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Tuesday, October 06, 2009

Chalk it up to Vague Statutory Drafting

October brings not only me back to Prawfs (thanks, Dan) but also a bunch of interesting criminal law issues on the University of Arizona  campus in Tucson.  Two students were arrested last week or chalking messages on the sidewalk. Although there has been controversy at other colleges about the permissibility of banning chalking as a matter of school discipline, here the students were locked up.  The charges were ultimately dropped by direction of the President of the University, perhaps because University leaders concluded that it is incredibly embarrassing to arrest students for engaging in harmless free speech.  My student Nick K. enlightened me about the rich jurisprudence of chalking.  A number of courts hold that chalking does not constitute damaging property.

U.S. v. Murtari, 2007 WL 3046746 (N.D.N.Y.Oct. 16 2007); In re H., 303 N.Y.S.2d 823 (App. Div. 1969).  However, it can violate statutes drafted differently.  The U.S. District Court for the District of Columbia recently held that Anti-abortion demonstrators could be prohibited from chalking in front of the White House. Mahoney v. District of Columbia, 2009 WL 3126620 (D.D.C. 2009). 

It is a close question, because the Arizona statute is nice and vague, but I don't think it permits arrests for chalking the ground.  Arizona Revised Statutes 13-1602(A) provides: "A person commits criminal damage by recklessly: 1. Defacing or damaging property of another person; or . . .  5. Drawing or inscribing a message, slogan, sign or symbol that is made on any public or private building, structure or surface, except the ground, and that is made without permission of the owner."  Chalking could well be considered defacing of property and therefore in violation of Section 1.  But Section 5 more specifically deals with inscribing messages, which would seem to include chalking, and creates an exception for inscriptions upon the ground (as it should, assuming that making snow angels, leaf piles, writing messages and other uses of the ground in, say, a public park are legal).  Further, if chalking or other drawing or writing was included within "defacing" or "damaging" there would be no need for Section 5 at all.

Update: Although initially it appeared the  students might be subject to University discipline, evidently the University is now taking the position that chalking the ground does not violate University policy.

Posted by Marc Miller on October 6, 2009 at 07:20 PM | Permalink | Comments (0) | TrackBack

Some quick thoughts on Sullivan and Graham, and an FSU face-off...

In discussing SCOTUS' upcoming consideration of the juvie life without parole cases, Jess Bravin in the WSJ yesterday gave a deserved shout-out to my clinical colleagues at FSU's Public Interest Law Center. Prof. Paolo Annino and his comrades did the important empirical survey related to this issue, and uncovered about 111 cases of juvenile offenders who were sentenced to life without parole for crimes committed while a minor. Of those 111, 77 are in Florida. Yay, sunshine state! 

More seriously, I hope to dig into the briefs over the next month and offer some further analysis on this important 8th Amendment issue; in the meantime, you might want to check out Doug Berman's SLP archive of posts here.  In the realm of untutored blog posts, however, let me offer a couple quick off-the-cuff remarks, drawing a bit on my recent paper, Executing Retributivism: Panetti and the Future of the Eighth Amendment (ER). 

In the ER paper, I tried to explain how the SCT in Panetti adopted a view of punishment that is basically a form of communicative retributivism. The Court ruled, per that view, that executions of the presently incompetent are unconstitutional because a commitment to communicative retribution would preclude punishing people who are not fit interlocutors for state punishment.   

Given the Court's Panetti-based interest in achieving the goals of communicative retribution, which requires interlocutors fit for the communicative message of state retribution, it seems that my visiting colleague, Scott Makar, the solicitor general of Florida who's arguing the juvie cases next month, should have to square the rationale of Panetti with the idea of LWOP for juvies. The latter, it seems to me, are empirically not very good interlocutors for communicative punishment.  That rationale seems implicit in Roper v. Simmons too. Of course, Makar might say, well, Panetti and Roper were about the death penalty, and "death is different."  But in truth, that answer has no legs in this context, a point I develop at length in my ER piece, where I try to explain what the implications of the communicative retributive point of view are for non-capital punishment. Being a fit interlocutor for state punishment more or less matters regardless of the severity of the punishment imposed. Even Scalia saw, in his dissent in Roper v. Simmons, that it would be hard to see a stopping point to the rationale . It'll be interesting to see if Scalia is prepared to follow, per precedent, this line of analysis or say otherwise. Any bets?

That said, I don't want to suggest it's an open and shut case from a constitutional perspective looking at other issues of legal interpretation, or from a policy perspective. While I was in South Florida last week for Yom Kippur, I had the chance to chat about this issue a bit with a family friend who's a state trial court judge. He's a pretty humane fellow, but didn't seem to think there were better alternatives when it comes to 17 year olds who have rap sheets a book long, with a heinous underlying offense.  Graham and Sullivan, of course, were 13. 

Last related point: Bravin was right to focus on AMK in his piece. Kennedy was the swing vote in Panetti and Roper, and the key will be for other conservatives to appeal to his conscience. In this vein, check out Bravin's reference to the Alan Simpson (R-Wy.) amicus brief:

"It's too cruel to be constitutional," says Republican former Sen. Alan Simpson of Wyoming, who joined six other former juvenile offenders in a friend of the court brief supporting Messrs. Sullivan and Graham. "For me, it was very important to have some second chances." Mr. Simpson says he was "a monster" who repeatedly got into trouble with his pals, although his offenses -- torching an abandoned building, shooting up mailboxes and killing a cow -- don't approach those of Messrs. Sullivan and Graham.

Posted by Administrators on October 6, 2009 at 05:59 PM in Article Spotlight, Constitutional thoughts, Criminal Law, Current Affairs, Dan Markel | Permalink | Comments (0) | TrackBack

Res Judicata in Salazar

There’s an interesting issue in Salazar that has gotten less play in the media, but may get more tomorrow.  It’s one of res judicata.  And it goes to show that no matter what area of law you go into, the face of my Civil Procedure teacher will never leave me.  (I guess I mean the face of “your” Civil Procedure teacher never leaving “you.”)  Anyway, more after the jump for those that can’t get enough.

The res judicata issue is this.  After the district court struck down the cross initially, while the case was on appeal, Congress intervened by passing the land-transfer statute, which aimed to trade the cross (and some land) to a private party for some other land.  The 9th Circuit then affirmed, holding that the plaintiffs indeed had standing and that the cross was unconstitutional.  The 9th Circuit issued an injunction, and left for the district court all the issues relating to the land-transfer statute.  But the government never appealed the 9th Circuit’s decision. 

The case then went back to the district court which enjoined the land exchange.  The 9th Circuit again affirmed, and the Supreme Court granted certiorari.

So the issue is this.  Why isn’t the 9th Circuit’s original decision res judicata?  One of the issues in the cert grant here is standing.  But that was decided in the prior litigation and was not appealed.  Thus, shouldn’t the government be barred from collaterally attacking the underlying injunction?  Note that this would go not only to the standing issue, but also to the constitutionality of the cross (which was also decided in the previous litigation).  The government cannot dispute the injunction, the plaintiffs claim.  The only issue properly on this appeal, they say, is whether the land-transfer statute fixes the problem.

But assuming a res judicata problem, it seems that the plaintiffs may have waived it.  Supreme Court Rule 15 says that the plaintiffs should have brought it up in their brief opposing certiorari, which they did not do.  Did the plaintiffs waive the winning argument?  Agh. I haven’t yet, as a law professor, had my old nightmare about my Civil Procedure class.  I hope those days are behind me.  But maybe not.

Posted by Chris Lund on October 6, 2009 at 05:58 PM | Permalink | Comments (1) | TrackBack

Speculative Prediction About Salazar

Tomorrow is the oral argument in Salazar v. Buono -- the case about the constitutionality of the cross in the Mojave National Preserve.  I had an earlier post on it here

There are several ways for the Court to go.  It could strike down the cross.  Or it could uphold the cross because there's no standing, or because the cross is constitutional, or because the land transfer (remember Congress passed a statute to transfer the cross to someone else) remedies any constitutional problem.  The briefs are helpful; I especially recommend Doug Laycock's brief on behalf of Muslim servicemen.  It's unrelentingly good; Laycock takes what the cross means further than anyone else.

This case has the potential to remake the Establishment Clause as regards passive displays.  The plaintiffs present this as an easy case -- "I have always believed, and all my opinions are consistent with the view, that the Establishment Clause prohibits the favoring of one religion over others," Justice Scalia has said (Kiryas Joel).  If the Court wants to uphold the cross, it may be tempted to pass this off on standing grounds or remedy grounds, precisely because the alternative holding -- the cross is secular or has predominantly secular meaning -- is so ugly.

Here's a hasty and overconfident prediction.  I'll say 5-4 that the cross comes down, with Kennedy crossing over.  If not that, 5-4 the cross stays up on grounds that the plaintiff himself lacks standing because he hasn't properly alleged injury-in-fact.  (I don't think the court will say that there's no standing generally.)  Third guess -- I probably need more than three -- plaintiffs win 8-1.

Predictions?  Rick, Paul?

Update: Briefs and other documents available here.

Posted by Chris Lund on October 6, 2009 at 03:28 PM | Permalink | Comments (2) | TrackBack

Scalia Lacks a Certain Originalism


Fellow guest-prawf Chris Lund, in a post Friday, pointed to some interesting remarks made by Justice Scalia – namely his worry that society may be “devoting too many of our very best minds” to the legal profession.

What struck me most about Scalia’s observations was how closely they mirror those made by yours truly in a PrawfsBlawg post from March 2008: “Are Law Students Too Smart?”

I’m not sore that Scalia didn’t credit me. And I’m not going to brag that Scalia is out trolling my old blog posts for intellectual fuel. Hey, you don’t need me to tell you that the nation’s highest court constantly relies on PrawfsBlawg for leadership in legal thought.

But I do have a gripe. And it’s this: When I posted “Are Law Students Too Smart?”, I got roundly flamed. Six comments – none concurring. But lo-and-behold, when Scalia says it, suddenly people get on board. On PrawfsBlawg, two out of the six comments were supportive. And on the Wall Street Journal Law Blog, there was an explosion of accolades: 

“What a brilliant comment … ”

“Spot on.”

“Scalia is once again way on to something.”

“This is probably the only time I would agree with Scalia.”

“Scalia is absolutely correct.”

“Scalia bats another one out of the park.”

Hmmm. Well, I can’t wait to see the kudos foisted on Scalia when he gives the Constitution a grade of B-minus.

Posted by Eric E. Johnson on October 6, 2009 at 02:44 PM | Permalink | Comments (3) | TrackBack

The Constitution in 2020: A Pre-Partum Post-Mortem

I was very grateful to the organizers of the Constitution in 2020 conference for inviting me to participate this past weekend on the individual rights panel.  Most of the panels I saw were superb, particularly the constitutional theory and federalism panels.  Josh Blackman, one of the attendees, kindly took notes and blogged about the conference here.  I want to offer one response to Josh's post about the individual rights panel, and one broader observation about the conference.  

Josh writes of our panel, which included me and co-blogger Rick, that it struck him that "[i]t almost seems like the panelists want[ed] to achieve some end, and they flip[ped] through the Constitution trying to find something, anything, to justify [their] beliefs.  This seems backwards.  Shouldn't the text of the constitution inform what the law is? . . . These scholars are creating brilliant theories of society, government, policy and then as a footnote, try[ing] to make portions of the Constitution support it."  This is a well-worn criticism, one that of course is used against both left- and right-leaning constitutional theorists, and I can certainly understand its looming at this conference, for reasons I'll expand on below.  I'm not sure, however, that it was an apt criticism of this panel.  All of us did, in an important sense, start with constitutional text -- Elizabeth Emens, who spoke on disability rights, started with the Equal Protection Clause, Alice Ristroph spoke about the criminal procedure amendments, and Rick and I started with the First Amendment.  We all had normative positions, but they weren't necessarily the beginning or the ending of the interpretive process; rather, one informed the other and vice versa.  Rick and I, at least, inform our analysis and our sense of what the First Amendment permits and compels by way of constitutional interpretation with theories and principles that, as it turns out, have deep historical roots, both in the development of Western culture generally and in the history preceding, including, and following the founding of the Constitution; and I think the same thing could be said of Alice, whose "anti-violence" theory has some roots in the political theory of the criminal procedure amendments.  Of course all these theories are subject to criticism and modification, both on the basis of their fit with text and history and on broader normative bases.  But -- and this could be said of other panelists as well -- that doesn't mean they are simply result-oriented.  Really thinking hard about the Constitution, both in a textualist and a historically informed way, does in my view require good faith, but a good-faith effort to do so nevertheless leaves room for a number of interpretive strategies, the use of various historical developments, some of which are well-known to all of us and some of which have received less recognition in our time and deserve closer attention, and a number of different theories and outcomes.

Now, that doesn't mean Josh's general point lacks any purchase.  What struck me about the conference was that it was directed around a "project" (an oft-used term over the weekend) whose terms are still quite uncertain, and to which not everyone who served as a panelist had signed on.  Some panelists were decidedly social activists who believe the value of the Constitution in 2020 project is that it will lead to a more just society along the lines they would like to see; to some extent, constitutionalism was present but only sitting in the passenger seat for these panelists.  Other panelists, and perhaps the organizers themselves, are good-faith constitutionalists who believe that there is room for a politically progressive constitutionalism and see the goal as constructing a vision of progressive constitutionalism that is both theoretically legitimate and politically saleable.  Other panelists (Rick and I fall in this category, I think) are very happy to think about what the Constitution requires and think there is always room to rethink its meaning and that there is value in doing so, but we come from a variety of theoretical, methodological, and political perspectives, and don't care so much whether the Constitution in 2020 is a progressive one or not, let alone whether it can be sold to the ranks of political progressives.  

I very much enjoyed the conversation among the panelists in category three, which although it leaned left was conducted in good faith and involved a variety of perspectives.  The folks in category two, I would say, were probably well-positioned to talk to the folks in both category one and category three.  But there was a serious gulf between the folks in category one and category three, even when they happened to share political perspectives, which wasn't always the case.  It wasn't surprising to me that many of the people who were there to talk about constitutional theory weren't there when the folks from SEIU and other organizing groups talked about "implementing" the Constitution in 2020 "project."  Indeed, it seems to me that the folks in all three categories each had very different senses of what the "project" is.  My sympathies happen to lie with the folks in category three, who think it may be sensible to talk about a "project" of thinking about the future of the Constitution but are less likely to sign on to a "project" of seeing constitutionalism simply as a vehicle for implementing political change of a particular valence; as to the folks in category one, I am always impressed and heartened by people who do difficult political work (of many stripes), but that project isn't my own.  The folks in category two, which to me includes the conference organizers, I think have the greatest burden on them to figure out whether it is really possible to remain in the middle on this one, or whether there are either multiple "projects" or none here.  The same tension is, for those who have read it, evident in the Constitution in 2020 book itself, and so it is unsurprising that it surfaced at the conference as well.  

It was a terrific conference: I learned a lot, met some new friends and renewed ties to old ones, and was grateful to be there.  Yale knows how to throw a party.  But if the organizers of the book and conference are serious about pursuing a constitutional "project," I think they will have to do more work in defining it before (or if) it can draw committed adherents from all three categories.   

Posted by Paul Horwitz on October 6, 2009 at 12:26 PM in Paul Horwitz | Permalink | Comments (2) | TrackBack

You're Hired

Office Space


This is a one-day offer. You saw my book. You know I can handle the work. You're gonna have to let me know today, not at the end of the holidays. If you want me, make a decision right now.

-- Dustin Hoffman, Kramer vs. Kramer (1979)


Wouldn’t you love to say that to a committee? The Faculty Recruitment Conference is less than a month away, and I thought I would add a little lighthearted levity to ease the stress. As candidates prepare (and prepare a little more) for those intense 30-minute sessions, it might be helpful (and entertaining) to consider learning a few tips from depictions of interviews on the big screen. One of my personal favorites appears in Office Space, where the “Two Bob’s” make arbitrary decisions based on nonsense. I also love the group interview in Boiler Room; I think it is Ben Affleck’s best (and briefest) performance. What are some other great interview scenes on film?


Posted by Kelly Anders on October 6, 2009 at 10:34 AM in Film | Permalink | Comments (3) | TrackBack

Evaluating and Rewarding Institutional Service

Carrot 2

Scholarship is relatively easy to evaluate – we know about how long it takes to write an article, and the relative pecking order of journals.  Teaching, also, is easy to measure, at least at the extremes – student evaluations and teacher-of-the-year awards flag the great and the awful.  But how is institutional service evaluated?  And are there effective ways to reward it?

Assessing institutional service can be difficult.  Deans don’t typically serve on many faculty committees, and so have no basis for evaluating the performance of individual faculty members.  The success or failure of a committee is one measure, but the end result can turn on variables that have nothing to do with faculty effort or competence (think faculty hiring), and most committees -- successful or not -- contain some faculty members who go above and beyond and others who free-ride.

The problem with institutional service is that there usually are neither positive incentives for faculty members who do good institutional service, nor negative ramifications for faculty members who avoid institutional service or perform it badly.  To the contrary, the incentives are perverse:  a faculty member who works hard on a committee or chairs a successful one is “rewarded” by being given more of such work; a faculty member who shirks or performs badly is passed over the next time a difficult or important assignment comes along.  Meanwhile, the shirkers are free to do scholarship (which, unlike institutional service, is rewarded on the lateral market) or to spend their extra time on R&R.

In the corporate world, an institutional service shirker would be shown the door unless s/he more than makes up for it in other contributions to the institution.  Does your institution have an effective way of identifying overachievers and shirkers on institutional service?  I’m all ears. 

Rick Bales

Posted by Workplace Prof on October 6, 2009 at 09:36 AM | Permalink | Comments (2) | TrackBack

Monday, October 05, 2009

Choosing Civility

Professor Farid's post reminded me that it is Choose Civility Week in Howard County, where my family lived for several years before our recent move to Buffalo.  This week is part of the Choose Civility initiative, which hopes to "enhance respect, empathy, consideration and tolerance in Howard County" by "infus[ing] civil behavior into our business, community and personal lives."  At the core, this initiative focuses on such basic principles of civility as paying attention, being respectful, and being considerate.  In short, these are things we should have learned in kindergarten, if not earlier.  

It all sounds fine and good, but questions about the impact of the movement remain.  There are no hard data about the impact of the program, and the initiative seems slogan-heavy but light on practical explanations as to how, exactly, this "infusion" will work.  If it were that easy, we could just "infuse" a strong work ethic or a "just say no" attitude toward drug use.  That's not to say that such an initiative is a waste of time an money, but, in the absence of any empirical information suggesting a tangible benefit, one has to wonder.

More than anything, it strikes me as a P.R. move.  The website constantly reminds the reader that Howard County was already "highly civil environment;" adopting this initiative is apparently a sign that the citizens of Howard County are just really, really committed to civility.  

In the interest of full disclosure, my skepticism may be based, in part, on personal experiences that are probably irrelevant.  Put simply, a disproportionate number of the cars driven by the worst, most inconsiderate drivers I ran across during my last couple of years in Howard County sported the "Choose Civility" magnet:


Mind you, I would be feeling and behaving perfectly civil BEFORE the car in front of me darted across three lanes without a signal or sat through a green light as the driver chatted someone up on their cell phone.  It was so persistent and uncanny that I actually started to wonder if the people with these magnets had been forced to put them on their vehicles by the local traffic court, perhaps as an effort to flag bad drivers and discourage those around them from giving into road rage (in retrospect, this was probably a foolish idea; I doubt that the mocking command to "choose civility" would do anything but incite those prone to road rage further).  My research revealed no such concerted effort; just the Choose Civility website. 

But I digress...I'd love to hear others' thoughts about civility initiatives such as this one.

Posted by S. Todd Brown on October 5, 2009 at 05:34 PM in Culture | Permalink | Comments (2) | TrackBack

I Have Received Nothing of Value In Exchange For Providing You With This Link...

Bloggers beware.  The FTC is apparently changing the rules so that bloggers must disclose when they are being paid to promote products.  I am no FTC junkie; I'd be interested in finding out what the penalties for this would be, if people know.  Here's a clip from the FTC's announcement.  The italics are mine:

The revised Guides also add new examples to illustrate the long standing principle that “material connections” (sometimes payments or free products) between advertisers and endorsers – connections that consumers would not expect – must be disclosed. These examples address what constitutes an endorsement when the message is conveyed by bloggers or other “word-of-mouth” marketers. The revised Guides specify that while decisions will be reached on a case-by-case basis, the post of a blogger who receives cash or in-kind payment to review a product is considered an endorsement. Thus, bloggers who make an endorsement must disclose the material connections they share with the seller of the product or service. Likewise, if a company refers in an advertisement to the findings of a research organization that conducted research sponsored by the company, the advertisement must disclose the connection between the advertiser and the research organization. And a paid endorsement – like any other advertisement – is deceptive if it makes false or misleading claims.

Posted by Chris Lund on October 5, 2009 at 04:25 PM | Permalink | Comments (3) | TrackBack


Many thanks to Dan and the gang for having me back.  I'm looking forward to a fun month.

Like many, I have been appalled by the lack of respect demonstrated toward President Obama by some (including these two).  It may be, as some allege, that a degree of the incivility is due to racism, but I am not entering that discussion; the impropriety is plain simply from the fact that there is some feeling that it is socially or culturally acceptable for those with a pulpit, so to speak, to be openly and unproductively hostile toward the President (and his family).  Hurling utterly disrespectful vitriol at leaders isn’t exactly new (Clinton springs to my mind, and I’m sure others have memories that are significantly more expansive), yet it seems worse to me now than it was even with Clinton—more directed, more ubiquitous, more tolerated.

The occurrence is not only in the States, of course.  In fact, this blawg post was spurred by (my astonishment at) a recent tidbit about a press conference with Gordon Brown, in which he was asked if he takes medication for depression.  Whether a citizenry should be on notice about its leader’s health to that extent is perhaps debatable, but this question was based solely upon an Internet ‘find’—one blogger’s ruminations, labeled as news.

How did we get here?  Why is this acceptable (to the point where such actions are defended)?  My initial thought was the pervasiveness of the media, both online and broadcasted.  Various media outlets (including private bloggers) compete for news and information, for readership.  With 24 hours to fill, broadcast media give air time to angry citizens who might otherwise have been ignored or seen fleetingly at best (see: the Birthers); that sheen of legitimacy, however slight, is picked up by others in the media and by some politicians, then used, if not as a template then as a justification, for lashing out.  But there seems to be something more in the acceptance of the behavior, particularly in the personal nature of some of the attacks and inquiries.  With respect to our leaders, the discretion, the propriety, has been lost—or at least severely diminished.  This could be because our society is moving in the same direction generally—that what was once protected by notions of discretion, privacy and ‘personal space’ is now perfectly acceptable fodder for public viewing (or feasting).   Numerous articles have lamented our collective loss of decorum to social networking.   Perhaps our willingness to reveal all, to expect all, via Tweeting and status-posting and sharing publically photographs best saved for an album only in one’s mind, has turned us into a society that refuses to recognize boundaries, even in once-hallowed halls.  And while this may seem generational, remember-- it’s not the young ones who are obsessed with Twitter.        

So:  what constitutes permissible behavior by the media and/or by politicians toward a nation's leader(s)?  Is it appropriate to levy personal attacks, to abandon good manners, to make inquiries into deeply personal matters?  And if the answer to these is ‘yes,’ has it always been this way, or has our recent shift in ways of communicating/interacting made it so?

Posted by Nadine Farid on October 5, 2009 at 01:20 PM in Culture | Permalink | Comments (8) | TrackBack

Why The “Best Places to Live” Are Often The Worst: The Law and Economics of Cities (Part 2)

This is the second post in a series discussing the “Best Places to Live” rankings issued by America’s financial magazines.  My contention is that they are not only flawed, but fundamentally wrong-headed, mistaking good things for bad.  Further, they reveal a distorted view of the value of cities that infects both general discourse and public policy on the subject.   (The basic logic of these posts comes from my new paper, The City as a Law and Economic Subject.)  

To understand why, you have to look at what goes into the numbers.  

One of the key variables the magazines use is the cost of living, most of which comes from the cost of property.   Given the diversity of preferences for what constitutes a good place to live and the difficulty of measuring a variety of relevant characteristics, this seems a good place to start.  After all, if we are trying to figure out the value of a city to any given resident, a property cost variable will give us a bunch of information about what the demand across the population for living in a city is (factors affecting the supply of housing will be the subject of my next post).  As my great colleague Tom Hazlett once noted when he was told about the attractions of a low cost of living:  “The cost of living is dying.  What you are talking about is a low demand for living.”   

Unfortunately, magazines interpret the cost of housing in a strange way – they take an increase in price as a negative sign about quality.  To understand how odd this is, imagine if you were in a liquor store trying to figure out what the best bottle of whisky was.  One way to do this would be to ask someone, but in this you would be subject to the peculiarities of that person’s tastes and the fact that the person you ask might not know any more than you do.   Another way to do it would be to trust everyone else in the world’s judgment and just use the price.  This is will give us preferences in the aggregate.   I suggest you try this at home: buy this $685 bottle of pure bliss and an off-brand $8 bottle of whiskey and see which you like better.  You certainly wouldn’t say: “On balance, higher priced whisky is worse.”   

This, of course, doesn’t mean that you always want to buy the $685 bottle or that there aren’t bargains.  For any product, you want to choose a price/quality level.  Further, there may be products that are less valued but that you like better.  The same is true for cities.   Living on a cliff overlooking the beach in Malibu may not be worth it you or possible.  You may not have enough money, you may prefer living in a place that has seasons, or you may hate actors.  However, as long as you believe people can move between cities (an assumption inherent in the idea of ranking cities in the first place), the price of property will include all sorts of information about how the population as whole understands the quality of a place, as people are trading other resources in order to consume housing in that region.  Even more specifically, prices reveal something about the quality of cities as cities. People are willing to pay more to live in certain places because of the quality of the atmosphere the place provides -- the quality of the labor markets, public policies, how nurturing of human capital place is, how cool the people are, etc.   Looking at the studies, this fits -- for instance, the places with the highest cost of living index on Kiplinger’s study were Honolulu and San Francisco, two places most people would describe as very nice. 

Now, it would be possible to conceive of a type of list that was price-independent, where other variables are used to generate a ranking of quality that expresses the author's view of good price/quality tradeoffs.  However, if prices are to be included, claiming that they are purely negative is perverse.  This is particularly true because the qualities that cities have -- the aforementioned labor markets, public policies etc. -- will affect the price of property, resulting in a list that cancels out that categories they do include, leaving only the categories they don't to shape the rankings.  So as a starting point, these magazines have taken something positive and set it as a negative.     

And then it gets worse.  Below, see why the end result of these lists is a list of towns that have bad neighbors. 

The usual next step in producing one of these lists is to include a list of variables related to the output of public policies – school quality, taxes etc.  This too is a bit odd.  It has long been known that people take these characteristics into account when buying a house.  As explained by famed economist Charles Tiebout, individuals “sort” to their preferred bundle of public policies.  If some cities or regions have purely better public policies than others, this should already be reflected in the price.  The “capitalization” of public policy into housing is a well-documented phenomenon.  As public policy variables are already incorporated into the value of a house, including them and housing values results in cancelling out their effect on the studies.  By inserting public policy variables and counting housing values as a negative, the magazines have therefore created an index of how much demand there is for places are when public policies are ignored.  

After this, the magazines throw a bunch of other characteristics of the city or region, either observable statistics like the average salary in the city, or ratings by experts about which city has the best dating scene or what have you.  These are trying to capture what economists call “agglomeration economies” or the gains from living near other people.  There are three types of gains that are usually included by economists in this category.   

  • The first is reduced transportation costs for intermediate goods, which explains why auto parts manufacturers usually locate near cities that produce cars.   (Research on this effect is part of what won the Nobel Prize for Paul Krugman.)  
  • The second is the depth of markets.  For instance, living in a city with a deep labor market provides gains for workers.  They can specialize in a deep market and also have the insurance against the firm-specific risk – they can get another job without moving.  Deep labor markets also provide gains for employers, who can easily replace workers and can get very specifically talented employees.  The same logic works for consumer goods or for non-market goods.  For instance, a deep dating market in a city provides gains for those singles with specialized tastes, reduces search costs and makes break-ups (the dating equivalent of “firm-specific risk”) less difficult because there are more people to date (the equivalent of insurance.) 
  •  A final category of gains is what economists call information spillovers, or all the things you learn from your neighbors.  In places like Sillicon Valley, these are extremely important – new ideas just spill from one firm to another because smart people are meeting with one another and talking and the ferment creates new ideas and new businesses.   Jane Jacobs famously noted that it is in cities that most new ideas get developed, and it is because of these types of interactions.  These spillovers also affect human capital.  Economists have long known that city residents are paid better than their rural equivalents and Ed Glaeser, a Harvard economist who is probably the nation’s leading urban economist, has shown that the reason for this is that city residents learn a great deal from being in cities and become more productive the longer they stay.  

All of these factors – reduced transport costs, deep markets and intellectual spillovers – affect the price of housing too.  This is why rents in downtown Manhattan are so high, as it is the center of the deepest high-end labor market in the country and one of the biggest centers for informal learning about business.    The other factors the magazines put in capture some, but not all of the qualities of agglomeration economies.   When people make their decisions about where to live, these things are factored in too and hence are part of the price, as everything people like affects the price of a house.  The average salary in the city is no different in this respect than public schools – people are willing to pay more to live in an area that has a good job market, just as they are willing to pay more to live in a town that has good schools.  Just like the public policy variables, putting these variables as a positive next to the price as a negative results in cancelling out.     

So what’s left?  The other part of the price comes from the agglomeration variables the magazines don’t include.  What’s left is the quality of the other people and businesses in the city.  The magazines usually don’t include factors like how nice the neighbors are and how much you are likely to learn from them.  Similarly, they ignore things like how nice and deep the local retail and consumption markets are – how cool the stores in an area and how good the restaurants.  These things affect housing prices but aren’t taken into account by the variables they have.  

However, again, the magazines are treating these positives as a negative because they are counting the price of housing as a negative.    Aside from questions related to weighting, the basic result is that Best Places to Live lists are really lists of the places that have a number of truly terribly qualities that the variables they do use don’t capture.  Because these variables usually relate to the quality of your neighbors, both businesses and people, these lists are actually lists of the places with the worst neighbors.  Congratulations residents of Huntsville, Alabama and Louisville, Colorado!  Kiplinger’s and Fortune Magazines have found that you are the worst neighbors in America.   Put that on your Tourism Board’s promotional materials!

Posted by David Schleicher on October 5, 2009 at 11:09 AM | Permalink | Comments (8) | TrackBack

Schwarzenegger Asked to Shut Down Prostitution-Related Website by British Authorities

Full story from Reuters here.  Here are some excerpts that give a sense of the issue:

A British government minister asked California governor Arnold Schwarzenegger on Wednesday to shut down a U.S. website that allows men to rate prostitutes, including many working in London.  Harriet Harman, minister for women and equality, told the ruling Labour Party's annual conference that "Punternet" fuels the demand for prostitution -- a vice she said degrades women and puts them at risk . . .  

She said she had raised the issue with the U.S. ambassador to Britain and asked California Governor Arnold Schwarzenegger to close it down as it is based in that state.  "Surely it can't be too difficult for 'The Terminator' to terminate Punternet and that's what I am demanding that he does." . . .

Prostitution is not illegal in Britain. But associated activities, including soliciting, advertising using cards in telephone boxes and kerb crawling, are criminal offences.

Posted by Chris Lund on October 5, 2009 at 08:56 AM | Permalink | Comments (4) | TrackBack

Sunday, October 04, 2009

A belated farewell and a parting issue

Thanks to Dan for allowing me to spend some time here. Other responsibilities prevented me from blogging as often as I may have wanted, but perhaps it will be better next time.

So as an nontenured conservative who came to legal academia well into midlife, let me leave with you with a question to discuss among yourselves. There was, at least, a minor controversy over Boston College law prof Scott Fitzgibbon's participation in an ad opposing gay marriage in Maine. His appearance prompted folks at BC to circulate a petition reaffirming "our belief in the equality of all of our students."

Candor prompts me to say that I do not support same sex marriage. I spoke frequently in favor of a state constitutional amendment prohibiting it and currently represent clients in a challenge to a domestic partnership registry which they claim violates that amendment. Yet I would have no problem signing a statement that affirmed the equality of gay and lesbian students,

I would, however, have to be obtuse not to see that some of these students may see my opposition to same sex marriage and my commitment to their equality as inconsistent . They may well see me as making a judgment about them that I myself don't believe I am making. 

The issue is further complicated by the fact that many of the major religious traditions, while still affirming the equality of all, are critical not only of same sex marriage but of same sex relationships generally. For those of us who, like Professor Fitzgibbon, teach at Catholic institutions, this adds another layer of complexity. Even if we do not share - in whole or in part - the Church's view on human sexuality, it would be a tad incongruous to treat it as a view unworthy of respect.

How is this conundrum to be resolved? I can't avoid it because two of the courses in my teaching package (Law and Theology and a course on the Wisconsin Supreme Court and state constitutional law) require that the issue be treated in the class room. Personally, I feel an obligation to be very intentional and explicit about what I do and do not believe and, perhaps, to bend over backwards to avoid that being misapprehended. I feel the need to reassure students that my views do not imply any particular judgment about them and that they can disagree with me and still do very well.

Is that fair? Shouldn't we all do that with respect to our publicly expressed views? Was Professor Fitzgibbon's position really problematic? Is there a danger in pulling up the moral barricades on this issue?

As we say in Milwaukee, see you around the bubbler.

H/T: Mirror of Justice (Rob Vischer and Robert Araujo, S.J.) 

Posted by Richard Esenberg on October 4, 2009 at 01:19 AM | Permalink | Comments (5) | TrackBack

Saturday, October 03, 2009

"Union Card" Academics versus Intellectual Scabs

Brian Leiter asked the following interesting question over on the Legal Profession Blog: "Is it unethical or inappropriate for law professors to write and circulate articles in areas or on topics in which they lack any relevant disciplinary competence?"

This question has a simple and a complicated answer. The simple answer is: Of course not! The best thing about being a law prawf is that we have a roving commission to speak without a union card about whatever we like. We law prawfs are obliged to do so, because we train actors, not what Hannah Arendt used to call (with a touch of contempt) "professional thinkers." (See, e.g., Life of the Mind at 167 (1981)). Actors -- judges, bureaucrats, lawyers, activists, etc -- cannot be methodologically specialized: In the end, their decisions will have implications analyzed by every discipline that has humanity as its subject -- economics, philosophy, political science, aesthetics, you name it.

Of course, real-world actors use their professional role to circumscribe what they may legitimately consider, but even this decision not to consider "extra-legal factors" (whatever that means) is generally justified by multi-disciplinary considerations such as political science ("judicial activism is illegitimately undemocratic, because the median voter would disapprove of the policies of the median judge") to philosophy of law ("judicial activism is inevitable, because legal texts do not really cabin discretion"). The non-legal academics who, to my mind, are most appealing are scabs who flagrantly trespass on other disciplines, like Brian Barry (combining philosophy and rational choice theory) or Allan Gibbard (combining philosophy and evolutionary biology). So put your union card in your shoe when you come to law school: If you cannot explain your non-legal ideas to a smart 1L or law prawf, then you should de-camp for the closed shop of the non-legal academic world, where you can engage in your insular family quarrels without being disturbed by an unfamiliar bibliography, citation method, or normative framework.

This is, as I say, the simple answer -- and it is much too simple. There is an ethics of being an intellectual scab about which Brian is quite right to query. Taking up Brian's invitation, here is (after the jump) Hills' Decalogue for the Interdisciplinary Lawyer.

(1) Thou shalt consult and co-write with the specialists. We law prawfs hire folks like Leiter so they will feel obliged to read our drafts, point to the relevant literatures, and (patiently, not snarkily) explain basic concepts. So befriend such a one and force them to talk to you. (I do not write or say anything about political theory or political science without speaking first to Don Herzog and John Ferejohn and a few others, for instance -- a precaution that has saved me much time and embarrassment).

(2) Thou shalt not proudly pontificate but rather humbly query. Important safety tip: No matter how much of a polymath you are, you cannot possibly master the secondary literature in any area as well as a grad student who is ABD (unless you happen to be a grad student who is ABD). So go ahead and ask your specialist colleague for reading tips.

(3) Thou shalt read the secondary literature, guided by a competent expert, before thou readest primary sources. This is my cavil with originalists: They plunge into Farrand's or Elliott's but ignore Forrest MacDonald, Bernard Bailyn, Saul Cornell, or Joyce Appleby. Re-inventing the square wheel in this way -- that is, reproducing crudely and incorrectly the knowledge that has been mined elsewhere -- is a recipe for law office history, philosophy, economics, etc.

(4) Thou shalt aim for arbitrage, not original work in the discipline. No one pays a pure law prawf without training in the relevant discipline to contribute to, say, Nietzsche scholarship: That's like paying a sheep to herd dogs. But there is room for a law prawf to explain why a problem in the law might require the courts to take a position on scientific naturalism, which might be a good opportunity to bring in some philosophical considerations and even aphorisms from Nietzsche. If you follow commandments 1-3 above, then you will not be producing any insights that Nietzsche scholars would find astounding, but you might help judges and lawyers understand how something apparently very remote from their quotidian professional lives is actually implicated by their actions.

(5) Thou shalt take summer courses: For instance, University of Michigan's ICPSR program has a very good set of classes in quantitative methods. Take a few. Yes, it will initially be humiliating to sit with a bunch of twenty-somethings and even teens and have one's problem sets corrected by someone young enough to be your kid. (I know, from personal experience). But -- so what? You can afford to reveal your ignorance: That's why we have tenure.

(6) Thou shalt ask dumb questions: Never, never try to bluff or hide your ignorance. Just come out and ask, right in the middle of the faculty lounge, "what is 'Nash equilibrium,' anyway?" Bertrand Russell said somewhere that "[t]he point of philosophy is to start with something so simple as to seem not worth stating, and to end with something so paradoxical that no one will believe it." So asking a simple question about why some widely accepted principle in some discipline does not make sense might be a great way to detect a foundational paradox. Well, probably not -- but at least you will have displayed the mighty confidence of the humble, providing a service to all of your craven colleagues who were too frightened of being caught out to actually understand what was being told to them.

(7) Honor thy legal father/mother: Self-hating law prawfs nauseate me. Learning legal stuff is actually pretty hard: Just listen to all of the non-lawyer academics who mess it up. So do not be ashamed of "just" knowing the law. Sure, the Law is filled with mysterious gaps that Law itself cannot fill. But you cannot find the gaps until you've really thought about the law.

(8) When thou listeneth to specialists, thou must be as stubborn as a judge in a bench trial who listeneth to expert witnesses: Remember that any philosopher, economist, or other expert who cannot explain their argument to you in decent English does not belong in a school devoted to the task of teaching people to explain stuff to the uninitiated -- state and federal judges, Presidents, juries, etc. So ask questions (Commandments ##1 & 6), be humble (Commandments ##2 & 4), be diligent (Commandments ##3 & 5) -- but be stubborn about not getting fobbed off with patronizing jargon or casual name-dropping.

(9) Thou shalt never vote against making an offer against a whippersnapper more knowledgeable than thou art because thou feelest threatened: This advice is for us oldsters who could not possibly be hired under the standards now applicable to entry-level candidates. When some Ph.D.-J.D. economist shows up with a book manuscript, a peer-reviewed article or two, and a job talk dispensing econometric concepts that you've never thought about before, do not bristle and harrumph and question the validity of a whole academic discipline. No, statistics is not all a pack of lies, oldtimer. If the young turk survives your stubborn questioning (Commandment #8) and presents an idea relevant to some legal problem (Commandment #7), and your resident experts whom you have humbly consulted pronounces them kosher on their methodology (see Commandments #1-2), then greet the newcomer with joy and gratitude, secure in the knowledge that your tenure will prevent them from laying you off as the obsolete dinosaur that you are.

(10) Also thou shalt not oppress an academic stranger: for ye know the heart of a stranger, seeing ye were strangers in the land of other academic disciplines. This last commandment might be obsolete nowadays when law faculties are teeming with non-JDs, but, believe it or, the non-lawyers on law school faculties can sometimes feel put out by the attitude of law prawfs that law is a mysterious craft that they cannot "get." In my view, non-J.D.s who respect the law and care about teaching law students do just fine teaching basic law courses. (Don Herzog at Michigan teaches terrific -- and very doctrinal -- torts and First Amendment courses). So put your union card away and welcome the stranger: Maybe they'll return the compliment.

Posted by Rick Hills on October 3, 2009 at 02:46 PM in Life of Law Schools | Permalink | Comments (12) | TrackBack

Weekend Trivia Challenge: Latitude and Longitude Extremes

PrawfsBlawg Trivia Challenge logo with compass

The Question:

Which ABA-accredited law schools are at compass extremes? That is, which law school is the most southern, western, eastern, and northern?

Here is one hint that may help you:

And another hint:

The answers:

The northernmost: 

The southernmost:

The easternmost:

The westernmost:

Also interesting:

(In figuring this out, I am indebted to Julie Jones, librarian and prawf at the University of Connecticut School of Law, who inputted the location of each school to create a map of all ABA-accredited law schools. Super cool! Thanks!)

Posted by Eric E. Johnson on October 3, 2009 at 09:01 AM in Games, Life of Law Schools | Permalink | Comments (0) | TrackBack

Friday, October 02, 2009

Why The “Best Places to Live” Are Often The Worst: The Law and Economics of Cities (Part 1)

Hi everyone. I want to thank Dan for the invitation to return to Prawfsblawg.  I have a few things I want to blog about this month, but the main topic I want to discuss is the relationship between urban economics and the law (for a fuller version of what I'm talking about here, check out this paper.)  However, rather than begin with the difficult stuff – “agglomeration economies” and “Tiebout sorting” and such – I want to address a related topic that has always bothered me, the “Best Places to Live in America" rankings that appear in popular magazines.

When you ask people where the best places in America to live are, there are usually a number of contenders:  Honolulu, Manhattan, Beverley Hills, San Francisco, maybe Austin, Texas or Aspen, Colorado, depending on the person’s preferences, the kind of places where TV shows, movies and novels are set.  However, when magazines issue their annual Best Places to Live lists, as they do each year, they usually end up with a very different set of cities.  Kiplinger's Magazine's 2009 list declares that Huntsville, Alabama is the best city in America to live in, followed by Albuquerque, NM.  Bert Sperling, a city rating guru, has Gainesville, Florida ranked in the number one spot in the most recent version of his book Cities Ranked and Rated, while New York City comes in 241.   For small cities, the lists are no less surprising: Money Magazine ranked Louisville, Colorado, a small commuter town of little renown between Boulder and Denver, as the number one small city in the US, and a snowy, suburb of Minneapolis, Chanhassen, Minnesota number two, outpacing by a huge distance popular places like Monterey, CA, Redmond, WA and Nantucket, MA.

One is left to wonder – and the magazine editors want you to wonder – what they know that you don’t.  The answer is not much.   In fact, it’s worse than that.  The best interpretation of these lists is that they measure the places to live that combine the worst neighbors and the best conditions for home builders.  This may make them useful to a truly anti-social developer (Donald Trump perhaps?) but they have little value to readers.

However, these rankings are not merely meaningless.  Rather, they are symptomatic of an impoverished understanding of the economic life of cities and what makes local government laws and policies efficient.   The vision of urban life reflected in these lists infects both our legal and political thinking about cities and the content of urban public policy.   In order to understand how we might think about urban affairs in a better way, and how we can make cities more productive (and nicer) places, a good place to start is figuring out what's wrong “Best Places to Live" rankings.

Posted by David Schleicher on October 2, 2009 at 05:33 PM | Permalink | Comments (7) | TrackBack

Legislative Prayer in the New York Times

Interesting article here about a controversy this week in Lodi.  Professor Choper's legal analysis seems right on to me.  It's clear that nondenominational prayers are okay; it’s unclear whether overly denominational prayers cross the constitutional line (and there's related uncertainty, of course, about what overly denominational might mean).

Lodi's resolution of the problem maybe illustrates a developing trend in legislative prayer.  Under its new prayer policy, even nonreligious people can offer an invocation.  That change somewhat accommodates the nonreligious, but it also makes the speech look more private and thus potentially more immune from the Establishment Clause.  Of course, whether privatization is real or just a sham has been a theme of the Establishment Clause going back at least to Stone v. Graham, and is the heart of the issue in Salazar v. Buono to be argued in the Supreme Court next week.  Shameless plug: Nelson Tebbe has a really thoughtful short piece addressing the issue here.)

While the public forum idea has worked in other contexts, I have my doubts about it working for legislative prayer.  Much will depend on whether local governments will really treat all speech equally.  Cobb County acted nobly by allowing an atheist to give the opening invocation recently, although the chair afterward called his comments “repugnant and insulting.” 

Finally, the NYT piece doesn't quite capture the whole of the controversy or its most incendiary parts. If you want that, go to an earlier article in the local paper.  Here's an aspect of the issue unmentioned by the Times:

Council members might soon see their names on billboards under the words "Against Jesus" and "For Jesus" depending on what the council decides Wednesday night.

The council received a letter from Chaplain Gordon James Klingenschmitt, the founder of the Colorado-based national group The Pray In Jesus Name Project, saying he will purchase billboards on Interstate 5 and Highway 99 for one year if the council approves a policy that gets rid of the prayer or forbids religious leaders from saying "Jesus."

"If you vote the wrong way, or silence prayers or leave in place the current policy that suddenly enforces censorship of Jesus' name from prayers (as never before), you should be aware of our plan ... " Klingenschmitt wrote in the letter that the city clerk's office received Sept. 22. . . . The money to purchase the billboards will come from the $10,000 in donations Klingenschmitt has pledged to provide the city help in court if Lodi is sued because it continues to allow Jesus' name to be said during prayers, he said.

Posted by Chris Lund on October 2, 2009 at 01:14 PM | Permalink | Comments (0) | TrackBack

A Slightly Different Take on the Meat Market

First, thanks to Dan & PrawfsBlawg for the opportunity to guest blog this month.  Last year at this time, I was one of several hundred candidates who were camping out by the phone, checking emails for any signs of interest at every opportunity, and counting the days until the big show:  the entry-level hiring conference in D.C.  This year I am a newly-minted law professor at a wonderful school, work with brilliant and personable colleagues, teach subjects that I am passionate about, and enjoy the freedom to write what I want.  Still, I couldn't resist beginning my stint at PrawfsBlawg by revisiting my experience at the meat market while it remains somewhat fresh in my memory.

When law professors talk about the entry-level hiring conference, it often comes across as some excruciating rite of passage filled with potential pitfalls for the unwary.  My experience was far more positive, and not just because I received some very attractive offers.  I met several fascinating people, had multiple captive audiences for my scholarship, and generally had a good time during the conference.  Most of the people I met were genuinely friendly, even if they seemed dour and stand-offish at first.  In fact, I still talk and exchange personal emails with some of the other candidates and faculty I met at the conference.

That’s not to say that I wasn’t stressed out at times (I was), ignored the possibility of not getting a position after all of the sacrifices my family made so I could pursue this career path (not possible), and was in a good mood the entire time (fat chance).  I even had my own O.J.-style mad dash (along the lines of the old Hertz commercials, not of the “fleeing a vicious double murder” variety) from one tower to another on more than one occasion.  I also tanked more than one interview and took a nasty elbow in the elevator at one point.  Some of these make for good stories, but they are not representative of my overall experience.

Given all of the negativity about the conference that abounds this time of year, does anyone else care to share any positive stories about the meat market?

Posted by S. Todd Brown on October 2, 2009 at 12:54 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (8) | TrackBack

Comma or Smudge?

The Signing of the ConstitutionAs a follow up to my smart-alecky post on the poor drafting of the U.S. Constitution, I should point out that at least one interlineation in the document has led to real confusion about the document’s actual content.

As I pointed out yesterday, in Article I, Section 3, the language “is tried” is inserted into the provision on Senate procedure in the case of presidential impeachment. The text thus reads: “When the President of the United States is tried, the Chief Justice shall preside[.]”

The confusion is about whether the interlineation inserted a comma after “is tried”.

The U.S. Government Printing Office, in its published transcription, takes the view that there is no comma between “is tried” and “the Chief Justice”.

The National Archives, on the other hand, in its transcript, includes the comma.

My view is that the sentence includes the comma. The ink mark at issue looks like a comma, not like a smudge, and it makes grammatical sense for there to be a comma in that location. Here, take a look.

It is in all likelihood a distinction without a difference. But it is nonetheless fascinating that different agencies of the federal government do not have identical understandings of the literal text of the Constitution.

Posted by Eric E. Johnson on October 2, 2009 at 10:27 AM in Constitutional thoughts | Permalink | Comments (1) | TrackBack

Scalia Worries Gifted Litigators Should Be Doing Something More Productive

The title of an article in yesterday's ABA Journal.  I wonder how widely shared this sentiment is.  I was also amused by the amount of "you knows" in Justice Scalia's remarks -- he talks like an ordinary guy:

“I mean there’d be a . . . public defender from Podunk, you know, and this woman is really brilliant, you know. Why isn’t she out inventing the automobile or, you know, doing something productive for this society?"

“I mean lawyers, after all, don’t produce anything. They enable other people to produce and to go on with their lives efficiently and in an atmosphere of freedom. That’s important, but it doesn’t put food on the table, and there have to be other people who are doing that. And I worry that we are devoting too many of our very best minds to this enterprise.”

Just noticed there's actually a fuller quote here.

Posted by Chris Lund on October 2, 2009 at 08:32 AM | Permalink | Comments (6) | TrackBack

Thursday, October 01, 2009

A Real Thrilla (or "Torts" Song Trilogy)

Thrilla in Manila

I am delighted to return to PrawfsBlawg as a guest this month, and I thought I would start off with bang, of sorts. Today marks the 34th anniversary of the “Thrilla in Manila,” the infamous 14-round boxing match between Muhammad Ali and Joe Frazier, which is still considered one of the best bouts of all time. Ali and Frazier had met in the ring in 1971 and 1974, and this third match was one for the ages. This fight also reportedly inspired the final fight scene in Rocky. I am not a big fan of boxing, but I have fond memories of a story my grandfather told me about a nice conversation he had with Ali during a train ride many years ago – when “The Greatest” was known as Cassius Clay. These days, it’s possible to meet celebrities everywhere, and an increasing number of lawyers are among their ranks. So, my question for the day is, has anyone had a brush with a famous actor, athlete, musician, or lawyer?

Posted by Kelly Anders on October 1, 2009 at 04:22 PM in Sports | Permalink | Comments (3) | TrackBack

It's Good to Be Back....

Thanks, Dan and the rest of the PrawfsBlawgers, for having me back.  Looking at the two posts below mine, I can see it's going to be a fun month!

- Chris

Posted by Chris Lund on October 1, 2009 at 03:43 PM | Permalink | Comments (0) | TrackBack

The U.S. Constitution: Not All that Well Written


I mean, it’s fine as a first draft, but if I were a law-firm associate, I wouldn’t turn it in to a senior partner without putting in a lot more work.

I am not a legal writing professor, and I suppose it’s a good thing I'm not. The fact is, if it were turned in to me as homework, I could not, in good conscience, give the United States Constitution better than a B-minus. And that’s with a healthy dose of grade inflation already factored in.

First of all, let’s look at the handwriting. It’s sloppy. You may not have known this, but the Constitution contains numerous interlineations.  In Article I, Section 3, explaining Senate procedure upon the impeachment of the president, there is this doozy:

The interlineation

The intended language is: “When the President of the United States is tried, the Chief Justice shall preside[.]”

The original uncorrected, verbless text is: “When the President of the United States the Chief Justice shall preside[.]”  

Precedent suggests that the Constitution may be invalid on grounds of sloppiness.

How can you screw up and write something like that unless you are totally mentally wandering while doing it? This is the Constitution of the United States of America for crying out loud. You’d think you could focus. And if you can’t get it right the first time, then I say grab another sheet of parchment and start from the top of the page. Where is the craftsmanship?

Look, I can only imagine what a pain in the a** it would be to write out a long legal document on calfskin with nothing but an inkwell and a pen made out of a feather. Honestly, I couldn’t do it. But then again, I didn’t take the job. According to historians, it was a fellow named Jacob Shallus who did take the job.

And, honestly speaking, he kind of phoned it in.

There are a total of four interlineations in the original Constitution.[1] What’s worse, Shallus did a “my bad” about the mistakes, listing them next to the signature block on the past page – but, incredibly, he only noted three of the four interlineations! How lazy do you have to be to fail to count up all the dents you tried to knock out of your own work?

Okay, so the Constitution’s penmanship is annoying. But is it a real problem? Precedent suggests that it is. Frighteningly, the federal district court for the District of Columbia, where the Constitution currently resides, has declared legal documents unenforceable on grounds of sloppiness.

In Antonelli v. Senate Realty Corp., the D.C. court lowered the boom on a slapdash deed of trust with more than a note of scorn: “Certainly this document on its face has been so altered by interlineation and hand-printed additions as to make it legally obnoxious and unacceptable.”[2]

Yikes. Could it be that our Constitution is “legally obnoxious”?

Under the eyes of the law, perhaps. There is no Supreme Court opinion directly on point, so, for now, it is an open question.

One thing we do know is that the Constitution was a rip off. The U.S. government paid Shallus the princely sum of $30 for his calligraphy services.[3] That may not seem like much, but this was 222 years ago. Using the unskilled-labor inflation index, $30 in 1787 is equivalent to $10,694 today.[4]

That kind of government waste makes a $640 toilet seat for the Pentagon seem like a bargain.

Shallus’s bang-up job also included erasures,[5] a misspelling,[6] and wildly inconsistent capitalization.[7]

Now, I haven’t even started to talk about the actual text.

The text of the U.S. Constitution is replete with ambiguity. And I say that not because the Constitution is a great document that is at the center of a great story about great struggles over great freedoms and other great stuff.[8] It is because, at least in large part, the Constitution is a maze of passive voice, mismatched grammatical constructions, and awkward phrasing.

Take a look at the Second Amendment:


A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.


What in the heck is that supposed to mean?

Surprise, surprise: People disagree.

Analyzing the text, we can confidently make two observations: (1) If the amendment was intended to say that states have the right to give guns to their national guard units – and that’s the extent of the right – then the text clearly wouldn’t have been phrased the way that it was. (2) If the amendment was meant to give individual citizens the right to possess guns, without being part of a state-run militia, then the text clearly wouldn’t have been phrased the way that it was.

That leaves us with only one sure conclusion: The drafters shanked this one big time.

Incredibly, over thousands of pages of the United States Reports, our Supreme Court has not once used the words “poorly drafted” to describe the Constitution.

Yes, I checked.

We may need to revisit that hallowed quote of Ben Franklin, who, walking back from Independence Hall, was asked by a Philadelphia resident, a Mrs. Powel, what resulted from the Constitutional Convention.

Famously, Mrs. Powel heard Franklin say, “A republic, if you can keep it.”

It seems quite possible that Franklin’s actual words were, “A republic, if you can read it.”

[1] U.S. Const. art. I, § 2 (“the”); art. I, § 3 (“is tried,”); art. I, § 10 (“the” in two different places).

[2] Antonelli v. Senate Realty Corp., 230 F.Supp. 776, 779 (D.D.C. 1963).

[3] See Irvin Molotsky, N.Y. Times, September 17, 1987 at http://www.nytimes.com/1987/09/17/us/the-constitution-it-s-200-years-old-and-it-certainly-has-been-around.html.

[4] See Samuel H. Williamson, “Six Ways to Compute the Relative Value of a U.S. Dollar Amount, 1790 to Present,” MeasuringWorth (2009) at http://www.measuringworth.com/uscompare/.

[5] U.S. Const. art. I, § 2 (“thirty”); art. I, § 3 (“may make”).

[6] U.S. Const. art. I, § 10 (“it’s” in “except what may be absolutely necessary for executing it’s inspection Laws”).

[7] See, e.g., U.S. Const. art. I, § 2 (“vacancies” and “Vacancies”). See also art. I, § 8 (“credit” in “To borrow Money on the credit of the United States”) and art. IV, § 1 (“Credit” in “Full Faith and Credit”); art. I, § 2 (“Executive” in “the Executive Authority thereof shall issue Writs of Election”) and art. II, §1 (“executive” in “The executive Power shall be vested in a President”).

[8] Though it is, of course.

[Cross-posted on The Backbencher.]

Posted by Eric E. Johnson on October 1, 2009 at 02:15 PM in Constitutional thoughts | Permalink | Comments (16) | TrackBack

What does it mean to have “evidence” for a “religious belief” about “the world”?

The question and scare quotes are inspired by Brian Leiter’s effort to define “religious beliefs” with the following (partial) stipulation: “Religious beliefs do not answer ultimately (or at the limit) to evidence and reasons, as evidence and reasons are understood in other domains concerned with knowledge of the world. Religious beliefs, in virtue of being based on ‘faith,’ are insulated from ordinary standards of evidence and rational justification, the ones we employ in both common-sense and in science” (page 18).

I found this definition perplexing, because it assumes that “we employ… ordinary standards of evidence and rational justification” applicable to all “other domains concerned with knowledge of the world.” Such an assumption naturally gives rise to the following question: To accept Brian’s definition, must I reject Nelson Goodman’s claim that there is no single set of standards of justification applicable to different systems of describing the world? Goodman argues in Ways of Worldmaking that there are many different and mutually inconsistent “ways of world-making,” each relative to a particular domain. The ways of world-making for a literary critic, novelist, physicist, and painter obey very different criteria of rational acceptability, even though each purports to describe “the world.” So it is a waste of time to come up with a single theory of rational acceptability by which to judge their various statements about the world. This is not to say that we cannot say that such statements are true or false: Vulgar relativism is still just as self-defeating as it ever was. It is just that we do not have a single, coherent understanding of evidence and reasons that applies across different domains of the world – music, literature, physics, psychology, theology, etc. As Hilary Putnam puts it, the odds are really low that “we can find powerful universal generalizations obeyed by all instances of rationally justified belief”(“Two Conceptions of Rationality,” in Reason, Truth, and History at 104).

I would not invite here an argument between fans and detractors of Goodman. Instead, I offer a simple point of information: To buy into Leiter’s definition of “religious belief,” do I need to reject Goodman’s theory of pluralistic justification?

This question invites a further one. Leiter relies a lot on Simon Blackburn’s recent argument that religious beliefs about the world are not entitled to respect – at least, not if they are (in Blackburn's ungainly neologism) “onto-theological.” Should I translate this statement to mean: “Onto-theological beliefs are not entitled to respect – that is, if one adheres to a particularly crude form of scientism that has been rejected by folks like Nelson Goodman, Hilary Putnam, and William James (See James' Hibbert lectures, A Pluralistic Universe)?” Because, if I receive from Blackburn the disrespect that he reserves for people like Goodman, Putnam, and James, because I am deemed to be just as irrational, unscientific, immune to evidence and argument, etc, as they are, then I think that I can live with that.

Posted by Rick Hills on October 1, 2009 at 10:47 AM in Religion | Permalink | Comments (10) | TrackBack

Goodbye and Thanks

My stint here at Prawfs is over and it was a lot of fun.  I want to thank Dan and all the Prawfs folk for this great opportunity and to thank the readers for their great comments. Thanks so much.

Posted by Marcia Zug on October 1, 2009 at 09:45 AM | Permalink | Comments (0) | TrackBack

How Can We Demonstrate That Our Students Are Learning?


For those of you who don’t know me, I’m Rick Bales. I served as interim dean at my institution (NKU-Chase) a few years ago, have a long-term interest in becoming a dean, and am chairing this year our self-study committee.  Consequently, I’ve had law school governance issues on my mind a lot recently.  Over the next several weeks here on PrawfsBlawg, I hope not only to share a few of my own observations, but also to solicit comments from readers on a variety of law school governance issues.  My posts will be deliberately provocative, and if you (dis)agree with what I say, I hope you will respond.  I’d very much like to benefit from the collective wisdom of the PrawfsBlawg community.

An issue that’s hot right now in higher education generally, and becoming hot in legal education, is outcomes assessment.  How do we know that students are learning anything from our courses?  Single, end-of-semester examinations and bar examinations are poor determinants of student learning.  They both are summative rather than formative, meaning that students do not find out until it is too late whether they are learning the material at an adequate level (contrast weekly quizzes – if a student regularly performs poorly on quizzes, the student knows she needs to step up her game).  They both are snapshots: they demonstrate what a student knows at a single point of time rather than what is retained over time.  For both, there is very little correlation between what is tested, how it is tested, and real-life law practice.

Publicly funded undergraduate institutions are under increasing pressure from states and accreditation authorities to justify their subsidies by demonstrating that student learning is occurring.  Primary and secondary education has seen this for years in the form of standardized testing.  Outcomes assessment is coming soon to law schools.  How should we respond?

Rick Bales

Posted by Workplace Prof on October 1, 2009 at 08:45 AM | Permalink | Comments (4) | TrackBack

Distinguishing Article IV “Privileges and Immunities” from Section One “Privileges or Immunities”

Historical accounts of the Privileges or Immunities Clause of Section One of the Fourteenth Amendment generally assume that John Bingham based the text on Article IV of the original Constitution and that Bingham, like other Reconstruction Republicans, viewed Justice Washington’s opinion in Corfield v. Coryell as the definitive statement of the meaning of Article IV.  Accordingly, Justice Miller in the Slaughterhouse Cases failed to follow both framers’ intent and obvious textual meaning when he distinguished Section One’s privileges or immunities from Article IV’s privileges and immunities.  It turns out, however, that there is a great deal of historical evidence supporting Justice Miller’s distinction, at least as a matter of antebellum law.  In fact, John Bingham, the man who drafted Section One, insisted that the privileges and immunities protected by Section One were altogether different than the privileges and immunities protected by Article IV. 


In the last few posts, I’ve discussed how antebellum courts and treatise writers broadly understood Article IV’s “privileges and immunities of citizens in the several states” to involve a limited set of state-conferred rights.  During this same period, however, courts and political commentators were developing a separate strain of legal thought which involved the “privileges and immunities of citizens of the United States.”  The earliest example of this separate set of national privileges and immunities can be found in the language of early United States treaties, in particular the treaty accompanying the Louisiana Purchase and its attendant Cession Act of 1803.  Article III of the Cession Act guaranteed the inhabitants of the territory eventual admission to the Union and all the “rights, advantages and immunities of citizens of the United States.”  According to one newspaper of the day, the Act sought to provide territorial inhabitants the “immunities and privileges of citizens of the United States.”  This is probably the earliest example of the language which eventually became part of the Fourteenth Amendment.


The language of the Cession Act was extremely influential:  It was added verbatim to the 1819 Treaty with Spain (the Florida Cession), advocated by Secretary of State James Buchanan for the Treaty of Guadalupe Hidalgo, and added to the 1867 Treaty Russia which gave us Alaska—a treaty ratified by the Senate of the Thirty-Ninth Congress.


The most famous and extended discussion of the rights and immunities protected by Article III of the Cession Act occurred during the debates over the admission of Missouri.  When James Tallmadge sought to amend the Act admitting Missouri in order to ban slavery from the new state, pro-slavery advocates complained that this violated the rights, advantages and immunities of slave owners protected under Article III of the Cession Act (Missouri having been carved from the original Louisiana Territory).  In response, pro-freedom advocates like Daniel Webster, Rufus King and David Morill distinguished the right to own slaves (which was a state-conferred right) from the national rights, advantages and immunities of citizens of the United States.  The latter were derived from the Constitution and thus were uniform throughout the United States and common to all.  The right to own slaves, on the other hand, differed from state to states, and therefore could not be considered a federal right such as those declared by Article III of the Cession Act.


When they gave examples of federal rights, pro-freedom advocates consistently mentioned rights enumerated in the Constitution, such as the right to representation in the federal Congress enumerated in Article I and the right to access federal courts enumerated in Article III.  The key aspect of these rights according to men like Daniel Webster was the fact that they were listed in the text of the federal Constitution, and not dependent on state law.  Later, Jackson Administration officials would make a similar claim and describe the “privileges and immunities of citizens of the United States” as including those rights listed in the First Amendment to the Constitution.   


In sum, by the time of the civil war, there were two separate strains of legal thought involving two separate sets of “privileges and immunities.”  One involved the set of state-conferred rights protected under Article IV, and the other involved the set of constitutionally-conferred rights belonging to all citizens of the United States.  The historical record is not completely uniform in this regard, but the evidence indicates that the separate strains were well established and recognized by major antebellum legal and political figures. 


Whether the members of the Thirty-Ninth Congress, or the public at large, embraced this distinction at the time of the adoption of the Fourteenth Amendment is a matter for further study (and a forthcoming paper).  Certainly the comments of John Bingham suggest that he, at least, understood the distinction.  At the very least, there appears to be enough evidence to suggest that Justice Miller may have been on to something—and that scholars may have too quickly assumed that the words “privileges and immunities” always referred to the same set of rights.


My thanks to Dan Markel for the privilege of posting here at Prawfsblawg this last month.  Readers interested in an extended historical investigation of the issues I’ve explored in these posts are welcome to read my forthcoming paper in the Georgetown Law Journal, The Origins of the Privileges or Immunities Clause, Part I: “Privileges and Immunities” as an Antebellum Term of Art.

Posted by Kurt Lash on October 1, 2009 at 12:47 AM | Permalink | Comments (15) | TrackBack


First, I want to apologize for not having issued a Shana Tova/G'mar tov post on behalf of Prawfs last week; I hope the Jewish folks in the crowd will forgive the oversight. Though baby Benjamin is happily getting more uninterrupted sleep (kein ayin hara...), life has been a bit busy for reasons I hope to sketch out later this month. One of those reasons has been a paper I'm off to present, Taxing Punitive Damages, in Toronto at the Canadian Law and Econ Association this week/end and to celebrate the work of Michael Trebilcock, for whom (along with Rob Howse) I used to RA the summer before I started law school. If you'll be there, please let me know--would love to meet other prawfs/readers.

Anyway, with the new month upon us, we have some brand new voices to add to the conversation here at Prawfs: Rick Bales (NKU) and S. Todd Brown (Buffalo). We are also thrilled to welcome back Jack Chin (Arizona); Kelly Anders (Washburn), Eric E. Johnson (UND); Nadine Farid (Gonzaga); Chris Lund (MC); and David Schleicher (George Mason). 

Many thanks to our guests from this past month: Marcia Zug (South Carolina); Amy Landers (McGeorge); Kurt Lash (Loyola Law School LA);  Gregory Bowman (Miss. College of Law); Jason Solomon (UGa); Adam Kolber (San Diego); Rick Esenberg (Marquette); and Tung Yin (Lewis & Clark).
Last, some of them may linger a little while after today. In any event, we hope they'll come back soon for another visit.

Posted by Administrators on October 1, 2009 at 12:24 AM in Blogging | Permalink | Comments (0) | TrackBack