Saturday, October 31, 2009
Congrats to Todd HendersonBrian Leiter is reporting that my friend Todd Henderson (Chicago) is this year's winner of the Federalist Society's Bator Award. Congratulations! Todd is joining an impressive group! Check out this list. (Especially, of course, the 2009 winner.).
Respect Copyright Law: Don't Print Your Own Canadian Money
Of all the reasons not to churn out banknotes in your own cellar, worries about liability for copyright infringement never occurred to me.
Until my wife and I took our two boys up to Winnipeg for the weekend.
Although we could probably have made it through the weekend on credit cards, I was super psyched about getting a wad of Canadian currency out of an ATM machine.
To experience the full excitement of traveling abroad, you've got to have a pocket full of unfamiliar money. Nevermind that their pennies, dimes, nickels, and quarters look almost identical to U.S. coins. And put aside the fact that the exchange rate right now between the U.S. and Canada is almost exactly one-to-one. I was still excited to use different cash.
Inspecting the colorful bills, I got a delightful surprise: a copyright notice!
Aspiring counterfeiters be warned – the bills are copyrighted by the Bank of Canada! That will make you think twice before xeroxing off a sheaf of north-of-the-border moola.
In the United States, we discourage that sort of thing with specially crafted counterfeiting laws. Under these laws, you can be arrested by Secret Service agents who, in proving their mettle to make the presidential security detail, will take you down in broad daylight in a swarm of dark suits and sunglasses while never ceasing to speak covertly into their earpieces.
The Secret Service is all business. To my knowledge, they've never waterboarded anyone, but if they did, you can be sure they would do it without taking off their ties or unbuttoning their collars.
If you counterfeit money in Canada, you could, apparently, get sued for copyright infringement. Don't think just because Canadians say "sorry" a lot that they will go easy on you. They will be all over you like the RIAA on a mother of two who downloaded a couple dozen songs from the internet.
But honestly speaking, of all the absurd and hyperactive claims of copyright, I think this has got to take the cake. Now, I have no doubt about the law. I am not a student of Canadian copyright law, but I am quite sure the Bank of Canada is entitled to the copyright in their currency designs. But under the Berne Convention, Canada does not need to use a copyright notice to have copyright protection. And to the extent the copyright notice is designed to have evidentiary value in a lawsuit, it's just funny.
And more to the point, why would Canada care to assert a copyright claim over their bills anyway? What possible copying of Canadian banknotes could there be that does not constitute protected fair use or criminally prosecutable counterfeiting?
The only thing I can think of that might fall between the cracks would be if some lazy foreign government decided to rip off Canadian currency designs to avoid the the annoyance of having to come up with their own. But there are two glaring problems with this argument.
Princess Joan, one-third the population of Sealand, on her principality's coinage.
First, the smaller a country is, the more fired-up it gets about designing its own money.
For instance, the dubiously sovereign Principality of Sealand – perched on an abandoned gun platform in the English channel, population three – has far more coin denominations and stamp issues than people.
Second, to be blunt, no third-world nation out there wants to put an engraving of pond hockey on their banknotes.
[Cross-posted on Pixelization.]
Friday, October 30, 2009
Notes from the Aspiring Law Professor Conference at ASU
Last week I attended a terrific conference organized by ASU. More than a general “how to become a law professor”, the conference was aimed at how to make the transition from legal practice or other academic fields into legal academia with a target audience of visiting assistant professor (VAPs) and teaching fellows -- attendees are already well on their way to becoming law professors. The conference began with a panel discussion and the afternoon was dedicated for mock interviews and job talks for the attendees. ASU intends to hold this conference annually and having taken part in this inaugural event, I can say it is a valuable conference for those going on the market in the near future.
I will try and summarize below some of the comments of the panelists, as far as I can retrieve them from my memory. Importantly, beyond the formal discussion, one of the nice things about the conference is that it brings together VAPS and others who are at the final stages of launching their academic career and the meeting provides a good place for developing important networks and friendships among one’s academic cohort.
Brian Leiter began the morning panel by describing the various stages of the hiring process. He spoke about the significance of knowing the details of the process ahead of time: getting advice on filling out the FAR form; planning and practicing the interview in DC; knowing what is expected during a job talk and a two day callback; following up after the visit; making sure your references are doing what they can to support your candidacy. Brian talked about the rise of the VAPS/Bigelows/Climenko/other fellowship programs and how these have meant that entry-level candidates are expected to have a stronger publication record than in the past. In fact, the entry-level market is becoming more and more similar to the junior lateral one.
Brian advised with regard to teaching that it would be worthwhile having an idea about how one would teach their main courses listed on the FAR form; for example, having in mind perhaps a casebook you would want to adopt for your Civ Pro course and a reason for choosing that particular casebook. Brian also talked about when candidates should expect the call about a call-back following DC. Usually it will happen in the first two weeks after the recruitment conference although it could happen later. An important message in his talk was for the candidate to not try to figure out the black box of a hiring committee – there are simply too many moving parts in a committee’s decision-making that it is unhelpful (and often impossible) to know what exactly they are thinking – better to focus on all you can do to make the best case for yourself. Brian has written quite extensively on the topic of the law teaching market and his advice on various aspects of the process can be found on his blog The Leiter Law School Reports, as well as in an article that can be found through the University of Chicago Website.
Marc Miller spoke about the significance of personal connections and preparation before the final stages of the hiring process. He talked about how to prepare for the job talk and to anticipate difficult questions. For example, he suggested that even if you do not have an opportunity to give a full fledged faculty workshop at the institution where you are vapping [yes, its become a verb], you can easily gather four or five friends and family to hear you speak about your project. I would add that, in fact, making sure your non-lawyer friends understand at least the gist of your talk is key to a successful job talk [call it “the mommy threshold”]. Marc had a great suggestion about how to deal with hostile comments during a job talk/interview or in fact, any presentation: take every hostile comment as an invitation to co-author. I love that.
Jack Chin spoke about avoiding “overselling” your article and having appropriate expectations. At the same time he warned: avoid “underselling” your arguments and losing hope with too little expectations. Here is how he put it: a common mistake of entry level folks is to say they are about to solve in their job talk the mysteries of a field upon which people have been reflecting for decades. Don’t do that, unless you are absolutely sure you can deliver. A mirror common mistake of entry levels is to have too narrow of a topic or an overly doctrinal dry analysis – a topic that is basically similar to a memo or a brief on the state of the narrow legal question which you would prepare while in practice. Try aiming at something in-between those two pitfalls. Get a lot of advice.
Regarding expectations, Jack put it very well: the teaching market is highly competitive and not everyone will get jobs the first time around. And surely not everyone will get jobs at the very top of the law school food chain. Yet, this is a terrific career and if you are truly passionate about teaching and being an academic, remember that there are many law schools out there and each and every one of them has a lot to offer. At times, your mentors will have a skewed perspective and if they sound discouraging, it may be that they are thinking only about how to get a job at the very top. Be yourself and go with your passion. Finally, Jack mentioned that under certain circumstances an LLM may have some advantages over a VAP.
Orly Lobel, well that’s me, talked about the fact that schools are searching for new colleagues, which means that beyond the particular paper the candidate is currently writing and beyond the details of one’s resume, the committee is attempting to determine whether the candidate has what it takes to become a lifelong scholar and teacher. In my comments, I began by recognizing that this moment of going on the entry-level market is a stressful one, and, in particular, having to strategize about launching your academic career is not the most pleasant aspect of academic life. As academics we want the freedom to write and present and exchange ideas and in some ways, having to think about how to please others so they will hire you seems to run counter to this freedom. But I suggested that if there is a way to frame the process differently in one’s mind and actions, not as a disjointed high-stakes, high-pressure, one-shot moment, but rather as a point in time that is a continuing thread of what came before and what the future life in academia will look like, you are likely to a) find the process more pleasurable and b) do better. This is because part of finding a colleague is finding someone who senses and projects the joy of intellectual engagement. This is what I loved about Mark’s reframing of a hostile comment as an invitation to co-author: we are here for the long haul and we love the challenge.
I also talked about how foreign and advanced degrees are much more common and attractive on the market than in the past. There are still probably higher hurdles to pass when your first law degree is from a different country and when you haven’t practiced much law in the United State. But these can be overcome with a showing of a strong commitment to becoming an academic. Again, the more general point of this is that what is important is to recognize rather than be defensive about who you are and what you bring to the table. Finally, I mentioned that as someone serving on appointments for the first time this year, I notice how much noise there is in the system and one can signal by a direct letter/email to a school that they are truly interested for various real reason in that particular school, especially if the school is not ranked in the top 10 and not located in NYC, they can increase their chances of being noticed.
Brent White spoke about making personal connections and being persistent. He spoke about sharing your work with others and following up with people in your field once you’ve made their acquaintance. The purpose of such exchanges is twofold – first, getting comments on your drafts is an indispensible part of writing academic articles. There is simply no way to do it alone in a vacuum. One must share drafts, be open to comments, revise, present and learn about the audience to which the article is intended. The second purpose is to build connections within your academic field, so that even before going on the market, there are a few people beyond your former professors who can speak about your writing and intellectual abilities. Brent mentioned that many people on the market do not have the traditional credentials but can make up for that with a couple of years as a visiting professor and a strong publication record.
Carissa Hessick spoke about the various stages of the process, and how you shift as a candidate between a “selling” mode to a “buying” mode. When you are at the DC meat market, you are in sell mode and the main goal is to get a callback, so you do not at that stage raise all sorts of questions about whether the law school is located in a big enough / small enough / fill-in-the-blank-enough town for you. At the stage of the callback and definitely at the stage of the offer, you shift to a buying mode, and at that stage you must ask all the questions that will help you decide whether the school is right for you. At this point you ask about support for junior faculty, about helping with a dual-career issue and so on. She spoke about how one should be open minded when they look at various schools. It may well be that a place you didn’t think would be your first choice reveals itself as a perfect fit for your scholarship and as a new home.
Marcy Karin spoke about going on the market as a clinical law professor. This a rising part of the teaching market – tenure-track clinical positions. Here too, VAPs can be invaluable as a step toward the permanent position. Marcy spoke about the need as a clinical candidate to sometimes educate some of the school’s faculty members about law school clinics and clinical teaching. She recommended reading the Carnegie report which recently came out about legal education.
Andy Hessick spoke about the differences among different VAPs. Some programs like the Climenko and Bigelow fellowships have reached a prestigious status and are clearly designed to give the fellows time to write, network and transition into a permanent academic career. Others are more focused on filling teaching needs of the school and with those visits, the VAP [yes, it’s a noun as well] must make sure that they are being proactive in getting to know the faculty, finding opportunities to share their work, into a permanent position. He spoke about how doing two VAPs consecutively can help build your case before transitioning into a permanent position, but probably more than two might start looking like a negative. Andy also mentioned that it is important to understand what type of VAP one is entering – while some have a strict policy against hiring their own VAPs, other schools think of it as an opportunity to get to know you closely, a 9 months job interview if you will.
Doug Sylvester, the energetic organizer of the conference and a very entertaining moderator did a great job at summarizing the pointers: network; find a mentor; be prepared. Doug promised this will be an annual event at ASU and as I mentioned above, I think ASU has put together a terrific program and service for aspiring law professors. Feel free to continue the conversation in the comments below.
FAR and Away
I couldn’t resist using this double entendre for the title of this post, considering that it concerns law faculty hiring and a bidding of farewell. Thanks so much to everyone at Prawfs for having me on for a second visit. It’s been fun, and an honor. Since CNN listed college professors as a top job earlier this year, I thought I would end my stint with another topic that’s tangentially related to faculty job searches – the use of social media. There are many examples of articles that provide advice about this topic, but one cannot help but wonder how blogging is perceived by decision-makers in law faculty hiring. So, my question for the day is, how is blogging viewed by law faculties as they consider candidates?
The Lawyer as Information Manager
Steven Bennett (Jones Day - New York) has just published, at 37 Capital U. L. Rev. 729, his article The Lawyer as Information Manager. Bennett makes what I think is a perceptive observation about a major shift in how lawyers function as lawyers. Here are the first two paragraphs.
It may be easy to regard computer technology’s impact in legal information management as “simply a matter of lawyers being able to do what they used to do, only faster and more conveniently.” Yet, the true ramifications run far deeper. A recent study found that law review articles containing at least one Web citation increased from 0.57% in 1995 to 23% in 2000, while the average number of Web citations in such articles increased from 1.9 to 10.45 per article. Computer-based legal research databases including Westlaw and Lexis “today incorporate object-oriented views of data whereby different attributes can be selected and combined on the fly for different purposes,” unlike print sources of old, “where relations between classes had to be decided once and for all at the time of original creation.” The packaging and distribution of legal information is worth in excess of $5 billion per year and has grown at an annual rate of 5% in recent years. Competition has driven the rise of major legal document databases, just as competition continues to fuel the technology boom.
Many lawyers recognize and appreciate technology’s influence in their everyday work. Many others, however, have yet to grasp that an entire paradigm for the legal profession has been altered and remains in motion. This Article looks at the rapidly evolving technological environment and its effects on the practice of law, and also outlines a lawyer’s responsibilities in acting capably as an information manager in the years ahead.
And here's what Bennett says about how most law schools are (not) preparing students for this evolution in law practice:
Law schools today offer numerous opportunities for students to learn to use the major legal research databases. Yet, for the most part, the use of technology in the law remains a footnote in legal education, as legal practice technology is integrated into individual courses to varying degrees, without much coordination. Many transformations in information handling “remain outside the scope of today’s law school; large-scale document management; the discovery process in an electronic arena; information presentation and simulations in the courtroom; and the evaluation of electronic resources outside the narrow confines of the legal document databases.” It is no wonder that most law students—lacking exposure to technology’s role in the law and in legal information management—do not think to seek out practical clinical training in law-related technologies. There is perhaps even less coverage on the theoretical side of understanding how technology may affect the practice of law, and how the digital era may alter the framework of legal processes. For better or worse, practical technology education has been left for law firms to instill piecemeal, while theory and the evolving “big picture” receives very little, if any, academic attention.
How Many Scintillas Does it Take to Win?
One barrel of flour contains zero scintillas of evidence.
Time is measured in minutes. Sugar, in spoonfuls. Rain, in inches.
Evidence, of course, is denominated in scintillas.
Whenever a lawyer or judge wants to emphasize the lack of evidence in favor of some party or proposition, we hear that familiar refrain, "There is not one scintilla of evidence."
How did the scintilla become the recognized unit of measurement for evidence? We do not know precisely, but in this post, I present some of my own research findings.
An early prominent use of the scintilla can be found in the famous case of Byrne v. Boadle, 159 Eng. Rep. 299 (Exch. 1863). That case introduced the doctine of res ipsa loquitor to help out the unfortunate Mr. Byrne, who, struck by a barrel of flour that fell out of a building, had not a "scintilla of evidence" to prove that the barrel's fall was the result of any negligent conduct.
But the earliest use of "scintilla" that I could find was the dissent of a Judge Grimke of the Constitutional Court of Appeals of South Carolina in Frost v. Brown, a land-title case from 1798:
It is not pretended that any deed is even in existence; nor a copy of it, nor any record of it to be found; but it is alleged to have been lost, when Mr. Allston's house was consumed by fire. Is there any proof that it ever did exist, or that the landgrave ever executed it, or that he ever in his life-time, directly or indirectly, acknowledged that he had executed such a deed, or that it ever came into Mr. Allston's possession? ... Not one scintilla of evidence has been offered, to prove or substantiate any one of these important facts ...
2 Bay 133 (S.C.Const. 1798).
Despite the frequent usage of "scintilla" in modern times to characterize quantities of evidence, the word is rarely used in the plural. Only 22 cases in the allfeds and allstates databases on Westlaw contained a reference to "scintillas." And only one of those, Rosenthal v. Mueller, 720 A.2d 1264 (Md. App. 1998), quantified a number of scintillas other than one or zero. In Rosenthal, that number was two. You will probably not be surprised to hear that in Rosenthal two scintillas turned out not to be enough scintillas to win.
How many more scintillas would have been needed to get to a jury? The court does not say.
Now, there is another unit of measurement for evidence, and that is, of course, the mountain. Usually just one mountain of evidence is enough to win a case.
There are hundreds of reported cases quantifying evidence in mountain units. Yet, disappointingly, my research uncovered no conversion formula. How many scintillas are there in a mountain? The question begs scholarly development. But as of right now, we do not have even one iota of a clue.
Rand Without Tears
Adam Hirsch has a well-written review in this Sunday's New York Times Book Review of Anne C. Heller's new biography, Ayn Rand and the World She Made. This is one of two recent bios of Rand. The review is worth a look (especially for those who, like Tom Townsend in Metropolitan, prefer literary criticism to novels and, presumably, book reviews to books). I was a Rand fan as a youth, until my hard edge was blunted by a fortuitously-timed lost weekend in Montreal and my first encounter with Kerouac's writing. (Apparently, it takes a cliche to beat a cliche.) I still reread her epic novels from time to time, without shame or caveat, and still find them alternately gripping and awful. But I like this paragraph from Hirsch, which I think accurately captures some of her attraction:
Rand’s particular intellectual contribution, the thing that makes her so popular and so American, is the way she managed to mass market elitism — to convince so many people, especially young people, that they could be geniuses without being in any concrete way distinguished. Or, rather, that they could distinguish themselves by the ardor of their commitment to Rand’s teaching. The very form of her novels makes the same point: they are as cartoonish and sexed-up as any best seller, yet they are constantly suggesting that the reader who appreciates them is one of the elect.
Is the death penalty a specific incentive to murder? The strange case of Billy Joe Johnson
Billy Joe Johnson got his express wish yesterday, an Orange County jury sentenced him to death (reported in the AP on SFChron website). The twist is this, Johnson is already serving a forty year to life sentence in California's harsh Pelican Bay prison. Johnson, a loyal member of a white supremacist prison gang, who sports twin lighting bolt tattoos on his neck (in a fashion once associated with the SS) has been candid that the murder was one of several ordered from prison for the specific purpose of earning Johnson a transfer to San Quentin's death row.
Is Johnson's story credible? Prosecutors played in court taped statements of Johnson in which, clearly aware that he is being wire tapped, seems to speak directly to his future jurors (from R. Scott Moxeley's reporting in the Orange County News) :
“He ain’t done yet. He’s gonna kill again—oh, man!”
“I’m a motherfucking, bona-fide, certified, fucking nut fucking case, and if they don’t like it, they can fuck off,” said Johnson, who speaks with a lisp. “You know what I mean? Put that on the fucking front page, you know what I mean? Nut case. Fucking don’t care.”
In a final attempt to bolster his monster image, Johnson told jurors that he is determined to kill members of United Society of Aryan Skinheads, a rival gang.
“I’m on a mission,” he said, winking at the prosecutor.
Does trading life sentence in one of the state's "secured housing units", i.e., supermax prisons, for a cell on San Quentin's death row make sense? Frighteningly, yes. Execution is unlikely for at least 20 years (Johnson is already 46 and has spent much of his life in prison). Death row prisoners get much more lawyer attention and may have better physical conditions. San Quentin is a prison with far more educational and cultural resources than most California prisons (although death row inmates have little direct access to either).
Perhaps the better question is whether Orange County prosecutors and death qualified jurors are so high on vengeance fumes that they are being manipulated by hardened felon in a gambit that will cost the state millions in court costs over the life of the course of appeals, without gaining one wit of security.
Thursday, October 29, 2009
Lots of birther action
A whole lot happening today with the (futile and probably frivolous) efforts of the birther movement to use the federal courts to have Barack Obama removed from office on the ground that he is not a natural born citizen.
First, Orly Taitz, the lawyer who has become the main public figurehead in these efforts, to the tune of being sanctioned (I think $ 20,000) by a court in the Middle District of Georgia, has appealed the sanctions order to the Eleventh Circuit. She filed a Notice of Appeal (which is ordinarily a one-page document) that contains the same provocative language ("pervasively extreme and outrageous (extrajudicial) prejudice and bias;" "political lynching") that got her in trouble in the district court. I really don't see her still having a law license when this is all over.
Second, and more significantly, Judge Carter in the Central District of California dismissed (Download 21808122-Judge-Carter-Ruling-on-MTD), largely on justiciability grounds, the most comprehensive birther lawsuit. There were 44 plaintiffs in various positions--state legislators, active military, inactive military, 2008 presidential candidates, and (my favorite) a man who claims to be related to Obama and to need to know where Obama was born to better understand the family medical history.
Some thoughts after the break.
The court's analysis is pretty straight-forward, interrupted by some efforts to take shots at the plaintiffs and at Taitz, who represented all but two of the plaintiffs. The court wove political-question doctrine concerns into the redressability prong of standing, which was analytically interesting (i.e., the plaintiffs lack standing because their claims are not judicially redressable because they raise political questions). I was surprised and a bit disappointed that the court did not make more of the House, having accepted the Electoral College votes for Obama pursuant to its constitutional authority under the Twelfth Amendment, having made the textually committed determination as to Obama's eligibility. The court talked about this, but ultimately focused on the Senate having exclusive control over presidential removal.
Interestingly, the court criticized plaintiffs' counsel for waiting until January 20 (after the Inauguration) to file the lawsuit, when the only remedy would be a politically impossible injunction removing Obama from office and ordering a new election. But this creates an interesting wrinkle, at least for the small-party candidates. The court held that they did have a unique injury-in-fact, but lost on the redressability prong. But if the redressability problem is absent in a pre-election action simply to order the California Secretary of State to remove Obama from the ballot, will the court have to find them to have standing? Stay tuned to summer 2012.
Finally, the court (not sure if this is surprising or not) did not raise the issue of sanctions. But it leveled several criticisms at Taitz--including a suggestion that she urged political supporters to call and e-mail the court to tell him to decide the case a certain way and a suggestion (based on affidavits) that Taitz suborned perjury. So could some Rule 11 activity be far behind? Maybe we should start a pool on when Taitz loses that law license.
An Open Memo to President Obama: Get a Flu ShotTo: POTUS
Re: Your Decision Not to Get Vaccinated for H1N1
We understand that your daughters have just received H1N1 immunizations, but that you have decided not to get one yourself. As many children and pregnant women are still waiting for shots, you have chosen not to use the power of your office to ensure that you receive special treatment.
What else are you going to do to avoid special treatment? Live in a two-bedroom apartment and protect yourself with a can of pepper spray?
As the president of the United States of America, your time is at a premium. We, the taxpayers, realize that. If we were going to get jealous of you getting a flu shot, we probably would have gotten upset about the fact that you have your own personal 747. And then there’s the helicopter that lifts off from your lawn.
Look, we elected you. We want you at your best. The last thing you need while you are trying to navigate Afghanistan and Iraq is a virus that will give you, according to the federal government, "fever, cough, sore throat, runny or stuffy nose, body aches, headache, chills, fatigue, and possibly vomiting or diarrhea."
And then there's health-care reform. That’s pretty complicated. You’ll need to be able to focus. Is it a good idea to reform health care while you’re rolling around in a comforter on the bathroom floor moaning in agony? You’ll end up sacrificing everything to get America full coverage for lotion-infused facial tissue.
Now, we understand your concerns. Millions of voters can’t get access to the vaccine, and you’re a politician who’s going to be up for re-election before you know it. You want votes. Okay, that’s fine. Kiss babies for votes. Trade favors for votes. Grovel for votes. But don’t have vomiting or diarrhea for votes. That’s just gross.
Get vaccinated, stay healthy, and get a good night’s sleep.
That way you’ll be ready, tomorrow morning, when we ask you what you’re doing to get more vaccine made.
Job Talks and Presentations on Film
There are many great articles that offer advice for conducting job talks, but there are very few films that come to mind that include presentations to watch for entertaining guidance on what to emulate and what to avoid. Two of the better-known presentations in the movies are found in films featuring Michael Douglas – Wall Street (1987) and Disclosure (1994). In Wall Street, Gordon Gekko delivers the “Greed is Good” speech to shareholders, and Disclosure crescendos with a presentation revealing a few key lies among colleagues. As an interesting bit of trivia, a Wall Street sequel is planned for release next year. So, my questions of the day are as follows: What are some other films and television shows that have featured memorable presentations? What makes a good job talk?
Is Scalia Out of any Gay Marriage Case?
This week, Justices Breyer and Scalia came to the Rehnquist Center at the University of Arizona Rogers College of Law to debate statutory and constitutional interpretation. Justice Scalia said outright that the idea that gay marriage was somehow protected by the Constitution was absurd. I didn't think anything of it, because of the justice's outspokenness, but an economist sitting next to me asked: Does this mean that if the David Boies/Ted Olsen suit gets to the Supreme Court, Scalia will have to recuse himself?
It may not be clear from the video, but Justice Breyer borrowed several bits of business from Jack Benny, such as looking out to the audience, folding his arms, and putting his chin in his hand when Justice Scalia said things that were over the top. He looked like this.
Wednesday, October 28, 2009
Law School Hiring Thread, 2009-10, Thread Two
This thread will be moved to the front every ten days or so.Please add comments to this thread, not Thread One (where comments are now closed).
This thread is for both law professors and people who are on the market this coming year for becoming a law professor. We invite those on the market and those who are prawfs to leave comments (anonymously if they prefer) regarding a range of things:
a) whether they have received a call from a particular school inviting them to an interview at the AALS meat market, and/or whether they accepted it; also whether the school has asked for a candidate's scholarship yet
b) whether they have received a callback from a law school and/or accepted it
c) whether they have received an offer from a law school and/or accepted it; feel free to also leave details about the offer or info about teaching loads, research leaves, etc.
Law professors may also choose to provide information that is relevant to the entry-level or the lateral market.
Bear in mind: if you don't want your contact information displayed, please just enter in email@example.com or something like that as an email address.
This post will be moved to the front of the blog once every ten days or so, and we will also try to provide updates in the comments that consolidate the various bits of information here.
The aggregation will now take place slightly differently. All information should still come in through the comments. However, a very kind market participant has agreed to aggregate this information, and this aggregation will appear a spreadsheet that is embedded in this post (and will be embedded in future hiring posts). Only the participant will be able to edit the spreadsheet, but when the participant edits the spreadsheet, those changes will be reflected in the embedded version below.
Please note: the aggregator will try to update this spreadsheet once a day, but the aggregator may or may not (to preserve anonymity) have a job, and perhaps may even be on the market; thus there may be some delay in information's traveling between the comments and the spreadsheet.
Additionally, this is a new system, so please bear with any technical problems we may have.The first thread, where comments are now closed, is here.
Update: Comments are now closed on this thread. Please add comments to Thread Three.
A Thread for Aspiring Prawfs and Current Prawfs.
I've received a few requests by aspiring prawfs asking for a thread that's not related to the AALS meat market and the timing of callbacks, etc. This can be a thread in which candidates could ask questions about the conference, interviews, clothing protocol, questions to ask/not to ask, etc. and professors or previous attendees of the market could respond with feedback. In general, it'll just be a place where candidates could go to get their random questions answered.
Feel free to raise somewhat random questions or share information, anonymously or otherwise. Just bear in mind that, pursuant to our general policy, we ask you to be decent persons in your comments; stuff that crosses a line of what I consider inappropriate might get deleted. Enjoy.
A Taxonomy of Apology...
Today we have apologies from Larry Johnson (the Kansas City Chiefs running back) and Alan Grayson (the Democratic Congressman). I’ve attached links so you can see why they are apologizing—or really if they are apologizing at all. I’ve thought from time to time about the grammar of apology, and the ways that people (especially, especially lawyers) can so deftly apologize without ever really admitting fault. And so having some excess time this afternoon and getting a kick out of amusing myself with this—and inspired by the carefully crafted apologies of those like Kanye West, Serena Williams, and Mark Sanford—I’ll take a stab at laying out some basic categories of apology.
(1) “I’m sorry.” “I’m sorry for what I did to you.” “I’m sorry I hurt your feelings.” The basic normal apologies, the gold standard—only rarely heard in legal practice.
(2) “I’m sorry I couldn’t pick you up—I was running late.” This is an apology with a bit of an excuse added in at the end. But there’s nothing necessarily wrong with that though. Sometimes people want an explanation as to why you messed up.
(3) “I’m sorry if I hurt your feelings.” Here the nuance begins. Note its conditional nature: I’m not categorically or unreservedly apologizing. If it turns out that I didn’t hurt your feelings, I’m not sorry (or at least maybe I’m not). Still, again I think that there’s nothing necessarily improper with this type of apology. Sometimes you can’t quite tell if your mistakes caused the sort of harm for which an apology is appropriate.
(4) “I’m sorry if the fact that I failed to pick you up on time somehow made you late.” This is the apology with an element of disputation; the word “somehow” here changes the whole thing. I am questioning whether my mistake caused you harm. I may be disputing causation (you would have been late anyway) or maybe I’m alleging contributory fault (you could have gotten there without me). Here a lot will depend on how the word “somehow” is uttered. If it’s said quickly, it may go over okay. If it’s drawn out and used quasi-sarcastically, it’s entirely different. (And if you use it quasi-sarcastically and the other party picks up on it, quickly play dumb and maintain the illusion that you don't know what they are angry about.)
(5) “I’m sorry you took offense at what I said.” This one is my favorite—it’s a textbook non-apology apology, and I’m sure I’m as guilty as anyone at using it. It’s a close cousin to the oft-overheard at faculty meetings, “I’m sorry you misunderstood what I was saying.” It’s quite different from things like, “I’m sorry John didn’t get back to you, but I can help you now”—because it suggests that it is precisely the offended party that is being the unreasonable one. A normal person wouldn’t have taken offense, but you apparently are either too thin skinned and overly sensitive or too dimwitted to understand that what I did was actually not offensive.
Finally, having written all this, I realize one thing remains to be said. To my wife reading this in cyberspace, I am truly sorry for never apologizing right.
The Trials of AcademeRick commented the other day on a recent column by Stanley Fish about the death of academic abstention. The Fish column drew on a new book by Amy Gajda of the University of Illinois (Law/Journalism) called The Trials of Academe: The New Era of Campus Litigation, published by Harvard University Press. Let me have the pleasure of linking to its Amazon page so that everyone can do the right thing and rush out and buy it. I got my copy last week, and although a full read will have to wait while I wade through the philosophy of religion, a quick look suggests to me that this will be a great read and a very promising entry in the discussion of academic freedom and the legal status of the university -- and a fun and funny one at that. Academic freedom expert Michael Olivas says, in his book blurb, "Run, do not walk, to get this book--a great read on a wonderful topic. Amy Gajda is a terrific writer, generous but with real critical bite. For all her irreverent and funny style, her case that academic decisions are increasingly out of academic hands is persuasive and provocative." I think he's right. I had the pleasure of seeing Amy present an early chapter of the book at a conference organized by Michael, and I congratulate her on bringing the ship into port in such high style. (Hat tip for the metaphor goes, I think by a process of mental osmosis, to Season Two of The Wire, which I'm watching right now between philosophy-of-religion bouts.) As the saying goes, read it while it's hot.
Free Speech, Dirty Politics, Or Both?
For those who are interested in issues of the use and abuse of the Internet, questions of anonymity, and so on, here's an interesting story from the Hartford Advocate about the use of Twitter accounts and web sites set up by state Republicans in the name of various Democratic representatives in the state. Here's a snippet: Twitter, Inc., shut down 33 fake Twitter accounts created by Republicans using the names of Democratic state representatives. The Republican scheme was to send out posts under the Democrats' names mocking the liberal tax-and-spend bastards. "That's unfortunate," was state Republican Chairman Chris Healy's response when told of Twitter, Inc.'s decision. "I'm not quite sure what the issue is, other than that the Democrats were successful in stopping free speech." Healy's party may have suffered a setback with the loss of its Twitter campaign, but Republicans are still operating the 33 Web sites they created using the names of those same Democratic lawmakers. As far as anyone knows, this is the first time any state party has used such a tactic to mock its state opponents. Healy, who gives some of the best quote I have seen in a while, also argues in response to Twitter, "That's not impersonation; that's satire." Whether this is cheap politics or not is a different question than whether Healy's characterization is right. I haven't seen the Twitter posts, so I can't say whether they are openly satirical or whether they deliberately attempt to mislead readers into believing the posts were issued by the Democratic representatives. If it's the latter, clearly that is obviously wrong. Moreover, since they apparently violated Twitter policy, Healy's argument that the "Democrats were successful in stopping free speech" is both wrong and another example of the ways in which free speech is misinvoked in regular public discourse. The Web sites, on the other hand, at least on the evidence of the one I visited, look pretty clearly like sites about and against their targets, and refer to them in the third person, so I think these can more safely be said to be clearly recognizable as satire. The fact that they include the representatives' names in the site address (e.g., "Meet Joe Blow") doesn't lead to any real risk of confusion, in my view. It may or may not be unsavory politics, but it's hardly clearly illegitimate. One last taste of Healy: "The truth will eventually come out [about such ploys as the GOP's anti-Democratic sites]," Hancock added. He said the GOP scheme will backfire "if the Republicans are being viewed as playing dirty tricks, dirty politics." Healy is unrepentant: "I really don't care what a bunch of college professors from liberal colleges think."
For those who are interested in issues of the use and abuse of the Internet, questions of anonymity, and so on, here's an interesting story from the Hartford Advocate about the use of Twitter accounts and web sites set up by state Republicans in the name of various Democratic representatives in the state. Here's a snippet:
Twitter, Inc., shut down 33 fake Twitter accounts created by Republicans using the names of Democratic state representatives. The Republican scheme was to send out posts under the Democrats' names mocking the liberal tax-and-spend bastards.
"That's unfortunate," was state Republican Chairman Chris Healy's response when told of Twitter, Inc.'s decision. "I'm not quite sure what the issue is, other than that the Democrats were successful in stopping free speech."
Healy's party may have suffered a setback with the loss of its Twitter campaign, but Republicans are still operating the 33 Web sites they created using the names of those same Democratic lawmakers. As far as anyone knows, this is the first time any state party has used such a tactic to mock its state opponents.
Healy, who gives some of the best quote I have seen in a while, also argues in response to Twitter, "That's not impersonation; that's satire."
Whether this is cheap politics or not is a different question than whether Healy's characterization is right. I haven't seen the Twitter posts, so I can't say whether they are openly satirical or whether they deliberately attempt to mislead readers into believing the posts were issued by the Democratic representatives. If it's the latter, clearly that is obviously wrong. Moreover, since they apparently violated Twitter policy, Healy's argument that the "Democrats were successful in stopping free speech" is both wrong and another example of the ways in which free speech is misinvoked in regular public discourse.
The Web sites, on the other hand, at least on the evidence of the one I visited, look pretty clearly like sites about and against their targets, and refer to them in the third person, so I think these can more safely be said to be clearly recognizable as satire. The fact that they include the representatives' names in the site address (e.g., "Meet Joe Blow") doesn't lead to any real risk of confusion, in my view. It may or may not be unsavory politics, but it's hardly clearly illegitimate.
One last taste of Healy:
"The truth will eventually come out [about such ploys as the GOP's anti-Democratic sites]," Hancock added. He said the GOP scheme will backfire "if the Republicans are being viewed as playing dirty tricks, dirty politics."
Healy is unrepentant: "I really don't care what a bunch of college professors from liberal colleges think."
Tuesday, October 27, 2009
Law school on the "Block Plan"
For no particular reason, I was thinking today about the "Block Plan" (or "One-Course-at-a-Time") approach used at liberal arts colleges such as Colorado College and Cornell (IA) College. As the name suggests, students take (and professors teach) one class in an intensive 3 1/2- or 4-week block, take one week off, then move on to another single class. And at least Cornell plays up internship and other outside-the-classroom opportunities.
So: Any thoughts on whether law school could work on this model?
Scientology Faces Judgment in France...
Here's a quote from an article in today's NY Times:
The French branch of the Church of Scientology was convicted of fraud and fined nearly $900,000 on Tuesday by a Paris court. But the judges did not ban the church entirely, as the prosecution had demanded, saying that a change in the law prevented such an action for fraud . . .
The case was brought by two former members who said they were pushed into paying large sums of money in the 1990s, pressed to sign up for expensive “purification courses” and harassed to buy a variety of vitamins and other forms of pharmaceuticals, plus electronic tests to measure spiritual progress. One woman said she had been pressured into spending more than $30,000.
The Guardian and the Daily Mail also report on it. This is a pretty small judgment by American standards, and the Church seems easily able to pay it. The judges did not ban the Church altogether; some reports said they feared driving the Scientologists underground.
As people may intuitively suspect, this seems to be "fraud" only in a very limited sense. I haven't seen allegations that the Scientology people don't actually believe it. Without proof of such allegations, I would think any prosecution for fraud in this country would violate the First Amendment under an old case, United States v. Ballard, 322 U.S. 78 (1944).
Yet having said that, Scientologists and other groups like the Hare Krishnas have been nearly bankrupted by some very large tort judgments in the United States, arising from claims like intentional infliction of emotional distress and false imprisonment (usually of a mental/emotional type). It's a fluctuating field, and courts have yet to work out how tort rules should operate here. There are a number of issues -- you can see how, when evaluated under purely nonreligious standards, religious people can be seen as constantly committing outrageous and intentional acts that naturally become the subject of litigation whenever they cause mental distress.
Masterpieces of the Universe
In my Art Law class, we cover a variety of issues related to fine art, including ownership and public access. Museums are the largest holders of collections that are accessible to the public, and they are publicly funded. Many also consider some of our largest banks to now fall into that category. Since many bailed-out banks own precious works of art, does the public have the right to see them? The New York Times outlines the issue in great detail. If they don’t display the works, should the public have a say in how they are stored? Are we partial owners of fine art? What should happen to bank-owned art?
Puzzling Suppression Decision in Email Search Case
I'm as happy as anyone to see Fourth Amendment violations redressed, but a recent decision of Judge Block of EDNY, reported in The New York Times, leaves me scratching my head. Based on undisputed probable cause, the FBI obtained a warrant for an email account in a fraud case. Google turned over a CD copy of the account, and there was at least one "smoking gun" email. The judge suppressed for violation of the Fourth Amendment's command that warrants "particularly describ[e] the place to be searched, and the persons or things to be seized." But this warrant was particular; the email account was place to be searched and the thing to be seized. Judge Block found fault because the search and seizure was not limited to discovery of "evidence of a crime." But here, any arguable defect is formal. Google can't be asked to turn over only "evidence of a crime"--no data-holder can make that judgment, so the seizure of an email account (or computer) necessarily includes more than evidence of crime, just as the police necessarily seize an entire house even if they are only looking for a few things in it. As to the search, an FBI agent can't read only the emails that are "evidence of a crime" any more than they can search a house for a gun without looking at things that are not guns along the way.
Judge Block cited some "general warrant" cases, like United States v. George, 975 F.2d 72 (2d Cir. 1992), but those cases invalidated warrants authorizing searches of homes for, and seizures of, "evidence of crime" without specifying the crime. They were general warrants in that they allowed search and seizure of everything and anything. By contrast, this warrant applied only to a specified email account, that would have to be seized and searched in toto in the course of any search.
Am I missing something, or is this decision a blunder?
Monday, October 26, 2009
Angels in the BackfieldHere is an interesting story in the Times about a Georgia town in which a post-9/11 practice in which the cheerleading squad at a public high school "painted messages like “Commit to the Lord” on giant paper banners that the [football] players charged through onto the field." After someone raised concerns about this practice -- and, in one of the many fine twists in the story, that someone was a graduate student at Liberty University, who did not object to the practice but thought it raised legal concerns -- the school stopped it. The result was not a silencing of religious speech but a profusion of it, as fans in the stands took to bringing placards and banners bearing religious messages.
I'm one of those folks who thinks that Santa Fe Independent School District v. Doe was rightly decided, certainly in the absence of and probably even in the presence of any concerns about the scope of that decision given its posture as a facial challenge. I am not insensitive to, but not persuaded by, the individual quoted in the story who says, "I understand that the majority doesn’t rule, but it seems unfair that one lady could complain and cause all of this to stop." But I also think the profusion of private religious messages is fine and dandy. The story, in any event, is a good one for students of these issues.
Booker's Children: The Strange Segregationist Origins of Diversity?
The title of this post was inspired by a conversation I had with Anders Walker (SLU), who appeared in our enrichment series at FSU this past Thursday; in truth, I hope something like it will be the title of his next book project. Anders gave a legal history talk discussing the range of responses to Brown v. Board, emphasizing how some Southern politicians used the cultural politics of Brown to focus efforts on combating delinquency through an expansion of the welfare state. That paper was all well and interesting, but we got to talking about some of his ideas and research related to "moderate" segregationists like Lewis Powell and former Florida governor, Leroy Collins, and this is where things got cooking (at least in my mind; I herewith acknowledge that I don't know a lick of legal or cultural history associated with this era, so if the following seems wrong, blame me, not Anders, for the faulty re-telling).
According to Anders, a number of Southern white figures (like Collins/Powell) favored Jim Crow arrangements (and thus were concerned about Brown and its aftermath) because they valued the distinctive cultural pluralistic arrangements and achievements of the separate races. In this respect, they were sympathetic to Booker T. Washington's earlier exhortations to give blacks economic and political rights but averse to full-scale assimilation and integration because of the concern that such developments would destroy the efflorescence of self-sufficient and integrity-bearing black communities and institutions. In a similar vein, Anders then shared some details about research related to black teachers and school principals in Mississippi who were concerned that integration would jeopardize their career prospects. Interestingly, other black leaders had reservations about the civil rights movement's emphasis on integration--in part because of economic concerns (ie, how integration would imperil their job prospects) and in part because of cultural concerns similar to those espoused by Booker Washington and his followers. One example of this that Anders shared was Florida A & M football coach, Jake Gaither, who apparently opposed the integration of college football out of concern that he would lose his football team (and/or the best black athletes) if it were simply absorbed into the UF or FSU sports umbrella.
This dynamic of course creates a kind of (minoritarian) "interest convergence" between some white and black Southerners who shared concerns with the "we can't wait any longer" goals for desegregation. To my mind, there's a fascinating story to be told (by Anders) that connects this cultural reaction to the "perils" of Brown to the arguments Powell, who himself expressed appreciation for cultural/racial pluralism at the time of Brown, makes later on in his Bakke opinion regarding the desirability of respecting the benefits of cultural diversity in the university community. In this respect, it looks like there's not just the standard two ways of looking at Brown and the responses it triggered (massive resistance vs. civil rights integration) but also the possibility of a third narrative, one that is more complicated (though still ethically troublesome) and stresses a multicultural approach to education and educational politics.
For what it's worth, Sam Freedman in the NYT today has a piece about Coach Gaither and how he eventually turned around on integration and football. Here's the description that bolsters, at least in part, this possible narrative:
A man deeply knowledgeable and eloquent about black history, Coach Gaither nonetheless had maintained a public distance from the civil rights movement. Conversely, segregation benefited his university and team by shutting off all of Florida’s white schools to the best black students and athletes in the state. Yet by 1967, Coach Gaither had begun privately lobbying members of Florida’s Board of Regents, which oversaw state schools of both races, to allow him to play a white team. A year later, when Mr. Curci took over as head coach in Tampa, Mr. Gaither found a willing collaborator.
As I mentioned before, I'm the "opposite" of a legal historian, and thus there are probably lots of nuances that are left out of this narrative, in particular some more that would connect Powell's view around Brown to the views he espoused in Bakke. That said, I thought I'd mention the brief outlines of the whole thing to encourage Anders to pursue this quite provocative line of research and invite others to point him to other sources that might bolster or challenge this account. (If it turns out I'm wrong about various things herein, I'll revise the post as needed.)
The Truth on the Merger Guidelines
Our friends over at the Truth on the Market have organized an online symposium on the recent Department of Justice and Federal Trade Commission announcement that they will solicit public comment and hold joint workshops on the Horizontal Merger Guidelines (”HMG”). The symposium will run today and tomorrow, and the line-up includes a bunch of terrific folks, including Joe Farrell from the FTC.
U.S. News Surveys Out; Info Available Here
Late last week, law professors everywhere -- four at each school -- received the annual U.S. News survey asking them (as well as lawyers) to assess the quality of every JD program in the country on a scale of 1-5. In ranking law schools, U.S. News considers "input" measures like the LSAT score and GPA of incoming students, and "output" measures like bar passage and employment rates. In between, and also part of the formula, is an attempt to assess the "value added" by a particular school relative to others. To get at this, U.S. News primarily uses this survey. The idea is "ask the experts," despite the fact that few law professors or lawyers know much of anything about more than a handful of schools. And this survey accounts for 40% of a school's total score, dwarfing any other factor.
The conventional wisdom is that law schools pay too much attention to the U.S. News rankings. But I think as to most law professors and lawyers, the conventional wisdom is exactly wrong: rather we haven't paid enough attention, and should pay more. That's the premise of the project that fellow Prawfs guestblogger Dave Fagundes and I started last year, Race to the Top, which aims to leverage attention to the rankings to help focus attention on the educational quality of J.D. programs. This kind of focus also makes sense in light of the ABA's new, much-welcomed focus on outcome measures and assessment in law schools.
In part for U.S. News survey respondents to use, we've aggregated data on our website that is relevant to the educational quality of each school. The data is broken down into five principal categories: student engagement, curriculum (focused on experiential learning), use of best practices, student-faculty contact, and legal writing programs. Another great resource, using some of the same data, are the charts that TaxProf Blog's Paul Caron did last week using the valuable student survey data from The Princeton Review. The one comparing the Princeton Review data to U.S. News can quickly help identify "underrated" law schools, which should be given a "4" or "5" in the survey.
Prawfs readers: if you know law professors (dean, assoc dean for academic affairs, chair of hiring committee, most recently tenured), or law firm hiring partners and recruiting coordinators (who may not have received it just yet), that would have received this survey, it would be great if you sent them the link to this post, and encouraged them to use the data in filling out the survey. We'd welcome suggestions for the project going forward, and I look forward to talking more with many of you about these issues back here at Prawfs, and at our own website, in the months ahead.
More on partisan media
Jack Balkin has a great post linking the White House-Fox News feud to the rise (or re-rise) of the adversarial partisan press in the early 21st century. Fox, Balkin argues, is the heir to the party press of the late 19th-century, when newspapers were owned, operated, and controlled by the various political parties. Although not party-owned, Fox is aligned with one party, so as to be a virtual political and policy mouthpiece for it. And there is no line between “news” and “opinion” and no real attempt to maintain one.
Balkin offers two conclusions, which I endorese, about the current contretemps. First, the White House is wrong to dismiss Fox as not a “legitimate” news-media organization. Fox is a perfectly legitimate news organization, but it is engaged in a different enterprise than The New York Times or the Wall Street Journal and other outlets that try to maintain the 20th-century journalism paradigm. And the White House is thus on fair ground treating Fox differently than other outlets, as well as in challenging the validity of what Fox reports—just as it would challenge arguments made by the rival political party. The White House would be better served by pitching the dispute at that level. Of course, Fox has been so successful in convincing the public (and other media outlets, see below) that it truly is "Fair and Balanced" that such a pitch may not work; the public still sees this as the Administration taking on a news outlet simply for reporting news.
Second, Balkin notes the irony of The Times and other outlets backing Fox against the Administration, by insisting that Fox is, in fact, no different than other news organizations. Fox and its brand of journalism are ascendant precisely because newspapers are dying. By backing Fox, The Times and others may be hastening their own demise.
Making Legislative History for Law Review PurposesUse of legislative history is famously controversial for purposes of statutory interpretation. But sometimes, the meaning of the law is clear but the actual motivation of the legislators that passed it is still interesting. I faced that issue for a paper I wrote on the Immigration and Nationality Act Amendments of 1965. No one doubted that the Act removed racial and ethnic bars from an immigration policy that until then preferred whites, but many commentators called the subsequent racial diversification of the immigrant stream, and therefore the browning of America, as a classic unintended consequence, which, if it had been anticipated, would have killed the reform. Theodore H. White called the Act "noble, revolutionary and probably the most thoughtless of the many acts of the Great Society." I read the legislative history of the Act as reflecting principled anti-racism (and therefore at least acceptance and possibly encouragement of non-white immigration) that might have been expected of many of the same people who passed the Civil Rights Act of 1964 and the Voting Rights Act of 1965. But I also thought it would be interesting to check in with some of the drafters of the Act decades later.
There is always the risk that they would not remember correctly, or that they would shape their memories to satisfy the expectations of a subsequent generation. Nevertheless, what they said supported my thesis, saying they thought non-whites had been treated unfairly under prior immigration policy. In my view, these claims were credible because they were consistent with what they said in 1965.
The exercise was fascinating for a number of reasons beyond what they reported about the Act. Many of these people had great stories. Peter Rodino told me about the Nixon impeachment, for example, and it was wonderful to talk with a heroic lawyer like Nicholas deBelleville Katzenbach who made such important contributions in the civil rights era. It was also interesting to see how many of these people could be reached--it is clear that even powerful and important people want to talk about what they regard as their signature accomplishments. I did not get to talk with Strom Thurmond; his staff implied that he had no memories of this Act, or, really, of anything else.
I wanted a quote from Gerald Ford, who had been the House Minority Leader in 1965. I wrote, mentioning that I, like him, was a graduate of the University of Michigan and the Yale Law School. This worked, he wrote back with the letter below. His recollections were consistent with my thesis that Congress recognized and accepted the possibility that there would be many more non-white immigrants.
I love Jerry's letter. When in office, President Ford was famous for his obliviousness. (For example, when he met Linda Ellerbee, who was 5' 6", he accepted her claim to be 5' 11".) In his letter to me, he deal with the gender ambiguity of the first name "Gabriel" (which is always male, BTW; "Gabrielle" is the feminine) by calling me both "Ms. Chin" and "Mr. Chin." I don't care if he was spacy--In my book, he was a good Wolverine, a good Eli, and, from what he said in 1965, 1996, and later when he supported affirmative action in Grutter v. Bollinger, a sincere anti-racist as well.
Sunday, October 25, 2009
And Don't Forget About Neil Peart....
At the Volokh blog, David Bernstein has a post about those "touchy Canadians." He writes:
Some Canadians are rather touchy about criticism from Americans regarding freedom of speech in Canada. The irony of this touchiness is that the Canadian Supreme Court has based its free-speech jurisprudence, at least in the context of antidiscrimination concerns, in large part on the theories of left-wing American academics such as University of Michigan professor Catharine MacKinnon. The Canadian left has a penchant for importing left-wing ideas from the U.S. and elsewhere, adopting them as public policy, and then accusing anyone who objects of being “anti-Canadian” because these policies somehow define Canadian identity. I like Canada a lot myself, but I should hope that there is more to Canadian identity than national health insurance, gun control, and aggressive hate speech laws.
David expands on his post in the comments section, which is fairly lively. I put up an even longer comment in response, the gist of which is that I think things are good deal more complex, both as to Canadian law and Canadian culture, than David's description suggests. I hereby incorporate it by reference.
UPDATE: David has written a very gracious comment on this post suggesting that I simply reprint the comment, which I have done below. I'm grateful for such a civil and productive discussion! The comment itself could have used some editing, and doubtless would have been better edited if it were a primary post and not a dashed-off comment, but I have reproduced it warts and all.
David, speaking as a Canadian, albeit a quite voluntary Canadian expatriate and, one of these days I hope, American citizen who prefers the jurisprudence of the First Amendment to Canadian freedom of expression jurisprudence, I have to gently take issue with your post and your gloss on it in the comments. I say “gently” because, like any generalization, it contains important germs of truth, and pointing to contrary impressions or anecdotes will not refute them. But I do think the picture is a little more complicated than you suggest, unless you are making an observation that is so specific by definition as to defy drawing any larger conclusions.
One distinction I would draw is between the reception of American law in the eighties and early nineties in Canadian constitutionalism, which was more apish and had much to do with the fact that many of the then-rising generation of Canadian constitutionalists got their start as American LL.M.s and were simply importing American scholarship in a fairly mechanical way in the absence of a more detailed sense of Canadian constitutionalism, and the treatment of American law today, which seems to me an era in which Canadian law stands far more on its own bottom. The wholesale and mechanical reception of American constitutional law in Canada today is far rarer, and for that matter the citation of American law and scholarship is more infrequent. Also, it should be said that to the extent there is still borrowing, the transplantation now is more complex; it’s not simply a matter of taking foreign materials in toto, but of grafting them on to a fairly developed body of Canadian constitutional thought. I may disagree with some of the currents of that thought, but the whole matter is more complex, I think, than the picture you draw.
Moreover, there is an increasing, although still minority, trend of thought in Canadian constitutional law, both of foreign origin and autochthonous, that criticizes some of the directions in Canadian constitutional law that you discuss, both as to general constitutional law method and as to freedom of expression. Indeed, there has always been a substantial opposition to views such as those stated by the majority in Butler, although now there are also interesting views questioning, say, the living tree and dialogue metaphors of Canadian constitutionalism.
I also, again without denying its existence entirely, would tend to disagree gently with your view that the left draws on American law and ideas freely when it serves its purpose and then accuses those who object to these ideas of being anti-Canadian. For one thing, it is vanishingly rare for someone in Canada to use the term “anti-Canadian.” For another, the leftists I know do not draw all that much on American thought anymore, and certainly not in a wholesale fashion; they draw on all kinds of sources of thought from all kinds of places, including the US, and I think they tend to do so in a more complex fashion than your description might suggest. Third, to the extent there are debates within and between the left and right about what constitute “Canadian” social values, which there certainly and legitimately are, I think they are more genuinely debates about those values themselves than they are debates about where the values come from. And those values, right or wrong (and right or left), really are Canadian in their own way; they’re not just borrowings from the US, and certainly don’t end up just being absolute twins of the versions that have circulated at various times in the US.
Again, my point is not that what you have said is not true; of course there are some Canadians who meet your description. Nor is it to agree with Canadian thought on these issues, although on my reading there is not in fact a Canadian consensus on these issues. It is rather to suggest, if for no other reason than that I would hate to have American readers assume otherwise, that it is not the whole story, even about the Canadian left, and it may not (does not, I think) reflect the rhetoric or thought processes of a majority of Canadian thinkers of any ideological stripe. I do think there are too many Canadians whose language suggests a reflexive wariness about or defensiveness toward Americans, but I think this masks a far more complex relationship among even those Canadians toward American thought, culture, and values, which is quite different in practice than that rhetoric might suggest.
Two last points on a long comment which I could have just slapped onto my own blog. First, although it was not fully my own culture, there certainly are aspects of Canadian culture and identity that have their own substance and go beyond the few things (gun control, say) that you mentioned. I’m sure you know this and were speaking somewhat tongue-in-cheek, but certainly there can be thicker conceptions of Canadian culture and identity than this, and it is not right, although I also sometimes fall into this, to say that Canadian identity is just a negative space, let alone one defined solely by the United States. Second, in response to the commenters who suggested that Canadians believe in limits on rights while Americans don’t, or that Americans don’t believe on such limits except for those benighted elites who sit on the Supreme Court, this seems like a partially phony distinction. Many Americans and many Canadians may have different notional views of rights, although of course there is diversity on these questions. But in practice Canadians do believe that rights can overcome limits and do in many cases, and in practice Americans believe that rights can be overcome by limits and reach just that result in many cases, although sometimes by defining the rights in terms of their limits rather than engaging in explicit balancing. Both rights AND their limitations seem like pretty conventional and (notwithstanding the view that the Court has somehow imposed this on us against our will) perhaps inevitable aspects of liberal constitutionalism, in the US and elsewhere, although we can conceptualize these in different ways.
Saturday, October 24, 2009
Weekend Trivia Challenge: The Smallest Law School
Which ABA-accredited law school is the smallest in terms of student population?
Friday, October 23, 2009
Innovation and Healthcare Reform
Earlier today I was part of a panel discussion on the topic of ‘Health-care Reform and its Effect on Innovation.’ I focused my talk on the effect on innovation in terms of pharmaceuticals (with a nod to medical devices). It’s an interesting issue, one that I’ll flesh out a bit over a couple of posts.
Generally, the question of effect here is one of profitability: whether the decrease in consumer costs, as a result of reform, will drive profitability down to such a level that pharmaceutical companies will be forced to devote less to innovation. In terms of health-care reform, I view this as a quality of delivery issue: How do we balance the need to reform a system that is quickly becoming untenable (if it’s not already) with the desire to maintain high standards in quality of health-care delivery (here, pharmaceuticals)?
The answer must be multi-faceted, I believe. There are a number of considerations; profit/cost, my focus in this post, is but one factor. As I’ll discuss later, patent terms, barriers to generics entering the market, and potential changes to both regulatory processes and incentive schemes also warrant examination.
The potential profit loss drug manufacturers face would stem from a reduction in price-per-unit as a result of health-care reform. The concern is that that will not be compensated by the numbers of newly insured individuals, thus limiting the funds that can be directed to innovation and ultimately slowing the output of novel drugs. This raises the question of the manner in which drug manufacturers direct their spending: what is classified as ‘innovation,’ and how much capital is devoted to it?
As it happens, the development of truly innovative drugs—novel products that provide previously unavailable benefits—is perhaps less than we might wish. Pharmaceutical companies have limited innovative productivity, instead focusing on profit-bearing ‘me-too’ drugs: relatively easy ‘spin-offs’ that are highly similar in effect to preexisting treatments and provide a follow-up monopoly right once the patent terms of preexisting drugs expire (although these efforts are profitable, one questions the wisdom of creating a product that will compete with generics; a blockbuster drug, if focused upon, seems a better goal for post-patent expiration).
Further, it’s not clear that the industry is spending nearly as much on R&D as one might imagine. As a commentator in the NYT recently put it, ‘only naïve politicians and academics really believe that pharmaceutical companies are always greedy and egregious in pricing drugs far in excess of manufacturing costs.’ Certainly, innovation is expensive; industry studies estimate over $1.3 B for singular, novel drug development. This number encompasses years of research, drug failures, and the high cost of a heavily encumbered regulatory approval process. But the pharmaceutical industry also pours money into advertising (almost twice as much as spent on R&D, according to one study) and into lobbying efforts—the latter to the tune of over $600,000 a day in the first six months of 2009 . The amount of monies sent to R&D? According to a study published in the British Medical Journal (note: registration required), as of 2005 it was 1.3 cents per dollar of sales (accounting for research-based tax incentives).
In terms of the profit/cost dilemma, how is the health-care
reform/quality health-care delivery balance to be struck? Keeping in mind that this is just one factor
among several to be deliberated, the initial focus should be on the type of
spending done by drug manufacturers—and what of that spending is going to be
rewarded by government incentives to encourage R&D. The industry needs incentives, to be sure,
but there should be an accounting of what is actually being spent on developing
novel advancements in treatment—and those efforts alone should be incentivized
(thereby perhaps limiting inefficiency in drug development and perhaps curbing
the ‘me-too’ practice).
Issues in Placement Science: Journal FailureA perennial issue in the legal academy is the precise prestige relationship between main and specialty journals. As this Moneylaw post makes clear, specialty journals at name-brand schools are disproportionately influential. Although apparently no Harvard specialty journal has ever gone under, there was once something known as the Yale Journal of Law and Liberation, which evidently has not published recently. Does anyone know if specialty journals at other schools have ever failed? That is, if a scholar has an offer from an otherwise attractive and appropriate but new specialty journal, need the author worry that it might fold? The Rise and Fall of Specialty Journals at Harvard reports that some journals were required to reduce the number of issues published per year, because of perceived article quality. I have also heard that some specialty journals funded by law school administrations are allowed to start on a provisional basis, subject to reconsideration if they do not work out.
The Original Documents by the Original Artists
Left: The 11th Amendment looks like an upturned contestant nametag from "The Price is Right." Right: The top staffer at the National Archives went wild with red ribbon and signed his name in big loopy cursive on the 27th Amendment.
Check out an online exhibit created by the National Archives: Charters of Freedom. There are wonderful high-resolution images of the Declaration of Independence, the original Constitution, and all of the amendments. To paraphrase the K-Tel record company – These are the original documents by the original artists.
Some of them are awe-inspiring. The 13th Amendment, for instance, signed by Abraham Lincoln, is deeply stirring.
Many of the documents are visually remarkable. The colors of the original Constitution remain vibrant after 222 years. And the 11th Amendment, signed by John Adams, appears on a funny kind of six-sided paper. The Bill of Rights, however, is sadly faded almost to the point of illegibility.
There are also a few substantive insights to be gained. Perusing the faint script of the Bill of Rights, you are reminded that our cherished First Amendment – what Charles Evans Hughes called "the very foundation of constitutional government" – was not intended to be first at all. In the original list of 12 amendments, our First Amendment was listed third, coming after two proposed amendments that weren't ratified at the time: one limiting congressional pay raises and the other prescribing ratios of population to members of the House of Representatives.
And then some of the collection is, to my mind, kind of funny.
Before our current era of sealing precious documents in humidity- and pressure-controlled encasements filled with inert argon gas, the Charters of Freedom received somewhat indelicate treatment. For instance, if you look at the 26th Amendment, you will notice that in 1971, an officious government worker kerplonked a "RECEIVED" date stamp on the front of the original. Thus, the document giving 18-year-olds the right to vote appears to have been treated with all the dignity of a Selective Service postcard.
Contrast that with the pomp accorded the next amendment, the 27th. This amendment, limiting congressional pay hikes, is what would have been the first amendment if it hadn't taken 203 years to ratify.
When it finally came in from the cold, the National Archives laid out the 27th Amendment with sumptuous typography on paper bedecked with a glorious gold seal and a generous length of dark red ribbon. The document is truly resplendent. It could make your law-school diploma turn green with envy.
The funniest bit of all is probably the 21st Amendment – the repeal of Prohibition. It's not the paper itself that is remarkable. It's the fact that it is included in the National Archives' Charters of Freedom exhibit. From the context in which it is presented, we can confidently say that it is the official position of the National Archives that the document supplying America with the right to drink is a "Charter of Freedom."
Reading these original documents, I suppose, has limited usefulness. It allows smart-alecks like me to deride the original Constitution for sloppy penmanship. Other than that, seeing our cherished freedoms reduced to ghostly, fading words on fragile pieces of parchment is a reminder that our civil rights and civil liberties, if they are to endure, must be the subject of never-ceasing vigilance by our citizens and lawyers.
Or, as the Beastie Boys said – perhaps having in mind one Charter of Freedom in particular – "You've got to fight for your right to party."
As a group project in my Labor Law course this semester, my students are drafting a teacher's manual for the casebook (lest you think I'm expropriating their labor, they organized a union and bargained for this as a term and condition of employment). As a side benefit, they've come up with all kinds of creative ways to approach the cases that I never would have thought of.
I'd like to give them a model case discussion from a teacher's manual so they can pattern their case discussions accordingly. I'm having a difficult time, however, coming up with a good one. An ideal example would be of a labor law case or a prominent case from the first-year curriculum -- something they'll all recognize. Any suggestions? If so, please email me a pdf or Word copy. I'd much appreciate it.
(Cross-posted on Workplace Prof Blog.)
MCA 2009: (Accidentally) Opening the Collateral Review Floodgates?
Any moment now, the National Defense Authorization Act for Fiscal Year 2010 is going to become law, and with it, Title X, Subtitle D thereof, better known as the Military Commissions Act of 2009. (I'll try to post authoritative text once I see it). [Update: I'm reliably informed that this is the language that passed the Senate Thursday night.]
There is a lot to say about the new Military Commissions Act, and both how it differs from and how it is distressingly comparable to the Military Commissions Act of 2006. In particular, I am disappointed that the 2009 MCA doesn't make much more than a token effort to harmonize either the personal or subject-matter jurisdiction authorized by Congress in 2006 with that which is recognized under international humanitarian law, even though my own view is that Congress lacks the constitutional authority to subject to military jurisdiction (1) individuals who are not belligerents under IHL; for (2) offenses that are not violations of the laws of war.
To be sure, folks may disagree with me on these points, but I think it's at least an open question whether Congress may confer jurisdiction over military commissions that is at least arguably inconsistent with IHL.
And yet, as I've written about previously, one of the most distressing features of the 2006 MCA is the extent to which it precludes "collateral" challenges to the jurisdiction of military commissions, through the provision that was codified at 10 U.S.C. § 950j(b):
There is fairly compelling pre-MCA precedent that individuals may use habeas corpus collaterally to attack the jurisdiction of a military tribunal before trial (precedent that arguably calls the constitutionality of this provision into question). Nonetheless, two different district court judges threw out such challenges to post-MCA commissions (in Hamdan and Khadr, respectively), holding that any such claims had to be brought on post-conviction appeal.
Well, here's the punchline: The MCA 2009 rewrites 10 U.S.C. § 950, and leaves what was 10 U.S.C. § 950j(b) out altogether. Not only that, but the MCA 2009 reincorporates what had been 10 U.S.C. § 950j(a) word-for-word as new 10 U.S.C. 950i, suggesting that Congress did not simply forget this provision altogether.
Why does this matter? Because as a result, there is no longer a statutory bar to a Guantanamo detainee mounting a pre-trial challenge to the jurisdiction of a military commission. As a result, any defendant with such a claim may now go directly to the D.C. district court (or, as in bin al Shibh, pursue mandamus relief in the D.C. Circuit), rather than waiting for proceedings in the military commission to run their (slow and unpredictable) course.
I, for one, am glad that the serious jurisdictional questions raised by the MCA might finally receive a full airing, whatever their ultimate answer turns out to be. That being said, it's hard to believe Congress actually intended this.. Floodgates, consider yourselves opened.
Thursday, October 22, 2009
Lawyer Wins “Most Irritating TV Character” Nod
It’s not who you think. Yes, Law & Order’s Jack McCoy is on the list, but this character made it to number one. I must admit, it’s not a choice most people would disagree with, and I agree that there is a fine line between being delightfully quirky and just plain annoying. Annie Hall is a film-based example of that conundrum. In contrast, there have been many great lawyer characters on television. So, my question of the day is, who are some of the best lawyer characters who have ever been featured on the small screen?
Responding to the Legal MarketplaceHow good are law schools at responding to the legal marketplace?
In one sense, we are absolutely wretched. As law firms this year have shed lawyers like a dog sheds hair in summer, law schools continue to admit the same – or more – students into their programs. Granted, law firm hiring (like the economy generally) is cyclical, and today’s admittees almost certainly will face a more hospitable placement environment than our May 2009 and -10 graduates. But there is now at least a year – and perhaps two – worth of surplus graduates looking for jobs, and a temporary restriction on supply would help them tremendously. Structurally, however, we can’t do that.
In other respects, law schools are merely bad at responding to the legal marketplace. How many schools, for example, for the spring 2009 semester, dropped some M&A course offerings and beefed up their bankruptcy offerings? How many schools have beefed up their public-sector offerings in response to the demand materializing now for lawyers who can help guide stimulus funds?
Ask any law firm hiring partner whether law schools are doing a good job of educating lawyers and you are likely to get an earful. Neither law firm clients nor cash-strapped government employers are willing or able to subsidize lawyer training the way they were in the past. Legal employers want to hire graduates who can take a deposition or draft a merger agreement now. But law schools are not delivering. The law schools that figure out how to do so – while still teaching the doctrine necessary for bar passage and the critical-thinking skills necessary for solving complex legal problems – will find themselves at a substantial competitive advantage over other law schools.
Wednesday, October 21, 2009
Remembering Judge Justice...
Judge William Wayne Justice died last week at the age of 89. He had been a federal judge since 1968, spending most of that time in Tyler, Texas before moving to Austin. You may remember him as the district judge in Plyler v. Doe, where he struck down a Texas statute that excluded children of illegal immigrants from the public schools. (The Supreme Court affirmed.) He was the district judge in Ruiz v. Estelle, a prison case that led to a complete overhaul of the Texas jail system. And he was also the judge in United States v. Texas, which helped desegregate the Texas public schools . He was passionately liked and passionately disliked. As a UT alum and Austin dweller for several years, I met Judge Justice a number of times and really liked him; my friends that clerked for him had nothing but good things to say. Rest in peace, Judge Justice.
What About the Wigs?
Eric recently had a post on the new Supreme Court of the United Kingdom, which opened last Friday. But he misses the major point -- well, not really a major point -- which is that the wigs are apparently going away:
For the official opening ceremony Friday morning, the 11 judges (one slot is vacant) shed their old red robes and the wigs worn by lords on formal occasions -- Lord Phillips calls it the "Father Christmas outfit" -- in favor of new ceremonial black robes, embellished with gold lace and thread.
(More after the jump.)
Another parallelism/circularity there; the late Chief Justice Rehnquist had his gold stripes stitched into his robe so as to emulate the British Lord Chancellor in the Gilbert & Sullivan Opera, Iolanthe. And our judicial big shots were there too for the opening:
The occasion is noteworthy enough that the U.S. Supreme Court canceled its session Friday so that Chief Justice John Roberts and Associate Justices Antonin Scalia and Stephen Breyer could attend the U.K. court's opening, with Queen Elizabeth II presiding.
But let's keep our focus: what happened to the wigs? An article sadly titled, "British Judges Lose Traditional Wigs" explains further:
A new regulation in Britain says judges in most of the country's courts will no longer be required to wear their traditional wigs.
The regulation, which went into effect Thursday, means the horsehair barristers' wigs that typically adorn the heads of most British judges will essentially be extinct in the country's courtrooms, The Times of London reported.
The loss of the wigs represents an attempt to modernize the British legal system and is accompanied by the implementation of a new robe design for all judges as well. The new robes were created by designer Betty Jackson and include dark blue gabardine materials and velvet facings, The Times said.
The modern changes in British courtrooms after 300 years of the traditional judicial garb will not affect the country's criminal courts. Judges in those courts will still be adorned with the gray wigs and traditional robes, the newspaper said.
At least the criminal justice system will be intact after this terrible loss.
Central States Law Association Conference...
Just as Howard comes to Michigan for one conference, I leave it to go to another. I'm headed to the Central States Law Association Conference, which is being held Friday and Saturday in Columbus at Capital University Law School and put together by Professor Danshera Cords. I think there's 40 minutes or so for each presenter; with half of that time for the presentation and the other half for discussion. What with the success of things like the Southeastern Association of Law Schools, it's nice for the Midwest to get in on the action. I'll be speaking on Friday afternoon with remarks from my piece, Legislative Prayer and the Secret Cost of Religious Endorsements, which will be out this spring in the Minnesota Law Review. If you are going as well, feel free to shoot me a line by email or in the comments.
The CFPA and the Case for Conglomerate Regulators
I’ve been watching the twists-and-turns of the debate over the proposed Consumer Financial Protection Agency (CFPA) with a great deal of interest. One reason this fight has been so fun to watch is the prominence of law profs on both sides of the debate. The idea was developed by Elizabeth Warren, and has found a great deal of support from scholars like Oren Bar-Gill, John Pottow, Adam Levitin and others, while arguments on the other side have come from William Kovacic and my colleagues Todd Zywicki and Josh Wright, among others. (Those links are to articles and posts, but if you prefer your debates in video form, here’s Warren and here’s Zywicki.)
I’m know very little about consumer finance, and, as such, have nothing to add to the very sophisticated debate about whether and how to regulate consumer financial products like credit cards, mortgages and the like. But there is one part of the debate that has been bugging me and I’d be curious to hear your thoughts on it. The proposal has gone through various iterations in Congress and surely will be modified further as it proceeds through the legislative process. However, one piece of the proposal has been constant: CFPA is supposed to be independent from existing regulatory bodies. After all, one of the major arguments for the CFPA is that it will be independent from bank regulators concerned with the safety and soundness of financial institutions, because those regulators are not primarily concerned with consumers and face conflicts of interest. Critics view this as a problem, suggesting that an empowered CFPA would not consider the effect of its regulations on the banking industry. Whatever your view on this, independence carries others costs. An independent CFPA carries the risk of regulatory capture for simple Mancur-Olson-style reasons. As Warren points out in her analysis of the difficulty of getting the CFPA passed, banks are highly interested parties on whom regulation stands to create concentrated harms and consumers, the intended beneficiaries of the regulations, always will be a diffuse group who have little individual incentive to lobby future Presidents about future appointments. Is there much doubt that banks or credit card issuers would try to influence who the President will appoint to the CFPA if it is created?
Now, there are public choice concerns about almost all new governmental proposals, and should not be seen as a reason not to have any consumer protections. But the part of the debate I don’t get is why combining the CFPA with bank regulators or making it independent are seen as the only choices. The CFPA could be combined with another agency, one that has nothing to do with banks, and given the same powers, but with less worry about capture because the lobbyists for the credit card companies would be matched by lobbyists for other organizations.
The CFPA is modeled on the Consumer Products Safety Commission (CPSC). If having a CFPA is a good idea, why not give the CPSC the powers responsibilities of the proposed CFPA? Banks would compete with manufacturers of consumer products (and consumer groups) over appointments. Each group is likely to win on some of the appointments, and this will reduce group polarization and extreme results by introducing commissioners who were pushed for by different constituencies (and hence are likely relatively neutral on the other things the commission does).
This is a conglomerate model for regulators. For a little more discussion and the best ever conglomerate regulation proposal, see below the jump.
This proposal is subject to the most common criticism of conglomerates – that single-focus agencies can specialize and get better at their jobs. I am unimpressed by this argument in this case, though. A conglomerate CPSC/CFPA would still have a huge staff focusing on specifically on consumer finance issues, and over time the commissioners would develop expertise. It’s not like the members of the CPSC know a great deal about all consumer products. The current head of the CPSC is Inez Tannenbaum, who was the South Carolina's State Superintendent of Education, which I suspect did not give her much experience assessing toaster design. These are political appointments and we need to worry about their political allegiances when engaging in institutional design.
The best conglomerate regulator proposal I’ve ever heard was laughed out of Congress. Sen. Arlen Specter proposed putting all appellate immigration cases into the Federal Circuit. Critics – ranging from Richard Posner to Dick Durbin -- argued that patents had nothing to do with immigration. Exactly! The lobbyists for and against immigration would push for appointments against the lobbyists for against patent protection. This would lead to moderation in opinions. All the while, the circuit would develop expertise over time and would issue consistent rulings.
If we are going to have a CFPA, we should try to reduce the chances that it will end up being a forum for one bank to harm its competitors. Maybe this is the time for conglomerate regulators.
Alito on the "Catholic" "Majority" "Issue"Here's a story on an issue we've written about quite often at Prawfsblawg. In it, Justice Samuel Alito complains about the recurring nature of "what he called persistent questions about the [Supreme Court's] Roman Catholic majority. He complains about "serious people who have seriously raised the questions in serious publications about whether these individuals could be trusted to do their jobs." Our own Rick Garnett is quoted in the story, arguing: "[I]t's not the calling of a Catholic judge to enforce the teachings of the faith. It's the calling of a Catholic judge, as well as he or she can, to interpret and apply the laws of the political community." Rick also points out, quite fairly, that "[n]o one thinks the moral commitments of a judge are irrelevant. I don't think anybody can completely put aside who they are."
This seems right to me. My view of this "issue" and its complexities is evident from where I chose to place my scare-quotes in the title to this post. Rick might also have pointed out that, for better or worse, there is no guarantee that any individual Catholic will understand himself or herself as having any particular Catholic mission, no matter how anodyne, to carry out, which raises the question whether one can even talk about a Catholic majority for any purposes other than census-taking without knowing a lot more about the justices in question. At the same time, Rick is also right that, just as no rule of law or public discourse should restrict the ability to stock the Court with Catholics or anyone else, no rule of law or public discourse should absolutely foreclose people from asking -- but in a sound and fine-grained manner, not a crude or bigoted manner -- about the fundamental commitments, religious or otherwise, of any judge, Catholic or not. To that extent, while I agree with Alito in marveling at some of the rather silly arguments on this question that have been made by serious people in serious publications, I do not think it is impossible or impermissible for serious people to ask serious questions in serious publications about these issues (Sandy Levinson being exhibit A here). The questions, like the Justices, need to be examined on their own merits, although in my view some of them fail to pass muster. In any event, you give good quote, Rick.
Bill Donahue, of the Catholic League for Religious and Civil Rights, is also quoted in the story, and he is also in typical Donahue form. He argues that this is all about abortion: "The people who are complaining about Alito and Roberts are the same people who would have nine Nancy Pelosis on the Supreme Court who are pro-choice Catholics." That may be right for some individuals who have raised these questions in a crude fashion, but of course Donahue fails to reflect on the old saw about what's good for the goose.
Why is Pandora like Jack Black? Or The Moral Tyranny of the Blind Taste Test
Something about this story in last Sunday’s New York Times annoyed me. It tells the tale of the popular music service, Pandora, which seeks to predict your preferences in music based purely on clues about your prior opinions about songs. (I’ve tried Pandora, but didn’t like it, finding it only so-so in predicting my tastes, probably for the reasons I’ll explain in a second). However, rather than using the preferences of other people to predict your tastes, Pandora breaks songs down into their component parts -- things like “prevalence of harmony, chordal patterning, swung 16ths and the like” – and provides you with other songs with similar characteristics. The goal is to screen out “social-data taste communities” and direct us to music we missed but really should like better than the pap we listen to because it’s on the radio.
Pandora’s argument is much like the argument behind blind-taste tests (Have the Starbucks near you been pushing you to take shots of their new Via instant coffee? If they’ve been as active as the ones near here, then you can see why this has been on my mind). To the extent blind taste tests or Pandora are meant to expand the information available to us, it is difficult to complain about them. But that’s not really what they are about, or at least not all they are about. Instead, the hawker of the blind taste test is making a moral argument that what you should care about in your consumption choice is the preferences of your taste buds alone over the variety of influences that ordinarily affect your consumption decisions, like your positive associations with a brand, or how cool the other people who drink the stuff are, or how shiny and pretty the can it comes in is. Pandora makes a similar argument. If only you focused on the real aspects of music, you will find that you like different, currently underappreciated, music, and that music, rather than things you listen to because they are popular, represents the preferences of your best self about music. (Tim Westergren, the founder of Pandora, makes this clear when he puts down collaborative filtering sites -- which leverage data on the preferences of other to predict your preferences -- as nothing more than "a popularity contest.”)
What bunk! When
choosing something as irrelevant as a pop song or a caffeinated beverage, why
should we rank order our preferences for bitterness or acid notes in coffee or
swung 16th in music over social data? For instance, it’s hard to imagine Pandora
picking Peter Gabriel’s In Your Eyes for just about anyone on the basis of
its music qualities, but everyone who saw Say Anything has nothing but positive
associations with it. Pandora might not
pick much A Tribe Called Quest for me these days, but I associate them – as do
many others, I suspect – with making hip-hop accessible and hence songs like
Can I Kick It? or the Luck of Lucien would come up in social data but not for
Pandora (and make me very happy indeed).
After all, much of the fun of a good pop song comes from the fact that
other people like it – singing along to it with other, reminiscing its prominence for moments shared etc. Pandora is the technological equivalent of the
Jack Black character in High Fidelty, the rock geek bully. And although Jack Black steals that movie, his advice -- and Pandora's -- is probably a bad
way of finding music you actually like, rather than music you feel guilted into
Junior Federal Courts Conference
This Thursday and Friday, I will be at Michigan State College of Law for the second not-yet-annual) Junior Faculty Federal Courts Workshop, organized by MSU's Lumen Mulligan and UNC Visitor Philip Pucillo. It is organized as a true works-in-progress workshop, with each author having about 10 minutes to summarize and highlight and a senior scholar commenting for about 10 minutes, before opening the discussion up to the room.
There will be 21 people presenting and a crowd of about 35 attendees. I will be presenting an extremely early draft of my paper on Freedom of the Church and its substantive, rather than jurisdictional, nature.
Tuesday, October 20, 2009
Statutes of Limitation in Clergy Abuse Cases: An Update
Religion Clause reported yesterday that the Catholic diocese of Wilmington declared Chapter 11. This apparently delays a clergy sex abuse case that was going to begin. The case apparently originated from Delaware’s 2007 law, 10 Del. Code Ann. § 8145, which gave sexual abuse victims a 2-year window to file suit, regardless of when the abuse happened or if the statute of limitations had run. I think it’s the most powerful law of its kind; California passed a similar law that gave victims a 1-year window in 2003.
And while we’re at it, here is a really remarkable case from the Vermont Supreme Court last week on the subject. The plaintiff was 47 year old James Turner who brought suit in 2004 for being sexually abused as a child in 1977. Vermont too has a special statute of limitations period for child sex abuse cases, but it’s generally only six years from the date of the abuse. (Vermont has considered legislation like Delaware’s and California’s that would create a window to bring expired claims -- it has been unsuccessful so far, although it was introduced in the state legislature again earlier this year.)
All this is to say then that Turner faced this serious statute of limitations problem. But it did not defeat him. Discussion after the jump.
So the discovery rule generally says that the statute of limitations runs from the time the injury is discovered (or reasonably should have been discovered). Turner was aware of the abuse in 1977 and he discussed it with his family in 1981. But if the statute began to run in 1981, it clearly would have expired by 1988 (let alone 2004). So Turner’s argument became this -- I may have been aware of some of my injuries and of the potential liability of the priest in 1977, but I was unaware of their full extent and of the potential liability of the diocese until 1998.
In the trial court, the defendant moves for judgment as a matter of law on the statute of limitations issue. The trial court denies it. But the jury then holds for the defendant, concluding that the statute of limitations actually did run. The trial court then grants the plaintiff’s motion for judgment as a matter of law, concluding that there was no evidence that the plaintiff knew or should have known of the potential liability of the diocese by 1998: “Knowing a priest breached a duty does not, per se, tip off the reasonable person that the diocese had also breached a duty.”
Here the Vermont Supreme Court reverses, holding that the statute of limitations issue properly belonged to the jury -- i.e., that judgment as a matter of law was inappropriate both for the plaintiff and defendant.
When you read the case, you would think that the defendant had just won. (Remember the jury found that the statute of limitations had run.) But the Court goes to say that there was a problem with the jury. One of the jurors, it turns out, was a Catholic woman who attended church in the diocese and who was familiar with the sex abuse lawsuits against the diocese. She had been allowed on the jury over the plaintiff’s challenge for cause. The Court holds that she should have been excluded, citing along the way two Alabama cases from 1861 and 1916, a Nebraska case from 1883, a Delaware case from 1897, and a North Carolina case from 1924.
Final result: A new trial for the plaintiff. But I think it’s hard to see this case as anything other than a response to the underlying equities of the dispute.
The Supreme Court of the United KingdomThis month marks a historic moment in the history of the Anglo legal tradition. As of October 1, 2009, the United Kingdom did away with the judicial function of the House of Lords and opened a new court, the Supreme Court of the United Kingdom, to be the highest judicial authority in the country.
This is no small break with tradition. Remember, this is a country where lawyers still wear wigs in the courtroom. Until this month, the House of Lords had been the tribunal of last resort for most cases since 1399, which was when the House of Commons stopped hearing petitions for reversal from lower courts. In 1876, the judicial authority of the House of Lords was modernized when professional judges were appointed as Lords of Appeal in Ordinary to carry out the judicial functions of the House of Lords. But these law lords maintained a legislative role by having the power to vote in parliament – though they rarely did so.
All that has changed. As of this month, the law lords are now “justices.” And although the current justices retain their title of “lord,” the Supreme Court members are now disqualified to vote in the House of Lords. Moreover, as absences occur on the new Supreme Court, seats will be filled by judges who may not bear the title of “lord” at all.
For American lawyers and law professors, the creation of the new U.K. Supreme Court provides some cause for reflection: Our American legal tradition evolved from the U.K.’s. Our common law tradition, our courts, and our ideals of jurisprudence all come in large part from the Mother Country. It strikes me as a tremendous compliment to the USA that, in the 21st Century, traditions appear to be flowing back across the Atlantic. The U.K. has followed the American exemplar not only in concept, aiming for a strictly independent judiciary, but in in name as well, using the appellations “Supreme Court” and “justices.”
Now, let me admit that I am not a scholar of British law. Thus, I cannot say how much of the new U.K. court structure is directly modeled on the U.S. example. (If anyone can chime in on to what SCOTUK and the Constitutional Reform Act of 2005 owes to SCOTUS and the U.S. Constitution, I’d be grateful to hear it.) But I, for one, take it as a sure sign of Ameriphile sentiment that Britain chose to call their new high court by the same name as ours – especially since the U.K. has such a tradition of super cool names for judicial tribunals: “Privy Council,” “Exchequer of Pleas,” and “Court of the Queen’s Bench” to name just a few.
A couple of interesting trivia bits to point out:
- The crest for the new court is built around a Greek omega – a reference to the institution’s status as the court of last resort.
- The court has been given spectacular new digs at a renovated courthouse, Middlesex Guildhall, which is next to the Houses of Parliament and Westminster Abbey.
- The U.K. Supreme Court has colorful pdf-based forms for aspiring litigants, such as a very friendly looking fill-in-the-box cert petition (called an “application for permission to appeal”) with instructions on where the completed form can be e-mailed. (Anyone who has dealt with the PACER system or the elaborate document formatting rules for U.S. appeals courts might find the British approach highly refreshing.)
Cruising the Classrooms
Tom Cruise recently visited an Entertainment Law class at Harvard, and students were understandably excited. Although Cruise is known around the world, classroom guests who are not as famous can also add a boost of energy to an otherwise humdrum session. When I was a law student, Ben Stein was an adjunct, and I recall visiting his class because my classmates raved about his teaching style and the humorous Bueller voice. That day, someone had brought in candy, and a bag was being passed around. Since I wasn’t famous, my presence went unnoticed by everyone – except Stein. He stopped lecturing and asked, “Are you in my class?” I replied, “No, but I’ve heard some great things and thought I might visit.” He then said, “Someone pass this brilliant young lady the bag of candy.” Everyone laughed, and class went on as usual. So, my question for the day is, what’s your policy on guests in the classroom?
Raich's revenge: How California's med marijuana triumph depends on Printz
The New York Times reports that Eric Holder's Justice Department will no longer prosecute marijuana distributors who comply with California's system for distributing medical marijuana. This is an extraordinary victory for sensible federalism (not to mention for a sane drug policy), coming after the disaster of Gonzales v Raich, so it is useful to consider the legal foundations of the triumph of federalism.
My hypothesis, in one word, is Printz: California's constitutional entitlement to withhold its police force from the enforcement of federal drug policy made it so practically inconvenient for the feds to pursue med marijuana users that they gave up. Given that sworn and armed non-federal officers outnumber the feds by a factor of roughly eight to one, the feds simply could not fill the gap when California's police force went on strike. Of course, there is an alternative but, I believe, mistaken theory that federalism was adequately protected by the national political process in this case. Such a theory would maintain that the Obama Administration, pledged to modify the federal drug policy on medical marijuana, simply adopted a position consistent with the President's campaign promises. If you believe that, then you will also believe that the Obama Administration will soon use its prosecutorial discretion to stop enforcing "don't ask, don't tell" in the military context -- discretion that, as I have argued elsewhere, the Obama Administration amply enjoys. But don't count on them to use it for gay and lesbian constituents: This is an administration that chooses its battles so carefully that the status quo on anything as controversial as "don't as, don't tell" will be locked in for years, absent insistent promoting from non-federal elected officials.
The more convincing explanation for the feds' backing off on med marijuana is that California's recalcitrance gave the Administration both political cover and practical reasons to yield to preferences that had concrete endorsement and enforcement at the subnational level. But that recalcitrance depended on Printz's anti-commandeering rule, because, without Printz, California's blatant defiance of national law would have violated the supremacy clause. Federalism skeptics have argued for years that Printz is a trivial entitlement because the feds can costlessly bypass the states by enforcing national law with their own federal personnel. I think that California's victory shows that this argument is based on deep academic detachment from practical law-enforcement reality. And a good thing, too: Constitutional federalism always outperforms the low expectations of its critics.
The Social Costs of Juries
Over at NPR, there's an interesting story about how the rough economy has made the jury system buckle a bit (more). It's called: Recession Hits the Jury Box. Some excerpts and reactions after the jump.
As the recession continues across the country, an increasing number of court officials are hearing people say financial hardship will not allow them to take a seat in the jury box. No one is keeping national statistics on how hardship excuses are affecting courts. But to get a sense of the problem, the Center for Jury Studies — which provides assistance to state courts on jury trial management — conducted an informal poll of jury administrators earlier this year. Responses varied — some locales said it wasn't a problem, others, like one county in Nevada, said they were hearing more desperation in the voices and letters of potential jurors. Paula Hannaford-Agor, director of the Center for Jury Studies, says the impact on juries depends on how hard the recession has hit a given community, how long courts require citizens to serve, and the actual jury fee. "The national average, I think, is $22 a day, and there are still a number of states where the payment is $10 a day," Hannaford-Agor says. "It's certainly adding insult to injury with people who are feeling emotionally frazzled by the economic situation now." ... "As a trial attorney, you never want people on your jury that don't want to be there" says David S. Kestenbaum, a criminal defense lawyer. Kestenbaum says that in recent months, the issue has caused both prosecutors and defense attorneys in L.A. County to stipulate that a juror be removed when a judge has already denied their financial hardship excuse. "We've had to, because especially in serious long cases, you want people that are paying attention to the testimony and the evidence presented in court — not feeling they really need to provide for their family and would like to be somewhere else," Kestenbaum says.
As the recession continues across the country, an increasing number of court officials are hearing people say financial hardship will not allow them to take a seat in the jury box. No one is keeping national statistics on how hardship excuses are affecting courts. But to get a sense of the problem, the Center for Jury Studies — which provides assistance to state courts on jury trial management — conducted an informal poll of jury administrators earlier this year. Responses varied — some locales said it wasn't a problem, others, like one county in Nevada, said they were hearing more desperation in the voices and letters of potential jurors. Paula Hannaford-Agor, director of the Center for Jury Studies, says the impact on juries depends on how hard the recession has hit a given community, how long courts require citizens to serve, and the actual jury fee. "The national average, I think, is $22 a day, and there are still a number of states where the payment is $10 a day," Hannaford-Agor says. "It's certainly adding insult to injury with people who are feeling emotionally frazzled by the economic situation now."
... "As a trial attorney, you never want people on your jury that don't want to be there" says David S. Kestenbaum, a criminal defense lawyer. Kestenbaum says that in recent months, the issue has caused both prosecutors and defense attorneys in L.A. County to stipulate that a juror be removed when a judge has already denied their financial hardship excuse. "We've had to, because especially in serious long cases, you want people that are paying attention to the testimony and the evidence presented in court — not feeling they really need to provide for their family and would like to be somewhere else," Kestenbaum says.
I confess I am always a bit surprised that more states haven't retreated from the provision of the jury trial. What do you think explains the persistence of the jury institution outside the constitutional realms when it appears that so few people enjoy the prospect of service on it, and so few voters, ex ante, suspect they'll be desirous of a jury of their peers someday? Indeed, why wouldn't there be more constitutional fomentation to reduce jury service incidence? Though I have expressed normative concerns with juries in other contexts, this post is purely motivated by a desire for an explanatory theory. Is there, for example, a public choice account that explains the persistence of juries?
My Daughter, the Terror Suspect
Color me surprised, however, when I learned that my 4-year-old is among the hundreds of thousands of Americans that are considered potential terrorists. Every time we fly with her, we are forced to check in with an agent because she apparently comes up as being on the no-fly list. We do not know why she is flagged (presumably her name is similar to someone on the list) and, until yesterday, did not even know that this "list" is the source of our incessant delays while flying with her.
So I did a little searching. In a recent blog post, the TSA's Assistant Administrator for Strategic Communications and Public Affairs tells us that the TSA has done a lot to balance convenience and security and that no child is listed on the no-fly list. This sounds fine and good, but for parents it is little more than semantics. Whether your child is ON the no-fly list or flagged as POSSIBLY being on the list, you still lose the benefits of modern airline travel (online check-in, etc.). This is no small inconvenience when traveling with children, especially those prone to tantrums when forced to stand still for extended periods while bureaucratic nonsense is sorted.
After navigating the TSA website for about 10 minutes, I finally found the form for requesting "redress" to avoid similar delays in the future. Of course, to do so you first have to know that the reason you're being hassled is the "list" and not something else. Then you have to be willing to hunt for the form and provide detailed personal information all to establish that your toddler is not an Al Qaeda operative. Is this really the most efficient way to handle false positives?
Monday, October 19, 2009
More on Choosing Among "Lower-Tier" Schools
A commenter on Jack's first post on when and whether to accept offers from lower-ranked schools wrote that this is a question of some importance that he or she has not seen discussed elsewhere. I suspect there are other discussions out there, and that I have even contributed to them from time to time, but I agree that too little is said about this. Jack has helpfully contributed another post on the subject, and let me also add some more thoughts.
First, let me give the usual disclaimer, which, as a friend said to me last night, is often delivered with such fervor as to approach hypocrisy: I am not speaking up for the US News rankings, or for that matter for other and better ranking systems. They all have a heuristic value, some much more so than others, but they are all also just an approximation and will necessarily not reflect many important aspects of both the schools under examination and your own preferences. It is one thing to use rankings as a proxy absent other information, or to save time. But if you have more time and can accumulate more information, it makes sense to do so given the importance of the decision where to spend your personal and professional life. I think some lower-tier schools are highly underrated, that others are not, and that some higher-tier schools are either underrated or overrated. And even if all the US News rankings were right, again, they might not reflect your own preferences. But we all use them to some extent and I will take that as a given in this discussion.
Second, as a commenter on Jack's post notes, there is often, and to a greater extent than at the top schools, something of a generational divide -- not necessarily one of pure chronological age, but rather one of time of hiring -- between junior and senior professors at lower-ranked law schools. This should not be overstated, and a new prof coming into such a school should not make the snobbish assumption that he or she has nothing to learn from these senior professors, many of whom make all kinds of non-scholarly contributions to the school, have superb teaching chops, or at some point have been productive scholars. And, of course, numbers notwithstanding some of these folks are fine scholars who continue to produce. So don't come in with a chip on your shoulder. Not only will this be noticed by your colleagues, but you will also lose valuable opportunities to learn from senior colleagues and make friends, sometimes in surprising places.
At the same time, the quality of the juniors being hired is of immense importance for a variety of reasons. First, not every lower-ranked school is in fact hiring what we might think of as energetic young scholars, although I think the numbers of schools across the board that are doing so have increased greatly; so it makes sense to find out who has been hired and find out whether they are happy there. This cohort is the future of your school and a prime determinant of its culture, and at many lower-ranked schools one can feel the energy pushing upward from the junior ranks and pervading the entire institution. Make sure juniors are well-supported, and inquire into whether they have or would support a junior faculty workshop. If there isn't one, start it yourself. I have taught at a "lower-ranked school" (unfairly so, in my view), and the life of the junior faculty was a distinct part (although not the only part -- see "don't ignore senior faculty," above) of what made that place a fantastic environment.
The nature of the junior faculty hired also says much about the energy level and direction of the school. Having been through a dean search and several hiring seasons, I am struck by the extent to which these decisions are not only about signaling to other schools, but about a school, most definitely including its senior faculty, signaling to itself. It is a way for the faculty of a school to send a message to itself about its expectations for all faculty. If the senior faculty of a lower-ranked school are nevertheless hiring and encouraging promising junior scholars, then even if they are not themselves terribly productive at the moment, they may be saying that they believe this should be the future direction of the school, that they believe more scholarly energy and engagement is needed and should be a part of the school's ongoing culture. That's an important cue for people deciding where to go, and you should try to get a deeper sense of this. Moreover, since it is a way of sending a message about expectations, I believe it sometimes indicates a faculty where the senior members are themselves ready to start writing more, and often follow up superbly on this commitment. So, once more, do not count out either the talents or the intentions of the senior faculty; treat them as presumptive allies, not enemies. Also, this kind of hiring mission may indicate that there is someone in command -- a dean or associate dean -- who has an energetic vision for the school's future. This should be an encouraging factor.
Let me end with two aspects of the educational mission you may need to undertake if you accept a position at a "lower-ranked" school. First, as I said, if you want your institution to be the kind of place you would be happy teaching and spending an indefinite amount of time, you must be an institution-builder. Your goal may be to write your way to a higher-ranked school, and I think that is a perfectly appropriate incentive and desire. But in the meantime, there you are, and of course your future success is not guaranteed. So don't treat your institution as an embarrassment or a handicap, even if you think you might end up somewhere "better." Champion your institution. Become a part of its life, and work to make sure the culture of the place is what you think it should be, keeping in mind that different institutions have different needs, talents, and weaknesses and, given the variety among students, should have different goals; don't just try to remake your school into the elite institution you studied at, but think about how to make it a productive, energetic scholarly institution that is also responsive to its own needs and situation. Don't "hide your nametag" or act apologetic about where you teach. This sends the wrong signal, both to your own colleagues and to others, both about the institution and about the likelihood that you will be a good institutional player at some other school. I am all in favor of self-advancement, and, heck, I myself wrote up. But you should treat every institution you are at, no matter how long or short your stay there, as your terminal institution and set about advancing its cause and building its culture. Indeed, this is one way that such institutions slowly improve their reputations -- by seeding the faculties of other law schools with faculty alumni who speak well of their former institution and thus enhance the way their old school is thought of, which in turn helps juniors still at that school in both their scholarly efforts and their own efforts to lateral.
Second, part of your educational mission will have to do with your friends and mentors at the higher- or highest-ranked schools. I am always struck by the degree of informational deficit that many well-established professors, most certainly including juniors, at very high-ranked schools have about the schools further down the chain. As my friend said last night, this may be "rational ignorance," since they may simply not need -- or believe they don't need, rightly or wrongly -- to know more about these schools. This leads some of them, in advising their students about where to take teaching jobs, to treat the US News rankings in too coarse-grained a fashion, to assume that rankings are all there is and that if a school is lower-ranked one simply must not accept an offer there. The rest of us do or should know better; we do or should know that some "lower-ranked" schools have productive scholarly environments, increasingly impressive juniors, and an excellent culture and/or resources. So, first of all, don't take the advice of your highly-ranked professor mentor on these matters as gospel; make your own decisions and gather your own information. Second, you should make sure that you let these people know about all the good work that is being done out there. I can say from the accounts of others that professors at top-ten schools who initially believed that some particular school was beneath notice most definitely could be persuaded to change their minds, and approach that school with a very different spirit, when their proteges let them know what was going on at that institution -- who they had hired, what work they had been publishing, and so on. Do what you can to lift that rational ignorance at the highest levels, both for the sake of your new, "lower-ranked" institution and for your own sake.