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Thursday, December 31, 2009

Couple of teaching thoughts

A couple random teaching-related thoughts.

First, take a look at two posts from Jacqueline Lipton (and the Comments) at Faculty Lounge on evaluating faculty on both teaching and scholarship.

Second, in my upper-level electives (Fed Courts and Civil Rights), I use a paper/essay exam hybrid the primary evaluation--students choose one topic from a list ("What's the worst doctrine?" or explain the significance of a quotation or comment n the constitutionality of some proposed legislation) and write an essay tied to the doctrine, theory, and ideas covered in the course. For no particular reason, I started thinking today about doing a question in which students would get a one-frame cartoon (The New Yorker would be the obvious source, but we could find them from other sources) and have the student relate that cartoon to the material in the course. My wife had an exam that did this in a sociology course and it sounds like a fun idea (although she said it was the hardest exam she had in college).

Could this work? And does anyone have ideas on cartoon(s) to use?

Posted by Howard Wasserman on December 31, 2009 at 08:04 AM in Howard Wasserman, Teaching Law | Permalink | Comments (10) | TrackBack

Wednesday, December 30, 2009

Crime Decline Conundrum

With aviation terrorism and a still lackluster employment market dominating year end headlines, the one piece of good news appears to be a fairly widespread decline in homicides in major cities. New York, as trumpeted in yesterday's NYtimes (read Al Baker's reporting) had a year with fewer homicides than any year since 1963 (essentially before the modern crime wave was evident). San Francisco also reported a record drop (read Jaxon Van Derbenken's article in the SFChron) to as low as the city has seen since 1961 (take that New York), and after a series of rather violent years in the middle of this decade. Chicago and LA have also reported declines this year. Providence, was one of the few cities reporting a homicide "spike," with the addition of two dead this week in a drug raid that also left three police officers wounded (read W. Zachary Malinowski's reporting in the Providence Journal). This is good news in a year with little of it.

The journalistic lead is that this is happening despite a severe recession (the man bites dog angle). Whatever the intuitive appeal to the notion that bad times generate crime, few criminologists believe it is a clean relationship. In many respects, times are always bad in those communities that experience the highest levels of crimes like homicide, aggravated assault, and robbery. This, not surprisingly, does not stop police chiefs and mayors from claiming credit (at least if they've been on the job for more than six months) whatever the hazard that their policies might be blamed when crime begins its inexorable return (like most gambles, it probably makes sense in the short term context of political survival). But even criminologists, this one included, are not immune from believing that, combined with the substantial crime declines of the 1990s, and the relative stability of crime through most of this decade, this end of decade crime decline could mark a longer term shift away from the pattern of high levels of gun violence concentrated in cities that has defined urban life for the much of the past forty years. What would drive such change? Here is a New Year's speculation list of the top three "positive" factors underlying declines in urban violence.

May they all continue in 2010!

1. Bottoming out of the de-industrialization of American cities that began in 1946 and continued through the 1980s. Even if new economic engines of prosperity have not exactly re-emerged in many cities, the process of losing existing assets has run its course.

2. Demographic diversification of urban neighborhoods through immigration and in-migration of suburbanites fleeing unsustainable lifestyles.

3. Better trained and motivated police forces.

cross-posted at:

http://governingthroughcrime.blogspot.com/2009/12/crime-decline-conundrum.html

Posted by Jonathan Simon on December 30, 2009 at 02:07 PM in Criminal Law, Jonathan Simon | Permalink | Comments (4) | TrackBack

Saturday, December 26, 2009

Choose My Midlife Crisis. Sponsorship Opportunities Available.

Readers, I turn 40 today.  As Dante said, midway through the journey of my life, I find myself within a forest dark.  As usual, I turn to you for help.

For a limited time -- and isn't that kind of the point? -- I invite you to choose my midlife crisis.  I am wide open to suggestions.  I wisely acted early and already purchased my midlife crisis car this summer, so that's out.  But what is a midlife crisis car without the second-childhood-suffering person cruising along inside it?  So I am open to suggestions about what midlife-crisis-characteristic behavior I should engage in before snapping back to my senses.  It's also a good opportunity for you to reflect on what constitutes a fitting set of midlife crisis behaviors for the au courant academic.  My sense is that the midlife crisis behavior that characterized an academic in, say, the 1970s is no longer quite so fashionable, in part because it's a little heavy on the collateral damage and in part because neither EST nor wide-open collars are really the done thing anymore.  But I am willing to hear out your arguments to the contrary.  

Your suggestions are welcome in the comments.  If I select your midlife crisis suggestion, and particularly if it's an expensive one, I'm willing to entertain the possibility of a named sponsorship.  Say, the Jay Wexler Midlife Crisis, or the Paul Horwitz Midlife Crisis, Brought to You by Windows 7 ("I'm Paul Horwitz, and I don't work well either"), or what have you.        

Posted by Paul Horwitz on December 26, 2009 at 04:00 PM in Paul Horwitz | Permalink | Comments (19) | TrackBack

Wednesday, December 23, 2009

David Schleicher and I attack zoning for industry

I have already posted my distaste for New York City's dysfunctional zoning regime that excludes residential uses from industrial zones. for those of you who are interested in zoning, here is the article that David Schleicher and I wrote, forthcoming in a U. Chicago L. Rev symposium issue on local government, setting forth the case against industrial zones with greater particularity. (Download Hills-Schleicher Author Proof OUT (MKG)).

Your comments would be appreciated, as David and I plan to produce another piece on a related topic -- how to get NIMBY-minded neighbors to take into account the social costs of their activism against new housing.

Posted by Rick Hills on December 23, 2009 at 02:47 PM | Permalink | Comments (0) | TrackBack

Space Remains of the Space Day in 3D. In Space.

In the alterna-world of Facebook, I have ragged on Avatar.  Not so much because it's not a fantastic visceral experience, full of awe and wonder, but because it is also godawful.  I am not recommending that people not see it.  It's fantastic.  It's just that it is simultaneously terrible.  The phrase "written and directed by James Cameron" is a little like a proud mother proclaiming in the same sentence that she has just given birth to and horribly mutilated a lovely newborn child.  The movie blows your mind at the same time that it deals a mortal insult to your intelligence.  


Well, Jeff Lipshaw has responded to those criticisms, and presumably others of like kind, in fine fashion.  Here's his post, and my title pretty well says it all.  It's a nice diversion.  Needless to say, however, I'm sticking by my guns.  (An apt metaphor in this case.  Cameron's respect for the oneness of nature, the sacredness of all life, and blah blah blah is roughly one inch thick and easily overmatched by his love of sweet bloody revenge.)  An action or sci-fi movie should be judged on its own merits and by its own standards, but it does not have to be high art to have at least a serviceable plot, dialogue, characterization, music, and acting, does it?  Just think of Tarkovsky's Solaris, or the shootout scene in My Dinner With Andre (which, I believe, is only available as a deleted scene on DVD, alas).

Posted by Paul Horwitz on December 23, 2009 at 01:51 PM in Paul Horwitz | Permalink | Comments (2) | TrackBack

Tiger Woods, or Why I Am a Bad Person

I must admit that I have been following the Tiger Woods story. Not seeking it out, exactly, but not turning away from it, either. I haven't purchased a copy of "Us," but I did a read a copy of "People" in the doctor's office.  Pretty eagerly, in fact. Perhaps I am a bad person.

Anyway, one of the things I find fascinating about the story is how your more fancy media sources find backdoor ways to cover it. On NPR they seemed to have decided that the business angle is legitimate, but the purely personal one is not. So "All Things Considered" runs stories about Tiger losing his sponsors, but not straight up stories about infidelity.  Now whatever ethic makes "Tiger Woods Loses Accenture Sponsorship Because of Infidelity" a legitimate story but "Tiger Woods Commits Infidelity" an illegitimate one is lost on me. It seems a stab at decorum, but without any defining principle. And a lot of coverage by old-line media sources seems this way to me—trapped in an ethic that makes no sense. But I am happy to be convinced otherwise.

So what say you, folks? Is there nothing to this distinction, or does it indeed express some useful principle?

Posted by John Greenman on December 23, 2009 at 12:03 AM | Permalink | Comments (4) | TrackBack

Tuesday, December 22, 2009

Sundry

My invariably talented colleague Shawn Bayern puts the fun(k) in funky FSU. Yes, as you suspected, he now has a techno music album up for sale on Amazon. I think some of these tunes might have appeared on a disc he made for Ben-ben. Buy it here.

Out of curiosity, what were folks' reax to the pieces today in the NYT re: wikileaks, polarized Scotus clerk careers, quasi anti-vegetarianism (in the name of plants' right to life!), and organ selling??

FWIW, I think Satel's case for modified incentives for organs is quite strong; I'm a little nervous about widespread use of wikileaks, but that's probably unjustified (watched Bourne Ultimatum again last night and thought Pam Landy today would scan and upload there...); sympathetic to Angier's piece on plant rights but not willing to bite the bullet -- what else will we eat, I wonder; and last, doubt if Clinton Admin is to blame for the change post-1990 in clerk trajectories. Liptak's piece suggests that's when the "troubles" began. Can POTUS be to blame for this? Unlikely...

Posted by Dan Markel on December 22, 2009 at 11:28 PM in Article Spotlight, Blogging, Funky FSU | Permalink | Comments (0) | TrackBack

Berman on instant replay

Joseph has started quite the conversation on instant replay and standards of review. Mitchell Berman weighs in at Slate today.

Posted by Howard Wasserman on December 22, 2009 at 10:20 PM in Howard Wasserman, Legal Theory, Sports | Permalink | Comments (0) | TrackBack

2010 AALS Annual Meeting

I'm looking forward to attending the 2010 AALS Annual Meeting, my first, which is being held in New Orleans from January 6-10. 

The AALS has assembled a terrific program. There are so many panels I can't count them all! 

Having done a first-pass through the program, several offerings caught my eye. Here are just a few of them:

  1. New Law Professors panel assembled from a call for papers on transformative law;
  2. Law and Interpretation panel, featuring a wonderful cast that includes one of my favorite law/politics scholars, Keith Bybee;
  3. National Security Law panel, involving PrawfsBlawgger (and my schoolmate) Steve Vladeck; and
  4. Constitutional Law panel on the distinction between "constitutional interpretation" and "constitutional construction," with a superstar group of scholars: Amy BarrettIan BartrumMichell Berman, Laura Cisneros, PrawfsBlawgger Rick Hills, Larry Solum, and Keith Whittington.

I wonder which panels, workshops, and activities other Prawfs are looking forward to attendingit being understood, of course, that the PrawfsBlawg happy hour is an event not to be missed?

See you in NOLA! (?)

Posted by Richard Albert on December 22, 2009 at 04:52 PM in Life of Law Schools | Permalink | Comments (1) | TrackBack

Monday, December 21, 2009

Our Student Bodies, Ourselves

Maybe it’s because of the current glut of apocalyptic movies, or the closing of the decade, or helping students scramble for jobs, but recently I’ve been thinking a lot about the bursting of legal academia’s bubble and what it means – and will mean – for law professors. (See here and here for two takes that focus on its significance for students.) 

One issue that seems to have received less than its fair share of attention is the simple diagnostic question: Beyond the signs we’ve already seen (falling enrollment, a tighter hiring market for teaching candidates, etc.) what will it take to demonstrate that the bubble has truly burst? Or, to put it another way, how is the bursting bubble going to manifest itself? Will more law schools simply close?  If so, will lower-ranked schools go first? Private or public schools? Will tenure be weakened? Will two-year programs proliferate? Online and distance education? Will law schools stop hiring professors to do theoretical research, and will that portend an increased focus on doctrinal scholarship? Will student-run journals simply stop publishing? 

By asking what things will look like if and when they get worse, I don’t mean to ignore how hard they already are for current and aspiring law professors. But our difficulties don’t compare to those faced by students and practitioners. And while the legal profession seems set to reorganize itself in a truly fundamental way, I don’t yet see a similarly far-ranging movement afoot in the law faculties. Some of the changes I mentioned above are already underway, but I'd wager that law schools are still hiring faculty at a higher rate than firms are hiring associates, and those folks lucky enough to have teaching jobs seem to be doing the same things that law professors have done for decades—teaching some (more?), publishing as much as possible (even more?), attending conferences (fewer?) and so on. 

I’m sure we’re all working harder at those traditional tasks, and hopefully we’re all working especially hard to find jobs for our students and graduates. But those seem to me to be changes at the margin, not the kinds of fundamental changes that legal practice is contemplating—moving away from the billable hour, significantly lowering rates and salaries (an issue covered in Fabio’s great post last week), closing offices, and so on. We’re all feeling the strains, to be sure. But to return to the initial question: If we’re going to experience truly momentous changes, and if the current situation hasn’t been enough to force them, what will? 

Posted by Joseph Blocher on December 21, 2009 at 03:45 PM | Permalink | Comments (4) | TrackBack

The Ongoing Bush II DOJ Saga

Much of the history about Bush II and the DOJ is well known:  the politically motivated hiring of Federalist Society members and graduates of law schools such as Regent, the blacklisting of liberals, the politically motivated firing of U.S. Attorneys, etc., etc. Now Newsweek is reporting (here) on a new GAO report about how Dubya gutted the DOJ's Civil Rights Division. It's exhausting what he and his administration did to implement its political and ideological agenda.

Posted by Fabio Arcila on December 21, 2009 at 09:00 AM in Current Affairs | Permalink | Comments (5) | TrackBack

Saturday, December 19, 2009

All-Nude Exam Writing

At the Faculty Lounge, Tim Zinnecker has a post complaining about students confusing "it's" and "its" on their exams.  One commenter who identifies himself as a law student notes that he recently misused the word on a recent exam but, because time was short, was required to "hurry right along, and there just wasn't any time to correct errors."  He counsels Zinnecker give his students "a break.  They're doing the best they can."

Zinnecker was just blowing off steam, not threatening to take points off the exam.  I don't take points off exams for such things either, even though I notice a distressing number of such errors, along with what I would call an over-casualness about larding up exams with abbreviations, contractions, and other short-cuts.  And I certainly think some of these errors are inadvertent and, in a sense, relatively blameless --although I hope my students would not need a spell-checker to catch these mistakes if they were writing without time  constraints!  (One of the commenters on Zinnecker's post, however, notes that he is observing an increasing number of similar errors in papers, not just exams.)

Errors happen, of course.  But what I find interesting about them, and about their seemingly increasing number, is not so much what they reveal about actual educational failings -- like I said, I am assuming the students know better and would correct the errors if they had more time -- but about the casualness with which some students treat these errors.  It is true that time is short on exams.  But I cannot think of any of my students who would, assuming away the problem of being arrested, show up naked to write their exams because they just couldn't be bothered to spend the time getting dressed and thought it might save them a few minutes to show up au naturel.  It's not just that they fear being laughed at by others, I think; it's that they've so thoroughly internalized the social norm against public nudity that they just wouldn't do it.  It would be unthinkable to them.  There are some conventions they just couldn't break.  Similarly, and taking away the problem of public humiliation, I have never experienced a student who, e.e. cummings-like, didn't bother with capitalizing the beginning of sentences on an exam, even though the same argument raised by the commenter on Zinnecker's post, that it would save time and he couldn't be bothered to correct this basic error, would hold true here.  To write in this way would for most students be unthinkable; however short time might be on the exam, they except this convention as part of the cost of writing.

I wonder whether that is the real reason we profs seem to see more of these kinds of errors on exams: the sense on the part of some or many students that if inadvertent errors pop up, and even if they notice them, they should just be treated as forgivable errors and ignored by student and grader alike.  They're no big deal.  There is not a sufficient sense of shame tied to these errors for the student to just assume that correcting them is part of the cost of doing business and a necessary expenditure of time for any piece of writing, including a time-sensitive exam.  (Let alone doing so on a paper!)  I don't doubt that such errors occurred from time to time in my own exams, and for that matter in my blogging.  But on the whole, I would correct any grammatical or spelling errors I spotted while I was writing, no matter how inadvertent they were or how obvious the meaning of what I was writing was, simply because to do otherwise would be almost as unthinkable as forgetting to put on my clothes before heading out the door for the exam.  

I grant you that conventions change; it was not unthinkable for me to show up to the exam without my tie, for example, as it might have been a few decades earlier (or currently on the Virginia bar exam, to quote one less-than-quaint anachronism).  But I think it is still worth reflecting on, and lamenting, the possibility that many of the errors we spot on exams are there not because the students were unaware of them, or because they were ignorant of the rules they were accidentally breaking, but because they were both aware of the errors and indifferent to them.  As I said, I am not inclined to mark down these kinds of things, so clearly I am willing to give these students a break.  But I'm not sure it's right to say they're doing the best they can, as the commenter on Zinnecker's post did.  If that's so, then in some cases we really should fear for our educational system, and perhaps we ought to start marking down or failing students altogether.  But it may be that some of these students are just doing the best they're willing to do, and that this willingness doesn't include a strong desire to appear fully literate to their peers and their professors.  And that is, or should be, literally a shame -- assuming that shame still exists for transgressions less glaring than naked exam-writing. 

Posted by Paul Horwitz on December 19, 2009 at 03:07 PM in Paul Horwitz | Permalink | Comments (25) | TrackBack

Teaching Undergraduates

This past semester I taught a seminar for undergraduates in the UGA Honors Program.  It was a great experience overall and one that I would repeat, but not because of the compensation package (a few hundred dollars of extra travel money).  The class was entitled "Climate Change, Sustainability, and the Law," which is a rather grand title for a one-hour pass/fail class.  The biggest difference I noticed between teaching law students and teaching undergraduates was that undergraduates tend to talk more with less prompting than law students.  Admittedly, this was a small, pass/fail seminar as opposed to a larger class but the students seemed to be less intimidated by the pressure of the setting than in law school.  The lack of grade pressure made have made the difference there, and it also might be that law students tend to think out the implications of their answers and answer more carefully than undergraduates.  Law students are also more likely to want to talk after class individually rather than as a group.

One nice feature of teaching this course was that I felt free from giving my students the standard exam at the end.  Instead, I had them each identify some practice that they would adopt for the term that would make them live more sustainably.  Each student could define sustainability however she or he wanted, and the practices ranged from giving up driving around town to taking reusable bags to the grocery to adopting vegetarianism.  At the end of the term, the students submitted an essay evaluating their experience, estimating what difference it made on the environment, reporting any violations of their rule that they had, and trying to sketch out how a legal system might encourage or adopt their practice.  I also asked them to report any additional benefits (or drawbacks) that they noticed from their new way of life.  Students who became vegetarian reported feeling better about their diets, students who took reusable bags to the store reported a lack of clutter from all of the accumulated plastic sacks at the end of the term, and students who walked or took the bus reported being more fit and losing weight.  One student who gave up driving around town had to fill up her car only three times for the entire semester.  For someone from the metro Atlanta area (which she, like most of my students in the class, is from), the cost savings were definitely eye-opening.  Almost all of them claimed that they would keep doing what they set out to do because of these added benefits.

I wonder about how to take lessons from this exercise and translate them into law.  The literature is certainly full of case studies about how firms can improve their environmental profile and their bottom line--Dan Esty's and Andrew Winston's Green to Gold comes to mind as an example--but more lacking in how to provide the impetus to actually do it.  For my students, the solution was easy:  I told them to do it.  I also gave them no direction about what to do, set no benchmark for how much improvement they were to achieve, etc.  But I don't think that my students would have adopted these practices without that push.  One would think that the potential cost savings would be their own reward, and in many cases they are.  But the benefits my students experienced were always there to be had; they just needed a reason to search them out.

Posted by Peter Appel on December 19, 2009 at 08:47 AM in Teaching Law | Permalink | Comments (0) | TrackBack

Friday, December 18, 2009

Why no philosophy of language in Law School?

We are in the business of interpreting words, so it seems odd that prominent philosophers of mind, meaning, and language are virtually invisible in legal scholarship. Aside from Michael Moore (the jurisprude, not the movie maker), I cannot think of any legal academics who have written about the relationship between semantics and moral theory. Citations to the greats of philosophy of language -- Saul Kripke, Hilary Putnam, Donald Davidson, etc -- are rare in the law reviews even when the law reviews discuss philosophy of law. Larry Solum discusses semantic theories in his work on originalism, but there is (to my knowledge) no entry in his Legal Theory Lexicon dealing with reference theory, semantics, or philosophy of language more generally. A collection of essays on Objectivity in Law and Morals edited by Brian Leiter contains a single "cf. citation" to Donald Davidson but otherwise seems to be silent about philosophy of language --an omission that is especially weird since the third volume of Donald Davidson's philosophical papers are devoted to the distinction between the subjective and objective, and Davidson is widely regarded as one of the giants of philosophy in the twentieth century. It is almost as if Leiter and his authors consciously decided to give philosophy of mind and language the cold shoulder.

So why are we lawyers and our fellow traveling legal philosophers so indifferent to philosophy of language? Is it simply a result of a sort of path-dependent sociology of knowledge? Perhaps the agenda set by H.L.A. Hart, Ronald Dworkin, and Joseph Raz dominates legal scholars' agenda, simply because their students predominate among legal philosophers sitting on law faculties. Or is there some other explanation? One prominent legal philosopher who shall remain nameless opined that Davidson, Putnam, & Co. are simply too difficult: It is much easier to argue one more round about Riggs v Palmer than to untangle Tarski's truth definition. But I do not buy this explanation: Law profs grapple with tough empirical methodologies, and law faculties hire rigorous political scientists. Why shy away from the one of field of philosophy that would seem to be most closely related to what lawyers do -- namely, interpret language? Interest in post-modern theories of interpretation (thankfully) seems to be flagging: It would be nice if they were replaced by some interest in the real McCoy.

Posted by Rick Hills on December 18, 2009 at 07:18 PM in Legal Theory | Permalink | Comments (15) | TrackBack

"A Law School Carol"

This story ("Going to law school?  Proceed with caution") discusses and links to a video that is making the rounds:

Make no mistake: A Law School Carol is no heartwarming holiday tale of redemption.

The computer-animated video, which has been circulating on YouTube for several weeks, focuses on a law student named Steve who is visited by the ghost of Ralph Marley's disappointing legal career (Ralph Marley being the law student who used to rent Steve's apartment and now does document review somewhere in New Jersey). The ghosts of Steve's prelaw, law school and postlaw school lives visit him to offer a sobering accounting of the sacrifices he made to attend law school, the staggering debt he assumed in the process and the limited prospects his degree from a third-tier school will afford.

"Wake up and smell the student loan payments!" the ghost of law school present warns.

The video may be a joke, but the argument isn't. . . .

Reactions?  Thoughts?

Posted by Rick Garnett on December 18, 2009 at 02:47 PM in Rick Garnett | Permalink | Comments (0) | TrackBack

Estate Taxes and Natural Experiments

As the NYT reports this morning, the controversial estate tax is going to enjoy a one year repeal before it arises again in 2011. Empiricists: now's your chance to start looking at the tax effects on death. As the Congressman says, "If you are at the checkout counter, you might want to expedite things."

Posted by Dan Markel on December 18, 2009 at 11:16 AM in Tax | Permalink | Comments (3) | TrackBack

Tiger Woods and the Wall Street Journal

There's a fascinating story in the WSJ about efforts by Tiger Woods to hide past indiscretions.  However, this paragraph within the story reminded me that Tiger is not the only one who made a deal with the tabloids:

The woman purportedly photographed with Mr. Woods in 2007, a Florida restaurant employee named Mindy Lawton—along with at least one of her family members—was recently promised an undisclosed sum in return for telling her story exclusively to News of the World, a London-based tabloid owned by News Corp., which also owns The Wall Street Journal. The agreement blocks her from discussing her alleged relationship until after Dec. 20—two weeks after it was first published in the U.K., according to people familiar with the matter.

I found it a little odd that News of the World refused to lend out a source to a sibling news organization.  Seems to show a lack of synergy -- but perhaps that's a good thing.

Posted by Matt Bodie on December 18, 2009 at 11:14 AM in Corporate, Sports | Permalink | Comments (1) | TrackBack

Anticipating teaching Iqbal

One (I would argue the only) benefit to having civ pro as a spring-semester course is that I get an extra five months to digest the events of the prior term and figure out how to incorporate them into the class and how they change everything I'd done previously. Given the Supreme Court's recent pleading-related mischief, that's not necessarily a bad thing. I spent the past couple days working on my syllabus and course blog, which at least got me thinking (for the first time) at least about where to work Iqbal (and Twombly) into the material and how to structure the overall discussion. This led me to the following thoughts.

First, how much time should we spend on Conley itself and everything that came prior to Twombly? My instinct is to cover it just as I did previously, then talk about Twombly/Iqbal as the current-and-future debate (that also is how my casebook authors do it). Partly it is because we cannot understand the new regime without understanding Conley and everything that came before 2007 (Charles Clark, the Forms, etc.); partly it is because the new regime seems so inconsistent with everything that came before; partly it is because we do not know how long the new regime will last, given the murmurings in Congress. On the other hand, at what point does teaching Conley become a bit like teaching Pennoyer--wonderfully nostalgic as a law-school rite of passage, but practically unimportant (beyond a broad overview) and time-consuming?

Second, my current idea is to cover Conley/"old" notice pleading and FRCP 9(b) together as two competing possible pleading systems (notice v. fact pleading) co-existing under the Federal Rules and the movement and overlap between them. I also can talk about the relative unimportance of FRCP 12(b)(6) under a pure notice-pleading system. I then turn to Twombly/Iqbal as the new regime, straddling (or blurring, depending on your perspective) the line between the two. The nice thing about teaching Iqbal is, I think, that it presents what purports to be a clear two-step approach to analyzing pleadings. We then can get into the various proposals to undo Twombly/Iqbal and return us to some form of Conley pleading, which also can provide a nice window into the federal rulemaking process specifically and the process for making legal rules generally. Ultimately, the point may be to tell students that the pleading rules they are learning now may look nothing like the pleading rules they will see when they hit the real world in two years.

I would love to hear thoughts from those of you who already went through this in the fall.

Posted by Howard Wasserman on December 18, 2009 at 10:30 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (1) | TrackBack

One More Pain in the Ass: Holiday Cards in the Age of Facebook

***WARNING: THIS POST INVOLVES NO LAW.  REPEAT: NO LAW***

It used to be bad enough—designing a holiday card to send to friends you haven’t laid eyes on for decades.  First, spend days selecting the perfect picture from the past year, the one that captures the essence of your beautiful family.  Will it be the one of all four of you on the slopes in Aspen?  Or do your wife’s nostrils look like canyons in that one?  Maybe the shot Stella took on the Fourth of July with all of you on the beach?  But where’s the damned dog?  Argue about it endlessly.  Once you’ve chosen the picture, carefully pick the two or three key facts to share from the prior twelve months.  Billy learned to read!  Sally got her first part-time job!  That pimple on my forehead is turning into a third eye!  I can’t stop lactating!  Once you’ve got your design, pay a copy center two hundred bucks, lick a hundred envelopes, collect seven searing paper cuts, and you’re done.  

And that was back when making a holiday card was easy.   

In the age of social networking, of status updates and blog posts, of tweets and twitters, the holiday card game has changed.  These people you hadn’t heard from in decades now share with you their every trip to the supermarket, their kids’ every report card, their every episode of lactose intolerance.  What do you not know about these people that you could possibly learn about them from a holiday card?  And what do they not know about you?  Let’s face it, this year’s “we’re friends on Facebook” is last year’s “we trade Christmas cards.”  

So, what should you do now?  One possibility, if you happened to think of this early enough, would have been to purposefully withhold your best picture of the year and most juicy news tidbits from Facebook to save for the holiday card.  Imagine the surprise of your 312 friends (you are going to send each Facebook friend a card, aren’t you?) when they realize, after following your every move for the past 365 days, that your wife actually gave birth to twins back in July!  If you have the willpower to do this, then mazel tov to you—Facebook has actually made your holiday cards more of a thrill than they used to be.  

The rest of you, though—those who lack the willpower to purposely withhold your spouse’s death from your closest friends to ensure a big surprise come holiday season—will have to come up with something else.  If you’re not going to add some value to the picture and the news blurbs, then what’s the point?  You might as well save your money and your finger blood and forget about it.  Just make “Consider my year’s worth of status updates your holiday card this year” your status update for a week around Christmas, and call it a day.  Nobody will mind, and maybe you’ll also save a tree while you’re at it, which is all the rage these days anyway.  (perhaps mention that in your next status update.)  

But say that you don’t want to give up on holiday cards quite yet.  You’re a real sticker for tradition, you are.  Then what?  If you’re artistic, maybe draw a funny picture of a snowman or something.  If not, perhaps consider sharing a piece of information that you would feel queasy about sharing on Facebook or Twitter.  For example, if you own a home, mention how much you paid for it, as well as its current value.  Sure, your friends could figure this out for themselves with Zillow, but who has time with all the cookie baking and tree decorating and twittering about cookie baking and tree decorating that has to be done during the holiday season?  Plus, everyone loves to hear about people losing money in the real estate market.  Why should your friends be any different?  

Alternatively, on the back of your card, draw one of those maze puzzles that children love to play—you know, the ones where you have to help the pirate find his way through all the swirly lines and wrong turns and dead ends to get to his treasure?  Imagine how much fun you’ll be providing for the more dim friends on your holiday card list!  Plus, if you’re feeling particularly Grinchy, you could make a really complicated maze with lots of twists and turns but all dead ends and no way to get to the treasure.  If you’re lucky, maybe some of your friends will get so pissed off at you about the trick maze that they’ll cross you off their holiday card list for next year.  Do it enough years in a row, and before long you won’t have to send any holiday cards to anyone.   

With the internet, who needs them anyway?


(previously posted on Holy Hullabaloos)

Posted by Jay Wexler on December 18, 2009 at 10:09 AM in Jay Wexler | Permalink | Comments (5) | TrackBack

Thursday, December 17, 2009

What's Under Construction in Copenhagen?

I'm in Copenhagen for the UN climate conference this whole week.  Below is a cross-post of something I wrote for Grist, and I'll be posting more here as we hit the final days of the conference.  If you're interested in more details, the New York Times just posted this story about the current play of negotiations.

_______________________________

As 120 heads of state arrive at the Bella Center in Copenhagen, there’s amazingly little direction on just what exactly they are negotiating.  Is this going to be an extension of the Kyoto Protocol (a second commitment period), or will the Kyoto Protocol be buried, with some brand new treaty rising from its ashes?  Will the agreement be legally binding or just a declaration of principles?

Here at the “climate café” lunchroom at the Bella Center, there’s a lot of talk about the proper “architecture” of an agreement, so let’s look at some building styles that might come out of Copenhagen:

The Taj Mahal: A Legally Binding Treaty

Negotiating a full-blown treaty was the original intent for COP15 in Copenhagen, according to the 2007 Bali Roadmap,  A full treaty would include emissions targets for developed countries, compliance mechanisms, possible new commitments by developing countries, and detailed provisions on ratification and entry into force.  Lowering expectations, the U.S. and other developed nations signaled weeks ago that there is simply not enough time to hammer out a formal treaty, but many developing states and NGOs are still pushing for the Taj to be built in the next two days.

The Concrete Foundation: A Consensus Agreement with Hard Numbers

Heads of state from 120 countries don’t fly in here just to have a photo op.  There’s personal and national prestige on the line to solidify some written agreement in Copenhagen.  Conceivably, the agreement could contain hard numbers for emissions targets and financing by developed nations, as well as pledges by developing countries to take some low-carbon policy measures (in COP-speak, “Nationally Appropriate Mitigation Actions”).  Imagine that many of the crucial blanks are filled in a draft agreement on long-term cooperation released this morning, and that the document is then completed as a treaty in 2010.

This is what lead architect Barack Obama said he wanted to build when he gets to Copenhagen: an accord that will have “immediate operational effect” in the sense that national commitments at Copenhagen could be implemented while a formal treaty is drawn up.  But the parties are very far apart even on the basics, like the future status of the Kyoto Protocol, levels of emissions reductions, baseline years (1990 or 2005), financing commitments, and whether the goal of the whole thing should be limiting global temperature increases to 2 degrees or 1.5 degrees.  If a foundation for a future treaty is going to be laid at Copenhagen, the concrete commitments better get solidified soon.

The Rain Tarp: Kicking Everything to 2010

There’s only about 60 hours left in this conference.  Walkouts and deadlock have already plagued the negotiations.  There’s a real possibility that despite years of lead-up, the only thing the parties will agree to in Copenhagen is a face-saving document to protect them from political flack.  This document would note general areas of agreement (such as the need to finance adaptation in the least developed countries and continuing the Clean Development Mechanism) and it might provide a roadmap for further negotiations in 2010.

The fallout would be immediate.  The COP would be called a failure, and the prospects for a treaty in 2010 would not be pretty.  After all, if the parties can’t agree now, with the involvement of heads of state and the attention of the world, why would they be able to resolve their differences in August or September, in the run-up to the next COP in Mexico City?  U.S. cap-and-trade legislation would also be jeopardized if a flimsy deal gets patched together in Copenhagen and carries the taint of failure.

The stakes are high, and time is running very short here.  I’m pretty sure a global climate architecture will get built—eventually.  But we need a roof over our heads now.

Posted by Noah Sachs on December 17, 2009 at 11:39 AM | Permalink | Comments (0) | TrackBack

Wednesday, December 16, 2009

The Power Of A Single Sentence: Traffic Stops

I wonder how often the Supreme Court has nonchalantly wiped off the law books an entire jurisprudential debate with one blithe sentence. That is exactly what the Court did last term in Arizona v. Johnson, 129 S. Ct. 781 (2009). For very good reasons reflecting the Court’s own muddles, federal and state courts had for many years struggled to define the contours of the police’s search power during traffic stops, and unsurprisingly had come up with widely varying doctrinal formulations. In Johnson, a case that did not even directly raise the issue, the debate over those formulations largely vanished due to one sentence.

I became pretty familiar with the doctrinal morass involving traffic stops a few years ago when I got involved pro bono in helping to oppose a Fourth Amendment certiorari petition that Illinois had filed. The Supreme Court itself has caused the jurisprudential problem because its traffic stop cases are an analytical mess. The tension arises because the Court often wants to treat traffic stops a lot like consensual police encounters. That would allow police a large degree of flexibility. But traffic stops are not consensual encounters. Rather, they are involuntary, coerced encounters. Thus, when confronting traffic stops, the Court often has analogized to Terry stops. Terry "stop-and-frisks" allow police to compel brief, non-consenual, investigatory stops based upon reasonable suspicion. Because they involve involuntary stops, and based upon a lower threshold of suspicion that probable cause, which is the traditional Fourth Amendment standard, the scope of Terry stops are to be strictly limited so that these encounters remain brief, the public is not unduly burdened, and police cannot engage in fishing expeditions.

Illinois courts, like many state and federal courts, had struggled with how to reconcile this tension in the Court’s precedents. Like many such courts, those in Illinois chose to place greater primacy upon the Terry analogy. Consequently, Illinois courts had erected a rather detailed, demanding, but admittedly convoluted traffic stop jurisprudence that generally prohibited police from inquiring about, or seeking consent to search with regard to, matters or offenses unrelated to the reason for the traffic stop.

Happily, we won a denial of certiorari in my pro bono case despite a major state and circuit split. But we would have been on the wrong side of the law had the issue arisen after Johnson. Johnson reviewed the issue of whether police could engage in a Terry frisk during a traffic stop where they had reasonable suspicion that an individual was armed and dangerous but no reason to believe the individual was involved in criminal activity unrelated to the traffic stop. Unsurprisingly, the Court allowed such frisks based only upon reasonable suspicion of danger. Surprisingly, the Court threw in this one, single sentence:

An officer’s inquiries into matters unrelated to the justification for the traffic stop, this Court has made plain, do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.

In support, the Johnson Court cited Muehler v. Mena, 544 U.S. 93 (2005).


Well, despite its assertion, the Court had never made such a thing plain. Mena wasn’t even a traffic stop case. But because of the Court’s one sentence in Johnson, all those courts that had tried to erect a Terry barrier during traffic stops will now be dramatically reworking their jurisprudence, and we are now left with police having wide discretion to make all sorts of inquiries during traffic stops. Police can ask about your drug or alcohol use, or whether you have firearms or any other contraband in the car, and they are free to ask consent to search the car (this request generally comes after your denials so that you face psychological pressure to grant consent). They are free to ask virtually anything at all.

Your only protection is that the inquiries cannot “measurably extend the duration of the stop.” Police can even keep you there on the side of the road while they call in a canine unit to perform a dog sniff of your car, again so long as the traffic stop is not unduly prolonged (Illinois v. Caballes). (You’ll be comforted to know that, according to the Court in United States v. Place and Caballes, the dog sniff is not a search at all.) What constitutes unreasonable delay will be a crucial litigation issue, but don’t be too hopeful that short time lines will be imposed, as the Court has upheld a 20-minute delay (albeit in a context in which the suspect's own actions contributed to the delay, United States v. Sharpe), and in Mena a 3-hour delay (of an unsuspected third party!).

The Court went astray in Johnson by purporting to adhere to the Terry analogy but abandoning its underlying structure. In a Terry stop, police are to limit their line of inquiry to the grounds underlying their reasonable suspicion. Beyond that, there is (at least theoretically) merely a consensual encounter that an individual can end by walking away, as the police lack authority to compel detention. Here’s the rub: during a traffic stop, none of us has the right to end the encounter by leaving, as it is unlawful to leave a traffic stop until being released by police. So, police now have a captive audience (akin to Terry), but police have much greater powers to engage in searches through unrelated inquiries (unlike Terry), and to do so for some period of time up to the inchoate moment of “measurably extending the duration of the stop” (again, unlike Terry).

Thus, Johnson’s single, almost off-hand sentence has dramatically changed the nature of policing and the context in which individuals interact with police. Reportedly, the vast majority of face-to-face interactions between individuals and police occur during traffic stops. It’s fair to question not only whether this was a wise move, but whether the Court properly handled the issue through its one-sentence declaration.

I'm also going to throw this out:  Mena is going to be a much more important decision than was realized at the time, as it will give the Court cover on a lot of tricky issues when it wants to err on the side of increased governmental discretion.

Posted by Fabio Arcila on December 16, 2009 at 05:38 PM in Constitutional thoughts, Criminal Law | Permalink | Comments (2) | TrackBack

Waiting for "The Call"

My environmental law exam is set to start in a few minutes, and so I've come to the office early to sit here and wait for "the call."  By "the call," of course, I mean the hypothetical call from the registrar or someone else that I could conceivably receive sometime during the next three hours informing me that something has gone terribly, terribly wrong on my exam.  For example, I don't know, something like the plaintiff's name keeps changing and so the students can't tell who I'm talking about in the second paragraph, or maybe there's a sentence missing or a page missing or it says there are three questions but there are only two or I don't have any idea what else "the call" might be about.  I should say that in eight years of teaching and stressing out over whether I'm going to get "the call," I have never actually gotten "the call," but this doesn't mean that I'm still not freaking out and hoping that I don't get it this time around (in this way, it's sort of how I still really worry every single class session that I'm going to run out of material to talk about with 45 minutes left in the class, even though in probably 600 class sessions it's never happened a single time).

More generally, I should say that I find this whole time around exams very stressful.  I'm sure many other prawfs feel the same.  The whole building is filled with stressed out people; the students who I like so much are going through all this stress and anguish; I'm worried that I'm going to get "the call."  I find that I even have dreams in which I realize I've changed the plaintiff's name and so the students can't tell who I'm talking about in the second paragraph, or even more outlandish scenarios like I've asked a long question about church-state law on my environmental law exam or maybe even accidentally written one of the questions in a foreign language.  I guess I should take solace in the fact that while I'm having these particular kinds of anxiety dreams, at least I'm not having my typical anxiety dreams, which often involve sitting in one of my colleague's classes as a student having not done the reading and hoping I don't get called on, or, as has been happening ever since Obama was elected, sitting in his classroom as a student having not done the reading and hoping I don't get called on.  Incidentally, I'll just mention that a couple of weeks ago, while having one of these Obama-is-my-Professor anxiety dreams, he did actually call on me.  He asked me: "What is the second most prevalent reason that people object to the Star Spangled Banner?"  I answered: "Because it interrupts the game?"  And he said: "Not the game.  A book."  I don't know what that meant.  I guess I should be happy that I at least was able to croak out some answer, especially because when he called on me he called me "Jason Wiebe."  I responded: "Me?  I'm Jay Wexler."  He responded, "yeah, you."

Anyone else stressed about getting "the call" or have any fun or horrible "the call" stories they'd care to share?

Posted by Jay Wexler on December 16, 2009 at 09:32 AM | Permalink | Comments (11) | TrackBack

Mack Brown's $2 million raise

Having complained about Jim Calhoun's $1.6 million salary, I think I'm obligated to take issue with a raise that dwarfs Calhoun's entire salary.  Mack Brown is now making $5.1 million a year as a football coach through the year 2016 (or until the next raise).  A resolution of the UT Faculty Council said the deal was "unseemly and inappropriate." This resolution has drawn its own share of criticism.  The UT president pointed out that the athletic program, under Brown, has had no subsidies or deficits and has channeled $6.6 million into academic programs in recent years.  This is the same version of the argument used to support Calhoun's salary -- namely, the athletic programs more than pay for themselves, so they can pay their people in the millions of dollars.  Just today I heard ESPN personalities Mike Greenberg & Tony Kornheiser accuse the UT professors ("eggheads," in Kornheiser's parlance) of being completely wrong on the economics.

What the commentators are missing -- or, at least not talking about -- is that the "market" for college coaches is a grossly distorted one.  There is a lot of money floating around college sports -- primarily through TV contracts, but also ticket sales, team endorsements, licensing, and advertising.  But that money has nowhere to go, other than to the schools and the coaches.  The NCAA places strict limits on what players can get from their university -- only a scholarship.  And NBA and NFL rules essentially require that players spend time in college before entering the pros.  So what we have are athletes who must spend time in college to pursue their profession but cannot get paid for it.  So the money goes instead to the coaches.

If you have any doubt about this, just look at baseball.  Baseball has a thriving minor league system; there is college baseball, but you need not go to college to get into the pros.  How much do college baseball coaches get? This article says they make about one-sixth what football coaches make.  This one (from 2007) says that the highest paid college baseball coach makes $600,000.  Or look at pro football.  Only four NFL coaches made more than Mack Brown last year (according to this estimation).  Thirteen made less than $3 million; five made less than his raise. 

If we are going to keep the system we have, let's be honest about it.  We now take talented young athletes and use their skills to fund our universities.  The coaches help facilitate this -- and they are taking more and more off the top.  There are reasons to support this system, but saying that coaches "deserve" this money because of a distorted market is not one of them.

Posted by Matt Bodie on December 16, 2009 at 12:45 AM in Corporate, Sports | Permalink | Comments (10) | TrackBack

Tuesday, December 15, 2009

The Most Significant Case, Statute, or Regulation This Decade?

Last week’s discussion of the decade's most significant developments in legal academia generated some really interesting response. The overall tone of the comments suggests that, unsurprisingly, the 2000s were a mixed bag for legal academia.  Brian Leiter’s poll on which of these developments was the most significant closes tomorrow, so get your votes in now.

Since last week’s post directed our collective gaze to our collective navel, I thought that this week we might look out a bit at the broader legal landscape: What was the most significant court decision, statute, or regulation this decade? Like last time, I’m purposefully casting the net widely, and there are solid arguments for and against a lot of the probable candidates--Bush v. Gore, Sarbanes-Oxley, the Military Commissions Act, Hamdan, Heller, the Patriot Act, the TARP legislation, and so on--so please feel free to add a bit of explanation with your vote.

Posted by Joseph Blocher on December 15, 2009 at 03:59 PM | Permalink | Comments (6) | TrackBack

Illegal Motion?

My wife loves this clip and it has grown on me. But I must ask the football-rules question: Is this Illegal Motion?

Posted by Howard Wasserman on December 15, 2009 at 03:45 PM in Culture, Howard Wasserman, Sports, Television | Permalink | Comments (7) | TrackBack

A Quick Thought on Thomson, Padilla, and Ex parte Endo

With today's news that some large percentage of the individuals still detained at Guantanamo are going to be relocated to a federal prison in Thomson, Illinois comes the obvious (if geeky) jurisdictional question: Does this mean that all of the habeas petitions in these cases currently pending before the D.C. district court will have to be be transferred to the U.S. District Court for the Northern District of Illinois (and then, presumably, the Seventh Circuit)? [See 28 U.S.C. 93(a)(2) -- Thomson is in Carroll County.] If so, that's an awful lot of heavy lifting and wasted effort, given how much time and energy the D.D.C. judges have devoted to these cases in the past eighteen months.

The answer, I think, is no, even in light of the Supreme Court's 2004 decision in Rumsfeld v. Padilla.  There, the Court held that a habeas petitioner must name his "immediate custodian" as the respondent, and that the district court must have personal jurisdiction over _that_ official in order to have jurisdiction over the petition. [The rule doesn't apply in cases in which no district court has personal jurisdiction over the immediate custodian, which is how the Guantanamo cases ended up in D.D.C. in the first place.]

So, it seems clear that, were a Thomson detainee to file a new habeas petition, it would have to be filed in the Northern District of Illinois. But what about pending petitions? The Court in Ex parte Endo (the companion case to Korematsu) held that transfer outside the district cannot defeat jurisdiction so long as the district continues to have jurisdiction so long as _someone_ "in whose custody [the petitioner is] remains within the district." As Chief Justice Rehnquist more succinctly described in Padilla, "Endo stands for the important but limited proposition that when the Government moves a habeas petitioner after she properly files a petition naming her immediate custodian, the District Court retains jurisdiction and may direct the writ to any respondent within its jurisdiction who has legal authority to effectuate the prisoner's release."

All this means that the pending cases can--and will--remain in D.D.C.  But it also suggests that there is no barrier to a detainee filing a new petition (perhaps raising a conditions of confinement claim) in a jurisdiction that might be more receptive to the argument that the petitioner has some modicum of constitutional rights (an argument rejected by the D.C. Circuit in Kiyemba I), especially once the petitioner is physically present within the United States.

Posted by Steve Vladeck on December 15, 2009 at 03:02 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (0) | TrackBack

More on Tax and Good Cards

Over at The Conglomerate, Christine Hurt discusses the tax treatment of "The Good Card," available from Network for Good:

You...give someone a gift card, which they can then use to donate to the charity of their choosing. It's not quite like a universal gift card -- it has to be used for a charitable donation. This could be a little easier than making a donation in someone's name, especially if you don't know which charities that person supports....Who gets the deduction?....[T]he gift card buyer gets the deduction, which I think is the best incentive policy, if you want people to buy the gift card. The gift card recipient either uses or looses the earmarked funds, so they need no further incentives.

From a tax law perspective, here's why (I think) the gift card buyer gets the deduction. (This is based on information from Network for Good's website; I have no particular knowledge of this organization.)

When you buy a Good Card, you are making a donation to what's known as a "donor-advised fund." (Network for Good's 2007 tax return tells us that over $54 million of their roughly $58 million in revenue in 2007 consisted of contributions to donor-advised funds.)  A donor-advised fund is an account that is owned by a tax-exempt organization (in particular, the sort of tax-exempt organization where, if you contribute to it, your contributions are deductible), if the donor, or someone designated by the donor, is allowed to advise where the funds will be distributed or invested.

Network for Good's tax-exempt purpose is supporting other tax-exempt organizations (or, as they put it on their 2007 tax return, to "increase charitable giving...and decrease the cost of fundraising for nonprofits").  Although this might not seem like the usual definition of a charity, the IRS has ruled that this is in fact a good tax-exempt purpose.  Donations to Network for Good are in general deductible, and Network for Good can own and administer donor-advised funds.

Making a donation to a donor-advised fund is tax deductible, and "buying" a Good Card is really just making a donation to a donor-advised fund controlled by Network for Good. So "buying" a Good Card is tax deductible. The person who uses the gift card is simply advising the fund--that is, directing Network for Good to which public charity the funds in the donor-advised fund are to be transferred.  That is not, obviously, deductible.  

(If the Good Card is not "redeemed" within a certain time period--usually six months--the funds go into Network for Good's general account, where they are used for Network for Good's general charitable purpose of assisting other charities.  This doesn't affect their tax treatment, because donations to Network for Good are in general deductible, and the rules for donor-advised funds are actually stricter, not more permissive, than the rules governing donations to charities in general.)

That's my take on it--any thoughts or amendments from other tax or non-tax folks?

(H/T: Paul Caron.)

Posted by Sarah Lawsky on December 15, 2009 at 02:27 PM in Tax | Permalink | Comments (1) | TrackBack

Okay, fine

Just a note: due to the underwhelming response to my previous post on OLC and Second City, I have officially shelved the OLC book project.  But come on, surely some of you Chicagoans have seen the new iteration of Coed Prison Sluts--how is it?

Posted by Jay Wexler on December 15, 2009 at 08:38 AM in Jay Wexler | Permalink | Comments (1) | TrackBack

AALS, Happy Hour, FSU Recruiting, etc.

Thought I'd share a few points related to the AALS conference coming up in January in New Orleans. 

First, PrawfsBlawg, along with our mates over at Concurring Opinions (and other blawgs), will be hosting a happy hour for all prawfs attending the conference. (Not yet sure if our generous friends from Indiana will be footing the bill again, but if you think your school would be interested in doing so in whole or in part, please contact me asap!) The date and time, as mentioned earlier, will be Thursday January 7th at 9pm until about midnight. The place will be announced shortly, though it's likely it will be the Whiskey Blue bar at the W hotel. Watch this space for more complete information, including things such as drink specials...

Second, among others, a few of us from the Prawfs and Co-Op alumni will be presenting at the Fed-Soc shadow conference at AALS. You can find out more information here.  It will take place Friday Jan 8th at the Wyndham Riverfront New Orleans.

Finally, as some of you know via FB, I'll be on appointments at Florida State this coming spring and, unlike so many other schools, we're fortunate to be in a position where we can hire a substantial number of people across a wide variety of areas. If you're already a prawf, whether junior or senior, and think you or someone else you know would be interested in FSU's quite extraordinary scholarly culture and good weather, among other things, please feel free to send Jim Rossi (and/or me) a cv/statement of interest soon especially if you think you will be attending AALS in NOLA. Of course, if you're not planning on going to NOLA, we'd still welcome expressions of interest.  (Yes, our committee at FSU goes January to January, though there is some continuity with previous committees. The 2010 committee includes Kelli Alces, Jim Rossi (Chair), Nat Stern, Tara Grove, Mark Seidenfeld, JB Ruhl, and myself.)

Posted by Dan Markel on December 15, 2009 at 12:09 AM | Permalink | Comments (0) | TrackBack

Monday, December 14, 2009

Great new issue of Ohio St. J. of Criminal Law

I am continually impressed with the great and creative conversations hosted in the Ohio State Journal of Criminal Law. Via the good folks at Tarlton Library at U of Texas, I just found out there's a new issue of the Journal with what looks to be 2 really interesting exchanges, one having to do with what criminal law can learn from criminology, and the second having to do with an article by Anders Walker (SLU) about the political history of the criminal law casebook and its relation to legal education. Congrats to the editors on putting this issue together. I look forward to reading it. If I have any reactions, I'll register them here or on Jotwell, or both.

After the jump, you can find the table of contents.

OHIO STATE JOURNAL OF CRIMINAL LAW

Volume 7       Number 1       Fall 2009

 SYMPOSIUM

WHAT CRIMINAL LAW AND PROCEDURE CAN LEARN FROM CRIMINOLOGY

 What Criminal Law and Procedure Can Learn from Criminology

David A. Harris

1

 Studying Wrongful Convictions: Learning From Social Science

Richard A. Leo & Jon B. Gould

7

 Putting the Practice Into Theory

Eric J. Miller

31

 Criminal Justice and the Public Imagination

Erik Luna

71

 How Accountability-Based Policing Can Reinforce—Or Replace—The Fourth Amendment Exclusionary Rule

David A. Harris

149

 COMMENTARY SYMPOSIUM

CRIMINAL LAW, CASEBOOKS, AND LEGAL EDUCATION

Criminal Law Casebooks: An Introduction to a Dialogue on Their History and Role in Legal Education

Joshua Dressler

215

 The Anti-Case Method: Herbert Wechsler and the Political History of the Criminal Law Course

Anders Walker

217

 I Remember Professor Wechsler

Yale Kamisar

249

 On Cases, Casebooks, and the Real World of Criminal Justice: A Brief Response to Anders Walker

Donald A. Dripps

257

 Teaching Criminal Law from a Critical Perspective

Angela P. Harris & Cynthia Lee

261

 Criminal Law Textbooks and Human Betterment

Douglas Husak

267

 Four Good Things About Wechsler's Approach

Margaret L. Paris

275

 Teaching Criminal Law

Lloyd L. Weinreb

279

 

Did Legal Realism Engage the Real World of Criminal Law?

Robert Weisberg

293

 

Response to Readers of "The Anti-Case Method: Herbert Wechsler and the Political History of the Criminal Law Course"

Anders Walker

303

 

WALTER C. RECKLESS-SIMON DINITZ MEMORIAL LECTURE

Legitimacy and Criminal Justice: The Benefits of Self-Regulation

Tom R. Tyler

307

 

COMMENTARIES

Eyewitness Corroboration Requirements As Protections Against Wrongful Conviction: The Hidden Questions

David Crump

361

 

Colorado v. Connelly: What Really Happened

William T. Pizzi

377

 

Mental Illness and Self-Representation: Faretta, Godinez and Edwards

Christopher Slobogin

391

 

REVIEWS

Protecting the Innocent as the Primary Value of the Criminal Justice System

Susan A. Bandes

413

 

States of War: Defensive Force Among Nations

Guyora Binder

439

 

TERM PAPER

Herring v. United States: A Minnow or a Shark?

Albert W. Alschuler

463

 

 

  

Posted by Dan Markel on December 14, 2009 at 06:44 PM in Article Spotlight | Permalink | Comments (0) | TrackBack

The Meaning of Life

Carol Williams reporting in the LATimes does a superb job of describing California's Lewis Carroll like parole system for those sentenced to life in prison for murder, with the possibility of parole; a topic which has given the California Supreme Court cause for psycho-therapy and now looms over the 9th Circuit (Hayward v. Marshall, 527 F.3d 797, granting rehearing en banc over the earlier panel opinion granting habeas corpus to lifer Hayward, 512 F.3d 536).  The issue, however, makes a great way to teach core issues in substantive criminal law including the distinctions between rehabilitation, deterrence, incapacitation, and retribution, and the elements of the law of murder and manslaughter.  Unlike the typical casebook murder case, these parole based cases involve core examples of murder.  Moreoever, the posture of these cases is particularly good for teaching as they raise the question of whether given the facts of the crime, criminal record,  and record of prison discipline and rehabilitation, some evidence exists that the petitioner convicted of murder poses an "unreasonable risk" to public safety.  This contrasts with the much more limited facts available to the typical appellate murder case.  The problem is that between the due process issues,  and the statutory construction issues, and the two levels of administrative decision making (parole board, and governor), with trials courts added in, plus ATEDPA if its federal court, it is kind of hard to teach.  Thus you might consider just using William's article and the facts of Hayward (more beneath the fold) for your discussion.

Hayward killed a man at the legal boundaries between murder and manslaughter (he confronted the man he believed had insulted/assaulted and possibly raped his girlfriend, and stabbed him to death during the resulting fight) and was convicted of 2nd degree murder.  The law under which he was sentenced made him eligible for parole after 15 years.  Indeed, the language of the law is that the board "shall" set a date (atlthough it might be years in the future) for release unless they find the subject "unsuitable" for parole.  Hayward became the model prisoner, pursuing therapy, education, and becoming a positive influence on those around him.  Now 67, he has job offers and a clear plan of where to live if he should be released (quite different for many).  While in an earlier era his parole would have been routine, by the 1990s parole boards in California became increasingly sensitive to victim advocates and focused on the details of the crime rather than the prison profile.  Governors assuming an old statutory mandate  (reinforced constitutionally in 1988) began to review every parole decision, reversing almost all of the very few granted by the parole board.  Since 2003 this log jam has produced an increasing number of legal challenges through the arduous process of habeas corpus petitions to the superior court where the prison sits, and eventually to the California Supreme Court, and on to the federal courts (where dreaded ATEDPA issues rear their heads).

In 2002, at his 10th parole hearing, the board granted Hayward a parole date.  Since then Hayward has been repeatedly turned down by California governors.  Although the law only requires "some evidence" of unreasonable risk, the 9th circuit panel opinion makes a strong case that the governor's rationale lacks any.  The panel found that the trial courts must consider whether "some evidence" exists of unreasonable dangerousness, not just whether some evidence exists to support the reasons the governor cites for believing the subject to pose and unreasonable risk.  The en banc decision (and possible Supreme Court decision to follow) could result in a system in which the governor would have virtually unquestionable authority to keep convicted murderers in prison until death.  Fear of this kind of outcome has led the European Court of Human Rights to find that life sentences with parole must permit an official completely insulated from politics, like a court, to determine parole release dates.

Posted by Jonathan Simon on December 14, 2009 at 01:00 PM in Criminal Law, Jonathan Simon | Permalink | Comments (0) | TrackBack

Whither Law Professor Salaries: Let's Talk Money

As so many lament the sky-rocketing cost of a legal education (tuition has increased far ahead of inflation), the debt students have to incur to obtain their law degree, and the pressure that the tanking economy has placed upon financial aid and public interest support, is this the dirty little secret no one is talking about: law professor salaries are largely responsible for this state of affairs?

Recently, headlines like this one screamed that law school tuition has run amok for a very bad reason:  due in major part to the U.S. News & World Report law school rankings. These stories were based on a recent GAO report, which did indeed place blame on the rankings. According to the GAO, law school officials believe that "the move to a more hands-on, resource-intensive approach to legal education and competition among schools for higher rankings appear to be the main factors driving law school cost." The key is that last part about "competition among school for higher rankings" because, according to the GAO, "[t]o attract the best faculty, school officials reported that they may offer higher salaries." What that seems to boil down to is that law schools have been jacking up law professor salaries to get the best and the brightest and thus increase their reputational score in the rankings. Not an irrational strategy because reputational scores are by far the most influential criteria for the rankings (25%, when the next highest factor is 15%).

But is this strategy sustainable? Presumably, one justification for high law professor salaries is that law professors could make more (sometimes much more) on the private legal market as practitioners. It's a common law professor lament (especially for junior professors) that they make less (often MUCH less) than a just-graduated student in the first year of practice at a major national law firm. Traditionally, those firms have paid in lockstep (every member of any particular class makes the same salary), and first-year associates right out of law school have been paid $160,000.  Not including bonuses, which could be in the tens of thousands of dollars. A quick perusal of a recent law professor salary survey shows that few law professors can match such earnings.

Can law professors continue to justify their high salaries (at least as compared to most other academic disciplines)? That seems less than clear given that national law firm salaries are going down. So says the ABA Journal and esteemed colleague Bill Henderson, who believes that law firm models--and salary scales--are in the midst of a sea change. Without the potential of a ridiculously high starting salary, many potential law students will be unwilling to attend and pay for law school.

Shouldn't the result be downward pressure on law professor salaries?

And, if so, what options are most available to law professors to keep the dollars coming in?  A move into law school administration?  I've recently been told that an industry standard is to provide a 22.5% salary supplement for law professors who move into an associate dean position. But I have no idea whether that's correct.

Posted by Fabio Arcila on December 14, 2009 at 10:00 AM in Current Affairs, Getting a Job on the Law Teaching Market, Life of Law Schools | Permalink | Comments (9) | TrackBack

Sunday, December 13, 2009

Advice for Undergraduates?

Massachusetts is, by my rough count, one of only six states without a public law school. But not for long, it seems. The public University of Massachusetts (UMASS) has recently approved a proposal to acquire the private Southern New England School of Law (SNESL), a move that will create the state's first public law school. 

There remains one major hurdle left to clear--a final vote in February--but all visible signs point to yes, despite opposition from a coalition of three private law schools in the state.

Although the UMASS acquisition of SNESL will not increase the total number of American law schools, it will give more students the chance to attend law school: under the plan, enrollment will increase from 235 to 559 students. And with a new law school set to open in Dallas in 2011 and the new University of California, Irvine, School of Law, hoping eventually to grow to 600, there will be even more opportunities for law school applicants.

In the face of high demand for law school admissions (in 2008, for example, 82,000 students applied and 55,500 were admitted), the likely increase in applications this year, and given these recent developments, I am wondering how to advise undergraduates who ask me for advice about whether to go to law school.

I suspect that future law school graduates may have difficulty finding employment in law. That said, I am convinced that law school is not just for those who wish to one day practice law. The skills developed in law school are transferable to other disciplines, and are superb preparation for non-law employment. And there is, and will always be, a demand for law school graduates who possess strong analytical abilities and can think creatively, read critically, and write persuasively.

What do/would you advise an undergraduate?

(As an aside, anyone care to guess which are the five states, excluding Massachusetts, without a public law school?)

Posted by Richard Albert on December 13, 2009 at 10:00 PM in Life of Law Schools | Permalink | Comments (9) | TrackBack

Fix the Senate, Part II

Professors Kerr and and DeGirolami have graciously responded to my somewhat silly post knocking the Senate with serious comments. Specifically, professor Kerr cites Federalist Papers #62 and #63 for their defense of the Senate, and Professor DeGirolami remarks that the desire for a younger and less obstructionist Senate is one of "the delusive plausibilities of moral politicians."

I'll use this post to respond to these comments. As I noted in my previous post, my argument is not new--in some respects it's pretty old. So I didn't spell out the whole argument in my original post. But I'll make a broader case for it beneath the fold.

Let me start by pulling my own quote from the Federalist Papers. This excerpt is from Hamilton's Federalist 22:

If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good. And yet, in such a system, it is even happy when such compromises can take place: for upon some occasions things will not admit of accommodation; and then the measures of government must be injuriously suspended, or fatally defeated. It is often, by the impracticability of obtaining the concurrence of the necessary number of votes, kept in a state of inaction. . . . When the concurrence of a large number is required by the Constitution to the doing of any national act, we are apt to rest satisfied that all is safe, because nothing improper will be likely TO BE DONE, but we forget how much good may be prevented, and how much ill may be produced, by the power of hindering the doing what may be necessary, and of keeping affairs in the same unfavorable posture in which they may happen to stand at particular periods.

Here Hamilton accurately describes what I see as our political situation for at least the last twenty years--of a Congress that is, by institutional design, so biased toward the status quo that is incapable of dealing with large-scale problems. More specifically, Congress seems unable--or barely able--to address a broken health-care system, global warming, a disastrous system of financial regulation, a tortuous and economically inefficient tax system, and long-term budget problems that pose a grave threat to the health of the nation.

You might object that this laundry list is an encapsulation of a generic liberal or progressive agenda. And it is! I believe in this agenda, and think the country would be better if it were enacted. And I also think that this agenda would more likely pass if the Senate were eliminated or reformed. Nor do I think that this affinity between congressional reform and progressive politics is transitory. Over time, I believe, a Congress that is more representative, and in which it is easier for a bare majority of representatives to change the law, will be better for a progressive agenda than a conservative one. But I also think that such a Congress would be better in a simple procedural sense. Hence this is a case where my procedural values and my political values coincide.

Now, you might say that I'm just an opportunist--that I'd change my tune if Republicans had a majority in the Senate. But I'm not--I really hope that the Democrats move to eliminate the filibuster next time they are in the minority, if they have that chance. (You don't have to be believe me, of course, but if you don't then why read me at all?). You also might think that the inability of Congress to address these problems reflects the popular will. But, broadly speaking, the conservative majority of the Bush years was also unable to push its domestic agenda through Congress (although where Congressional action was not required--as in agency action--the Bush administration did change a lot). Think, in this regard, of the long-term conservative project of cutting federal spending, which didn't happen despite the recent Republican majority.

I therefore think that we are in precisely the situation Hamilton described "of keeping affairs in the same unfavorable posture in which they may happen to stand at particular periods." Which leads us to Federalist #62, written by Hamilton or Madison, and complaining of state-based representation in the Senate:

A government founded on principles more consonant to the wishes of the larger States, is not likely to be obtained from the smaller States. The only option, then, for the former, lies between the proposed government and a government still more objectionable. Under this alternative, the advice of prudence must be to embrace the lesser evil; and, instead of indulging a fruitless anticipation of the possible mischiefs which may ensue, to contemplate rather the advantageous consequences which may qualify the sacrifice. 

In other words, the Senate is a necessary political compromise, and better than the alternative, so deal with it. Fair enough, but not a response to the argument that the Senate is a pernicious institution. FP #62 does go one to make a substantive defense of the Senate's rule of equal representation by state, but that defense is pretty half-hearted, and must be read in light of the previous description of the Senate as a "lesser evil." Moreover, it is not clear that we need live with the same compromise today, when the states have lost, as a matter of practice, much of their sovereign character.

As for professor DeGirolami's comments, I must say I don't get them (although I'm happy to be corrected). They seem to presume that I believe a lot of things that I don't--for starters, the comment that my remarks  are those of a "moral politician" implies that I have disdain for actual politicians, that I consider myself above or better than them. But I don't consider myself above politics--in point of fact, I consider my work to be political, and proudly so. In fact, it is because I respect politicians that I think it is fair to ask them to put the public interest above their own. Sometimes they do, and sometimes they don't. The fact that they sometimes do is what makes me argue for political reform.

As for the remark that a desire for congressional reform is "delusive," I don't get that either. Change sometimes happens; things could be different, and often have been. In point of fact, the Senate has changed its procedure a lot over time; in recent years we've seen an increase in obstructionist tactics like the filibuster and holds by individual Senators. The fact that these practices have changed suggests that they can change back. More broadly, our country has seen massive changes towards political regimes that at one point or another seemed "delusive." We started with a revolution, for God's sakes! We had a civil war sparked in part by tensions embodied in the compromises contained in the Constitution. We got rid of slavery--but we can't get rid of the filibuster, or disproportionate representation in the Senate? It seems like an odd line to take.

Finally, Professor DeGirolami attacks my desire for a Senate that is more demographically representative, by remarking that he doesn't wish for a Senate that is more "gerontocratic." I'm not sure whether this is a knock on the wish for a younger Senate or a broader attack on the desire for a Senate that looks more like the American people. To take the narrower point, I do think the Senate would be better if it were younger (although I won't spell out why here--this post is long enough).  Here you might object that there is no way to guarantee a demographically representative Senate. I agree with this point. It is possible, however, to remove those factors that systemically favor certain demographic groups over others in elections. More specifically, it is possible to reduce the role of money in elections, which would, I believe, result in a younger (and otherwise more demographically representative) Senate.

Now, you might not think that a more demographically representative Senate would be better, or that it could be achieved by reducing the role of money in elections, or that is possible or desirable to reduce the role of money in elections. But I disagree, and am happy to argue these points. In any case, I may be wrong, but I don't think I'm "delusive."

Posted by John Greenman on December 13, 2009 at 07:23 PM | Permalink | Comments (6) | TrackBack

Super Behavioral Law and Economics

Levitt and Dubner have super-sized their hit. And in the legal academy, behavioral law and economics is entering the next generation. Avishalom Tor, at the law faculty of Haifa University, organized this week a fantastic and intense conference, Behavioral Analysis of Law: Markets, Institutions, and Contracts.

One of the conference participants Kim Kraweic (Duke) wrote a very nice and comprehensive post about the conference. You can read it here at the faculty lounge, and I will just highlight a couple of themes. First, as my favorite behavioral economist and I have recently argued in Stumble, Predict, Nudge: How Behavioral Economics Informs Law and Policy, Columbia Law Review (2008), behavioral law and economics generally presumes the ability of legal design and policy to increase rational choices, thereby improving overall welfare. Yet, next generation behavioral studies reveal a range of types of behavioral insights, some of which are better  translated into law reform than others. On Amir and I develop a distinction between Type 1 biases, which are sourced in our automatic systems and stem from reflexive or intuitive processes, and Type 2 biases, which are generated from irrationalities in the reflective system meant to override our automatic responses, and argue that cognitive errors are more readily corrected through policy when sourced in Type 1 biases. I think the papers at the Haifa conference demonstrate these complexities and provide new insights into the way law interacts with behavior, motivation and decision-making.

At the Haifa conference, I presented the forthcoming article with my repeat collaborator, Yuval Feldman (anyone currently in Israel can catch me presenting the piece next week at ILSA, Tel-Aviv). The article The Incentives Matrix: A Study of the Comparative Effectiveness of Monetary Rewards as Compliance Systems, forthcoming, Texas Law Review (2010) we report on our experimental study of a representative panel of over 2000 employees (we received a generous grant from the ABA Litigation Section Research Fund 2008-2009). The experiment compares the effects of different regulatory mechanisms - monetary rewards, protective rights, positive obligations, and liabilities - on individual motivation and behavior. We look at the comparative advantages of these mechanisms in incentivizing individual whistleblowing. Several cool findings about the costs and benefits of different regulatory mechanisms: we find inadvertent counterproductive effects of offering monetary rewards in some cases, leading to less, rather than more, reporting of illegality -- in line with the behavioral crowding out literature in the psychology of motivation. We also find the existence of a "holier than thou" effect, where basically all of us believe we are much more ethical than average. We also show that people are bad predictors of their own motivations. A finding that always gets alot of interest is our showing of robust gender differences among whistleblowers, demonstrating that women tend to respond more to protections and duties while men respond more to money. 

A final note -  Tor himself, the organizer of the Haifa conference, was exceptionally generous in taking himself off the rich program to give the forum to the rest of us to present and discuss our work. But Tor has important behavioral research, including these two articles in Psych Science on competition and the effect of social comparison on motivation.

 

 

Posted by Orly Lobel on December 13, 2009 at 01:43 AM in Orly Lobel | Permalink | Comments (0) | TrackBack

Saturday, December 12, 2009

Fix the Senate

This comment by Steven Hill in the Financial Times aptly sums up my feelings about the U.S. Senate: "This powerful legislative body debating healthcare for the entire country is a patrician gerontocracy more closely resembling the ancient Roman Senate than a New England town meeting." Right on, my brother. The Senate, with its anti-majoritarian structure, its obstruction-enabling procedure and its general cluelessness, is a lot like David Hasselhoff: a queasy-making combination of self-love and ridiculousness.

This view is not new, particularly among law professors. So why isn't this sentiment more widely held? Some people hate individual politicians, and some hate the government as a whole, but few beyond the academy point to the Senate itself—as opposed to the House—as a dysfunctional institution. More specifically, most people are not interested in the Senate's design or procedure. From the public's point of view, this makes sense--who has the time to look under the hood when the government keeps crashing? Easier to get a new driver. But for academics interested in reform—and, indeed, for anyone interested in political change—the general public indifference to the Senate's institutional failings is a real problem.

So what can we do about it? I—like other (how many other, I wonder?) con law prawfs—teach and advocate the critical view. But I'm not sure how far it penetrates, even among my students. The mainstream media, although it sometimes points out the hypocrisy of individual senators over the filibuster, doesn't seem interested in criticizing Senate procedure. And there are powerful incentives for individual senators to maintain the status quo. Things therefore seem hopeless, at least in the short run. And maybe in the long run too. But hopelessness is not a happy feeling, so I try to fight it.

How about you? Do you think the Senate, as currently designed and operated, is defensible? If not, is there hope it can be changed? Please say yes, or I may give up hope and dedicate my life to touring with David Hasselhoff.

 

Posted by John Greenman on December 12, 2009 at 06:35 PM | Permalink | Comments (5) | TrackBack

Friday, December 11, 2009

Another Angle on Instant Replay

Speaking of truly significant developments in legal academia, the instant replay argument rages on at the Wall Street Journal law blog, in a thorough treatment by Josh Patashnik at The New Republic, and in another incisive post from Ilya at VC.

The most strident (though by no means the only) argument commenters have made against de novo review is essentially that folks like football the way it is, and we don’t need anyone lawyering it up. I fully support the sentiment, but objecting to the legal analogy is really trying to lock the barn door after the horse is long gone. As it stands, the current system is a lot like appellate review, complete with standards of review. In fact, instant replay employs standards that sound like they were taken straight from law books: "indisputable" in the NFL, "clear and conclusive” in the NBA, and "clear and convincing" in baseball. Take away the Latin, and de novo review seems more straightforward and intuitive (i.e., correct a call if it was wrong, period), and a move away from legal-style standards of review that evolved for reasons that simply don’t apply to instant replay in sports. Many commenters have also said that, rules be damned, referees actually do apply de novo review in practice. Inasmuch as that’s true—and I’m sure it is, at least sometimes—I’m happy for my normative argument to be a justificatory one.

I’m still not convinced by the argument that de novo review would unduly disrupt games. It’s instant replay that disrupts the flow of a game, not failure to defer to an incorrect call on the field. The best way to improve game flow, it seems to me, is not to uphold incorrect calls, but to limit the number of challenges or the kinds of plays that can be challenged—sensible restrictions which, as Ilya has pointed out, the NFL and other leagues already have in place.

Finally, a number of commenters have noted that the heightened standard of review allows refs to fix calls that are obviously wrong, while allowing close calls to stand. This is obviously true as a descriptive matter, but it doesn’t explain why that’s a good thing. If we’re going to stop the game and go to the videotape anyway, there needs to be an additional reason why we should allow incorrect calls to stand.

On that score, the best argument seems to me to be that sometimes finality is just more important than accuracy. (Naturally, that is also a principle of our legal system.) And although that argument pushes against having instant replay at all, it could be said that the benefits of finality are only outweighed by the costs of truly, indisputably wrong calls. That may be so in many (or even most) cases, but a balancing-of-the-interests type approach also has to account for the fact that there are times when close calls—even those that are wrong but not indisputably so—are game-changers, and a deferential standard of review is going to insulate them from reversal.  

And before I start a fight on another front, let me assure the Steeler Nation that I’m not taking a position on whether Holmes was in or not, just using his catch as example of a close, game-changing call.

Posted by Joseph Blocher on December 11, 2009 at 02:28 PM | Permalink | Comments (1) | TrackBack

(Don't?) Look Back in Anger

Our discussion of the most significant development in legal academia this decade has turned up some thought-provoking answers on this blog and others. Most nominees seem to fall into three categories—(1) changes in hiring (e.g., more VAPs and PhDs); (2) changes in the communication of ideas (e.g., blogs, SSRN); and (3) changes in the ways we evaluate ourselves and each other (e.g., U.S. News rankings and SSRN again). Changes in the job market for lawyers represent another big category, about which I’ll have more to say next week. And then there are the truly revolutionary developments that have fundamentally transformed not just legal academia, but the way we live our daily lives. As to the latter, of course, I’m referring to Paul’s enthusiastic vote for the Snuggie.

Based on straightforward head-counting and with no effort whatsoever to control for relative importance, the nominees seem to represent a fairly even mix of “positive” and “negative” developments. I imagine that most folks don’t endorse the influence of the U.S. News rankings, for example, but are generally comfortable with blogging and maybe even SSRN. I imagine that people's judgment about other developments - the increasing importance of VAPs and PhDs, empirical legal studies and so on - is divided and probably dependent on whether they wave those flags themselves. Does that mean that overall (and maybe holding aside the market collapse of the past two years) this wasn't a bad decade for legal academia?

Gordon Smith and the folks at Conglomerate are continuing the debate over which of these developments was the most significant, and as usual Brian Leiter has done us all one better by making use of those very developments (blogs, rankings, empirical analysis, etc.) to help select one. You can vote here

The poll closes on December 16. And the time period for consideration in this discussion (i.e., the decade) closes about two weeks later, so if you’ve been sitting on any genre-defining ideas, now’s the time to share them.

Posted by Joseph Blocher on December 11, 2009 at 11:40 AM | Permalink | Comments (0) | TrackBack

Dear Judge: No Glory Days For You

If you're a judge with a Facebook page...and if any of your old high school friends are lawyers...and if they may appear before you...then no "friend"ing on Facebook to relive those high school days of youthful prowess. At least according to Florida's Judicial Ethics Advisory Committee, because "[t]he Committee believes that listing lawyers who may appear before the judge as 'friends' on a judge's social networking page reasonably conveys to others the impression that these lawyer 'friends' are in a special position to influence the judge." So stay away from the Boss. You'll just get depressed. Learned about this development from the NYT today, which indicates that the opinion is merely advisory, and quotes ethics guru Stephen Gillers from NYU as saying that this goes too far.  Because, I'm sure, it's disrespectful to the Boss.

Posted by Fabio Arcila on December 11, 2009 at 11:38 AM in Civil Procedure, Culture, Current Affairs, First Amendment, Information and Technology, Judicial Process, Web/Tech | Permalink | Comments (0) | TrackBack

Could OLC be the Second City of Law?

I just finished reading a new book on Second City called The Second City Unscripted: Revolution and Revelation at the World's Famous Comedy Theater, by Mike Thomas.  It was great fun to read.  For one thing, it made me nostalgic for Chicago, my favorite city in the U.S. (when I was going to start work in DC and so needed only to pass a bar somewhere, I decided to take the Illinois bar basically so I could spend a few days in Chicago).  Also felt nostalgic for the Old Town Ale House, which makes three appearances in the book.  I love comedy and improv and Second City in particular (though the one year I did live in Chicago I favored the more absurdist Annoyance Theater, which I see is now up and running again and even rerunning Coed Prison Sluts, which I remember as being maybe the funniest thing I had ever seen back in 1992 (anyone seen the new version?  is it any good?)).

The book, like Tom Shales and James Andrew Miller's earlier book on Saturday Night Live, is told through snippets of interviews that the author/editor Thomas did with cast members and various other people connected to the theater over some long period of time.  Thomas writes introductions to the various chapters and little transition paragraphs, but other than that he lets the people involved speak for themselves and weaves excerpts from all the interviews together to create a really easy to read and interesting narrative.  It's a great technique, at least for a book like this, because you get the feeling that you're hearing the inside story directly from the mouths of the really fascinating, often bizarre and always talented people who made the theater the institution that it's become over the past 50 years.  Though I should note that the parts about Chris Farley's apartment are not for the squeamish.

As I was reading the book, I was wondering whether one might do a similar kind of book for some legal institution, and having worked at Office of Legal Counsel in the Justice Department for a couple of years, it struck me that a book on OLC told in this format might actually work.  Obviously it wouldn't be as funny (though it wouldn't be totally unfunny either--I mean, don't forget that Cass Sunstein was a member of the Harvard Lampoon) but it might be even more interesting.  OLC shares a lot of characteristics with Second City--both are small and prestigious institutions in their fields where for the most part talented people spend short parts of their careers, usually early on, before going on to  bigger things (like being Supreme Court justices, as at least 3 OLC alumni have done).  At the same time, both places have critical long-term players who give the institutions continuity and can speak to the changes in the places over time.  And while OLCers are not as quirky perhaps as Second Cityers, anyone who has worked there knows that it's certainly seen (and continues to see) its share of absolutely brilliant, one-of-a-kind characters (hi, Marty!).  I guess the big question is whether it would be possible to tell a compelling part of the real story of OLC--what it's done, how it's changed, what it's like to work there, etc.--without disclosing confidential information.  Some things obviously can't be told and careful attention would clearly need to be paid to figuring out what can and what cannot be said.  But I have a feeling that the story could still work, and work well, without giving away particulars that would go over the line.

I wonder if anyone has any thoughts on this.  Can it be done?  Would you want to read it?  Would you be able to convince someone who wasn't a lawyer to read it?  If you have worked at OLC, would you do an interview?

Posted by Jay Wexler on December 11, 2009 at 09:16 AM in Jay Wexler | Permalink | Comments (0) | TrackBack

All the Pretty Pictures

Sarah Lawsky's post of a chart showing how the FCC allocates spectrum reminded me of one of the many reasons I like teaching environmental and natural resources law:  We're never at a loss for dramatic pictures.  I've recently been doing some writing about wilderness areas, which have some of the most beautiful pictures around.  For example, there's nothing like a view of Yosemite's El Capitan to throw in a slide show.  (Here's a link: http://www.wilderness.net/index.cfm?fuse=NWPS&sec=enlargeAndDetails&id=497 .)  Want to show the silvicultural practices that lead to the litigation in Izaak Walton League v. Butz, 522 F.2d 945 (4th Cir. 1975)?  Nothing like a picture of a clearcut.  Sure, the issues are interesting, the legal problems are complex, the challenges to be addressed daunting.  But the pictures?  Priceless.

Posted by Peter Appel on December 11, 2009 at 08:29 AM | Permalink | Comments (0) | TrackBack

Thursday, December 10, 2009

Plus, All the Pretty Colors!

I'm sure this is common knowledge for people who are interested in communications law, but for me, this was a useful and straightforward explanation of the science behind bandwidth--how it works and why it's limited--and some of the issues that face the FCC as it allocates the spectrum.

Spectrum

Image: U.S. Frequency Allocation Chart, October 2003, National Telecommunications and Information Administration, available at http://www.ntia.doc.gov/osmhome/allochrt.pdf (click image above)

Posted by Sarah Lawsky on December 10, 2009 at 11:13 AM in Science | Permalink | Comments (1) | TrackBack

Congress and the BCS

Yesterday, a subcommittee of the House Committee on Energy and Commerce passed H.R. 390, which prohibits the "promot[ion], market[ing], or advertis[ing]" of a post-season Division I college football game as a national championship game unless it is the final game of a single-elimination post-season playoff tournament rather than the current BCS system. It also prohibits the sale, marketing, or advertising of merchandise related to a national-championship game unless it is for the final game of a single-elimination playoff tournament. The Federal Trade Commission is given enforcement jurisdiction, with the practices prohibited in the act treated as unfair or deceptive trade practices.

The obvious reaction is to wonder whether Congress has anything better to do. Not because Congress cannot do many things at once--as co-sponsor Bobby Rush said, "We can walk and chew gum at the same time"--but because I am not sure why there is a sufficient national public interest to warrant congressional action.

My broader reaction is to wonder whether there is a First Amendment problem here. The bill clearly tries to limit itself to commercial speech--selling, marketing, advertising--that receives less (although still significant) First Amendment protection. Commercial speech can be restricted if it is untruthful or misleading and then is essentially subject to intermediate scrutiny--it must directly serve a substantial government interest and must regulate no more extensively than necessary to serve that interest. But is it "untruthful" or "misleading" to call the upcoming BCS Championship Game between Alabama and Texas a "championship" game (or to call the winner of that game "National Champion" simply because Congress or the FTC does not like the process used to decide the game's participants? This is not like the FTC prohibiting Tylenol from saying it cures cancer or prohibiting OxyClean from saying one use and you'll never have to clean your whites again or prohibiting Nike from directly stating that these new sneakers will enable you to run a two-hour marathon--empirically dubious claims, all. Plus, I am not sure what substantial government interest is at stake here; it does not appear to be public health, safety, or welfare--unless you happen to be a fan of TCU or Boise State.

Plus, this may come close to regulating fully-protected non-commercial speech. The prohibition on sales of merchandise "related to" a non-playoff national championship game would reach, for example, selling hats and t-shirts that say "Alabama/Texas 2009 National Champion." But the fact that something expressive (in this case the hat with the National Champion message) is sold does not make it commercial speech; the seller in this example is engaged in the sale of non-commercial expressive material and the attempt to regulate that sale should be subject to regular First Amendment scrutiny. And obviously the FTC cannot prohibit people from wearing merchandise pronouncing Texas/Alabama as National Champion based on victory in a BCS-based game. Nor can it prohibit the University of Alabama from, say, introducing its team as National Champions, hanging a National Champion banner on its stadium, or wearing special jerseys that say "National Champions." Any such effort would, it seems to me, plainly violate the First Amendment.

All of which calls into question why the bill takes the approach it does. Given the strong interstate commerce connections of collegiate sports, it seems that Congress could directly compel the NCAA and its members to adopt a playoff. It also could have attached a playoff system as a condition on federal funds (which every NCAA member school receives). So it seems odd to incentivize the NCAA into adopting a playoff by going after expression. Seems like what the First Amendment is designed to prevent.

Posted by Howard Wasserman on December 10, 2009 at 08:11 AM in Current Affairs, First Amendment, Howard Wasserman, Sports | Permalink | Comments (0) | TrackBack

A Morning with David Ben-Gurion, or Where did all the Spiritual Leaders Go?

One of my favorite yoga teachers tells us that if you are struggling with a problem, a puzzle, or a challenge, stand on your head. You will see the world upside down and you will find a way. I often practice her teaching in my office instead of staring at my computer screen trying to figure out where I want to go with my analysis or a normative argument. David Ben-Gurion, Israel's first prime minister, liked to stand on his head. He was an avid Yogi and travelled to India to study meditation. Here is a picture of him at 71, in 1957, at the Herzeliya beach (where I am heading to lunch in a bit).

I spent the morning revisiting his home in the heart of Tel-Aviv, on the corner of Ben-Gurion and Arlozorov sts.  I went through his amazing book collection. Every wall of his house constituted part of his library. Ben-Gurion was a complex leader. He was born in Poland, the son of a lawyer and a Zionist activist. Early on, as a young student he joined the Marxist Zionist movement and in 1906 immigrated to Ottoman Palestine. He worked in agriculture but it was his political activism that got him expelled in 1915, and for a few years he lived in NYC, working as a journalist. When he returned to Palestine he quickly became the leader of the Jewish soon to be labor movement, led the 1948 war and on May 14 declared the independence of Israel. Browsing through his bookshelves, I tried to understand what inspired him and how the vast range of readings made sense together. In a pre-internet, pre-tv, low-tech era, Ben-Gurion read everything, in Hebrew, English and Spanish. Plato, Kant, Mill and Gandhi; biology and Jewish thought, economics and poetry, physics and philosophy journals. In the middle, an entire wall covered with book on Buddhism, yoga and Zen thought.



It occurred to me that in Ben-Gurion's world, Buddhist thought and practicing yoga and meditation helped reconcile the many contradictions that inevitably come with good faith leadership. Ben-Gurion said once that people always ask whether we would find a land fit for our people, but no one dared to ask whether there will be a people fit for this Land. Yoga means union and spending the morning with Ben-Gurion I was reminded how incredibly difficult it is in our worldly life to ethically unite the challenges, hopes and needs of a country. Ben-Gurion certainly was courageous enough to devote his life to trying to find such union, even as he stumbled and at some turns, failed. I imagined him stopping for a moment when the dilemmas became unbearable and standing on his head. And I wished that some of our current leaders would learn an inverted asana or two for those moments.

Posted by Orly Lobel on December 10, 2009 at 06:49 AM | Permalink | Comments (8) | TrackBack

Wednesday, December 09, 2009

Senator Orrin Hatch (aka Hanukkah Harry)

Those of you who have already checked your Facebook accounts the last couple days have probably seen this already on the wonderful Tablet site, but the inimitable Jeffrey Goldberg has somehow importuned Orrin Hatch, the Mormon songmeister/senior senator from Utah, to write a catchy new Hanukkah tune, co-written with Madeline Stone, a liberal NYC Jewish songwriter specializing in Christian music, and sung by ... a woman "named Rasheeda Azar, who was not only a back-up vocalist for Paula Abdul (Jew) and Janet Jackson (not a Jew) but is a Syrian-American from Terre Haute, Indiana. Rasheeda’s participation closes a circle of sorts, since the Syrian King Antiochus was, of course, the antagonist in the story of the Maccabean revolt."   I'm both tickled and, I confess, a mite spooked by the fact that the philo-semitic senator sports a mezuzah--take a look for it in the video, which you can watch here. 

Now if only we could make sure the Senator supports health care reform, we'd all be set.

Posted by Dan Markel on December 9, 2009 at 07:50 PM | Permalink | Comments (0) | TrackBack

Tuesday, December 08, 2009

Will SCOTUS finally get rid of prosecutorial discretion to write anti-corruption law?

That's what today's oral argument in Weyhrauch v United States, No. 08-1196 sounded like to me and others as well. If that's the accurate read of the justices' views, then the news is Christmas come early for me. I've been inveighing against the corruption of allowing federal prosecutors to define corruption inveighing against the corruption of allowing federal prosecutors to define corruption since the cert. denial in Sorich. As I argued here, here, and here (in an article rather than a blog post), construing the Mail Fraud statute to cover any action deemed by a U.S. Attorney gives federal executives far too much power to design the ground rules for politics.

Commentators and the Justices usually condemn the Mail Fraud's ban on deprivations of the "intangible right to honest services" for its failure to give adequate notice to defendants. But vagueness is the least of the statute's problems: The greater evil is that construing the statute to cover undisclosed conflicts of interest corrupts our political culture, by encouraging prosecutors to advance their own political careers through the sniffing out of their political enemies' inevitable conflicts of interest and face-saving hypocrisies. Conflicts of interest are endemic to any complex system in which people are expected to play multiple roles, either simultaneously or seriatim. Presidents appoint big fundraisers to be ambassadors to the Bahamas, because Presidents are both Diplomats in Chief and chiefs of their political party. Judges hire the children of friends as law clerks, because judges' social lives bleed into their professional lives. Ex-Presidents advance the political ambitions of their spouses, paying marital debts with political chits. Are these conflicts saved from criminality only because they are disclosed? But then how much disclosure is enough? Why would anyone leave the definition of these rules on disclosure and conflicts of interest to federal prosecutors, officials who, from Dewey through Giuliani to Christie, have been likely candidates for political office themselves and, therefore, have every incentive to nail rivals' hides to the wall in their effort to gain office as heroic virtue-crats?

Of course, one could attempt to narrowly construe the statute. But Albert Alshuler's amicus brief nicely (albeit inadvertently) shows how such narrowing is practically impossible without improperly delegating the definition of federal crimes to the states . It is high time for the Court to send this mess back to Congress for a complete overhaul. I am crossing my fingers that the Court agrees.

Posted by Rick Hills on December 8, 2009 at 11:08 PM in Constitutional thoughts | Permalink | Comments (2) | TrackBack

Eric Barron named new President of FSU

Well, as promised/threatened by the relevant powers that be, the FSU presidential search committee has acted very expeditiously from the time that all nominations were in to the time the selection was made--approximately 3 weeks!

Eric Barron will be replacing TK Wetherell at FSU's helm. This should be a relatively straightforward transition, especially compared to the simultaneous transition over at the Seminoles' football squad, where Bobby Bowden is  finally retiring after a zillion years. Anyone wonder if the president will get paid more than the coach?

The press release appears after the jump.

The Florida State University Board of Trustees today selected alumnus Eric J. Barron, Director of the National Center for Atmospheric Research, to serve as the University's 14th president.

Barron, 58, succeeds T.K. Wetherell, who became president in 2003 and guided Florida State to record heights before announcing in June his intention to retire.

"I am extremely gratified and honored to return to my alma mater and serve as its next president," Barron said. "This is an outstanding university that is poised to become one of the finest in the world, and I look forward to helping it reach that goal."

Board of Trustees Chairman Jim Smith reported to the trustees overwhelmingly positive comments in support of Barron from the 19-member Presidential Search Advisory Committee, which he chaired. That group had interviewed three finalists out of 26 applicants before forwarding the results of its review to the trustees.

"Under Dr. Wetherell's leadership, Florida State University advanced as one of the nation's top public graduate research universities," Smith said. "Now, it is well-positioned to vault to the next level, and the Board of Trustees is extremely pleased to be able to select Dr. Barron as the leader who will take us there."

"His national prominence in his field, his extensive fundraising experience and his superlative administrative skills are an excellent fit for Florida State."

Barron earned a bachelor's degree in geology from FSU as an honors student in 1973. He holds master's and doctoral degrees from the University of Miami, both in oceanography.

He has been director of the highly prominent national laboratory, the National Center for Atmospheric Research (NCAR) in Boulder, Colorado, since 2008.

In his first year there, he developed a strategic plan to address budget challenges that was praised by the National Science Foundation for its transparency and commitment to the future. This year, the Center had its greatest annual budget increase in nearly a decade.

Prior to taking the position at NCAR, Barron was dean of the newly formed Jackson School of Geosciences at the University of Texas at Austin. That school currently is executing a strategic plan developed while he was dean that expanded the faculty, transformed student recruitment and services, developed a lifelong connection to alumni and created a stronger sense of community.

From 1986 to 2006, Barron was at Pennsylvania State University, where he was professor of geosciences, director of the Earth System Science Center, director of the EMS Environment Institute, and finally dean of the College of Earth and Mineral Sciences. While he was dean, his college led all other colleges at Penn State in research expenditures per faculty member, it excelled at teaching and it emerged as an innovative leader on campus in a renewed focus on students and student services.

Barron is a Fellow in the American Association for the Advancement of Science, the American Geophysical Union, the American Meteorological Society and the Geological Society of America. He has received many national awards as a scholar, researcher and distinguished lecturer, has published extensively and has been editor or a member of the editorial boards of a dozen academic journals. He has testified before Congress and has chaired numerous committees in service to the federal government, such as the NASA Senior Review for the Earth Sciences in 2005. He has chaired committees and panels of the National Research Council since 1987 and currently chairs "An Ocean Infrastructure for U.S. Ocean Research in 2030."

A highly visible scientist, Barron stressed his commitment to the full spectrum of academic disciplines, saying he is "an ardent supporter and advocate for the full spectrum of excellence in the arts and humanities, sciences, law, business and medicine."

A native of Lafayette, Ind., Barron has two grown children. He said he and his wife, Molly, are "a partnership" and that she will be an active participant in supporting Florida State University while he is president.

Posted by Dan Markel on December 8, 2009 at 10:51 PM in Funky FSU | Permalink | Comments (2) | TrackBack

Marbury in Introductory Constitutional Law

I am currently completing my syllabus for Constitutional Law I, the first of two required constitutional law courses at Boston College. The first, which we teach in the second semester of the first year, covers structural constitutional law while the second, which students may take in either their second or third year, focuses on civil and political rights.

Inspired in part by the work of Sanford Levinson, who was kind enough to visit my advanced seminar on constitutional politics last week, I have been debating the merits of when, and whether, to assign Marbury v. Madison.

I will keep Marbury in my preliminary syllabus, unlike Levinson, who does not teach Marbury in introductory constitutional law courses because of the "opportunity costs that must be paid in order to teach Marbury well." (Read more from Levinson here and here. A subscription is required for the first link.) 

But I've decided, tentatively at least, to depart from (what was once, still is, may always be???) the norm, which is to begin with Marbury. I will instead start with an historical and theoretical study of Article V, which prescribes the textual rules for amending the constitution. 

This, I think, will be a useful entrée into the larger themes of the course, namely federalism, the separation of powers, representative versus direct democracy, and the locus of sovereignty in the American constitutional order. It will also be an occasion to read some constitutional history, which adds great richness to the study of constitutional law.

I'm curious, though--do any Prawfs readers begin with Marbury? If yes, do you have a particular reason why? If you do not begin with Marbury, where do you begin?

Posted by Richard Albert on December 8, 2009 at 09:14 PM in Teaching Law | Permalink | Comments (10) | TrackBack

The Development of the Decade in Legal Academia?

I’m usually not a huge fan of “Year in Review” lists. I don't even watch “I Love the 70s/80s/90s.”  But over the past few weeks, decade retrospectives have become about as consciousness-permeating as holiday music, and somehow I find that I can’t resist the urge to look back.

So let’s hear it: What was the most significant development in legal academia this decade?  I mean the question to be as broad as possible, so feel free to nominate areas of study, hiring practices, or whatever else you think matters.

Since I started the thread, I’ll also grab what seems to me to be the lowest-hanging fruit: blogging.  Whether or not its influence it will be “transformative” in a lasting way remains to be seen, I suppose, but it’s certainly transformed the way that legal scholars write, think, and exchange ideas.

And be thinking about your votes for Article of the Decade (i.e., anything with a publication date between 2000 and 2009). I'll start a thread for that sometime soon.

Posted by Joseph Blocher on December 8, 2009 at 03:50 PM | Permalink | Comments (15) | TrackBack

What are the good bad books today?

The term “good bad books” originates with George Orwell, I think: He used it to refer to low-brow books that lacked the academic or cultural pretension of great literature but nevertheless were irresistibly fun for intelligent people to read. At the time that Orwell coined the phrase, Kipling’s work counted as good bad books, as did Sherlock Holmes stories, Bram Stoker’s Dracula, and a bunch of others. As Orwell noted, sometimes these books long outlast the classics to which they are unfavorably compared, and sometimes they evolve from the status of pulp to camp classic to an academic classic worthy of a volume in the Library of America (Consider H.P.Lovecraft or Raymond Chandler as examples – although Chandler was arguably a faux good bad book, given the high-brow pretensions with which his work was treated during his lifetime).

Orwell says about good bad books that “[i]n each of these books the author has been able to identify himself with his imagined characters, to feel with them and invite sympathy on their behalf, with a kind of abandonment that cleverer people would find it difficult to achieve. They bring out the fact that intellectual refinement can be a disadvantage to a story-teller, as it would be to a music-hall comedian…. The existence of good bad literature — the fact that one can be amused or excited or even moved by a book that one's intellect simply refuses to take seriously — is a reminder that art is not the same thing as cerebration.”

So what counts as a good bad book today? What sorts of books do you read as a guilty pleasure, knowing that their authors are not clever or well-educated and that their reputation are academically disreputable? (Of course, I will not take your answers seriously unless they are anonymous: Any book that you, an academic, are willing to admit that you like to read cannot count as a good bad book).

Posted by Rick Hills on December 8, 2009 at 02:59 PM | Permalink | Comments (13) | TrackBack