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Monday, August 31, 2009

Confusing Fed Courts doctrine, same-sex marriage, and DOMA

Arthur Bruno Smelt and Christopher David Hammer are a couple living in Orange County, California who have spent a big chunk of this decade trying to be the Mildred and Richard Loving of the same-sex marriage movement.

After applying for (and being denied) a California marriage license back in 2004 or 2005, Smelt and Hammer filed suit in federal court, challenging the constitutionality of the denial of the license, as well as the constitutional validity of the Defense of Marriage Act ("DOMA"). The Ninth Circuit ultimately affirmed the district court decision to abstain from the challenge to state law on Pullman grounds, deferring to then-pending state constitutional challenge to California's one-man/one-woman definition of marriage (what became the California Supreme Court's 2008 decision striking-down the state definition of marriage, subsequently overridden by Proposition 8, which was upheld by the court in the face of a state constitutional challeneg). The court also held that Hammer and Smelt lacked standing to challenge the non-recognition provisions of DOMA.

In the interim between the 2008 decision and enactment of Prop 8, Smelt and Hammer were married (and California still recognizes that marriage as valid). They then brought a constitutional challenge in California state court to DOMA and to the failure of the entire United States to eliminate distinctions as to who can marry. Named defendants were the United States of America, the State of California, Does 1-1000 (I have not found the complaint, so I am not sure who those are). The United States removed the action to federal court under 28 U.S.C. § 1442 (removal by the United States). The U.S. then moved to dismiss for lack of subject matter jurisdiction--arguing that the United States could not have been sued in state court in California because of sovereign immunity and the federal court's derivative jurisdiction after removal is the same as the state court's original jurisdiction. Last week, the district court agreed.

I am thoroughly confused by a number of decisions that Smelt, Hammer, and their lawyers (I assume there are lawyers; the district court opinion does not indicate that they are acting pro se) have made. From the outside looking in, they appear desperate to go it alone and to be heroes on this issue. But their strategic choices have been bizarre and have reflected ignorance of core Fed Courts doctrine.

1) Two things must happen for anyone to have standing to challenge DOMA: a) They must be married and b) They must try to do something that triggers the (allegedly) discriminatory limits of DOMA--namely, either attempting to gain federal benefits as a married couple or to have their marriage recognized in another state. Smelt and Hammer never have tried to do either of those things, as far as I can tell (either before they were married or since they have been married), so I am not sure why their lawyers continue to believe they could be successful in challenging DOMA this way, given existing standing doctrine.

2) Why did they sue the United States? If their lawyers went to law school (and took Fed Courts or Civil Rights), they should know you cannot sue the United States for constitutional violations. You must sue responsible executive officers.

3) For that matter, why did they go to state court, knowing that any federal defendant would simply remove? And any federal constitutional claim would be a basis for removal.

4) Last week's disposition of the case turned on the unique removal doctrine of derivative jurisdiction, under which the federal court to which a case is removed lacks jurisdiction if the original court lacked jurisdiction. That doctrine has been statutorily overridden in general removal cases, but not in federal-government or federal-officer removal cases such as this one. I am not entirely sure the benefits of the government's strategy of removing-then-dismissing, rather than just dismissing; maybe because the appeal now is in the federal system. Still, this case just seems so obviously defective, no strategy can go wrong.

5) At some level, I think Smelt and Hammer still are reeling from being screwed in the first instance. As I have argued, Pullman abstention was unwarranted in the first case because the federal court deferred to state law litigation of issues under parallel state constitutional provisions (equal protection and due process). But there is no rule (and should not be any rule) requiring a plaintiff to exhaust state constitutional arguments before moving to federal constitutional arguments where parallel substantive rights are at issue. They should have been able to go forward on their original constitutional challenge to the denial of a marriage license.

6) A bit of patience, strategy, and knowledge of the doctrines could permit Smelt and Hammer to move forward in a real challenge to parts of DOMA. They need to apply for some federal benefits as a married couple (social security, whatever); have those benefits denied because; then sue the responsible federal officer who denied those benefits (not the United States), arguing the unconstitutionality of that portion of DOMA that defines marriage as between one man and one woman for federal law and federal programs, which likely was the cause of the denial of benefits.

7) It will be tougher to challenge the state-recognition provision of DOMA, just because of how the provision is written and its limited function beyond symbolism. It provides that no state is required to recognize an otherwise-valid same-sex marriage from another state; it kicks-in to justify the decision of one state to decline to recognize a another state's same-sex marriage. But states do not need DOMA to decline to recognize that out-of-state marriage; the Full Faith and Credit Clause has recognized a public-policy exception to recognition of foreign judgments. So even a federal court willing to say that, say, Utah acted unconstitutionally in failing to recognize the Smelt/Hammer California marriage could do so without having to touch DOMA, depending on the arguments the state made.

8) Ironically, Smelt and Hammer have run against a preference for big group impact litigation of constitutional issues. This partially explains the stretch to use Pullman in the first case--the court could avoid litigating this individual claim in deference to major impact litigation over the issue as a whole brought by knowledgeable cause lawyers. Thus, if Davoid Boies and Ted Olson go forward in litigating their intended federal constitutional challenge to same-sex marriage, we might see the court hearing any case by Smelt and Hammer to defer to the larger, group litigation. Despite the insistence (especially recently) on a return to the individual model of litigation and away from cause-oriented litigation, courts still seem aware of cause-centered cases and the completeness and expertise that goes into those cases. Similarly, I imagine leaders in the SSM movement have not been thrilled with Smelt's and Hammer's continued litigiousness, particularly given its incompetence.

Update, Tuesday:

My timing was good, because this has been a big week for DOMA discussions.

First, as noted in the comments, the National Law Journal had a story yesterday about a challenge to DOMA that just might work, brought by several people in Massachusetts who already have applied for, and been denied, some federal benefits (health insurance, disability, survivors' benefits) that ordinarily are available to married persons. No standing problems; no naming-the-wrong-defendant problems. And it might have legs. Mike Dorf also commented on a parallel challenge to DOMA, brought by the Massachusetts attorney general.

Second, Hillel Levin has a new paper on the conflicts-of-laws issues underlying same-sex marriage, which states are going to have to wrestle with, with or without DOMA.

Third, an interesting Fed Courts thought experiment: The plaintiffs in the Massachusetts case actually sought and were denied benefits. But at what point might they have been able to get into court? If they could have alleged a present intent to seek benefits or to claim marital status on their 2010 tax returns, would that have been enough to establish standing and to create a ripe controversy? Ordinarily, yes, a plaintiff can bring such an anticipatory, pre-enforcement challenge to an existing law, on a showing of specific intent to engage in conduct that triggers the unconstitutional law so as to satisfy standing.

But the right to do this (as discussed in Ex Parte Young) often is premised on the idea that the alternative is to wait for the law to be enforced, often through criminal prosecution and the risk of imprisonment, pretty big risks to take. So the pre-enforcement challenge allows persons to pursue the constitutional issue with less risk. But here, there is no risk of criminal punishment. The ability to trigger enforcement of DOMA rests entirely with the would-be challenger to the law--all he must do is request those benefits and have them denied. So would the courts have accepted an anticipatory challenge in this type of case?

Posted by Howard Wasserman on August 31, 2009 at 08:30 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (6) | TrackBack

Saturday, August 29, 2009

Garrido, Parole, and the Criminological Fallacy

Police and parole authorities in Northern California are wracked with guilt and self doubt today as they struggle to understand and explain how a registered sex offender who had been on continuous federal and then state parole for decades could have kept a girl he kidnapped in 1991, and later the two daughters she bore him in captivity, undiscovered for 18 years.  The horrifying saga began when eleven year old Jaycee Dugard was dragged into a car from a Lake Tahoe school bus stop in 1991 (as her stepfather watched helplessly from their hill top home a block away).  Garrido apparently brought her to his Antioch, California house, where he kept her, secreted in a walled off section of his heavily treed backyard in the semi-rural neighborhood 25 miles or so from San Francisco (an area recently known for methamphetamine and foreclosures).  As

Posted by Jonathan Simon on August 29, 2009 at 11:36 AM | Permalink | Comments (5) | TrackBack

Thursday, August 27, 2009

Statistics Problems

During my recent years back at Berkeley and especially the last five as Associate Dean for the Jurisprudence and Social Policy program, I have been struck by the surging interest in quantitative methods among the rising generation of sociolegal students.  The contrast could not have been greater with my own generation of graduate students in the 1980s.  I can remember few in my cohort who were excited about developing a strong quantitative tool kit.  It was not because the JSP faculty lacked scholars with quantitative interests.   Indeed, JSP had recently hired Dan Rubinfeld  away from Michigan. Dan, a superb empirical economist and coauthor of the leading econometrics textbook in the country, understood that few of us in his required quantitative methods class would have volunteered to be there.  Thanks to Dan my dissertation included logistic regressions of parole revocation decision making (and to this day I can still explain multicolinearity to the amusement of my friends) but I was busy turning myself into a post-structuralist analyst of the contemporary social control institutions and couldn't be bothered with an advanced class.  In the last three years we have added two new superb quantitative scholars to the JSP faculty, Justin McCrary (another loss to Michigan) and Kevin Quinn (taken from Harvard, who is so new we haven't put him on the website yet) so we offer both a basic quantitative methods course dedicated to legal studies and an emerging series of advanced seminars.  But becoming really good in quantitative methods means taking not one or two classes, but sequences of courses through multiple years.  How do you make that work while you are developing a deep substantive knowledge about law and working knowledge of  at least three disciplinary literatures (one well enough to pass a qualifying exam)?  Can our best quantitative students hope to compete with those graduating in Economics, Political Science and Sociology who can silo themselves off?

Time will tell.  The first goal in any research career should be becoming really excellent at the research  tools which you will use, whatever those tools are. So our quantitative students should push me as far as they need to make sure they can get access to those courses and summer programs they need to get the best tools.  But the intellectual quality of their research, and especially their dissertation, is going to depend a lot on the the interpretive traditions they have been exposed to and their own ability to be reflexive about them.  So I will push back to make sure they work through the breadth demands of our program.  Ironically it would have been easier in my day when it was no shame to take a decade (or so) to get through graduate school,but students today for a variety of reasons are driven to move through much faster.  How can it work?  What has to give to compete against siloed PhDs?  Part of the difference can be made up cutting back on the intellectual filler that all traditional disciplines put in their curriculum to make sure your thought remains within the channels that define that discipline, and to cause you to react allergically when you confront antibodies generated by alien disciplines. 

Posted by Jonathan Simon on August 27, 2009 at 12:04 PM | Permalink | Comments (0) | TrackBack

The Libel Tourist is dead

Khalid bin Mahfouz, a Saudi citizen who brought several defamation lawsuits in Great Britain against United States writers and publishers who accused him of supporting and funding terrorism, has died at 60. (H/T: Greg Wallach of FIU College of Law).

Most recently (and famously), bin Mahfouz won a $200,000 default judgment against American journalist Rachel Ehrenfeld for her book Funding Evil: How Terrorism Is Financed — and How to Stop It. Ehrenfeld fought back by trying to get a federal injunction against U.S. enforcement of that judgment, which failed for jurisdictional reasons. Ehrenfeld then became a vocal advocate for Libel Tourism (or Libel Terrorism) laws at the state and federal levels. These bills would at a minimum make unenforceable in the United States any foreign defamation judgment against speech that is protected by the First Amendment. They would, at a maximum, establish special jurisdictional rules for domestic actions enjoining enforcement, and providing for "clawback" of the amount of any foreign judgment. I have written previously about the many problems with the more-expansive bills and was part of a panel on the subject at SEALS earlier this month.

I wonder what this news will do to either push the legislation or further dampen it as an issue.

Posted by Howard Wasserman on August 27, 2009 at 11:36 AM in Constitutional thoughts, Current Affairs, Howard Wasserman | Permalink | Comments (1) | TrackBack

Wednesday, August 26, 2009

Managing the Busy Days

Maybe because a busy fall approaches, two things struck me when I recently read a profile of Atul Gawande -- full-time surgeon, prolific writer, father of three.  

First, he "saves his writing" for the hours between 7 and 11am  and 4 and 7 pm to "capitalize on the body's circadian rhythms."  Hmmm. 800px-Biological_clock_human
Second, I wonder if the punchline was the parenthetical revealing that his wife is "now a full-time mom."  Maybe it's time to reread the essay "I Want a Wife." 

Posted by Verity Winship on August 26, 2009 at 02:35 PM in Gender | Permalink | Comments (1) | TrackBack

Hiring Chairs for 2009-10: Announce Yourselves Here Please

N.B. This has been bumped to the front, and will be every couple weeks or so.

As is customary around this time of year, we are hoping law schools will use this space to share some relevant information regarding hiring for the coming year. Specifically, if you're a prawf, please share the following information related to the Fall 2009 and/or spring 2010 hiring season:

a) your school,
b) who's the chair and who are the members of your appointments committee (please also identify whether entry levels are separated from laterals, etc)

and, c) if there are any special areas you're looking to fill.

If you're on the market, or a prawf, please check out this thread here so you can share information regarding whether a particular school has begun making appointments for first-rounds or callbacks.

To get things started, Manuel Utset (mutset at law.fsu.edu) is chairing Florida State Law's unified committee (consisting of Jim Rossi, Beth Burch, Gregg Polsky, and Adam Hirsch). We are looking to hire both laterals and rookies across a range of fields and invite people who are interested to contact Manuel (or me, and I'll happily forward along your interest and CV).

The comments on the first page of this post only go to 50. Thus, if you are trying to get to the next page of comments, you have to click on the >>.


 

Posted by Administrators on August 26, 2009 at 12:01 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (96) | TrackBack

Tuesday, August 25, 2009

Are Reprints a Sin of Self-Promotion?

Throughout the summer, I have been considering the value of sending reprints to others whose scholarly interests align with my own.  To be honest, I don't send out many reprints at all--perhaps 20 or 25.  These sometimes generate nice e-mails, but rarely anything more.  I do, however, popularize my work in other ways, such as by soliciting feedback on drafts from other senior and junior scholars, and by e-mailing those who write in my area to provide them with an article abstract and links to the full version.  And of course there is SSRN.  After talking to several other junior faculty from other schools, I don't believe that my reprint practices--or perhaps lack thereof?--are that unusual.  It just seems that that is the logical trend in a post-paper world.  As I enter my third year, however, I have wondered about the benefits of reprints in terms of self-promotion...

Is it best to be diligent in sending out reprints?  If so, how many?  Is the similar practice of sending out e-mails with abstracts and links a satisfactory replacement for reprints?  After all, it is much cheaper and more environmentally friendly.  Or are such e-mails instead supplemental, or even unnecessary?  Assuming one presents at conferences and is otherwise careful to publicize current scholarship, are there additional advantages to sending out reprints in terms of the tenure process?  And what about interdisciplinary articles--these seem to complicate the question of what constitutes "best reprint practices."  Should reprints of interdisciplinary articles be sent out only to other legal scholars, or also to faculty in other relevant departments?  Are reprints more valuable when the piece is published in another discipline's journal that most legal scholars won't read (I have enough trouble just keeping up to date on relevant scholarship posted in general law reviews!)? 

Any thoughts?

Posted by Jody Madeira on August 25, 2009 at 05:39 PM | Permalink | Comments (6) | TrackBack

More Iqbal: What's a plaintiff to do?

I am trying to put together an essay for a symposium on Iqbal for Lewis & Clark Law Review and am searching for a hook. I think I found it (finally) in last month's decision by the Ninth Circuit in Moss v. U.S. Secret Service.

The plaintiffs were part of a group of anti-Bush protesters who were moved away from the sidewalk directly outside and across the street from an inn where the President was eating (the order to move came from the Secret Service, although the actual moving was carried out by local police). The anti-Bush protesters were to be pushed a block east (they actually were pushed more than two blocks away, as well as subject to some rough policing). Pro-Bush counter-protesters, who had been a block west of the inn, were not made to move.

The plaintiffs brought First Amendment claims against the two agents on the scene, the former director of the Secret Service, and the Service itself (OK, that last one just shows the plaintiffs' lawyer did not entirely know what he was doing). The basic claims were that the plaintiffs were moved because they were presenting an anti-Bush viewpoint, consistent with a sub rosa Secret Service policy of suppressing speech critical of the President.

After the jump, take a look at Iqbal in action in a fairly straightforward Bivens action. It's not pretty.

1) The court followed the two-step approach described in Iqbal: a) Disregard (or at least not accord a presumption of truth to) conclusory allegation and b) Look at the remaining allegations to determine whether they "plausibly" give rise to an entitlement to relief, purportedly by accepting them as true and according reasonable inferences in the pleader's favor.

The court thus disregarded as bald and conclusory the allegations that the on-the-scene agents acted with an impermissible viewpoint-discriminatory motive and the allegations of a discriminatory policy in the agency.

This presents the first problem for the plaintiffs: What facts can they plead as to state of mind at this point, without the benefit of discovery? How can they know what was in the agents' minds until they have had a chance to depose them?* I suppose they might use FOIA to find out about formal Service policies regarding protesters. But the allegation was about a sub rosa policy--in other words, an agency-wide custom, accepted and enforced informally, having the force of law but without being formally established. No FOIA request is going to turn that up. Perhaps allegations about other examples of Service treatment of protesters would lend factual support. But it also would require that superiors knew about those other incidents--again, impossible to allege (in an acceptably non-conclusory manner) without discovery.

2) The court then looked to the remaining allegations and (surprise!) found they did not show a plausible violation. The court considered several distinct allegations. What is noteworthy is how unwilling the court was to draw inferences from these facts in favor of plaintiffs.

a) Only the anti-Bush protesters were moved. But, the court said, the police were ordered simply to move them to a distance equidistant from the Inn as where the pro-Bush protesters already were standing. So the end result (at least of the agents' orders) was pro- and anti-Bush protesters were one block over from the Inn (on opposite sides). Two problems. One is the counter-factual--what if it had been the pro-Bush demonstrators directly in front of the Inn--would they have been moved? We don't know; but is it a reasonable inference (looked at in the light most favorable to the plaintiff) that they would not have been? The other is that the fact that we had a viewpoint-neutral outcome (everyone equidistant from the Inn) does not mean that no viewpoint discrimination occurred--anti-Bush protesters still were moved and a plausible reason is it was because they were anti-Bush protesters.

b) Relatedly, the court insists that if the real purpose of moving the protesters was to suppress the anti-Bush message, the agents would have moved them more than a block away, to where they could not be heard. Hmm; I guess the court never has heard of pretext. It seems to me it is at least potentially a violation (certainly sufficient to withstand a 12(b)(6) motion) for government officers to move a group of speakers, because of their speech, out of the best speaking position and into a lesser one. Even if they could still be heard, they are further away, cannot be seen, and their expression has less impact because of that distance.

c) Plaintiffs alleged that diners and Inn guests were permitted to remain in close proximity to the President without security screening. But, the court said, that allows no inference about the motive behind moving the anti-Bush crowd, which only can be given meaning by reference to the pro-Bush protesters, not the non-protesters in the Inn. Again, I guess the court never heard of pretext. The stated reason for moving the protesters away from in front of the Inn was to keep them out of "firearms and explosives range" of the President. But that reason is belied by the fact that people inside the Inn remained within range of the President without any screening. This at least allows the inference that the concern was not really about firearms and explosives, but something else. And this gets us back to only the anti-Bushies being moved. If the firearms concerns fall away (as plausibly suggested by the non-screening of diners), we are left with the the fact that the antis were moved and there is an inference that the stated reason was not the actual reason. If they got to the spot first, there has to be some reason for moving them. What other reason is there? It is not a legitimate (much less substantial or compelling) government interest to keep the expressive marketplace balanced by making sure both sides are a block away, so that could not be a neutral justification. If the antis got to their spot first, there must be some reason

d) Plaintiffs alleged that they were moved by local police more than a block and subject to abusive police tactics. But these allegations involve local police (who were not named as defendants) and do not mention the Secret Service or the two agents. This seems right to me.

The point of all this is to show the discretion that Iqbal gives courts to ignore the ordinary admonition to draw all inferences in favor of the non-movant/plaintiff. This is where courts really have power in the context of motions to dismiss--in the inferences they draw (or don't draw) in reviewing the complaint and deciding what is or is not plausible based on the facts pled. None of the inferences I have argued for here are essential or necessary. But the inferences I have suggested seem to make a First Amendment violation plausible--certainly enough to get by 12(b)(6). Again, we come back to the question--what more could these plaintiffs have done? And how are they ever to get their claims before a jury?

The court did grant plaintiffs leave to amend, for the stated reason that the complaint was filed prior to Twombly and Iqbal. But as courts start finding more and more complaints factually deficient under Twombly and Iqbal, this is going to become an increasingly common practice.

Interesting stuff. In addition to writing about the case, I may assign the complaint (which, at 92 paragraphs, is reasonably short) as an example for Civ Pro.

  • The defendants have vigorously, and thus far successfully, resisted all discovery. This created an interesting secondary issue on appeal, regarding immediate appealability of the trial judge's decision to delay ruling on summary judgment in response to a Rule 56(f) affidavit.

Posted by Howard Wasserman on August 25, 2009 at 09:00 AM in Civil Procedure, First Amendment, Howard Wasserman | Permalink | Comments (4) | TrackBack

Monday, August 24, 2009

Law as Undergrad Part II: A Partial Dissent

I appreciate Howard's link below to my friend Mike Dorf's post talking about law school as a continuation of one's undergraduate degree.  Mike writes that "Law students who regard their legal education as a continuation of their undergraduate (or in some cases, graduate) studies will be doubly rewarded."  They will both enjoy their time in law school and, presumably by virtue of the added energy and attention that enjoyment brings, realize a practical payoff as well.

This is right, I think, but it's advice that needs to be taken with a grain of salt.  I always tell incoming students to be aware that law school is not simply part two of their undergraduate degrees.  That may seem to be in some tension with Mike's advice, but I don't think it is; note that Mike also makes clear that legal study as part of a full liberal education is a secondary aspect of law school.  

What needs to be taken into account is how different people treat their undergraduate educations, and how different people treat their legal educations, partly in consequence of that prior experience.  If you treated your undergraduate education as an engaging challenge to which you brought your full intellectual and emotional energies, then by all means bring the same spirit to law school as well; I might add that the same advice would hold if you had brought that spirit to life as a motorcycle mechanic or a taxidermist instead of an undergraduate.  But that, of course, is not everyone's story.  (It wasn't always mine.)  It is also possible to drift, relatively passively, through one's undergrad years; to do quite well with a relative minimum of effort; to wait and see what time will bring instead of seizing the reins of your own education.  And regrettably, some students start law school (and probably even more finish it) in something of this spirit.  They come to view law school as no different than their undergrad education, no more purposeful, and no more demanding of personal input; as something whose primary good lies in its credentialing function provided they can last through three years of classes.  They don't fully see its link to a professional acculturation, and viewed as a general course in the humanities they don't take full advantage of what it has to offer in this realm either.

This is all quite human and understandable, and I'm not affecting a superior position here.  Indeed, it was very much my experience for my first semester of law school.  It was only after I took it fully seriously as its own commitment that I began really experiencing its rewards, both as a system of transmission into the traditions of a profession and as an intellectual experience of its own.  So I'm a little leery of describing law school to new students as simply undergrad part two.  Not all of the old tricks one got by with in undergraduate education will get one as far in law school (although, with Mike, I agree that there is nothing deeply distinctive about legal reasoning, and those tricks can get some people pretty far).  It shouldn't be viewed just as three more years of the same old thing.  It's a new endeavor, one that far more than undergraduate education is linked to a particular professional and intellectual tradition, and on balance students may get more out of it if they realize this up front and commit to the enterprise.  It can certainly be as rewarding as one's undergraduate experience, if one found that rewarding; but it's not necessarily the same thing, and one shouldn't be complacent about it.  

I'm not trying to be too mystical about it; just to say that it requires a new sense of commitment rather than just trying to slide through it, in a way that is eminently possible for both undergraduate and legal educations.   

Posted by Paul Horwitz on August 24, 2009 at 11:16 AM in Paul Horwitz | Permalink | Comments (3) | TrackBack

Dorf welcomes 1Ls

Michael Dorf offers words of welcome for 1Ls. In particular, he has thoughts about why legal education should be thought of as a continuation of undergraduate/liberal education and why students should try to enjoy learning the law and the ideas in the law, as much as they enjoyed learning history, biology, or literature while in college. At the very least, enjoyment means they will pay more attention and do better in school.

Posted by Howard Wasserman on August 24, 2009 at 08:30 AM in Howard Wasserman, Life of Law Schools, Teaching Law | Permalink | Comments (2) | TrackBack

The Meaning of Y

Recently, I’ve been thinking quite a bit about Caster Semenya, the 18-year old world-champion runner from South Africa.   In response to concerns that Semenya is too fast and that her voice is too deep and that her build is too masculine, track and field’s governing body has arranged tests to ascertain her sex.  One Italian runner, Elisa Cusma, complained: “These kind of people should not run with us. For me, she’s not a woman. She’s a man.”  The concern is not that Semenya set out to fool the governing body.  The concern is that Semenya, who grew up as female, may in fact have sufficient male characteristics to be categorized as male.  As someone who writes about gender and race as social constructs and imperfect proxies, my fascination with the Semenya case goes beyond prurient curiosity.  For me, the controversy brings to mind the racial prerequisite cases from the early 1900s that Ian Haney Lopez has written about, such as United States v. Thind and Ozawa v. United States.  It also brings to mind Ariela Gross’s work on litigating whiteness.  Bust mostly, the controversy speaks volumes about the meaning of sex and gender.

            I have no idea what the outcome will be.  A gynecologist, an endocrinologist, a psychologist, an internal medicine specialist, and an expert on gender have all been asked to examine Semenya and weigh in on the issue.  Indeed, I can easily imagine a situation in which some tests will suggest Semenya is female, while other tests will suggest she is male.  Indeed, I can easily imagine a wringing of hands, a determination that Semenya is “different” and thus ineligible to compete “as a woman” or “as a man.”  For me, the real issue is not whether Semenya is male or female, but rather our compulsive need to understand sex and gender in binary terms, even when such binary thinking excludes significant segments on the population.  It is similar to the way we need to know whether someone is black or white, straight or gay, liberal or conservative, guilty or innocent, when the reality is often far more complicated.

A NY Times article speculates that whatever the outcome, 18-year old Semenya’s life will be forever changed.  And all of this makes me ask “what if?”  Since the election of President Obama, there has been talk, however premature, of living in a post-racial world.  Clearly a post-racial world seems something we should aspire to.  But how about a post-gender world?  Should that also be on the agenda?  What might it be like to live in a world in which the first question we ask when someone is pregnant is not “boy or girl”?  What might census data collection or Title VII or Title IX or marriage equality look like in such a world?  What might it be like to live in a world without “urinary segregation,” to borrow from Lacan?  Would it be possible to live in such a world?  Would we want to?  And can the law get us there?

Posted by Bennett Capers on August 24, 2009 at 07:32 AM in Gender, Science, Sports | Permalink | Comments (5) | TrackBack

Sunday, August 23, 2009

Go Figure: How Pandora works

When I was in high school, one of the New York radio stations had a program gimmick called "Go Figure," in which they would play three songs and callers had to guess the link among the three (which sometimes was pretty esoteric).

I was reminded of this while using the Pandora app this morning. Pandora works by taking a starting-point artist, then playing other songs by other artists that the listener would enjoy (according to the program), presumably because of some similarities among the artists and songs. So please explain the following:

The starting artist was ABBA (forgive us--we watched "Mamma Mia" last night). It played "Take a Chance," followed by the version of "Dancing Queen" from the Original Broadway "Mamma Mia" Soundtrack. So far, makes sense. We then got the following in order: 1) Cyndi Lauper ("Girls Just Wanna Have Fun"); 2) Pat Benatar ("We Belong"); 3) Carly Simon ("You're So Vain"); 4) The Beatles ("Here Comes the Sun"); 5) Fleetwood Mac ("Little Lies").

Now I will say that I genuinely like three of those five artists (not saying which ones). But how or why would an algorithm group those songs/artists for one listener?

Posted by Howard Wasserman on August 23, 2009 at 03:58 PM in Culture, Howard Wasserman | Permalink | Comments (4) | TrackBack

Saturday, August 22, 2009

Clothes Make the Man--Part Two

It turns out that Ashby Jones of the Wall Street Journal's Law Blog is also weighing in on this important sartorial issue.  (I know this because Ashby emailed me last night to find out my plan of dress.)  His take on what a law professor should wear is here.  I especially love his picture of John Houseman from The Paper Chase. So does anybody else plan on going for the bow tie look for effect?  I've also heard stories, off line, about professor dress coming up in student evaluations.

Posted by Bennett Capers on August 22, 2009 at 10:27 AM | Permalink | Comments (1) | TrackBack

Friday, August 21, 2009

Except insofar as vandalism is a crime...

Hair 

...this has pretty much nothing to do with law. But how cool is this and this?

Posted by Jessie Hill on August 21, 2009 at 08:31 PM | Permalink | Comments (2) | TrackBack

When the Messenger Shoots Himself

Ok, I've been a one trick pony this summer, but come on, two years (20 months in real) in the slammer for former NY Giant Plaxico Burress in a plea bargain with NY prosecutors announced yesterday (read John Eligon's reporting in the NYTimes).  Burress carried a concealed weapon into a New York city nightclub, with the knowledge of the club's security personnel, but in violation of NY law (it would have been legal in Florida where Burress lives most of the year had he not allowed his concealed carry license to lapse).  Burress threatened know one intentionally, but the 40 caliber Glock slipped from his wasteband, inside his pants, and went off as he tried to grab it, wounding himself in the leg and narrowly missing a security guard. Burress could have faced a mandatory 3.5 year sentence for the illegal gun possession.  Prosecutors allowed him to plead to a lesser charge of attempted possession, but refused to consider less than 20 months of incarceration.  What public interest is served by sending the 32 year old father of two to prison for most of two years?

I'm not arguing Burress should be excused.  I'd prefer to live in a state like New York where carrying concealed weapons into bars is never permitted, but it is troubling that conduct legal in one state, warrants mandatory imprisonment for more than three years in another.  I appreciate that stars like Burress and Michael Vick make ideal platforms for deterrence signals.  But in this case Burress is a walking (lucky for him) advertisement for why carrying a weapon concealed in your pants is a bad idea.  The NFL star who helped the Giants win the 2008 Super Bowl had no criminal record, and poses no obvious risk of being a repeated risk to public safety.  In the meantime the state of New York will spending tens of thousands of dollars for each of the next two years to lock up Burress, while his young child and expected baby will lose their father.

Perhaps I'm giving too little weight to the deterrence argument.  From my reading of the literature, I'm willing to concede that tough laws on guns have helped New York drive down crime.  But where did we get 3.5 or even 2 years in prison from?  Would not putting Burress in jail for even a month or two, demonstrating that no one is above the law, fining him (on top of the loss at least temporarily of his NFL salary) have sent a message?  Considering again that for most of the word 10 to 20 years is the punishment for murder, these are harsh punishments for crimes in which no harmful injury nor intent to injure has been alleged.

It is tempting to blame this on racism.  After all, Michael Vick and Plaxio Burress are large black men who physically assault other men for a living.  Like prize-fighter Jack Johnson in his time, are these "scary" successful black men targets of racial animus?

I see it more as a misguided product of our social consensus on harsh punishment for violent crime.  Liberals and conservatives share consensus that violent crime deserves and requires lengthy imprisonment.  They disagree about the relationship between guns and violence; but they agree that gun crimes should be harshly punished.  The product is extremely harsh punishment for a man whose only act of violence has been to himself.

Posted by Jonathan Simon on August 21, 2009 at 02:49 PM in Criminal Law | Permalink | Comments (3) | TrackBack

Horwitz for School Board

No, the other Horwitz.

I'm very proud of my wife, Kelly Horwitz, who's running for the Tuscaloosa Board of Education in District 4.  She is an incredibly talented, experienced, and dedicated person who will do a fantastic job representing the interests of all Tuscaloosans.  Of course, most of you are not in the Tuscaloosa area, let alone registered voters in District 4.  But I can still trumpet her achievements far and wide.  Here is her web site, including a picture of her loving family.  And in case you were interested in how campaigns are conducted in Tuscaloosa, here is the opinion section of today's Tuscaloosa News, with one (wise and well-reasoned) letter in support of Kelly's campaign and one (sadly mistaken) letter against.

Go Kelly!  If you're in Tuscaloosa, be sure to vote.  For her.

Posted by Paul Horwitz on August 21, 2009 at 12:04 PM in Paul Horwitz | Permalink | Comments (1) | TrackBack

Thursday, August 20, 2009

Risinger vs Allen-Laudan

As three or four of you may remember, almost a year ago exactly I posted here about a terrifically interesting set of articles on the relationship between criminal justice and epistemology by philosopher Larry Laudan. One of those pieces was co-written with NW's Ron Allen, entitled "Deadly Dilemmas," and it appeared recently in a symposium in Texas Tech L. Rev. and is available here. (A follow up of Laudan's work with Allen appears here, dealing with Bail and Crime.)

I registered some of my disagreements with the first Deadly Dilemmas piece here on Prawfs, but was overall quite impressed with much of the article, and Laudan's more general program to rethink the relationship between error rates and the obligations of a liberal state. In any event, though it reflects some of the same ideas I  floated here, there is a far more sophisticated and extensive response to the Allen and Laudan piece (and its agenda) now available in draft on SSRN by Seton Hall's Michael Risinger, which I highly commend.

 I had the chance to read it quickly a few weeks ago, pre-BamBam, and thought it was very interesting. Indeed, had Risinger's draft been available earlier this year, it would have affected the way I drafted some  aspects of my pieces on punitive damages as well as the piece on Panetti and the 8th Amendment.  Unfortunately I don't have time to say much more than that I found Risinger's piece a very helpful addition to the discussion prompted by Allen and Laudan. I will add one more note:  I'm grateful Risinger has done more intellectual history homework than I did, and thereby focused some attention on whether the so-called Laplace-Nozick thesis regarding risk-tradeoffs really merits being called the Laplace-Nozick thesis. Perhaps it's better called the Allen-Laudan tradeoff analysis. Regardless of what we call it, I'm still convinced that some substantial degree of attention to the questions and values underlying the analysis is necessary for serious scholars of criminal justice institutional design. Risinger's piece, along with Allen-Laudan's, are good places to begin that thinking.

Posted by Administrators on August 20, 2009 at 08:38 PM in Article Spotlight, Criminal Law, Dan Markel | Permalink | Comments (0) | TrackBack

What's a Catholic judge to do?

Prof. Alan Dershowitz accuses Justice Scalia of an "outrage against his church" for observing, earlier this week, that the Court "has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent."  "[S]urely it is among the worst sins," Prof. Dershowitz insists, "under Catholic teaching [RG:  not just "under Catholic teaching", one hopes!], to kill an innocent human being intentionally.  Yet that is precisely what Scalia would authorize under his skewed view of the United States Constitution.  How could he possibly consider that not immoral under Catholic teachings?  If it is immoral to kill an innocent fetus, how could it not be immoral to execute an innocent person?" 

It would, obviously, be a repulsively immoral exercise of public authority to execute an actually innocent person and it is just as sure that Justice Scalia thinks so.  I'm confused, though:  Weren't we supposed to worry about Catholic justices "imposing" their morality through their decisions or incorporating "Catholic teachings" into the Court's doctrines?

Posted by Rick Garnett on August 20, 2009 at 01:26 PM in Constitutional thoughts | Permalink | Comments (13) | TrackBack

Clothes Make the Man

We’ve all heard the expression “clothes make the man.”  But do clothes also make the professor?  Especially if the professor looks young enough to be a student, or is female, or a person of color, or LGBT, or some combination of the above?  And am I the only one, at the start of yet another school year, thinking about this?

One of my favorite quotes from an article I wrote about appearance and the law, Cross Dressing and the Criminal, comes from Allison Lurie.  In The Language of Clothes, she wrote:  “For thousands of years human beings have communicated with one another first in the language of dress.  Long before I am near enough to talk to you on the street, in a meeting, or at a party, you announce your sex, age and class to me through what you are wearing—and very possibly give me important information (or misinformation) as to your occupation, origin, personality, opinions, tastes, sexual desires, and current mood.  I may not be able to put what I observe into words, but I register the information unconsciously; and you simultaneously do the same for me.  By the time we meet and converse we have already spoken to each other in an older and more universal tongue.”  

Given the importance of this first impression, am I the only one that obsesses at the start of the school year about what to wear on the first day of class, down to what color tie to wear?  And I’m curious.  Given that professors who don’t naturally look professorial—I think you know what I mean—often have to do extra work to command respect and authority, is it mostly those professors who worry about clothing and first impressions?  (In the extreme, are we the ones that take Rogers v. American Airlines and Jespersen v. Harrah’s Operating Co. personally, and keep Dress for Success and its targeted variations in the back of our minds?) And here’s my final question.  I’m still relatively young, and I don’t like trousers with elastic waistbands.  As I get older, will I succumb and actually find elastic waistband trousers appealing?  Not that I have anything against waistband trousers . . .

Posted by Bennett Capers on August 20, 2009 at 08:44 AM | Permalink | Comments (12) | TrackBack

Wednesday, August 19, 2009

Are There Constitutional Limits on the Extent to Which the State Can Give Parents Authority over Their Children?

    And if so, what are they? I have been thinking about this issue quite a bit lately.

    I am mainly interested in thinking about whether there are any constitutional limitations on states giving parents the ability to control their children's bodies - specifically in the contexts of medical treatment (therapeutic and non-therapeutic) and corporal punishment (or physical abuse). These matters are ones that are largely regulated by state law, of course. State (common or statutory) law places limits on parents' legal rights to physically punish their children, and state law generally dictates parents' rights to make medical decisions for their children in most instances. Indeed, it is difficult to see much of a constitutional issue in this area most of the time due to the Supreme Court's reluctance to find state action (i.e., a state obligation to protect children from their parents) even in the most extreme circumstances (e.g., DeShaney).

    But then there's abortion.....

The "minor abortion cases" hold that minors have a right to access abortion without involving their parents if they can convince a judge that 1) they are mature and well-informed enough to make the abortion decision on their own or 2) that the abortion would be in their best interests. This appears, then, to be a constitutional right against both the state (the state cannot forbid all minors from accessing abortion) and the parents (even the parents do not have a right to dictate the minor's medical choice in this context).

Admittedly, the minor abortion cases arise in a somewhat unusual context. They were constitutional challenges to parental notice or consent laws, many of which created a different rule for minors seeking abortions than for minors seeking prenatal care or treatment for STDs. So there was obvious state action. But what about a case where the common law dictates that parents can make medical decisions for their children, and a parent seeks to force her child to donate a kidney to another child. Would the donor child have bodily integrity rights that prevent this? Does it matter whether the child is old enough to understand what is going on? These cases arise rarely (and are generally resolved without reference to constitutional claims), but they do arise - and in my view they raise difficult, relatively unexplored questions.

Or maybe I'm missing something? 

Posted by Jessie Hill on August 19, 2009 at 11:22 AM | Permalink | Comments (5) | TrackBack

Michael Vick and Plaxico Burress, or, What Would Bentham Do?

Perhaps it’s odd that I’m thinking about Michael Vick, Plaxico Burress, and Jeremy Bentham.  After all, Vick, the NFL player who pleaded guilty to offenses arising from illegal dog fighting, finished his sentence of twenty-three months a while ago.  (There’s been recent outrage, of course, over the NFL’s decision to reinstate Vick, and the Eagle’s decision to hire him).  For his part, former Giants player Plaxico Burress was recently indicted on weapons charges after he accidentally shot himself at a nightclub.  (As I think SNL put it, if you’re wearing sweatpants, don’t try to keep a gun in the waistband.)  And for some reason, I’m wondering what Bentham would do. 

Bentham, of course, advocated a prospective approach to punishment.  For Bentham, criminal jurisprudence should produce the “greatest happiness for the greatest number,” a concept frequently referred to as the “felicity calculus.”  In his Introduction to the Principles of Morals and Legislation, Bentham explained that a criminal sanction should only be utilized when it could help ensure the greater good of society and provide a benefit to the community.  By contrast, where punishment would produce a greater mischief than the mischief prevented, punishment should not be imposed. 

Which brings me back to Vick and Burress.  It seems to me that one of the thorny issues in Bentham’s principle of utility is that punishment may not be appropriate for the individual who, though guilty of a crime, prospectively provides a net benefit to society, which benefit would be lost if the individual were punished.  Some would argue that Vick and Burress, by playing football and providing pleasure to thousands of spectators, provide a net benefit to society that should outweigh the harm of punishing them.  Although I would disagree—now is a good time to concede that I’m not a big football fan—certainly there are cases out there where this calculus would be true.  Consider the filmmaker Roman Polanski.  If society had a choice between having another visual masterpiece such as Rosemary’s Baby or Chinatown, or for that matter Knife in the Water, versus imprisoning Polanski on molestation charges, especially where the victim opposes prosecution, might the felicity calculus weigh against punishment?  And are there times when we engage in this calculus to reach this result?  I know this is going way back, but is this one way to read the acquittal of Bill Clinton following his impeachment trial?

 

 

Posted by Bennett Capers on August 19, 2009 at 09:22 AM | Permalink | Comments (1) | TrackBack

More on casebooks

As I indicated in comments to Jessie's post on casebooks versus assigning full or self-edited cases, this has me thinking.

Suppose I taught Civ Pro as follows:

1) Rules pamphlet 2) Complete (unedited) cases in those areas in which there are major cases: Pleading (Iqbal/Twombley); Summary judgment (Trilogy and a good lower-court case); Erie; Personal Jurisdiction; Subject Matter Jurisdiction 3) Student-level treatise (there are a few good ones--two years ago, when I had only a few days to cover preclusion, I assigned treatise pages rather than material from the casebook) 4) Supplemental materials (sample complaints, sample discovery documents, etc.)

Help em out here, folks (especially Civ Pro geeks): Would this work? What's wrong with this approach? What (if any) are the benefits? What are the negatives?

Posted by Howard Wasserman on August 19, 2009 at 07:13 AM in Howard Wasserman, Teaching Law | Permalink | Comments (9) | TrackBack

Tuesday, August 18, 2009

Can More Police Equal Fewer Prisoners?

Eric Bailey reports on an intriguing conundrum in today's LATimes, will federal stimulus money channeled to state law enforcement frustrate the state's declared policy of reducing its prison population by sending yet more low level offenders to prison?  Of course the law professor's answer is "it depends."  It depends on how those police officers view their job.  If, as many now do, they view themselves as "door men" to the carceral system, charged with moving people efficiently into the justice system, more police can mean more prisons.  If instead, police apply distinctive strategies to try and use force deployments to deter and prevent crimes, they can diminish crime without adding to prison populations.  New York is an exciting example.  During the height of Mayor Giuliani's "quality of life" campaign during the late 1990s, police arrested thousands of young people involved in minor misconduct.  Jail populations went up some, but not too much because most cases were resolved with either short sentences or dismissals.  Prisons, in contrast, began a population decline that has continued for a decade.

In California, unfortunately, it looks more like the first case scenario, with big money going into drug interdiction and enforcement efforts.  What we need almost as much as a new state strategy for corrections, is a new local strategy for police.  Despite having a progressive and educated population, the Bay Area has not been at the forefront of such efforts.  With new police chiefs just appointed in San Francisco and Oakland, let's hope change is on the way.

Posted by Jonathan Simon on August 18, 2009 at 04:13 PM | Permalink | Comments (5) | TrackBack

The Pleasure of Painful Scholarship

In keeping with the legal academy's embrace of empiricism and original research, qualitative interviewing has become an increasingly popular methodology in legal scholarship.  One of the most wonderful outcomes of qualitative research--the relationship that one develops with research participants--can also be the most terrifying.  As a researcher, having participants trust you with sensitive information is humbling, and gives rise to a corresponding desire to represent the experiences of these participants as accurately as possible.  The semantic difference between research "participants" and research "subjects" reveals a great deal about how a researcher conceives of the interviewer-interviewee relationship.   

I have thought quite a bit about the relationship between a qualitative researcher and her participants since May, when I began in earnest my book project addressing the impact of capital trials and executions on Oklahoma City Bombing victims' families and survivors.  My conclusions in this book are based upon interviews that I conducted a few years back for my dissertation--lengthy affairs conducted in-person with participants.  During the many hours I spent with each individual, I asked them very personal questions about how the bombing affected their lives, what coping strategies they utilized, and most pertinently, the perceived impact of Timothy McVeigh and Terry Nichols' capital trials and McVeigh's execution.  I am currently conducting a second round of interviews with these same participants to test a few of my original conclusions because I initially adopted a grounded theory research methodology.

One term that has haunted both rounds of interviews is "closure."  Participants are very conflicted about whether to use the term.  While they adamantly reject the possibility of "closure" in its popular sense of "absolute finality," they feel unable to leave it behind entirely, and thus are likely to refer to "forms of closure" to describe processes of healing and/or acceptance that are attainable (a dilemma described in my article forthcoming in the Indiana Law Journal, available here).  This, of course, creates a corresponding dilemma for me as an author:  how will I use the term "closure" in my book?  If I use the term in the book's title, for example, potential readers will instantly recognize what I am writing about.  Yet, I gain this familiarity at great expense--to do so, I must in some sense subscribe to a usage that victims' families and survivors regard as callous, inaccurate, and downright painful. 

This catch-22 is worth careful consideration.  If it were not for that bond with my participants, and a corresponding appreciation and respect for their perspectives, I probably would not care so much about the use of "closure" and would not have spent nearly so much time wrestling with this term and its semantic implications.  I am, however, very thankful that I have done so.  The best qualitative scholarship is that which has the potential to change and enrich the researcher as a person in addition to providing insight into her chosen subject matter.  My favorite projects have always "marked" me in some way.  Qualitative scholarship is unique in that the participants' presence is likely to be very palpable in the writing process, and certainly in the final product.  

Fortunately, I have reached a tentative "closure" on "closure"--my current plan is to incorporate the term into the book's title in a way that renders its inadequacies immediately obvious (i.e., "the myth of closure"), and to spend a good portion of the preface explaining my perspective on the term.  In reaching this conclusion, I've not only become reacquainted with feeling my participants' presence as I write, but I've also gained a healthy appreciation for the differences between authoring a dissertation that is highly likely to gather dust on a shelf and an academic book that stands a much better chance of being read.  Fortunately, I've also found that my participants make great companions. 

Posted by Jody Madeira on August 18, 2009 at 12:58 AM | Permalink | Comments (1) | TrackBack

Monday, August 17, 2009

Beware of the Dolphins, My Friend

After this post, Brian Leiter might want to avoid the beaches.  Our mammalian counterparts may seek to test out his theory: "Indeed, as far as I can see, killing animals does not harm them at all, as long as it is done painlessly."

Posted by Matt Bodie on August 17, 2009 at 11:13 AM | Permalink | Comments (12) | TrackBack

"Welcome to law school"

One of the tasks / privileges that is attached to my new (temporary!) administrative designation is the "welcome, first-year students, to law school" talk at orientation.  For my own first-year classmates and me, the "now you are off the treadmill" speech our Dean gave was, for better or worse, among the more memorable occasions of our law-school career.  I have no aspirations (or ability) to be *that* memorable, but I wouldn't mind saying *something* that was actually helpful, encouraging, and affirming, especially given the anxieties that, I have to assume, many current and new law students are fighting.

So, what is there to be said?  "The law thing" is -- notwithstanding the jokes, etc. -- an important, exciting, and even (potentially) ennobling enterprise?  The law is a profession -- perhaps, even, a vocation -- and not only an occupation, and so law students have a responsibility to allow themselves to be challenged to become not only providers of legal services, but citizen-leaders and thoughtful law-critics?  Do the reading, go to class, see the connections, talk about law with your friends?  Don't try to practice law before you are admitted to the bar and never, ever co-mingle funds?  Don't forget to keep reading good fiction?  Ideas?

Posted by Rick Garnett on August 17, 2009 at 09:11 AM | Permalink | Comments (6) | TrackBack

Sunday, August 16, 2009

How I spent my first day of the new semester?

Sitting in the jury selection room at the United States District Court for the Southern District of Florida. I assume I will be cut loose after tomorrow once I explain the burden of showing up everyday for two weeks during an academic term. I also don't see either side putting me on a jury once they learn what I teach.

In the meantime, the courthouse is a laptop-free zone (ironic, given my pedagogical predilections), so I am not sure what sort of work I am going to be able to get done while I am waiting around all day.

Posted by Howard Wasserman on August 16, 2009 at 06:11 PM in Howard Wasserman | Permalink | Comments (1) | TrackBack

"Jon & Kate (+ 8)" are great--at least for generating interesting legal questions

There is no doubt that triplets, quadruplets, and other higher-order multiples (HOMs for short) attract attention.  Taking our 23-month-old triplets out is always, well, a trip.  People who venture out with us are always surprised by the attention that we draw, which runs the gamut from congratulatory to curious to downright rude.  We usually ignore the rude comments and answer the "good-faith" questions honestly, and, so long as the boys are not busy grabbing things off store shelves, try to do so somewhat patiently.  The usual comments (and my most sarcastic replies) are:

1.  "Are those triplets?"

Reply:  "No, they are all three years apart even though they are the same size.  We give the smaller ones coffee and cigarettes."

2.  "Are they natural?"  (Or my favorite variant, "Did you use fertilizer?")

Reply:  "No, they came from Mars." (Alternate reply:  "Yes, three bags of Scott's Turfbuilder, actually."

3.  "How did you get them?"

Reply:  "Well, my husband and I were very busy that night..."

4.  "Better you than me."

Reply:  "Obviously."

While we have had plenty of onlookers who have proved that they could count to three or take cell phone pictures while inspecting our boys, we have never experienced anything so terribly obnoxious as what other parents of multiples have reportedly encountered, such as strangers who insist that their children are the products of irresponsible decision making.  One apparently innocent comment, however, does raise my hackles due to the frequency with which it is asked:

5.  "Do you watch that show "Jon & Kate +8""? 

Reply:  "Yes, triplets plus a career leave lots of time for watching TV." 

For reasons that I really can't entirely verbalize, "Jon & Kate +8," a TLC reality TV show following the lives of Jon and Kate Gosselin and their 8 children (sextuplets and one set of twins), arouses my ire.  Perhaps it is the sensationalism that seems to follow the family everywhere, or the public criticism of Kate's personality and parenting skills.  Perhaps it is the fact that I seem to hear about the show everywhere I go.  It's like an annoying song (like Kajagoogoo's unfortunate 1980s hit "Too Shy") that is continously on loop, playing in the background of every store I enter and every radio station I tune into.   

Nonetheless, the show presents many interesting legal questions that I do find rather engrossing.  The Pennsylvania Department of Labor is currently considering whether the Gosselins' reality show comports with the state's child labor laws.  Each state has different child labor laws; children in California, predictably, are the most protected; regulations there, for instance, require 15% of each child's earnings to go into a "Coogan Account."  However, Pennsylvania's laws have yet to catch up with the "family reality show" fad; in that state, children seven years of age and older can receive a work permit and begin to work in entertainment.  Jon & Kate's twins, born in 2000, are older than seven, but their sextuplets (born in 2004) are clearly younger.  This raises interesting issues.  Are these children subject to child labor laws in the first place?  The Gosselins' children are filmed during their day-to-day activities, including in their own home.  Is this "work"?  Yet, the Gosselins get paid a substantial amount of money--up to $75,000--per episode because these children appear on the show.  The children--and their parents' dealings with them--are clearly the source of entertainment value.  Jon and Kate are now clearly celebrities in their own right as well, but the Gosselins have only become famous through their higher-order multiples (HOMs).  

As HOM births become more common, creating camera-ready families, states will need to update their child labor laws, making decisions that California has already considered:  how strong can the lights be, and how long can the children be under them?  What on-site care or tutoring must be provided?  How many caretakers?  Which financial arrangements will best protect the childrens' assets?  I suppose we'll have to stay tuned.

Posted by Jody Madeira on August 16, 2009 at 12:26 PM | Permalink | Comments (9) | TrackBack

Saturday, August 15, 2009

Is Mass Incarceration the New SUV?

How fast things can change in American.  One day you feel punked not to have an Expedition or Sequoia to drive to the mall in, and a couple of years later, you wonder who left that unsightly gas guzzler in your garage.  Is mass incarceration about to flip?  I've posted on its legal problems, but consider its cultural profile.  Charles Blow frames prisons and corrections generally as the "unsmart" approach to crime in his column today's NYTimes. In a guest column in the LA Times, historian Volker Janssen contrasts the predictable mayhem that broke out at California's hyper-overcrowded prison in Chino, with the scene in 1941 when the California Institute for Men first opened as the first minimum security prison for men.  Then the the state was beginning its march to leadership in the application of new scientific methods of rehabilitation, today it is the poster child for how prisons produce insecurity. 

We will see how far the status of prisons falls before the bedrock of fear of violent crime by urban and suburban voters kicks in.  If this does turn out to be the big change moment, historians will be interested in two relationships that criminologists have spent little time worrying about until now.  First, the degree to which the escalating costs of health care turned out to the be a key vulnerability of the mass incarceration project.  Second, the degree to which the revenues of an escalating housing market between 1991 and 2006 allowed prison systems to continue to inflate well beyond the policy consensus about their utility.

Posted by Jonathan Simon on August 15, 2009 at 02:21 PM | Permalink | Comments (1) | TrackBack

Is Using a Casebook Ever Justified?

                I have been teaching Civil Procedure for about five years now, and every time I begin prepping again, I am overcome by a distinct sense of discomfort with my casebook. Of course, I have looked at, and considered using, various civil procedure casebooks (and believe me, they are legion). I am currently using a different casebook from the one I first taught with, and although neither casebook that I’ve used can be said to be notably defective on its own terms, I still get a feeling that is probably familiar to many of us – the feeling that we wish the book devoted a little more coverage to this, and maybe a little less to that… that the editing of one case were a little more generous, or a little less so… that it took a different approach to a particular subject... Often, I cast about for supplementary materials – perhaps a novel, combined with a “documentary companion” – and then usually give up, as the amount of material becomes far too voluminous and unwieldy for a one-semester, four-credit course.

                Of course, these are common sentiments and do not necessarily undermine the value of using casebooks in general. So why the provocative title of this post? More after the jump….

                I have started to think that this discomfort with the books we are using is precisely an indication that we are not sufficiently willing to “think outside the box” with respect to course materials – or perhaps more cynically, the we are not willing to do the work that it would take to compile an original set of materials that would allow us to teach the course exactly as we would like. But maybe this is exactly what we all should do. I am unaware of any other graduate-level field of study in which faculty are so dependent on textbooks for their teaching (with teachers’ manuals, no less! What is this, elementary school?). And if we don’t like the exact selection of cases in the case book, or how those cases are edited, or if we wish to add supplementary material, doesn’t it just make more sense to put our own materials together, edit our own cases, and provide our own supplemental articles, documents, etc.? As individuals with the title of “professor,” shouldn’t we be capable of doing this, and perhaps even feel obligated to do so – to put some thought into how our course is assembled and to put our own “spin” on it? This approach certainly would save our students a chunk of change, at least in most courses….

                Are we simply being lazy? Believe me, I can see how difficult it would be to put together a civil procedure course from scratch, especially for someone like me who does not write in the field and does not consider herself a specialist. But is the level of difficulty an excuse for poor pedagogy, especially for someone who, like me, has been teaching the course long enough to have an idea of what I’d like to emphasize and how I’d like to go about it? Of course, we could all still consult the casebooks to assist in our course prep, though I am fairly sure this is not the use that their publishers (or authors) would intend for those complimentary copies.

                I suppose if no one used casebooks, they would stop being written, and then something might be lost. The wise folks who place their accumulated knowledge and expertise into those casebooks might not bother to put similar energy into treatises or other such volumes that would not hold out the possibility of substantial royalties from wide law school distribution. Then we would lose a valuable source of reference material, if you will. And I will admit that the Civil Procedure casebooks I have used have been enormously helpful for prioritizing, synthesizing, and all around just getting my bearings as a new prawf. But I am not sure that I can continue to justify using them on any basis except, of course, my need to find time to write something besides powerpoints and lecture notes …. Well, then again, maybe I'll assemble my own materials next year....

Posted by Jessie Hill on August 15, 2009 at 12:09 PM | Permalink | Comments (8) | TrackBack

Predicting Fraud

Here's an interesting tidbit from this weekend's New York Times magazine profile of Bruce Bueno de Mesquita, a political scientist who uses game theory to predict political and corporate outcomes.  The Times reports that Bueno de Mesquita offered to use his predictive software for Arthur Andersen 

"to predict which of Arthur Andersen's clients - including, at the time, Enron - were likely to engage in financial fraud.  But the firm's lawyers, Bueno de Mesquita says, didn't want to use the tool for fear it would put them in awkward legal positions."  

No kidding.  The Times then quotes a former Arthur Andersen partner: "'Had I been able to convince the firm' to use the model... I think that Andersen would be alive today."

Posted by Verity Winship on August 15, 2009 at 09:03 AM in Corporate, Current Affairs | Permalink | Comments (3) | TrackBack

Friday, August 14, 2009

Elgar Encyclopedia of Labor and Employment Law and Economics

Fresh out of the oven, just got hold of the hard copy: Labor and Employment Law and Economic, Kenneth Dau-Schmit, Seth Harris and Orly Lobel. Elgar decided last year to transition its popular Encyclopedia of Law and Economics (Posner has a great forward in it) to specialized volumes, and the labor and employment law volume is one of the first of these subject-specific books. Ken Dau-Schmidt and Seth Harris were wonderful collaborators to work with and we lined up terrific authors for each of the entries.

The nice thing about these volumes is that they are meant to be a comprehensive collection of chapters which include a literature review, comparative analysis, economic theory, empirical studies and an extended bibliography. This allows anyone approaching the subject matter for the first time to use the encyclopedia as the first step in their research. It also provides a good basis for workshop and seminar discussions and a handy refresher for scholars already writing in the field. Hope you enjoy it, and I would love to hear about the other volumes in the works.



Posted by Orly Lobel on August 14, 2009 at 06:24 PM | Permalink | Comments (0) | TrackBack

Is Silence the Better Part of Valor?

In my ever-expanding series of musings about the ethical practice of legal scholarship, I thought I'd alert readers to this interesting response to Jack Balkin by William van Alstyne. It appears on Balkinization:


A few days ago, Jack Balkin posted an SSRN reference to a forthcoming piece of mine titled "The Unbearable Lightness of Marriage in the Abortion Decisions of the Supreme Court." He courteously sent me an email, providing an attached copy, with an expression of hope that he had not "mischaracterized" what I wrote. I thought that he had done so in a variety of ways, and at once wrote him back to say so, with a few paragraphs as merely a start to a longer reply.
After reflecting on the matter over the weekend, however, I decided against the idea. Frankly, it is too reminiscent of the endless exchanges Raoul Berger got into whenever anyone wrote something less than flattering of something he had offered in print. (It was all too much like pleadings at common law, i.e., complaint, answer, rejoinder, surrejoinder, rebuttal, surrebuttal. If nothing else, it could rightly be said of Raoul Berger that he was "indefatigable," i.e., Raoul let no critic go unanswered, determined always to have the last word, no matter what).
On reflection, it seems far better to thank Jack for drawing attention to my SSRN-posted essay, with the suggestion to the many readers of his blog just to read what I wrote, judge the matter for themselves, and leave it at that. To the extent they find it wanting, well, that's quite all right. Still, at the end of the day, it will be quite nice that it may thus achieve a wider audience than I had any reason to expect.


It's kind of a gracious reply--except for the none too subtle digs at Raoul Berger. I guess the thought is that if you're at Harvard or dead (or, better, both), the principles of generosity or charity don't much apply, even or especially to those who might simply be really committed to "getting the arguments right" (one of our mottos here, inspired by Walzer)...In any event, I would think most people who write a critique of another person's work would welcome (or if they have integrity and curiosity, should welcome) the feedback of the object of the critique. That said, I suspect that for some of these objects of critique, the task of replying to those who engage you seems tedious because it requires you to look back on your work when you might prefer to look forward, or perhaps forget you even wrote those words.

Alas, I'm reminded that I have a few things I'm supposed to respond to...but I think I hear the more urgent call to go change a diaper or six. Have a good weekend.

Posted by Administrators on August 14, 2009 at 04:24 PM in Dan Markel | Permalink | Comments (6) | TrackBack

Text Book on Mass Incarceration: Coleman/Plata v. Schwarzenegger

The massive 750% increase in the California prison population since the mid-1970s is the result of political decisions made over three decades, including the shift to inflexible determinate sentencing and the passage of harsh mandatory minimum and three-strikes laws, as well as the state’s counterproductive parole system.  Unfortunately, as California’s prison population has grown, California’s political decision-makers have failed to provide the resources and facilities required to meet the additional need for space and for other necessities of prison existence. (Opinion Order page 181)


The 184 page opinion and order of the special three-judge federal court in the matter of Coleman v. Schwarzenegger and Plata v. Schwarzenegger (Coleman) is a remarkable document in the history of federal courts and in the history of contemporary penality.  I teach an upper division undergraduate class on punishment and society next Spring and I may try to use the opinion as the core textbook for the class (along with an extraordinary record produced in a 19 day trial last winter and spring).  For starters, Coleman is an indictment not simply of a prison system but of a regime of governance many of us have come to call “mass incarceration”.   While careful not usurp the role of the state in setting its own penal philosophy, the court depicts an unremitting policy of rigid and lengthening sentencing has been pursued for three decades leading to a 750% increase in the prison population combined with a steadfast refusal to acknowledge or remedy the human costs and requirements of this extraordinary social policy experiment.

Second, Coleman provides an anatomy of a distinctive form of late modern penality that appears to be nearly unique to California (and perhaps to some of the federal government’s war on terror facilities).  While California is near the national norm in the rate at which it incarcerates, and apparently for the length of initial prison sentences (although I think that misstates the reality for violent crime), the Coleman court cited consensus among the experts that California’s approach to incarceration and post-incarceration is extreme and perhaps unique.  There are two components of this penality; the literal use of the prison as a warehouse with little actual intent to rehabilitate or even biologically sustain the human inmates, and the creation of a parole “supervision” system that is little more than a low cost, high speed system for cycling people back to prison for minor offenses and some 17,000 “purely technical” violations (out of a total of around 74,000 a year returned to prison without a new criminal charge). 

The warehouse component is truly shocking.  Many of us have used that term glibly to describe a system that has little ambition beyond incapacitating its residents from committing crimes on the outside.  In California, that irony was turned into policy, with prisons built with the intention that they could not provide adequate space for medical and mental health services at even 100 percent of design capacity, and which have operated at far above that level for decades.  This problem has been compounded by the fact that, in order to save time and money, the state built new prisons on the grounds of its old prisons, creating something more like penal complexes that exacerbate the already difficult problems of providing mental health and medical care (the subject of the underlying Coleman and Plata litigations), as well as environmental problems like water use and sewage.  (Indeed, the state now proposes to remedy the current crisis by building even more cells inside the grounds, a process known as "infilling").

These are prisons only in the nominal sense that they are called that, but they have lost almost any semblance of the penitentiary project that was born in the United States nearly two hundred years ago with the opening of the Eastern State Penitentiary in Philadelphia.  There has always been a glaring gap between the promise of the penitentiary and its practice, what David Rothman memorably described as “conscience and convenience” in his 1980 book of that title.  But in California conscience dropped out altogether, and its in place, a clumsy kind of control that has come to rely upon blunt racial classifications (“no black visitors today” was a sign that greeted one of the attorneys in the case as he visited a California prison last week) and systematic use of lockdowns (prisoners locked in their cells 24/7 sometimes for weeks at a time) that render any activity other than bare life almost impossible (yes, here the comparison with “camps” as drawn by contemporary political theorists like Giorgio Agamben and Judith Butler is salient).

Finally (for this overlong if delayed post), Coleman provides a legally rigorous tour of the extraordinary barriers that Congress has put in the way of federal courts enforcing human rights in state prisons through the Prison Litigation Reform Act of 1996.  The law is important evidence of why this is not just a penal aberration (why have insisted on hauling around the clumsy term governing through crime, whenever I try to talk about this stuff) but a distinct governmental logic.  PLRA was designed to insulate state prison systems from prison condition lawsuits at a time when mass imprisonment was being implemented all over the country and encouraged by earlier federal legislation by creating a host of obstacles to prison litigants.  Coleman involves the core of the law’s concern with keeping prisons full.  Setting mass incarceration aside as a special practice to be shielded from constitutional rights enforcement (a rehearsal for Congress role in the war on terror), the PLRA singles out release orders as requiring special procedures and burdens.  A three-judge court must be established.  The court must find that over-crowding is the “primary” cause of the constitutional violations.  The court must find that no other remedies can reasonably be expected to reduces the crowding problem or relieve its obstruction to remedying the underlying constitutional violations.  After going through all those moves, the court must give further consideration to the effect on public safety of any remedy involving prisoner releases.  In my view the three-judge court lays a very strong set of findings down on each of these, with a substantial record to back them up, and in the end compromises considerably its own judgment as to what population would assure constitutional compliance (they recognize the case for insisting on a cap at 100 percent of design capacity but set the target for compliance at 137%).  Thus while this is in many ways a California story, it is worth recognizing that Congress has for more than a decade inserted itself into the proliferation of mass incarceration, by partially stripping the federal courts of jurisdiction to enforce the constitution in prisons.

Much of the drama surrounding the order when it was announced last week has slipped away.  That is largely because it seems easy to imagine that the state can muddle through this legal crisis, just as it has many times before.  The differences between the numbers set by the three-judge court (some 46,000 fewer inmates over two years), and the numbers discussed in the budget compromise (some 27,000 fewer inmates over one year) are not far apart.  In the end that is too bad.  We will need a much bigger crisis to get us to reconsider mass imprisonment in California.

Posted by Jonathan Simon on August 14, 2009 at 02:49 PM | Permalink | Comments (0) | TrackBack

No Causal Relation

So, I leave Southwestern Law School in 2007.  In 2009, actor Jerry O'Connell apparently decides to attend Southwestern as a student.  I'm sorry to be deprived of the pleasure of teaching him.  Although he still owes me for the four hours I just spent re-watching The 60s on VH1 over the last two nights, and a semester of my Legal Profession class would have more or less constituted a fair exchange.

Posted by Paul Horwitz on August 14, 2009 at 01:17 PM in Paul Horwitz | Permalink | Comments (1) | TrackBack

Thursday, August 13, 2009

The strange death of political sanity in America?

Has there been a secular trend over the last fifteen years towards political hysteria on both Right and Left? Perhaps Richard Hofstadter was correct that we Americans have always been addicted to conspiracy theories and hyperventilated political hyperbole. (As examples of over-wrought rhetoric, the Anti-Federalists’ pamphlets surely had no peer). Sometimes, however, I think that general paranoia have been on a steady rise since, say, the Vast Rightwing Conspiracy peddled the “Vince-Foster-Was-Murdered” theory, only to be matched by the Leftwing Bonkerists’ “Iraq-War-Was-An-Inside-Job” delusion.

But nowadays over-the-top jeremiads about American politics are not confined to the uneducated. Here’s an example from Brian Leiter who endorses a bizarrely bitter indictment of the Obama Administration from Ralph Nader. Leiter argues that “the Republocrat Administration of Barack Obama” occupies a space between “between the crypto-fascist right and what in the rest of the civilized world would be thought centrism.” Why, exactly? Leiter gives no reasons for this odd view beyond quoting Chris Hedges’ quoting Nader who sighs that political protests are muted because the people “have bought into the belief that if it [sic] protests it will be brutalized by the police. If they have Muslim names they will be subjected to Patriot Act treatment. This has scared the hell out of the underclass. They will be called terrorists.”

So Brian believes that the Obama Administration –- or American law more generally -- lies somewhere between Angela Merkel and, say, Le Pen, because "the rest of the civilized world" has more lenient policies on resident aliens and or more generous civil liberties than the United States? That will be news to the Muslims who are banned from wearing head scarves in French universities or Turkish guest workers in Germany who only recently (during the 1990s) obtained a limited form of soil citizenship for their children –- a sort of internationalism that we Yanks have enjoyed since 1868 in much more robust form. I am not expert, but French laws on detention and wire-tapping hardly seem more libertarian to my untrained eyes than our own American laws, Patriot Act notwithstanding.

But I gather than Brian’s endorsement of policies in "the rest of the civilized world" over Obama's policies is more a rhetorical gesture than a seriously defended position –- a sort of academic’s tea-bagging party. When a prominent Nietzsche scholar and distinguished law prof feels the need to feel his oats in this manner, does it not speak volumes for the spirit of our times?

Posted by Rick Hills on August 13, 2009 at 05:54 PM | Permalink | Comments (10) | TrackBack

Yale Execs Nix Pix

Here is an interesting reprise of the controversy over whether to publish parodic cartoons that depict Muhammad.  The New York Times has this story about Yale University Press's decision not to publish those cartoons, and other images of Muhammad, in a forthcoming book called "The Cartoons That Shook the World," after consulting with the university and with several authorities on Islam and on counter-terrorism.  Here are some quotes from the story:


John Donatich, the director of Yale University Press, said by telephone that the decision was difficult, but the recommendation to withdraw the images, including the historical ones of Muhammad, was “overwhelming and unanimous.” The cartoons are freely available on the Internet and can be accurately described in words, Mr. Donatich said, so reprinting them could be interpreted easily as gratuitous.

He noted that he had been involved in publishing other controversial books — like “The King Never Smiles” by Paul M. Handley, a recent unauthorized biography of Thailand’s current monarch — and “I’ve never blinked.” But, he said, “when it came between that and blood on my hands, there was no question.”


Reza Aslan, a religion scholar and the author of “No god but God: The Origins, Evolution, and Future of Islam,” is a fan of the book but decided to withdraw his supportive blurb that was to appear in the book after Yale University Press dropped the pictures. The book is “a definitive account of the entire controversy,” he said, “but to not include the actual cartoons is to me, frankly, idiotic.”

In Mr. Aslan’s view no danger remains. “The controversy has died out now, anyone who wants to see them can see them,” he said of the cartoons, noting that he has written and lectured extensively about the incident and shown the cartoons without any negative reaction. He added that none of the violence occurred in the United States: “There were people who were annoyed, and what kind of publishing house doesn’t publish something that annoys some people?”

* * * * * 

Ms. Klausen, who is also the author of “The Islamic Challenge: Politics and Religion in Western Europe,” argued that the cartoon protests were not spontaneous but rather orchestrated demonstrations by extremists in Denmark and Egypt who were trying to influence elections there and by others hoping to destabilize governments in Pakistan, Lebanon, Libya and Nigeria. The cartoons, she maintained, were a pretext, a way to mobilize dissent in the Muslim world.


I don't have as firm a view on this as I might like to have.  What better reason could one have to avoid printing these pictures than to avert the risk of bloodshed?  And surely, notwithstanding Aslan's views, those risks are not vanishingly small.  And yet it seems to me that this reason is both excellent and almost impermissible at the same time.  If the pictures are integral to the book, then surely integrity suggests that the press ought to take that risk.  At the least, it should not be a question that the press's director says leaves him with "no question."  It should leave him instead with very great reservations.

At the same time, the pictures should not simply be published for their own sake.  I find it hard to imagine saying that of a book that is about -- well, that is about the pictures.  But one can reasonably ask whether the pictures are being included in the book to explain them or simply to offend.  Of course presses print things that "annoy[ ] some people," but I don't think that poking a finger in the eye is itself a good reason to print something.  Given Klausen's description of her book, it is somewhat difficult to say from the outside whether she wants to print the pictures to discuss the controversy or to continue it, as a kind of assertion in and of itself.  

On the whole, I am inclined to say that the press should have been willing to print the pictures.  The author acceded to its decision not to, so perhaps that is answer enough as far as the relevant parties are concerned.  And I am not even addressing the question whether the pictures should be viewed as offensive by those who do not fall within this version of the Islamic tradition (it is not the only version, of course, and I imagine that even some or many Muslims who are offended by the pictures would still not wish to block their publication).  How to deal with actions that are offensive within one tradition but not within another is a difficult question; freedom of speech reasonably understood tells us that we may engage in such actions, but not that we must.  Still, I think the press probably erred too much on the side of caution -- and that point is perhaps underscored by the quote from the press's director, which suggests that at the end of the day the reason he declined to publish the pictures was to avoid violence rather than to avoid the substantive harm of offending others.   

Posted by Paul Horwitz on August 13, 2009 at 04:34 PM in Paul Horwitz | Permalink | Comments (2) | TrackBack

The Lost Art of Dictation

I have been interested in learning the lost art of dictation ever since I watched a judge dictate cogent and linear opinions, unscripted, from the bench.  Clearly that requires impressive smarts, but I also think it has its roots in years of dictating memos, motions, etc.  I used dictation in practice to quickly "write" first drafts.  Now I'm intrigued by the modern twist posed by the iPhone and one of its applications. 

ReQall (reviewed here by David Pogue for the New York Times) allows voice notes and reminders, and I have begun to wonder whether it, or something similar, might work for legal research or the beginnings of a draft.  The technology might not be up to it: using the voice recognition, I made a "note" that (like many bloggers) I am reading In Fed We Trust by David Wessel.  The program came up with "Note: reading inside the trust by David Wetzel."  But I'm intrigued and would like to hear if others have integrated this kind of technology into their academic work process.

Posted by Verity Winship on August 13, 2009 at 03:00 PM in Web/Tech | Permalink | Comments (2) | TrackBack

On Crying Students

At the Chronicle of Higher Education website, there is an interesting column titled "When Students Cry."  Actually, scratch that.  The column is reasonably interesting -- well-written, but you've probably seen it before.  The responses to the column, on the other hand, are fascinating.  I'm not surprised that there are different views on how to respond to a student who cries in your office -- over a grade, usually, although not necessarily.  I am surprised by just how harsh some of these comments are, how resistant to the very idea of feeling bad that one of your students feels bad.  Some of the reactions seem to be as much about the commenters' own insecurities, or about other issues altogether, than they are about the students themselves.  Prawfs readers may also enjoy the commenter who brings in the Sotomayor hearings (remember those?) and points out that having empathy for a crying student is hardly the same thing as altering one's standards.  In any event, both the column and especially the comments are well worth a read -- perhaps especially for incoming profs, who may never before have had to deal with something like this but almost certainly will face such a situation in the next year.

One other note.  In this as in much else, it seems to me that most of the emotional and professional burden of dealing with these kinds of episodes will be dealt with not by the pure "academic" faculty -- although, as the assigners of grades, we also get this from time to time -- but by the often underappreciated legal writing faculty, who have the closest exposure to incoming law students.  (And who also, incidentally, teach them some of the most important things they'll need to succeed in law school and legal practice.  If you're an incoming law student reading this, keep it in mind!) 

Posted by Paul Horwitz on August 13, 2009 at 01:28 PM in Paul Horwitz | Permalink | Comments (8) | TrackBack

Chief Judge Easterbook and the Problem of Amicus Briefs Supporting Rehearing En Banc

Thanks to Howard Bashman, I just stumbled across this "in-chambers" opinion filed yesterday by Chief Judge Easterbook, explaining why he rejected as untimely an amicus brief filed in support of a petition for rehearing en banc in the Seventh Circuit [disclaimer: I know nothing about the case on which rehearing has been sought, and have not read the briefs].  According to Easterbook, amicus briefs in support of rehearing en banc must be filed no later than the petition for rehearing itself, notwithstanding Fed. R. App. P. 29(e), which provides that “[a]n amicus curiae must file its brief, accompanied by a motion for filing when necessary, no later than 7 days after the principal brief of the party being supported is filed.” (A deadline with which the amici in this case complied, at least vis-a-vis the petition for rehearing.) For Easterbook, the "principal brief" is not the petition for rehearing (which, he argues is not even a "brief"), but the opening merits brief of the party before a three-judge panel.

Leaving aside the expediency-based reasons that Judge Easterbook invokes to support his reading of Rule 29(e) (at least some of which strike me as easily preserved through other means), this strikes me as a ruling that is both silly and likely to cause mischief: Silly because a petition for rehearing en banc is very much a "brief," full of legal arguments for why the original panel opinion should be reconsidered by the entire court. Indeed, is a "petition for certiorari" any less a brief because it is a "a request for discretionary relief" that's not called a "brief"?

And it's likely to cause mischief because one of the central utilities of amicus briefs is to advance arguments _not_ made in the relevant filing by the party (and how could the amicus know what the party was arguing before their brief is actually filed?). Instead, Easterbrook's bizarre reading will encourage the very kind of substantive and logistical coordination between parties and their potential amici that both the FRAP and the Supreme Court's rules in various places (rightly, in my mind) attempt to discourage.

I have a great deal of respect for Chief Judge Easterbrook, but this strikes me as a very unfortunate ruling--and one that I hope his colleagues successfully persuade him to reconsider.

Posted by Steve Vladeck on August 13, 2009 at 01:06 PM in Civil Procedure, Steve Vladeck | Permalink | Comments (1) | TrackBack

Our duty to keep law schools amphibious...

For my sins, I have been appointed for the third straight year in a row to serve on NYU's appointments committee. After reflection, I have decided that the best way for me to avoid further assignments is to be so honest about my hiring priorities that I thereby shock my dean and colleagues into appointing some one more suitable for the job.

To use a metaphor, I think that our primary duty is to keep the law school amphibious. Law school faculty members can typically be arrayed along an axis of academic depth ("the water environment") versus practical groundedness ("the land environment"). Faculty members, therefore, tend to lean one way or the other: Some are ace lawyers (say, Georgetown's David Vladeck) who are most at home on the solid ground of the courtroom, and some are purely academic specialists in some non-legal discipline -- lungfishes, if you will -- who rarely clamber up on land even to write an amicus brief or comment on a case (say, NYU's own John Ferejohn or Tom Nagel or Chicago's Brian Leiter). The challenge is to hire a faculty that has a mix of really aquatic and terrestial creatures in which everyone is a bit of an amphibian, mutually intelligible to each other and capable of participating in the same workshops profitably.

Two years' of experience on the appointments committee here at NYU and two on Michigan's committee have taught me that this is harder than it sounds. There is always a risk that the swimming critters and the land critters will suspect that the other group has contempt for the other's ecology and, as a defensive reaction, nix each other's preferred candidates.



In theory, everyone should understand that candidates should be judged on a sliding scale: We should be able to hire non-JDs with outstanding non-legal academic credentials as well as outstanding practitioners who have never written a purely academic article in their life, just so long as both groups care about the law and can talk intelligently to each other. But I've had colleagues who would turn down Brandeis himself for lack of sufficiently theoretical writing as well as colleagues who would nix Socrates because he lost his only case in his sole courtroom appearance.

I do not know the trick to avoiding these sorts of fights. But I plan to reject the myths of both the die-hard fish and the confirmed terrestials. I do not believe that a candidate needs a JD to be a great member of a law faculty: In my view, the only legal "method" is (quoting T.S. Eliot's view of literary criticism) "to be very intelligent." (The JD-less Don Herzog of Michigan teaches a legally deep class on First Amendment law that covers more doctrine in greater depth than most JD-taught courses). And likewise I do not believe that one needs to have ever published a single "theoretical" article if one's practical experience is sufficiently deep and varied.

The important point is that each type of candidate have a temperament of respect for what the other group is doing. The practitioner who has spent years lobbying Congress or practicing in a courtroom cannot play the harrumphing Philistine, irritably denouncing (for instance) mathematical models of voting behavior in legislatures or on the bench as "over-simplified." (Of course such models are over-simplified as a descriptive matter: So are subway maps of NYC -- but they are still helpful if they are testably predictive of where one will end up). Instead, the practitioners ought to be inquisitive about methods that they do not understand, asking for "intuitive" explanations in plain English and discussing those explanations in the terms of the relevant discipline. Likewise, the aquatic life forms ought to be able to speak and write English and communicate their academic insights in language that an intelligent lawyer, judge, or law student can understand, and they ought to be asking questions about which such an audience could conceivably care. An exclusive focus on refinements in discipline-specific methodology is a great thing -- but not a great thing for a law school.

Within these parameters, I'll vote for anyone, with or without the requisite union card of a JD or Ph.D, with brains and knowledge. I do not know whether this hiring philosophy will be a success with my colleagues. If not, then at least I'll get the more than adequate compensation of not being appointed to the appointments committee again.

Posted by Rick Hills on August 13, 2009 at 11:21 AM in Life of Law Schools | Permalink | Comments (3) | TrackBack

Wednesday, August 12, 2009

Shall we ever rid ourselves of bogus "town" meetings on national policies?

The spectacle of President Obama's town meetings on healthcare reform inspires my question. President Obama did not invent this device -- it really hit its stride in the 1990s, when the Clintons discovered its potency as a stage for an empathetic politico -- but I wish that Obama would forego its use. The problem is that town meetings (as the name implies) require town residents' dealing with town policies. When this essentially local procedure is dragooned into the task of discussing, say, national health care policy, the result is necessarily fake, an exercise in PR rather than democracy.

As William Fischel, the Dartmouth economist, has argued in his Homevoter Hypothesis (Harvard University Press 2001), local residents have both the incentive and capacity to gather information spontaneously about local politics -- zoning, local services, taxes, schools, etc. -- because these affect their property values in intense and immediate way and because the sources of information are close at hand. But the participants in "town" meetings about national policies have no such incentives. As Adam Ferguson observed a decade ago when the national "town" meeting was still a fresh campaign technique, the town meeting on national policy is "Ye Olde Town Gimmick" -- a Potemkin Village of policy ignorance, partisan high jinks, or (where a politician can screen the audience) soporific mutual admiration ("That's an excellent question! And this Administration cares about working families....")

The really repulsive aspect of national "town" meetings is that, by providing the simulacrum of participatory democracy, they crowd out consideration of the real thing. There are interesting proposals out there to create lay assemblies that, like juries, would be exposed to an array of expert and political testimony and forced to deliberate for an extended period before making a recommendation. Ethan Leib, my co-prawf, is a vigorous defender of one such type of institution, and citizens' assemblies have been tried in British Columbia to push electoral reform with mixed success. Of course, there is always our home-grown version -- the real town meetings that deals with real town policies: I recommend Frank M. Brayan, Real Democracy: The New England Town Meeting and How It Works (U. of Chicago Press 2004) for a detailed study.

By contrast with these institutional solutions to collective action problem of information acquisition in a democracy, the national "town" meeting feeds the myth that participatory democracy is can be acquired on the cheap without the hard work of actually studying the issues being discussed. So call them "talk shows," "focus groups," "photo ops" -- anything but what they are decidedly not: viz, a town meeting of citizens actually engaged in self-government.

Posted by Rick Hills on August 12, 2009 at 10:57 PM in Current Affairs | Permalink | Comments (5) | TrackBack

Recouping Bonuses From Innocent Executives

This post, the second in a series about recouping executive compensation, looks at the SEC's recent action to recoup bonuses from an executive who was not charged with misconduct.  This SEC action is the first to use the SOX 304 clawback provision this freestanding way.  The story has started to make the rounds of the blogs and op eds and many (Ribstein, WSJ) but not all (Conglomerate) criticize the move for penalizing innocent executives.  I explore two slightly different questions after the jump: How much does the same debate apply to the legislation implementing TARP, which also has a clawback provision? and How does agency law fit in?

So, first, how much do concerns about "innocent executives" apply to the legislation implementing TARP, which also has a clawback provision?  The TARP-related provision also does not seem to require that the executive be responsible for the materially inaccurate earnings statements, etc., that trigger the clawback power - the aspect that seems to have triggered the most outrage in the blogs and op eds about SOX 304.  To that extent, the debate may be relevant.  

But the implementation strikes me as quite different.  The TARP-related clawback provision includes this language:

"The Secretary shall require that the financial institution meet appropriate standards for executive compensation and corporate governance" including "a provision for the recovery by the financial institution of any bonus or incentive compensation paid to a senior executive officer based on statements of earnings, gains, or other criteria that are later proven to be materially inaccurate." EESA 111

"A provision for the recovery" is a bit of an awkward construction, but I read it as pushing TARP recipients to include clawback provisions in employment policies or individual employment contracts and enforce it that way.  (Those of you deep in the weeds of EESA can correct me.)  So the enforcement might include arguments about whether the company had provisions in place or the employee's contractual rights, as much as statutory interpretation and institutional powers.

Another question I have is how much holding the CEO or CFO responsible is already reached by agency law?  After all, respondeat superior already reaches "innocent executives" because it doesn't require personal involvement in the conduct.  Maybe the simple answer is that the CEO isn't the employer, so that there is no agency relationship.  But at the very least, we should be used to mechanisms that penalize because of a person's position or relationship.  The question in the SEC case is then whether it is good policy to enforce this way or, as Usha Rodrigues points out on the Glom, whether the SEC can/should change interpretation midstream.

Posted by Verity Winship on August 12, 2009 at 09:05 AM in Corporate, Current Affairs | Permalink | Comments (0) | TrackBack

Woodstock and the Legal Academy

With the fortieth anniversary of Woodstock fast approaching, I've been getting nostalgic these last few days.  Not nostalgic about the concert, since I wasn't there.  But nostalgic about the music, which always takes me back to when I was first introduced to the music in college.  Luckily, my I-pod has plenty of good stuff from the period: Jimi Hendrix, Jefferson Airplane, Crosby Stills & Nash, Sly & the Family Stone.  (As I type this, Grace Slick is belting out "White Rabbit" in the background.  Although lately I've been getting into a Gillian Welch version recorded at this year's Newport Folk Festival.) Anyway, oddly enough, thinking about Woodstock, and listening to this music, has gotten me thinking about the legal academy.

To be more precise, Woodstock has gotten me thinking how little I know about the legal academy.  What was going on at law schools when the hippiedom was at its peak?  Obviously there was a lot going on in the world then.  It was the year after the riots at the Democratic Convention, not to mention the student riots in Paris.  It was a time of Vietnam protests and the moon landing and the Stonewall Rebellion. Clearly the academy was involved in the Civil Rights Movement--President Johnson had just signed the Civil Rights Act of 1968 the year before--but what about Woodstock, that three-day festival where dress codes and drug laws and draft codes were rejected, where a type of natural law reigned, and where Jimi Hendrix, in re-imagining the Star-Spangled Banner, also re-imagined America?  Were any of the attendees law students? Law professors? Future law law professors?  I'm assuming that when we were law students, we had a few law professors who were former hippies championing peace and love, but who were they?  Who were the professors who smoked pot and dropped acid and practiced free love? And were there professors who brought this spirit, this sense that the world could be made anew, this counterculture sensibility, into their scholarship?  I know about Yale Law Professor Charles A. Reich, who in 1970 published The Greening of America, but who else is there?

Let me know.  I hate to think of us as belonging to a staid profession.  

Posted by Bennett Capers on August 12, 2009 at 08:53 AM | Permalink | Comments (6) | TrackBack

Tuesday, August 11, 2009

Evelyn Coke is dead. Long live Evelyn Coke.

Having spent much of my blogging career obsessed with Coke v. Long Island Care at Home, I was sad to see that Evelyn Coke died.  Her obituary was done very thoughtfully by the New York Times


Thanks to my boy T-Bone (aka T-Mac) for the pointer.

Posted by Ethan Leib on August 11, 2009 at 01:02 PM | Permalink | Comments (0) | TrackBack

Fielding Commentary from "Concerned Citizens"

As I enter my third year in what is pretty much the best job possible, it seems to me that, with the exception of publishing "hot topic" law review articles, being a law professor is most often a position where timing is not essential.  One exception to that general rule, however, are those moments where we are called upon for media commentary in response to some pertinent news item. 

In May, I was asked by my law school for a statement on the Daniel Hauser case, in which a Minnesota judge required 13-year-old Hauser to receive chemotherapy for Hodgkin's lymphoma; Daniel and his parents had initially refused such treatment in favor of holistic treatment methods favored by the Nemenhah band.  With chemotherapy, Daniel's chances of recovery were estimated to be over 90%; without this treatment, his cancer would almost certainly prove fatal.  Shortly after the judge's order, the boy and his mother had fled to California en route to Mexico before opting to return home a few days later.  Hausner did eventually receive the chemotherapy, and his tumor did shrink.  My statement supported the judge's decision in light of Minnesota state statutes and child medical neglect precedents, many of which dealt with Jehovah's Witnesses who had refused blood transfusions. 

After the press release containing my statement was released, my e-mail inbox began to fill up with comments from concerned citizens responding to my point of view.  The comments ranged from Jehovah's Witnesses who wished to educate me on the possibility of bloodless surgeries to rather irate folks who insisted that my heartless willingness to support the torture of innocent Daniel could only mean that I had no children of my own (if only they knew!) to enthusiastic supporters of religious freedom who insisted that adherence to a religion meant that parents could choose to heal their children in whatever ways they thought fit.  The volumes of e-mail that I received surprised me--I had received such comments before regarding my media statements on death penalty issues, but never to such an extent.  I didn't respond to any of these e-mails lest they result in protracted back-and-forth debates over social issues on which disagreement is not only acceptable, but outright predictable. 

I have since wondered how other prawfs respond to e-mails from "concerned citizens."  I'm sure others have many interesting stories and response strategies.  Do you respond or not?  Does it depend on the tenor of the e-mail message?  Do you use an alternative e-mail address when commenting on particularly controversial news events?  My inquiring mind wants to know.

Posted by Jody Madeira on August 11, 2009 at 12:44 PM | Permalink | Comments (1) | TrackBack

Recouping Executive Bonuses

Executive bonuses are in the news again, with the SEC complaint against Bank of America for allowing Merrill Lynch to pay up to $5.8 billion in discretionary bonuses, despite proxy statements suggesting that no bonuses would be paid.  Bank of America and the SEC agreed to a settlement, but these settlements are subject to judicial approval for being "fair, reasonable and adequate."  Judge Rakoff of the SDNY refused to approve it without a hearing, held yesterday, in which he called for more information.  A few thoughts:

First, the coverage seems to focus on whether TARP money was used to pay the bonuses, and outrage because $33 million seems small in comparison to the billions paid out.  But we should also be asking the usual question about corporate penalties: Where is that $33 million coming from and where is it going?  Is the penalty being paid with TARP funds?  (Is there any way to distinguish the source of money?)  Who gets the money?  In other words, maybe the cash is going from taxpayers to the Treasury, minus administrative costs.  Or the penalty could be distributed to injured shareholders through a Fair Fund.  It complicates the "bigger is better" account.   

Second, the NY Times reported that "Judge Rakoff said that he might hold another hearing to consider evidence of whether the bonuses were needed" and that "he might want to know if Merrill's management studied how many of the roughly 39,000 bonus recipients would have left had they not received their payouts."  This case may very well be part of an SEC bid to be relevant in the debates over executive pay and TARP, but this case is still about disclosure and it's not clear to me that the need for these bonuses is relevant to that.

Finally, we shouldn't be so surprised at Judge Rakoff's active role here.  He is no stranger to reviewing/shaping high profile SEC settlements - see WorldCom - and is also the co-author of a book on corporate sentencing guidelines, which raise some of the same issues as SEC corporate penalties.

Posted by Verity Winship on August 11, 2009 at 09:47 AM in Corporate, Current Affairs | Permalink | Comments (0) | TrackBack

John Brown, Dred Scott, Obama, and Citizenship--Part Two

As I mentioned in an earlier post, last week I attended a talk about John Brown, and found myself thinking about Dred Scott, Obama, and citizenship.  This post elaborates. 

The Supreme Court’s decision in Dred Scott incensed John Brown.  Not only was there Chief Justice Taney’s statement that blacks were “beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.”  There was also Chief Justice Taney’s conclusion: blacks, whether slave or free, were not included and were not intended to be included under the word “citizens” in the Constitution.  In short, blacks were not citizens, and would likely never be citizens.

John Brown rejected the Court’s conclusion, and responded by drafting both a Provisional Constitution and Declaration of Liberty that took as irrefutable the citizenship rights of blacks.  His Provisional Constitution described slavery as “none other than the most barbarous, unprovoked, and unjustifiable war of one portion of its citizens upon another portion” and asserted the Provisional Constitution as a necessary response to Dred Scott.  His Declaration of Liberty, which largely tracked the Declaration of Independence, was similarly inclusive, stating:  “When in the course of human events, it becomes necessary for an oppressed People to Rise, and assert their Natural Rights, as Human Beings, as Native and Mutual Citizens of a free Republic, and break the odious yoke of oppression…” 

Of course, John Brown was executed on December 2, 1859, years before the Thirteenth Amendment would abolish slavery and the Fourteenth Amendment would extend citizenship rights, on paper at least, to African Americans.  But what interests me is the extent that equal citizenship remains a contested issue.  Clearly, when Plessy gave its imprimatur to “separate but equal” in 1896, finding nothing unconstitutional in the segregation of black and white passengers on public train cars, the Court was permitting something akin to a hierarchy of citizens.  Brown in 1954, and Loving in 1967 can also be read as citizenship cases, efforts to make real the promise of equal citizenship contained in the Fourteenth.  (A side note: This is more than a passing interest.  My research right now is about racial profiling and citizenship.)

But are we there yet?  Have we achieved equal citizenship?  When Barack Obama was sworn in as President, it was widely noted that the Bible used was the same Bible the author of  Dred Scott, Chief Justice Taney, used to swear in Lincoln.  As Dahlia Lithwick put it in Slate, the swearing in of Obama was “in some ways the symbolic closing of a constitutional circle.” 

Now, with a good chunk of Republicans believing Obama is not a citizen, with the “birther” movement still latching on to a fake Kenyan birth certificate (willing to accept that, but not the certificate from Hawaii? Go figure!), with scary videos on YouTube of angry birthers disrupting town hall meetings, I can’t help but wonder if some of Chief Justice Taney’s sentiment remains.  I can’t help but wonder:  Would the birther movement be as dubious of Obama’s citizenship if he were white?  If his father had been, say, Scottish as opposed to Kenyan?  Is there any overlap between these birthers and the people who seemed eager, a few years back, to amend the Constitution so that Arnold Schwarzenegger could run for president?  At bottom, is this really about race?  At least partially about race?

This is how Chief Justice Taney framed the question in Dred Scott:  "Can a negro whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guaranteed by that instrument to the citizen?"  Chief Justice Taney likely could not imagine that a negro (slave ancestry or no) would one day become not only a member of the political community, but its leader.  The problem is, more than 150 years later, a lot of birthers still cannot imagine this.

Posted by Bennett Capers on August 11, 2009 at 08:53 AM | Permalink | Comments (3) | TrackBack

Monday, August 10, 2009

Arthur and the Law

As Dan adjusts to life with Cubby, the great question is how we balance scholarship with parenthood. One possible answer: You never know when legal scholarship will appear in unexpected places. Case in point:

Today on Arthur (my daughter's post-nap show of choice), an expensive cake plate was broken in the living room and a video/audio recording seemed to show that the plate had broken while Arthur and his friend were throwing a baseball around on their way to play outside. And everyone's immediate conclusion upon watching the tape was that Arthur was responsible for breaking the plate. But breaking the recording down, along with outside investigation, showed that conclusion was wrong.

In other words, the episode illustrated the central point in my recent article on video evidence. As I said, you never know.

Posted by Howard Wasserman on August 10, 2009 at 04:45 PM in Culture, Howard Wasserman | Permalink | Comments (1) | TrackBack

Judicial Character (and Does it Matter)

I'll have a few more posts about scholarship derived from my SEALS panel, but let me take a break and actually do something that was the subject of one of those panels: promote my scholarship.  I have posted a new paper on SSRN titled Judicial Character (and Does it Matter).  It's forthcoming in Constitutional Commentary, but editing is still at an early stage, so comments are decidedly welcome.  (It has also received the coveted "Highly recommended" rating from Larry Solum, so I thought I'd strike while the iron's hot.)  Here's the abstract:


This Essay, forthcoming in Constitutional Commentary, discusses three recent books about judicial decision making: Richard A. Posner's How Judges Think, H. Jefferson Powell's Constitutional Conscience: The Moral Dimension of Judicial Decision, and Daniel A. Farber and Suzanna Sherry's Judgment Calls: Principle and Politics in Constitutional Law. It uses them as the foundation for an exploration of the nature and role of judicial character, or judicial virtue, in constitutional judging. 

All three books have in common the rejection of any single comprehensive theory of or approach to constitutional judging. What divides them is the extent to which they focus descriptively on the "is" of judging or normatively on the "ought" of judging: here, Posner and Powell represent the respective poles, with Farber and Sherry located somewhat awkwardly in the middle. I argue that in order for us to find some livable space between the "is" and the "ought," we must take the aretaic turn: we must focus on the nature of judicial character or virtue and what it demands of the judge. Drawing on work on virtue ethics and virtue jurisprudence, I explore the role of judicial virtue and its relationship to constitutional decision making. I argue that the aretaic turn may help us to develop an understanding of judging that is both consistent with the judicial "is" and productive of new ways of thinking about the judicial "ought." In particular, I argue that reflection on the meaning and implications of the judicial oath may provide a fertile space in which to recapture and reconceive a normative sense of the judicial virtues without neglecting the real-world motivations and limitations that act on judges. This Essay is a prelude to larger work on the relationship between oaths and the Constitution.


Let me add a few words.  Although the essay makes apparent my view that Farber and Sherry suffer from trying to occupy the middle ground between Posner and Powell, as it were, all three books discussed in this essay are terrific, and the Posner and Powell books in particular are must-reads.  I argue that those of us who are interested in legal process issues (and I recommend, for those who are, this set of materials for a course on that subject by Chad Oldfather) have to find a useful way of threading a path between descriptive and normative accounts of the judicial process: a path between the judicial "is" and the judicial "ought."  One way to do that is to take the aretaic turn: to be concerned with questions of judicial character, both in a descriptive sense and a more normative sense.  Contrary to some of Larry Solum's work, I don't think we can derive very clear rules from this; and contrary to Farber and Sherry, I doubt we can come up with really detailed and convincing grounds to evaluate any given judicial decision on this basis.  (The effort to do so is perhaps the least convincing section of their book.)  But neither of these points takes away from the broader conclusion that character is an essential element of both the real world of judging and the normative ideals we might want to achieve in this area, and thus that it is vital to discuss questions of judicial character, in a way that is at once responsive to actual circumstances and interested in building a bridge between those circumstances and our larger ideals.  I think the aretaic turn is a valuable way to do this.  And I think the judicial oath in an important sense represents a fruitful space in which this project can take place.  

Finally, let me say that this is a prelude to a larger work -- hopefully an eventual book project -- on the relationship between oaths and the Constitution, not just for judges (the subject of my next big piece), but for other government officials as well.  The oath is a central part of the constitutional machinery, but much more needs to be said about it.  Hence, comments on this initial piece of the project are doubly welcome.  I hope you enjoy it.

Posted by Paul Horwitz on August 10, 2009 at 10:49 AM in Paul Horwitz | Permalink | Comments (1) | TrackBack