn't have a random distribution of students;).

 

Second, aren't the current policies at most law schools overinclusive? Sure, many "smaller" classses are popular seminars taught by terrific professors that have less than 30 students based upon an artificial cap. But, let's face it. There are also some smaller classes that have less than 30 students because, well, the professors in those classes just aren't that great. For instance, I took a 12 student criminal law seminar in law school with an AUSA who cancelled class half of the time and based students' entire grades on a 10-12 page paper (on which I believe everyone got an A or an A-).

So, what are your thoughts/experiences? Does your law school remove smaller classes from the curve, and is (about) 30 the magic number? Has your experience been that these uncurved classes typically produce mean GPAs well above the law school mean? Do you think that making these classes uncurved is defensible? Is there a middle ground that can and should be reached?

Can I Say "Hullabalooza?"

So, I'm in Moscow, hoping that I'll get over this stomach bug in time to give a series of talks about church/state matters around town on Friday.  It should be interesting, and if something comes up that seems worth sharing here, I certainly will.  My current concern, however, is this.  Since my book is called "Holy Hullabaloos," the temptation to say the word "hullabalooza" like a million times a day is quite strong.  For all those IP people out there, can I do this, or does Perry Ferrell or whoever own some sort of IP right--copyright?  trademark?  patent?  I really don't know anything at all about IP--that would stop me?  I assume that I can whisper the word "hullabalooza" to my wife in the confines of our own bedroom, of course, but what can I do beyond that?  Can I make a t-shirt that says "hullabalooza"?  Use it in a marketing campaign?  Would it change things if I added an "o" so it was "hullabaloooza"?  Or more "o"s: "hulabaloooooooooooooooooza"?  What if I instead went for the darker, more conflicted, "hullabaloser"?

In any event, if anyone's interested in reading the starred review Publisher's Weekly gave HH, you can do so here.

A Bit More Bubbie Blogging and an Amichai Poem

The funeral this afternoon was brief but powerful, a testament to a life well-lived. After the jump are some reflections I had the chance to share about my extraordinary grandmother.

Bubbie Helen was a woman of valor, and thus by our tradition, someone to be cherished especially and deeply so. But more than her valor during a life of hardship, her life was marked by its incessant buoyancy of spirit. Her life, which we celebrate and commemorate today, was audacious: for how many others do we know who only lived with joy, optimism, and gentleness despite a life in which others would find turmoil, sadness and tragedy?

 

 

Piha patchah v'chochma v'torat chesed al l'shonah

She opens her mouth in wisdom, and the lesson of kindness is on her tongue. 

 

This line from Eishes Chayil reminds me of Bubbie Helen. Someone who gained wisdom over the years through grueling encounters: leaving her parents behind in

Europe

as a teenager; an immigrant to a new country and new language; an early widow of Sam. Twenty one years as a single mother before she found her second life-partner, Maurice. Working in the shmatta business many long years, and doing so as a woman, as a mother, sister, and later a stunningly effective and loving grandmother.

 

I will leave to others the task of describing the many contributions she made to our community and our people. I have only the comparative advantage of the perspective of a grandson who was best known to her, and many in this room, for his juvenile banditry – most often launched at her expense when I was a toddler chasing her with brooms and various handheld appliances.

 

As her grandson, I remember a few things distinctly.  First, my banditry was often followed by the threat (sometimes credibly exercised, but always justly so) that a putch in tuches geht arein in kopf.  And second, the imperative: Zei a Mensch! (Also said as: “It doesn’t matter whether one’s a doctor or lawyer, the important thing is: Zei a Mensch.)

 

It’s the second instruction toward menschlichkeit that I still find most powerful and in some sense most mysterious.  Most powerful because being a mensch set a standard for conduct that was high but not impossible.  It put an end to most dither and blather. Put simply: what would a decent and thoughtful person do? If I gave that matter at hand some consideration, and applied this standard, I found I often reached a pretty good resolution to whatever squabble I had somehow embroiled myself in. 

 

But over time, and especially during my twenties, I found the instruction to be a mensch was not always a self-executing concept; I wish I had Bubbie closer to ask her guidance. In matters of love, for example, one might find oneself puzzled by the demands of menschlichkeit. Would a mensch try to make one foundering relationship last a little longer or determine that it was time to cut things off?  In other spheres I often wondered: how is a mensch supposed to respond to those who unambiguously wrong him? With proportionate retribution or with disproportionate mercy?

 

But even as I struggled with this Yiddish Yoda-like instruction, I knew that, at least with matters of courtship, the kind of person I should be with was someone that would pass muster with Bubbie Helen.  I am saddened that my beloved, and now six and a half months pregnant, wife Wendi only had a chance to see Bubbie Helen as Bubbie Helen herself was seeing the dusk of her days.  But even during the period of that dimming light, Bubbie Helen greeted us with reliable joy and ebullience -- and songs of love and hope, peoplehood and peace.

 

That is how I will remember her.  Never slavish or servile to people or conventions but duly respectful of tradition; quick to kindness, even to strangers; willing to work, toil, and mend our broken world one day and one person at a time, with song and spirit to accompany the journey even through the darkest hours. This woman called Mammele, Khashki (the diminuitive of her Hebrew name Khasia), Bubbie, Bubbles – she was a ray of bright, shining light. 

 

A great Irish poet grieved upon his mother’s death: “The space we stood around had been emptied/Into us to keep.” Into us now pour our memories of Bubbie Helen.

 

I will always love her, and be inspired and consoled by the blessings of those radiant memories.

 

I’d like to close by reading one poem from my rebbe, my poet, Yehuda Amichai—it seems like Bubbie Helen might have enjoyed this, might have even shared these words were she able to right now.

 

I, May I Rest in Peace

 

I, may I rest in peace – I, who am still living, say,

May I have peace in the rest of my life.

I want peace right now while I'm still alive.

I don't want to wait like that pious man who wished for one leg

of the golden chair of

Paradise

, I want a four-legged chair

right here, a plain wooden chair. I want the rest of my peace now.

I have lived out my life in wars of every kind: battles without

and within, close combat, face-to-face, the faces always

my own, my lover-face, my enemy-face.

Wars with the old weapons – sticks and stones, blunt axe, words,

dull ripping knife, love and hate,

and wars with newfangled weapons – machine gun, missile,

words, land mines exploding, love and hate.

I don't want to fulfill my parents' prophecy that life is war.

I want peace with all my body and all my soul.

Rest me in peace.

Acknowledging What Harvard Law Owes to Slaves

The three sheaves of wheat on the Harvard Law School coat of arms (top), derived from the family crest of Isaac Royall (bottom), may be fairly said to represent the labor of slaves.

Harvard Law School was founded with money amassed through slavery.

This is a fact that HLS, my alma mater, does not try to hide. But it is a truth that is not exactly advertised either. If you visit the “Our History” page of the law school’s website, you get a somewhat-whitewashed version of the school’s heritage. More than a third of the 311-word synopsis of HLS history reads as follows:

The Law School traces its origins to Isaac Royall, who in 1781 left land from his estate in nearby Medford to Harvard University, with the proceeds intended to "endow of a Professor of Laws at said college, or a Professor of Physics and Anatomy." Harvard took the opportunity to fund its first chair in law, and the Royall chair continues to support an HLS professor today, more than 200 years later.

In 1806, Royall’s heirs sold the rest of his estate and used the funds to establish a school of law at Harvard University. The Royall family coat-of-arms -- three stacked wheat sheaves beneath the university motto, Veritas -- was adopted as the school’s shield.

What this account omits entirely is that Isaac Royall was a slaveholder – his donated estate was built from slave labor and the slave trade.

I appreciate that the issue of how Harvard Law deals with its slave-money origins raises a set of very difficult questions. (A very thoughtful and wonderfully engaging discussion by Janet Halley, Harvard’s current Royall Chair, can be found here.)

Nonetheless, I think there is one simple question of fairness that transcends the historical, political, and social complexities: Shouldn’t HLS acknowledge Royall’s slaves as it does all other benefactors?

Surely they are benefactors. We know that the slaves were not paid the wages they were owed for their labor. So, to borrow a concept from remedies, it seems only fair that Royall’s slaves should, in retrospect, be awarded something like a constructive trust on their unremitted earnings. That trust property, having been converted to charitable contribution, leaves a residue of acknowledgement of giving. That acknowledgement is currently possessed, posthumously, by Royall. It seems only equitable to shift that res to the account of the slaves, or at least allow them to share as co-tenants.

I think it follows that, at a minimum, Harvard Law ought to acknowledge the slaves’ contributions in the school website’s historical narrative. And I think a tangible statement on campus – a wall-mounted inscription somewhere – would very much be in order. Many of the slaves’ names are known and are listed by The Royall House Association. Those individuals should be acknowledged. Using the information found on the Royall House Association’s rolls, I imagine the inscription might read as follows:

IN GRATEFUL ACKNOWLEDGEMENT OF THE INVOLUNTARY CONTRIBUTIONS OF THE SLAVES OF THE ROYALL ESTATE FOR THE FOUNDING ENDOWMENT OF HARVARD LAW SCHOOL:

HECTOR
QUACO
RUTH
NAN
CUFF
PETER JUNE
CUFFEE
PETER
FORTUNE
CAPTAIN
BLACK BETTY
ABBA
QUACOE
DIANA
JOHN
NANCY
BETTY
GEORGE
SARAH
JACOB
JEMMY
ABBA
ROBIN
COBA
WALKER
NUBA
TRACE
TOBEY
PRESENT
CATO
BARRON
NED
HOUSE PETER
ROBIN
QUAMINO
SMITH
PHILLIP
TRACE
SUE (SUSANNAH)
JONTO
OLD NEGRO MAN
SANTO
GIRL 6 YEARS OF AGE
OLD COOK
GEORGE
ABRAHAM
BETSEY
NANCY
COOPER
HAGAR
JOSEPH
MIRA
PHEBE
PLATO
STEPHY
DIANA
JOSEPH
BELINDA
JOSEPH
PRINE
PRISCILLA
BATHSHEBA
NANNY
AND OTHERS WHOSE NAMES ARE LOST

Deaths and death.

Today is officially the publication date of my new book with Ethan and Jennifer but the publisher's selection of this date is not especially auspicious so I'll share some exciting news about that later in the week. 

It's not just Hitler's birthday; weirdly enough, it's also Yom HaShoah, or Holocaust Remembrance Day. It is not always the same day--this year it's kind of flukey that they coincide. But in service to the special day, let me point you to some of the extraordinary stories over on Volokh by David Bernstein and Orin Kerr related to the Shoah.

I was supposed to be co-officiating at a Yom HaShoah remembrance this evening in Tallahassee at my local shul, but I had to withdraw because of sad news closer to home and closer to now. After a full and blessed life, my wonderful grandmother, Helen Lapidus Isakson, died at the age of 95 the other day, so I'm now in Montreal for the funeral and the beginning of the shiva period. The obituary notice appears after the jump. I'll probably have some more to share about the life of this extraordinary woman later on this week. May her memory be a blessing and inspiration as mighty as her life was.

ISAKSON, Helen (nee Lapidus). In Toronto, on Saturday, April 18, 2009, at the age of 95. Beloved wife of the late Samuel Isakson and the late Maurice Caplan, both of Montreal. Beloved mother of Robert and Carolyn Isakson of West Hartford, CT, Ruth (Isakson) and Phil Markel of Toronto. Cherished and adored grandmother of Aubrey Isakson, Loren and Yardena Isakson, Shelly Markel and Ian Freedman, Dan Markel and Wendi Adelson. Great grandmother of Michal, Ari, Roni, and Shireen. Treasured sister of Lazar Lapidus, Harry Lapidus, the late Edith Fagin and the late Esther Zvi. Helen’s devotion to her children was boundless. Widowed at 39 years of age, she dedicated her life and love to their welfare, education and spiritual well-being. She later remarried at 60 years of age to Maurice Caplan. Helen had an extensive network of friendships, all of whom were touched by her positive inspiration. She was a committed lifetime member of the Pioneer Women of Canada and Hadassah. Helen was an avid supporter of Israel and local community charities. She was President of Allure Sportswear Company from 1954-1977. The family wishes to thank Gean Evans and Dorothy Hodgson for their exceptional and compassionate care that was given to Helen, and to express their appreciation to the Baycrest staff. Funeral service from Paperman & Sons, 3888 Jean Talon St. W., on Tuesday, April 21 at 3:00 p.m. Burial at the Adath Yeshurin Congregation Section, Back River Memorial Gardens Cemetery, Berri St. Shiva at 5720 Rembrandt Ave. #301, Cote St. Luc, from 2-4 and 7-9 p.m. daily. Contributions in Helen’s memory may be made to the Baycrest Foundation, 1-800-223-2087, or to the Canadian or American Alzheimer societies. 

Congrats to Paul!!!

Paul blogged, a bit cryptically, about tenure the other day.  I figure, though, if one is facebooking about celebrating tenure with a new iPhone, then one is not worried about keeping the news close.  So . . .  congratulations to Paul!  This is wonderful (if entirely expected) news.

I hope Paul won't be embarrassed if I say -- speaking for many, I'm sure -- what a wonderful citizen-scholar he is.  I know, from his time at Notre Dame, how dedicated he is to good teaching; his academic values are strong; his scholarship is thorough, careful, honest, interesting, and important; and his public interventions -- on this blog and elsewhere -- are unfailingly civil, amiable, and open-minded.  Well done! 

More (Early) Notes re: U.S. News Rankings

The early list is out (HT: Paul Caron at TaxProf, via The Faculty Lounge, which also has info on specialty rankings).  And, to follow up on Rick's post on peer assessment:  Brian Leiter offers the 2009 'reputational' scores here.  Query whether politics (in terms of a school being viewed as liberal or conservative), if it does play a role, does so with respect to schools after the top 50--or are those schools' political leanings, if categorized as such, immaterial? 

New (better?) conference formats?

I participated on Friday and Saturday in a very rewarding and interesting event, organized by the James Madison Program in American Ideals and Institutions (sorry, Mr. Rich!), that was billed as a "consultation" on the topic, "Law and Religion:  Historical and Philosophical Perspectives."  Perhaps others are already familiar, or experienced, with this format, but it was new to me and, I thought, very successful.

Basically, the event's organizers gathered 10-ish pretty-far-along papers, and then distributed them not only to the presenters, but to an additional group of a dozen or so "discussants."  Each session involved a pretty short presentation (15 minutes) by two authors of their papers, and then an hour (or more) of very lively conversation among presenters, discussants, and attendees.

A few weeks ago, our guest-blogger Mark Kende arranged a similar program on "Law, Religion, and Constitutionalism".  Again, the event was set up to resemble a lively workshop -- lots of participation, back-and-forth, etc. -- and not the usual rubber-chicken, four-talks-on-a-panel affair. 

And, it sounds like we are seeing more and more Prawfsfest-esque,"schmooze"-type roundtable events.  All this -- i.e., a diversifying array of conference formats -- strikes me as a good thing.  Any thoughts?  Any other formats worth mentioning that people have experienced or tried?  Any downsides?

That Feeling, Revisited

I appreciated the many thoughtful comments on my earlier post regarding the CoOp symposium, and the comments on Orin's excerpt from my post on CoOp.  I assume Dan Solove's post yesterday regarding CoOp's comment practices is either coincidentally timed or that the comment policy during the symposium, which I was reacting to, is part of a larger ongoing conversation at CoOp about these issues.  Either way, the whole conversation was very interesting.  I'd like to offer a few closing thoughts, partly in response to some of my commenters and partly in response to later posts.  

One thing I want to say up-front is that, of course, none of my reactions to the symposium were personality-driven.  Nor do I have any interest in telling other blogs what they should do.  I simply found the whole complex of issues very interesting, and saw no reason why I shouldn't write about it, even critically.  At times, legal bloggers will suggest, gently or otherwise, in "confidential" back channel communications that one ought not criticize one's fellow law-bloggers in public.  The reasons for this range from professional courtesy, to politeness, to the occasional veiled threat of professional consequences.  These arguments strike me as unpersuasive, and in some cases counter-productive; I assume that any half-way virtuous scholar, if she is told not to write about something, will put that topic at the top of her agenda.  I am not saying any of this applies here.  I am saying that I thought it was worth writing about the symposium, and its relationship to the comment policies being practiced there, and saw no reason why I couldn't validly do so.  That my post, and Orin's, elicited such interesting comments rather confirms for me that it was an entirely legitimate thing to write about.  Bloggers, like all writers, should write sensitively and fairly, but they shouldn't consider other blogs off-limits.

That said, here are some thoughts.  

First, Frank Pasquale asks in the comments to my post whether, given my writing on institutional autonomy and the First Amendment, I agree that "the freedom to exclude/not have comments . . . trump[s] the right of others to participate/comment."  I do.  I don't think there is a "right" to participate in or comment on others' blogs.  In keeping with my views on institutional diversity, moreover, I think there is room for a variety of comment policies, from excluding all comments to including all to the current CoOp position, which allows comments generally but warns against trolls, invective, etc.  At the same time, I've said two other things that are relevant here.  First, I think that although the courts may not be able to undermine institutional autonomy, those institutions are still subject to informal moral and/or professional suasion, from within and without the institution.  Churches, for instance, might be entitled to immunity from certain kinds of employment suits, but that does not mean that the church's members, and the public, can't criticize them for their conduct in those cases.  In that sense, although blogs are free to shape their own comment policies, those policies are also legitimate subjects of discussion and critique, both internal and external.  Second, as I discuss in this paper, it is productive to think about the ways in which blogs, as an institution, function, and in particular the ways in which their evolving, emerging norms may differ from methods of self-regulation for other media, such as newspapers.  We don't generally have the same filtering layers -- reporters, editors, etc. -- as newspapers; what we do have is a fairly well-established norm of error-correction and dialogue through comments and linking.  That norm is, as I say, evolving, and still controverted.  But I think it is by and large a useful one, and part of the point of my post was to observe that, in my opinion at least, the CoOp symposium posts that followed this norm were stronger, more responsive, and less driven by argument by fiat than the ones that didn't.  Others may, of course, disagree.  And I should emphasize that such a view is entirely consistent with the comments policy Dan Solove posted yesterday, depending perhaps on how it is administered.

Second, I commend to readers of the symposium the somewhat late post at CoOp by David Post.  David writes, with respect to some of the symposium posts, of his surprise that "the values of free expression seem to have so little purchase within this community of intelligent, thoughtful, and reasonable people. . . . Reading the various comments, one gets an impression of a First Amendment that is more, but not much more, than a nuisance standing in the way of progressive social legislation."  I share this impression, which to me is reinforced by a commenter on his post, who disdains the "libertarian fantasy of the First Amendment" and asserts (correctly or not) about Danielle's article that a counter-speech remedy to disturbing or offensive speech, which is what the commenter is referring to when he uses the word "fantasy," is "the last thing . . . she would support."  All of this reminds me of the free speech battles of the 1990s, in which writers assumed that any champion of the First Amendment was blind to the costs of a free speech regime, told a dramatic narrative about those costs and demanded regulation to address them, and then discounted any free speech arguments to the contrary as fantastic, and their opponents as tools of the extant regime.  These were the discussions in which liberty was endlessly pitted against equality.  They were unproductive discussions, in my view.  I would suggest that we ought not revive them; I would also suggest that, to the extent that some of the posts in the symposium did echo this approach, this suggests that, maybe, not much is added to the ongoing discussion on this issue by adding the words "cyber" or "civil rights."  I don't want to caricature the posts; most of them at least acknowledged speech values, and sometimes much more than that, although a number of them did treat First Amendment arguments with a certain amount of disdain.  I simply want to lend my voice to David Post's in suggesting that perhaps those competing values were not given a full enough treatment by some posters, and that it is unproductive simply to assert that equality trumps liberty.

Finally, my sense throughout was that there was a relationship between the comment policy and the substance of the arguments.  I've already written about that and won't reprise it here.  Let me instead follow that same argument to suggest some of the potential weaknesses of the argument, which was voiced by several posters and commenters, that the contribution of talking in terms of "civil rights" is its expressive value.  I don't oppose expressivist arguments as such, but I think the way these arguments were made in the symposium tends to suggest a problem with those arguments.  What expressive value a law has is entirely contestable, and those questions can't be resolved except through debate; one cannot simply assert that some law has an expressive value, defined in a particular way.  Thus, asserting the expressive value of a law simply shifts the normative debate to a different level; it doesn't resolve it, and the discussion is no more likely to be productive because it is conducted at the meta-level of expressivism.  It seems to me that, consciously or not, this was one way in which the no-comment policy fed into the substance; if one wants a law to have an expressive value, one may want to assert that it does loudly enough to make it so, and in those cases the writer may not want to brook opposition by those who think a law has a different expressive value or none at all.  To the extent that law's expressive value is constructed by its audience, those who argue in favor of a particular expressive value may want to act as if that expressive value is uncontestable, and thus won't want commenters suggesting otherwise, or will want to treat their opponents as being fundamentally wrong or misguided.  I don't think that approach can or should succeed; and again, because I think the expressive values of a law are contestable, I'm not sure whether simply asserting that something is a "civil rights" issue resolves any of the underlying debates.

Again, I thought the symposium was well worth reading, comments or no; and none of this is directed personally at CoOp or any of the posters.  But I do think that the form of the symposium intersected in interesting ways with its substance, and that these intersections suggest questions that some of the symposiasts might want to consider further.  Comments, as always, are welcome....     

U.S. News and "assessments"

I know we're not supposed to take notice of the U.S. News rankings (ed.:  so don't!), but . . . I continue to be struck by the facts that (a) very few of the "top 50" schools (only UCLA and USC, it appears) have "peer assessment" scores that are *higher* than their lawyers / judges score, (b) the schools with the largest gap between peer assessments and lawyer-judge assessments seem to be ones that are often said, with varying degrees of accuracy, to be "conservative" (e.g., George Mason, Brigham Young, Notre Dame), and (c), with very few exceptions, the peer-assessment number is so sticky.  (I realize I am treading very close to "sour grapes" ground, but the steadiness of my own school's number, assuming it is supposed to reflect a judgment about the faculty and their scholarly productivity, is unwarranted by the facts.) (ed.:  so quit whining, and get back to writing!) 

A Modest Proposal Regarding Blind Grading

Why does blind grading rule the roost in law school? (Even Justice Stevens noted, in McIntyre v Ohio Elections Com'n, 514 U.S. 334, 342 n.5 (1995), that the practice of grading law school examinations "blindly" is "now-pervasive."). The most common rationale that I have heard is that "blind grading is meant to ensure, at least in part, that a student's actual performance on the exam, and not any improper influence, is the exclusive factor in determining her final score." Meredith Hattendorf, Comment, Theoretical Splits and Consistent Results on Anonymous Political Speech: Majors v. Abell and  ACLU of Nevada v. Heller, 50 St. Louis U. L.J. 925, 927 n.13 (2006).

Fair enough, but why is blind grading not nearly so prevalent at colleges and most other graduate schools? Is the implication that blind grading was introduced based upon the proposition that law professors were less able to remain unbiased during the grading process than other teachers? Well, historically, the answer is apparently, "yes," but not in the way that I expected. In One Law: The Role of Legal Education in the Opening of the Legal Profession Since 1776, 44 Fla. L. Rev. 501 (1992), Paul Carrington tracks the creation of special admissions programs for minority students in the mid-1960s. He then notes that "[t]o protect against concerns of favoritism for students specially admitted, most schools adopted some form of blind grading."  

 

So, it seems as if the main reason cited in support of blind grading is not (really) the same reason that it was created. And it seems to me that there are many possible problems with blind grading, with the foremost being (my belief) that it reinforces the one final exam to rule them all mentality. Of course, there are also many benefits to blind grading, not the least of which is the assurance it gives to students that they are being treated fairly (although it seems as if many students believe that blind grading is a myth). Moreover, regardless of the pros and cons of blind grading, it seems that blind grading has become embedded in routine law school practice to the point where it has become part of our law school culture. Well, 1L culture, anyway.

But, what about upper level classes, and especially electives and/or classes taught by more than one professor? Shouldn't professors teaching these classes have the option to chose blind or non-blind grading in the same way that they can decide issues such as whether to give an in-class or take-home-exam or an open book or closed book exam? Sure, many students would not want to take a non-blind graded class, but they could simply decide not to take the class just as students averse to closed book exams can now choose not to take classes with professors who give such exams. Conversely, I imagine that there are many students who would prefer classes where they could be evaluated based upon their performance over the entire semester and not simply their performance on one exam at the end of the semester. Indeed, many of these students already do so by chosing to take many seminars or other "paper" classes where grading is not "blind."

So, what do readers think? Should professors teaching upper level classes have the option of making their classes non-blind graded, or is blind grading different and thus something that should be required in every (non seminar/paper) class? If given the option, would you engage in non-blind grading, or do you prefer the blind grading approach? 

State action and the Yankees lawsuit

In writing and speaking about fans' speech rights, the speech part always has seemed, to me, easy--of course someone can wear a t-shirt reading "Yankees Suck" and of course someone can jeer a player for making an error. And of course someone cannot be compelled to participate in a patriotic ritual such as singing "God Bless America." The harder part (at least at professional sporting events) has been whether the First Amendment is even in play when the controlling actor--the teams--are not obviously state actors. The lawsuit by the fan who was kicked out of Yankee Stadium in 2008 spends a lot of time in the Complaint trying to deal with, and overcome, that problem.

Two preliminary issues make this case both easier and more difficult than others. First, old Yankee Stadium was owned by the City of New York (the Complaint alleges the City bought it in the early 1970s) and rented to the Yankees, on (as usual) fairly favorable terms. This does not resolve the issue, but it makes for less gray area than if the stadium were privately owned but publicly funded or owned by hybrid entity. Second, this case involves three groups of defendants, each subject to different rules of state action and liability: a) the Yankees, who promulgated the forced-patriotism policy); b) the officers who removed the plaintiff from the park; and c) New York and Police Commissioner Kelly, who obviously acted under color of law, although the theory of liability is not entirely clear from the complaint.

Let's consider each in turn:

The Yankees:

Eight paragraphs are devoted to the connections among the City, the Yankees, and the Stadium. It describes the costs that the City has incurred in operating the old Stadium and building the new Stadium, the benefits the City has received (in terms of either rent or percentage of revenues), the favorable terms of the lease to the Yankees, and the close involvement of the City in managing the stadium, including (relevant here, although not mentioned in the Complaint) providing the security that enforced the policy, and in helping procure funds for the new stadium. All of this goes towards establishing the Yankees as a state actor under two theories: symbiotic relationship or entwinement.

Under the former test, a private entity may become a state actor when it shares a "symbiotic," mutually beneficial relationship--where the government incurs some costs and obligations, the government and private entity both benefit, and the "integral connection" suggest a degree of state involvement in the private entity's unconstitutional conduct. The key here is whether Burton and symbiotic relationship has any vitality left (Mike Dorf has suggested it doesn't, I remain somewhat optimistic). Burton famously involved a privately owned whites-only restaurant operating in a city parking facility. In those pre-Civil Rights Act days, the Court used this test to hold that the restaurant was was violating the Fourteenth Amendment, because, essentially, the city was benefiting from private discrimination (because rents were tied to profits and the restaurant was profitable because it discriminated) and the restaurant was benefiting from using public property to discriminate. Here, those mutual benefits come about not because of race discrimination, but because of rules that arguably violate the First Amendment--but the same idea applies. Rents are tied to attendance and attendance depends (at least somewhat) on keeping most fans happy by not forcing them to be confronted by counter-speech that offends them, thus the team's decision to limit some fan speech by making fans remain in place during GBA

Under the second test (which is new, but created in the First Amendment context), courts look to entwinement between government and private entity in carrying out the conduct. So it may be relevant, for example, that uniformed police officers (who appear to be on duty) are enforcing the Yankees' rules in this public space (more on that below).

The Officers

The two Doe officers were in uniform, although their precise duty status is unclear. According to the Complaint, they were hired through the NYPD's "Paid Detail Program," through which private entities (and several other New York sports teams have used this program) are able to hire NYPD officers to provide security at events. Such officers are in uniform and carrying their service firearms, and subject to NYPD regulations, although there apparently are no specific guidelines about officer conduct while working under the program. The officers also are subject to control by the private entity and are deemed to be "working directly for the vendor." So there seems to be public/private entwinement in the supervision and control of the officers assigned to work the game.

The Complaint also alleges that the officers at least "appear" to be on duty and thus clothed with the authority that comes with being police officers, perhaps a greater authority (and thus a greater ability to enforce Stadium rules) than an off-duty, non-uniformed officer or a private security officer. In fact, the Complaint alleges that the purpose of the Paid Detail Program is to provide a "highly visible police presence" at such events--presumably with the goal of ensuring greater control; in other words, to make it appear that the authority of the NYPD was behind the enforcement of the team's speech-restrictive policies. That suggests the officers were working at the game in their roles as police officers and thus did act under color of law in removing the plaintiff from the park.

New York City and Commissioner Kelly

State action is easy here--New York City always acts under color of law and Kelly is being sued for establishing (or at least signing off on) the Paid Detail Program that put the officers in place to enforce this speech-violative Stadium policy, an official act as the policymaker for the NYPD. The Complaint is a bit under-developed in alleging conduct by the City or Kelly (as a supervisor) that could establish liability, but a knowledgeable reader (the court and opposing counsel) will understand that, because the officers were present at the Stadium and acting pursuant to a policy, that pulls the policymaker and the City into the case.

Weekend Trivia Challenge: The Only State Without a Law School

Which is the only American state without an ABA-accredited law school?

Answer below the fold ...

Alaska

Here's a bonus question: Which law school publishes the Alaska Law Review, a publication sanctioned by the Alaska Bar Association?

The answer is here.

Stimulus Blogging III: Conditional Grants & the Tenth Amendment

Legal controversy over ARRA, the stimulus legislation, continues.  This week, a student in South Carolina filed an original petition in the South Carolina Supreme Court, seeking a declaration that the legislature could act to apply for more than $700 million in funds for S.C. education that the Governor has refused to request.  Last time I posted, I argued that under ordinary principles of statutory interpretation, the statute can plausibly be read to permit legislatures to "apply" for education funds, and almost certainly to apply for federal unemployment subsidies.  But, as I noted, the Congressional Research Service thinks that the statute should not be read that way, in order to avoid the 10th-Amendment question that, according to CRS, would be posed otherwise.  (The South Carolina AG also suggested this argument in a footnote to their memo on the question).

CRS (and, to the extent he takes this position, the SCAG) is off-base on this one, I think.

Although the 10th Amendment bars Congress from "conscripting" state non-judicial officers, a conditional offer of funds is not conscription.  The Supreme Court has said as much repeatedly, most notably in South Dakota v. Dole and New York v. United States.  (As an aside, I've argued, drawing on the work of Rick Hills and others, that the best explanation for that combination of rules is that it forces Congress to internalize the costs of enacting and enforcing legislation.)  So, ARRA is a conditional offer.  Where's the conscription?

CRS's argument, as I understand it, is that allowing the legislature to "apply" in place of the governor would be, in effect, allowing Congress to enlist the state's legislature to conscript its governor.  That's, um, a strange argument.  For one, if the legislature applies itself, it isn't forcing the governor to do anything; in fact, it's acting without the governor at all.  (Although para. 42 of the S.C. complaint also asks the Court to hold in the alternative that the legislature can force the Governor to apply.)  For another, there's nothing at all unusual about a decision by some state officials that binds other state officials.  No one would argue that a joint decision by governor and legislature to accept federal funds is a prohibited "conscription" because it also binds inferior state officers, such as the Secretary of Education. 

I think the conceptual problem that trips up CRS is the potential puzzle over what the federal-law consequences should be if state law does not ordinarily authorize the actor specified by federal law to bind other state officials.  So, in Jack Balkin's example, what if a federal statute says that the capital-house janitor can accept federal funds?  Are the conditions attached to those funds binding on the state? Or, more realistically, what if the state treasurer, a person with no real policy authority, cashes a $700 million federal check?  Is the state now bound, at least by estoppel, to follow the accompanying federal terms? 

These are interesting questions (and I've addressed them in depth elsewhere), but at this point they have nothing to do with the stimulus.  Even unelected state officials, such as state Secretaries of Education, routinely accept federal money in ways that bind states, and no one has ever suggested that these decisions would so undermine federalism norms that they should be problematic under the 10th amendment.  Hard to see how, if these are fine, a decision by an entire state legislature would be a problem.  Plus, the question for now is -- can the feds cut the check?  Also hard to see how disbursing money is conscripting anyone to do anything.   

--Brian Galle

Reaction to Thomas among some FIU faculty

Not surprised this is happening: The director of women's studies at FIU is organizing protests against the hiring of Isiah Thomas as men's basketball coach, relating to Thomas having been found liable (along with the Knicks and the team owner) for the sexual harassment of a Knicks employee.

I was surprised we did not hear more from these faculty members early in the week, from when the rumors of the hiring began on Sunday until the press conference on Wednesday. But it all happened so quickly, no one had time to get a statement or protest organized. But this is a legitimate objection to the hiring, one I mentioned initially and one that I hope gave the administration genuine pause before making this move. This is the one element of risk (more than Thomas' ability as a basketball coach and recruiter, where he cannot be much worse than recent past coaches) that could come back to bite the university.

Women's studies is planning to hand-deliver a copy of the FIU Sexual Harassment Policy to Thomas at the men's basketball office--a cute, but somewhat in-your-face, publicity stunt if the goal is genuinely to engage Thomas on this issue. They also want to organize a teach-in on sexual harassment and discrimination, with the hope that Thomas, athletics department administrators, and the new FIU president (who will be announced in a couple of weeks) will participate.

Update:

In an e-mail interview with The Daily Advertiser of Lafayette, LA (Louisiana-Lafayette is a member of the Sun Belt Conference), the director (a philosophy professor named Laurie Shrage) said that she had received "enthusiastic" responses to her comments in The Times (discussed above), that university administrators had assured her that Thomas would have to undergo the same training on sexual-harassment policy as all other high-level executives and supervisors, and that HR was planning several events beginning in the fall on sexual harassment, apparently in response to an extensive expression of opposition from some quarters to the hire. Of course, the cynic in me reads these comments as HR trying to stop faculty from making noise.

Here is an interesting detail, though. Shrage also said she was abandoning the plan to hand-deliver the sexual-harassment policy because some HR folks had expressed concern that the action (what I earlier referred to as "stunt") could "escalate into a confrontation that might violate Thomas’s right to work in an environment free of hostility." This does not seem right to me. No one has a baseline right to a pleasant work environment (if they did, many faculty members would be out of jobs) other than over certain issues (sex, race, etc.). And "person liable for past sexual harassment" is not a protected class. So I do not see how criticizing Thomas for his past harassment, while certainly unwelcoming, somehow violates Thomas' legal rights. What am I missing here?

Three Strikes, but Safe

Just before Easter, French lawmakers declined to approve an Internet piracy legislation that would have been arguably the most far-reaching law of its kind.  Championed by leaders of the film and music industries (similar steps are being explored in the U.S.) as well as President Sarkozy, the law sought to diminish the illegal downloading of movies and songs via stringent, expansive measures that would limit and eventually terminate the Internet access privileges of repeat offenders for up to one year.  Although the law failed to pass, 21-15, the fight is not over; the law will be up before the Parliament again before the end of the month.  Its provisions are worth examining, not only because the “experiment” they present is perhaps “worth" the backlash, failure, or other risks; the law, to borrow a phrase from Justice Blackmun, launches a missile to kill a mouse--and I'm not sure the mouse would be, at the end, anything more than mostly dead (which, as we know, is slightly alive).

Although the three strikes component of the proposed law (first instance of illegal downloading gets the offender an emailed warning; second instance, a registered letter; the third time, the offender is denied Internet access for a period of three to 12 months) is its heart, what I find particularly interesting are the concurrent provisions which seem to strive to ensure that the offending parties are prohibited from circumventing the ban on their access.  In addition to a ‘blacklist’ that would prevent disconnected users from shopping for alternate ISPs, the proposed law includes a measure which would limit public wi-fi access to a prescribed 'white list' of permissible sites, and requires wireless subscribers to secure their connections--no more feeding off of one's neighbor's signal.

Even if reasonable minds might differ as to the wisdom, propriety or, in the U.S., constitutionality (in terms of, for example, overbreadth) of these provisions--particularly the 'white list' measure--it seems to me that the parameters set up with the law are misguided.  For one thing, capturing the actual downloader is elusive.  For another, persons who want to download materials from others and/or who believe they have the right to disseminate material they've acquired are going to find a way to do so.  When OiNK was shut down, new sites cropped up to serve its users.  Of course, this could mean that the proposed law's provisions are not stringent enough to create the hoped-for disincentive (the law it was meant to replace provided for prison time; with the new decision concerning Pirate Bay's operators, that specter might have a stronger effect, as I'll discuss in a subsequent post).  But rather than play this game, lawmakers and the industry they are supporting with these laws should consider the collateral damage of legislation like this.  If the law passes in round two, what message does that send?  What inadvertent silencing is taking place? And for the industry, how long will they cling to a failing business model, hoping legislation will prop them up yet again?

On Research Agendas

Sparked by a form he must fill out for research purposes, Eric asks sound questions about a common subject: research agendas.  As one of his commenters suggests, Eric may be reading too much significance into the question; it may just be a symptom of creeping form-itis.  But these issues are always worth raising.

I have written a fairly eclectic range of scholarship.  That having been said, I find more and more that my work tends to group itself into two or three general "agenda" topics.  They may be fairly broad or fairly narrow.  Each one tends to give rise to several projects.  And, of course, a topic may drop out, or play out, over time and be replaced by a new topic.  Even so, within these groupings there's more than enough room for eclecticism.

Is that too constraining, even so?  Perhaps, but like many or most such constraints, it's a valuable constraint.  I don't need to channel Jed Rubenfeld to agree that we tend to live out our commitments over time, and that these commitments are enriched by our tending to stick with them.  For the scholar, one thing they bring is efficiency; every junior scholar discovers at some point that it can be tiring to reinvent the wheel with every piece, and certainly it's nice, the more you know about a subject, that you spend less time on basics and throat-clearing, both in terms of research and in terms of writing (those bloated Parts One or Two of law review essays that we're all familiar with, which might as well be titled "Experienced Scholars May Skip This Section," but which we need to write at first in order to familiarize ourselves with the subject).  These commitments also bring synergy and depth to one's work.  One may even hope over time that they will bring wisdom.  And, like other such constraints, from marriage to constitutionalism, the constraint of a scholarly commitment to a particular general topic can bring contentment and a sense of meaningful growth within a somewhat bounded area.

None of that is to gainsay the joys of having a broadly eclectic set of interests.  Consider Posner!  But even he tends to develop a new interest over a series of articles or books, and this obviously has not unduly limited him in the subjects within his reach.  

I provided a research agenda to schools when I went on the market.  I don't know whether it impressed them or not, although I like to see them from job candidates, in part because I know that such a scholar is going to be self-starting and will generate ideas and pieces for some time.  A good agenda also convinces me that the candidate isn't just engaging in law practice part two; that is, although a candidate may be working through problems that interested him or her in practice, a meaningful and (somewhat) unified agenda suggests that the work won't run out once that person's recollections of practice run out.  And I advise junior scholars and job candidates to have such an agenda.  I tell them that they needn't stick to it.  It's not the Bible.  But even the act of writing out such an agenda, whether at the job market stage or (maybe especially!) mid-career, helps to flesh out one's ideas and give a sense of projects that will demand the best of one's scholarly spirit over a period of years.  

Finally, I tell people who are developing an agenda that there is not one approach to doing so.  Agendas can be shaped in various ways.  One might develop a research agenda in a subject area; one might develop a theory, which needs both fleshing out and a series of applications, in one field or several; or one might be interested in a particular method (say, empirical work), and then use that method as a tool and apply it to a variety of questions or subjects.  (Cf. Ian Ayres.)  All of these are acceptable ways of forming an agenda, and all of them give rise to different forms of potential eclecticism, whether it's using various methods to examine problems in contract law or using one method to examine various fields of private law.  

Whatever approach you take, I think there is much value in the scholarly life in making and following through on intellectual commitments.  And I find that it's true what they say; as I hit mid-career, or at least as I reach the end of the beginning of my scholarly career, I find that I now am much more intellectually fertile than I was, and more capable of sustaining and completing multiple projects, because of both the work that has come before and the fact that this work has been grouped, however loosely, into particular sets of commitments.  Of course, agendas are always ripe for reassessment; as I said, I think mid-career scholars ought to make this a part of their career plan, and leaves and sabbatical years may be an especially good time to do so.  But I think that my current scholarly life is all the richer for being forged out of particular temporally extended commitments.