Thursday, September 30, 2010
Addressing Sensitive Issues in the Classroom
Many of us find it difficult to address issues of race, ethnicity, gender, and sexual orientation in the classroom. Yet, we must be mindful of these issues as well as others that can be especially sensitive for students. When an issue arises – for instance, when a student makes a comment that involves assumptions about a particular racial group – it is important to find effective methods for responding. Depending on the substance of the comment and the surrounding context, the range of appropriate responses will vary.
Next week, I will be leading a discussion at my university on these issues, along with my law school colleague Danielle Holley-Walker and Michelle Jay, a colleague in the education studies department. As this is my last post here at PrawfsBlog – farewell, thanks for having me! – I thought I would conclude by inviting your comments and suggestions for creating an inclusive classroom. It would also be interesting to hear examples of difficult situations that have arisen in some of your classes and how they were addressed.
Hostile Student Speech About School Officials
Thanks so much to Dan and the rest of PrawfsBlawg for letting me guest-blog this month. In this final post, I wanted to briefly talk about my current paper, Badmouthing Authority: Hostile Speech About School Officials and the Limits of School Restrictions, which will be published in the William & Mary Bill of Rights Journal next year.
This past spring, while reviewing the most recent student internet speech cases in connection with teaching my Law & Education class, I suddenly realized something--an incredible number of these cases actually involved one specific type of speech: hostile speech about not fellow students, but school officials. (Fake profile pages for school officials seem to be a particular favorite, with the profiles sometimes portraying them as pedophiles or drug users.) I became very curious about various aspects of this issue. First, I was interested in the legal, First Amendment aspect of it: how have courts traditionally approached hostile student speech about school employees when it occurs on campus, and how does that analysis change when the speech is on the internet? But I was also curious about it from a psychological perspective--what prompts this sort of speech in the first place? Why, when it occurs on the internet, is this speech often so strikingly vulgar? Is it better, pedagogically speaking, for schools to just ignore such speech or should they respond to it in some way? For that matter, are there legal constraints on a school's ability to just ignore such speech, given that the target is a school district employee? (In certain cases, school district employees targeted by such speech have experienced significant emotional distress as a result, even leading to a leave of absence.)
You can read my take on those questions in the article, but I'd be very interested in readers' gut reaction to these questions, particularly the less purely legal ones. In particular, should schools basically ignore such speech when it occurs on the internet?
Today marks the end of my first guest stint here at Prawfs. Thanks much for having me. It's been an enormously enjoyable and engaging experience, and I definitely look forward to bumping into Prawfs posters and readers -- whether electronically or in person -- in the future. In the latter case, drinks are on me.
Cross-ideological consensus on free speech?
Michael Dorf summarizes his interesting recent talk on the development of cross-ideological consensus for broad protection of free speech. Pointing to last term, he argues that while three cases (Holder, Citizens United, and CLS) divided along predictable ideological lines, there was broad consensus in favor of the free-speech claimant in two other cases (Stevens and Doe v. Reed).
Of course, an ideological cynic (and in June I was on a Supreme Court Review panel moderated by just such an ideological cynic) would say that there is no commitment to free speech, only to raw ideological outcomes, with free speech as a means to that end that the conservatives accept only in furtherance of favorable political goals. So the conservatives accepted the First Amendment claim in Stevens because the statute was broad enough to prohibit hunting videos--and the conservatives like hunting. But a narrower statute that would not reach hunting videos (which Congress is considering) would survive because the Court's "conservatives" would join Justice Alito (who dissented in Stevens), because they no longer have a political dog in the fight (sorry for the unfortunate pun). And they accepted the First Amendment claim in Doe v. Reed only because it was a narrow decision on a facial challenge; the proof will be when the conservatives accept the as-applied challenge by SSM opponents presenting purely anecdotal evidence of harassment by gay-rights supporters in another state in another ballot dispute. I don't buy this; but someone who wanted to latch on to the hard-core, overly simplistic "it's all politics" view could explain away most of what happened last term.
I agree that free speech should not have an ideological valence. There is commitment to speech principles that carry the day regardless of whose ideological ox benefits. But I am not sure how many people are left (especially on the Court) who are truly committed to free speech as a independent value. Dorf points to Texas v. Johnson as a high-water mark of an ideological mix on a sharply (5-4) divided Court. But really the only surprises there were Scalia and Stevens, who switched places from what was expected (see this post by Sonja West, a former Stevens clerk, on Stevens' Johnson dissent). The rest of the Court fell in more or less as one would expect by examining politics. And Kennedy is not surprising because he is, in my view, the most consistent free-speech supporter on the Court (along with Justice Thomas). Any way, only two members of the Johnson Court remain, so I am not sure how valid that case remains as an example of ideological consensus on speech or of genuine ideological mix-and-match in the coalition. A more recent example might be United States v. Playboy Enter. Group, where the Court struck down a requirement that cable channels showing sexually oriented material must block or scramble; that produced a majority of Kennedy, Stevens, Souter, Thomas, and Ginsburg and a dissent of Breyer, Rehnquist, O'Connor, and Scalia. But note again, only two justices departed from what we might "expect."
Owen Fiss twenty years ago described the "ideological drift" of the First Amendment. There are two sides to this. One, as Dorf notes, is that politically conservative groups "discovered" the benefits of the First Amendment for pushing their political interests--religious groups seeking access to the public square, corporations seeking to advertise, and people challenging "political-correctness" limits on expression. Not a problem there, for the most part, because anyone committed to general free-expression principles mostly would continue to protect speech in those cases. But the flip side was the political left abandoning pure free speech principles in favor of (or at least with some respect for) other constitutional values, especially equality and the rights of historically disadvantaged groups. Nothing illegitimate about that choice (although I have a different constitutional view). But it produces the divide on campaign finance and it produces the divide in abortion-protest cases such as Colorado v. Hill. On the other hand, the ideological conservatives on the Court have not shown any greater inclination than their predecessors to protect the rights of anti-war protesters to march without permits anywhere they want in New York during political conventions or to protect the rights of porno theatres or strip clubs to open where they want to in business area. So I am not sure where the divide takes us.
So what does this mean to the coming term's major First Amendment cases-- EMA (challenging regulations on violent video games as to minors) and Snyder (involving a civil judgment against the Westboro Baptist Church for their obnoxious protests)? Snyder strikes me as an easy case and I am guessing at a 9-0 affirmance that civil liability cannot attach; my ongoing hesitation is why the Court would take a case just to affirm 9-0. EMA is a tougher call. It depends on whether folks view violent speech as akin to sexually explicit speech, in which case the "conservatives" may reject the free-speech argument.
This Is The End: My Guest Blogging Postmortem And A Call For Future Posts/Polls
As I did the last time I guest blogged here, I thought that I would wrap up this guest blogging stint with a post listing my expectations for the various polls that I posted here and the actual results of those polls. As you can see from that prior post, I wasn't exactly the Amazing Kreskin in predicting the responses last time around. This time around, however, my powers of prognostication were much better although there were still several surprises.
In my first post, I had a poll asking "How do you feel about the number of required classes in law school?" I expected the number of respondents wanting to increase the number of required classes to be roughly equal to the number of respondents wanting to decrease the number of required classes or keep the number of the required classes the same. The results: 37 (50%) wanted more required classes, 15 (20%) wanted fewer required classes, and 22 (30%) wanted to keep the number of required classes the same. So, it was indeed an even 50/50 split.
In my second post, I asked: "Should Law Schools Have Mandatory Pro Bono/Public Service Graduation Requirements?" I didn't expect many respondents to answer "yes," and that expectation was borne out by the results: 17 (34%) answered "yes" while 33 (66%) answered "no." Of respondents at schools with such requirements, 6 answered "yes" while 5 answered "no."
In my third post, I asked whether respondents preferred ExpressO or the pre-ExpressO law review submission days. I expected most respondents to prefer ExpressO based upon its efficiency, and the results had 28 respondents (61%) preferring ExpressO and 18 respondents (39%) longing for the good old days.
In my fourth post, I asked how much teaching respondents did in their first class session: a full class session, a partial class session, or no teaching. I thought that most respondents would answer that they teach a partial class session, but the results had 70 respondents (64%) teaching a full class session, 32 respondents (29%) teaching a partial class session, and only 8 respondents (8%) not teaching at all.
In my fifth post, I asked how we can increase the percentage of students completing student evaluations. There was no poll connected to this post, but I think that I got some very good advice in the comments section.
In my sixth post, I asked: "Do you use a mid-semester evaluation?" and "Should tenure committees use mid-semester evaluations in tenure/promotion decisions?" I expected most respondents to answer "no" to the first question. The results matched this expectation, but it was closer than I thought. 26 respondents (43%) answered "yes" and 34 (57%) answered "no." Meanwhile, I expected very few respondents to answer the second question in the affirmative, and only 1 out of 10 respondents answered "yes."
In my seventh post, I asked: "Should tenure committees solicit outside teaching reviews?" I didn't expect many respondents to answer "yes," and the results had 5 respondents (36%) answering yes and 9 respondents (64%) answering "no."
In my eighth post, I asked how professors grade exams: the exam by exam approach or the question by question approach? I expected most respondents to use the latter approach, but I didn't quite expect the split I got in the results: 89 (85%) respondents grading question by question and only 16 (15%) grading exam by exam.
In my ninth post, I asked: "Would a decrease in the number of questions on student evaluation forms significantly increase the percentage of students completing them?" I expected that most respondents would agree with this proposition, and they did, with 33 respondents (85%) answering in the affirmative and only 6 (15%) answering in the negative.
In my tenth post, I asked whether respondents were in favor of the idea of e-mail office hours, not expecting to find too many takers. And indeed, there weren't many, with 30 respondents (68%) thinking that they are a bad idea and only 14 respondents (32%) thinking that they were a good idea.
That post led to my eleventh post, which asked: "Do You Answer Student Substantive Questions Over E-mail?" I thought that most respondents would answer "yes," and 52 respondents (73%) indeed answered "yes" with only 19 (27%) answering "no."
That post also prompted my twelfth post, which asked: "Do traditional office hours still make sense?" I expected a majority of professors to answer "yes." I was right, but it was a bare majority: 33 respondents (51%) answered "yes," but 32 (49%) answered "no."
I would like to again thank Dan Markel for inviting me back to guest blog at PrawfsBlawg and its readers for your helpful comments and poll responses. As one guest blogging stint ends, I am already preparing for the next one. So, if you have any posts/polls that you want me to do in the future, feel free to leave a comment to this post or e-mail me at email@example.com.
Riot in Eugene
Last Friday’s party-turned-riot in Eugene, Oregon was a pricey one. Over 400 people strong, it took 50 police officers to disperse the bottle-throwing, car-window breaking, street-sign-vandalizing crowd. The total cost, including tear gas, police overtime, sign replacement, and clean up, exceeded $10,000. The neighborhood hosting the event is packed with University of Oregon student renters, for whom civil disobedience appears to be a rite of passage. The incident marked the 2-year anniversary of a similar upheaval in the same neighborhood and the 5th major outburst in this particular area near the university in the past 8 years. The Fall 2002 riot (yes, there was one in the spring as well) resulted in an estimated $40,000 in damages – a reasonable sum for a mob of 1500. These gatherings all seem to begin in an alcohol-infused, festive way and to end with police officers in riot gear.
Clearly, Eugene has been getting lots of practice at quelling student riots. Is there a way, however, to stop the riots from recurring? Perhaps, communal responsibility would help. This was once the approach in many states and for nearly 200 years in England. Pursuant to these statutes, riot victims could sue the locality in which the riot took place for property damage meted out by mobs. Riot statutes thus held local governments (and local residents via taxation) strictly liable for riot damages. (I’ve written more about these statutes here.)
Eugene might therefore take a page from the riot statutes of yesteryear by imposing collective financial responsibility for riots on residents of the west university neighborhoods where the riots have been forming. If the consequences were clear, residents hosting parties would have a reason to keep things from getting out of hand and neighbors might be quicker to alert authorities to impending disturbances. Although students don’t tend to be property owners, landlords in the affected areas would likely pass the costs on to their tenants and would also have greater incentive to rent with care and to keep an eye on their property. (You might think basic property maintenance would lead to the same result, but then you probably have not looked at student rental housing recently.)
Setting aside practicality, though, there is the small matter of punishing the innocent alongside the riot happy. A collective-responsibility regime seems to conflict with the law’s usual focus on individual actors, because liability does not turn on the state’s establishing any person’s involvement in a riot. In fact, actual innocence is no defense. On the other hand, effective response to widespread harms may call for a broader framework, creating appropriate incentives for residents when individual responsibility is too costly to determine (if it can be assessed at all). An enduring question for disaster law and policy, then, is how we can effectively mitigate disaster harms, preserving the safety and welfare of communities, without sacrificing individual rights along the way.
Wednesday, September 29, 2010
Greg Giraldo, R.I.P.The comedian and Harvard Law graduate died of an apparent accidental overdose. Condolences are being left on his Facebook page. Ten years ago Giraldo was one of the HLS grads profiled for the Esquire story "Who's Killing the Great Lawyers of Harvard?"
Lawyers and Law Profs: Not Apples and Oranges
In an earlier post on the value of experienced lawyers as full time legal academics, I made the argument that the academy undervalues such experience - a position that undoubtedly resonates with me because the category includes people like me.
But, while I argue that substantial experience has value that our colleagues often do not recognize, I also wanted to respond to the implicit criticism that what law profs do has little to do with what lawyers do. I have more or less irrevocably crossed the great divide, but I still practice a little law and being an academic has made me a better lawyer.
The reason, I think, is that I was forced to look at the law with eyes that are both fresh (those of a scholar) and old (those of the student that I once was). Doing that requires shedding assumptions and routine ways of doing things. It requires thinking expansively about the law in ways that the "legal situation" does not always permit but which it occasionally needs. It has made me a particular type of lawyer and maybe I am a better lawyer because, in my limited practice experiences, I can operate in a context that is free from the limitations on the routine practice. I am generally called to be strategic (and, to a lesser extent, tactical) but rarely executory. Still, it has been a wonderful reconnection with what I long ago regarded as the essence of practicing law.
Tuesday, September 28, 2010
Benedict (and More) in Westminster Hall
I hope Prawfsblawg readers won't think it's out of line, or even just weird, if I pass on this link to the Pope's September 17 address in Westminster Hall. His remarks might be of interest to lawyers, legal scholars, and law students, given that he shared them
conscious of the privilege afforded me to speak to the British people and their representatives in Westminster Hall, a building of unique significance in the civil and political history of the people of these islands. Allow me also to express my esteem for the Parliament which has existed on this site for centuries and which has had such a profound influence on the development of participative government among the nations, especially in the Commonwealth and the English-speaking world at large. Your common law tradition serves as the basis of legal systems in many parts of the world, and your particular vision of the respective rights and duties of the state and the individual, and of the separation of powers, remains an inspiration to many across the globe. . . .
After noting that he was speaking in the very room in which Thomas More was tried and condemned, he observed that
The dilemma which faced More in those difficult times, the perennial question of the relationship between what is owed to Caesar and what is owed to God, allows me the opportunity to reflect with you briefly on the proper place of religious belief within the political process. . . .
This matter -- i.e., the "proper place of religious belief within the political process" -- is, of course, of great interest to many of us, and I'd welcome any thoughts on the Pope's short reflection. Are his thoughts and his proposal consonant with our understanding of how this matter should be treated in American law?
Adding Insult to Injury?: Amanda Knox Charged with Slander
Amanda Knox, the American college student convicted of murder in Italy, now faces charges that she slandered the Italian police by claiming they hit her in the course of questioning her about the murder. The charge could end up adding another six years to her 26-year sentence for murder. Evidently her mother also faces charges for repeating her allegations. From an American perspective, the slander charges are an unnecessary absurdity. Did Knox's allegation really endanger the reputation or dignity of the Italian police? The case is a reminder of why we as Americans should be grateful that New York Times v. Sullivan protects us from being hauled up on seditious libel charges every time we venture to criticize government officials. Sullivan undoubtedly has led to a coarsening of public discourse, but it has largely spared us from government officials using libel and slander actions to silence their critics.
Do Traditional Office Hours Still Make Sense?
My office hours after we discuss hearsay, students get their "results" back from their ungraded midterms, or in the days before the final: There's a line outside of my office, and it might take a student 30 minutes before he or she sees me. My office hours on some random Thursday or after we have a class on a topic such as the rape shield rule that won't be covered on the exam: nary a soul in sight. And, how did I arrive at my office hours? At the start of the semester, I picked some times that I didn't think would conflict with my schedule. Which of course means that at least one of those hours will start conflicting with something a week into the semester. And that my office hours will conflict with the schedules of many of my students. This all seems terribly inefficient to me, and it prompts the question: Do we still need office hours in the traditional sense?
A post on Confessions of a Community College Dean notes that traditional office hours used to make sense in a world that lacked asynchronous-but-quick communication. Back in 1990, if there were no traditional office hours, if a student couldn't schedule a time to meet with a professor before or after class, the student would be stuck with stopping by the professor's office and waiting for the professor to arrive or playing a game of phone tag. But now, I can, and do, easily schedule meeting times with students relatively rapidly over e-mail. In fact, I encourage students to do so because of the possibility of a student backlog during office hours. Moreover, such students often tell me the specific subjects they want to discuss over e-mail, which often leads to more fruitful conversations.
So, do traditional office hours still make sense? I don't know, but I think that I'll keep them just in case they do. I still think that it's comforting to students to know that I will always be in my office certain hours during the week, ready to answer their questions. And I still worry that there are students who will stop by during office hours but won't make the extra effort to schedule a meeting in the absence of such established hours. So, what do readers think? You can respond by leaving a comment and/or responding to the following poll:
One of my favorite writers, Martin Gardner, wrote (years ago) of an interesting fact: in percentage terms, more physicists believed in ESP than did psychologists. The difference was small, and both groups overwhelmingly did not believe; something like 94% of psychologists and 88% of physicists were nonbelievers, if memory serves.
Gardner’s explanation (again, from memory) was that psychologists were intimately familiar with the way people delude both themselves and others, and accordingly skeptical of ESP accounts. Physicists, in contrast, were largely nonbelievers, but were not quite as confident that ESP “evidence” was the product of delusion, confusion, or fraud.
I don’t believe ESP exists. Maybe I’m wrong. But assuming I’m right (as I like to do), for me the above is interesting because physicists had more of a blind spot than psychologists on an issue where, at first take, you might expect physicists to have better access to the truth. I often wonder: on what issues or in what areas do legal academics have blurrier vision than would be expected? I realize the question is a bit poorly defined, but I think the gist is clear enough. Where are we blinder than we think? (No credit for answers like “haircuts” or “fashion.”)
The Latest from AALS on SF labor dispute
In short, no move, described as "the best between two bad choices". Here is the statement below.
Important Message Concerning the 2011 AALS Annual Meeting & San Francisco Labor Dispute
Dear Faculty and Staff,
We write to you now to share our enthusiasm about the Association of American Law Schools' upcoming Annual Meeting on January 5-8, 2011. We have scheduled an exceptionally diverse and well-designed program, and registration is open and active. Many of you, as volunteers, have been working hard to create programs that will make this an intellectually engaging and enjoyable Annual Meeting, and we thank you for your dedication and generosity. And of course many of us have been looking forward to our San Francisco location.
San Francisco Labor Dispute
We also write to tell you, however, of a serious situation that has developed in San Francisco. It affects many of the city's hotels, including two of the three that AALS contracted with nearly a decade ago in March 2001 to hold our 2011 Annual Meeting. Unite Here! Local 2 represents workers at the Hilton San Francisco Union Square and Parc 55 hotels. The collective bargaining agreement between the workers and the hotels expired more than a year ago. Our headquarters hotel (The Hilton), where we are scheduled to hold all AALS sponsored meetings and events except the Gala, is now the subject of a boycott and Union members at the Hilton have recently voted to authorize a strike. Another of our hotels, Parc 55, is not yet affected, but together with a huge percentage of San Francisco's larger hotels it is listed by the union as being "at risk" for boycott. Our third hotel, the Hotel Nikko, is a non-union hotel. While our strong hope is that the negotiations can be completed to both the workers' and management's satisfaction, we recognize that an agreement may not be reached by the time of our meeting.
A Difficult Decision
After considering the implications of possible alternatives, we have decided not to cancel or relocate the Annual Meeting. We emphasize that in coming to this decision, AALS is not in any way commenting on the labor dispute in San Francisco. We regard our decision as the best among the bad choices we face. It is both painful and disappointing to anticipate the impact of an unresolved dispute on the conduct of our meeting, should that come to pass. This message will first explain why we have decided to go forward with the meeting in San Francisco, and then will describe some of the special steps we will take which we hope will enable more of those who wish to attend to do so.
We start with a simple premise, the idea that an organization of law schools should honor its contractual commitments. Furthermore, AALS' ability to secure the types of meeting space we need by contracting long in advance depends over the long term in no small part on our record of honoring our contracts.1 We also want you to know that the logistical issues presented by the relocation of a meeting of this complexity are enormous, particularly given our small staff, and these issues reinforced our thinking, especially given the relatively short time remaining between now and the meeting. As many member schools face rising costs and shrinking law school budgets, AALS' long term efforts to place a priority on providing programs at reasonable cost seems more important than ever.
The Annual Meeting is a large and complex undertaking; we believe it constitutes the largest gathering of law faculty in the world. It involves over 3500 participants from all over the globe, leading and attending over 300 programs, committee meetings, receptions, awards ceremonies, and other events. Because of the size of our meeting, only a small number of hotels and very few cities have the meeting space that we require. The other San Francisco hotels with significant amounts of meeting space are either on the union's boycott list or are listed by the union as "at risk" of dispute. The convention center is booked for our meeting dates and is therefore unavailable to us.2 Some have asked "Why can't you move the Annual Meeting to another city when you did so after Katrina?" Our answer has some different threads. We think that exceptional circumstances such as a natural disaster demand heroic efforts. The choice in Katrina's wake was to cancel the meeting entirely or to find an alternative and make it work. Fortunately it became unnecessary to cancel because: (1) the hotel AALS regularly uses at least twice a year was available, (2) that hotel was in the city in which AALS is based, and (3) a staff that normally works exceptionally long hours for the month before the annual meeting worked even harder under intense pressure. In that circumstance, even with a move to a hotel that the meetings staff knows in complex detail, we learned that the human costs of relocating an enormous meeting on such a short time frame run broad and deep. Particularly now, with a smaller staff and an increasingly complex set of priorities for the organization, a last minute move would not only be precariously difficult, it would compromise our ability to accomplish other important goals and projects as well.
We are sensitive to the fact that in our member schools there are many who have strong personal feelings about the issues involved, including speakers and members of the AALS Executive Committee. We are attempting to ameliorate the negative effects that the circumstances in San Francisco present for those who would like to attend but who, on principle, do not wish to enter a hotel under boycott or on the union's "at risk" list, or choose between not crossing a picket line and attending their professional programs.
Our staff has been working intensely over the last few weeks to identify workable options in light of the small amount of remaining time before the Annual Meeting, and to explore ways that we can adapt portions of our plans to accommodate attendees while maintaining the integrity of the meeting. We acknowledge that the amelioration measures described below are not a comprehensive solution and are far from perfect, but we hope they will make a difference.
- Alternate Meeting Space
All AALS programs have been scheduled for the headquarters hotel, the Hilton San Francisco Union Square. The Executive Committee believes that the circumstances call for some unusual steps, primarily the use of alternative spaces for some programs.
In our judgment, the least disruptive and most desirable alternative is the significant block of meeting rooms at the Hotel Nikko, located across the street from the headquarters at the Hilton. In addition to proximity to the Hilton, using the Hotel Nikko will enable AALS to provide comparable levels of technology and customary meeting services for programs relocated to this site. (We emphasize that the other proximate hotels with significant amounts of meeting space are not workable options because they are also subject to the boycott or are on the union's "at risk" list.) We are still exploring the availability of a small number of other nearby spaces.
We will be communicating to Section officers and Committee chairs about the process for making requests for alternative arrangements within two weeks. We will receive requests for alternate locations from Section leaders and Committee chairs that: (1) explain the rationale for the request and (2) demonstrate that all Section officers and Section Executive Committee members have engaged in careful consideration of the impacts on the planned program and agree that the change should be made.3 We ask that Sections wait for the request form and accompanying informational memorandum before initiating their deliberations. Staff will work to ensure that those responsible for Section and Committee programs have full information on which to base their judgments.
In determining alternate venues, staff will consider how we can best make the meeting venues work together, in order to minimize the difficulty attendees may have in taking part in all programs of interest to them. We will also attempt to ensure that programs are not relocated to venues that will not be able to accommodate all of those who wish to attend. We acknowledge that depending on the number of requests we receive and the size of alternative spaces, AALS may not be able to accommodate all requests to relocate.
We believe strongly that it is extremely important that all registrants be able to verify the location of the meetings from information they receive in their registration packets. In our experience, web site postings alone are not adequate once people are onsite and moving from meeting to meeting particularly given the extensive program.
All programs will be held during their original time slots, regardless of venue. Badges will be required for entry to all relocated and original venues.
- Registration Related Measures
Because of the complexity and size of the registration function, and the small number of knowledgeable staff available to devote to it during the meeting, we will continue to locate registration in one place, the Hilton. If the Hilton remains on the boycott list, we will make limited arrangements for pre-registered attendees who request alternative pick up of meeting materials and badges in San Francisco as follows:
Offsite Will Call:
Pre-registered attendees requesting to pick up badges and meeting materials at a site other than the Hilton may do so by:
- completing an Annual Meeting registration form before December 1, 2010 and
- Notifying AALS staff of their request for off-site pick up by December 1, 2010, by following directions that will be posted on the website.
Instructions, including location and hours, will be posted on the AALS website when they become available.
This "Will Call" offsite pick up location (still to be determined) will be staffed at hours posted on the website, and will not be open the extensive hours of regular registration. Note that badges and meeting materials for all those who request this option will not be available at the main registration site in the Hilton.4
Pick Up by Proxy:
Registrants who do not wish to enter the Hilton but who do not request Off-Site Will Call by December 1 may designate a friend or colleague to pick up their badge and meeting materials in the Hilton. Instructions to make this designation will be posted on the AALS website when they become available.
If the boycott is ended, or an agreement reached, we will cancel these alternate registration measures and hold all registrants' badges and meeting materials at the AALS registration site in the Hilton.
- Amended Fee Refund Policy for 2011 Annual Meeting
Because of all the uncertainties our registrants will face, we have modified our registration refund policy as follows: Full registration fee refunds will be given for all requests received before December 1, 2010.
Consult the Website for the Latest Information in the Coming Months
Please continue to visit www.aals.org/am2011/ for the latest information about the Annual Meeting.
Thank you for your patience as we work to address these significant additional challenges. We hope that we will see many of you in San Francisco.
H. Reese Hansen, 2010 President
Michael A. Olivas, President-Elect
Susan Westerberg Prager, Executive Director
1 Only once in our modern history has AALS not complied with its contractual obligations to a headquarters hotel, and in that situation AALS staff had nearly a year to plan and execute new arrangements. It is also important that we clarify the facts relating to the recent San Diego meeting. When we decided to locate our headquarters in the San Diego Marriott in 2009, our hotel contracts provided that either the Manchester Hyatt or the Marriott could serve as the headquarters hotel. Finally, in the devastation following Hurricane Katrina, the City of New Orleans informed AALS that we could not hold the 2006 Annual Meeting in the city.
2 This would not have been a good option for us in any case. The AALS has not used convention center venues for more than 28 years for good reason. They entail significantly higher costs, work far greater burdens on our staff, are inconvenient for our registrants, and lack the full meeting services provided by hotels.
3 In the case of Committee sponsored programs, requests must be made after careful consideration by all Committee members.
4 If there are mistakes, the person staffing the alternate site will not be able to verify the problem or correct it, and there will necessarily be a delay in getting corrections made and transmitted back to the offsite Will Call location.
Monday, September 27, 2010
FSU and ACS Criminal Justice in 2020 Conference: Updated Schedule and Registration
As mentioned in these pages earlier, FSU and the ACS are hosting a really neat conference on the future of criminal justice here in funky t-town. The schedule I circulated earlier has been updated somewhat (see below) but I hope y'all are marking your calendars for Oct 7-8th! If you're a crim prawf, lawyer, law student, or just someone interested in criminal justice issues, I hope you'll come to this (free) conference at FSU. You can register over here. Kudos to ACS, my dean (Don Weidner), my colleagues Susan Bandes, Reid Fontaine and Wayne Logan, and our wonderful support staff for making this happen. As I find out information about streaming the conference, I'll let you know. And this week and next, Jack Balkin is posting a blog post from each of the contributors up on Balkinization. (Sorry for my dithering Jack; I'm almost finished mine!) Anyway, here's the updated schedule:
Thursday, October 7:
6 p.m. - Keynote Address by Steve Bright, Southern Center for Human Rights
Friday, October 8:
8:30-8:55 a.m. - Opening Remarks Dean Don Weidner, Florida State University College of Law, Professor Jack Balkin, Yale Law School
9-10:30 a.m. - Panel One: National Security and Liberty
Jack Balkin, Yale Law School (moderator), Susan Herman, Brooklyn Law School and ACLU, John Parry, Lewis & Clark Law School, Marc Rotenberg, Electronic Privacy Information Center, Chris Slobogin, Vanderbilt University Law School
10:40 a.m.-12:10 p.m. - Panel Two: Crime Control and Equality
Susan Bandes, DePaul University College of Law/Florida State University College of Law (moderator and panelist), Darryl Brown, University of Virginia School of Law, Song Richardson, DePaul University College of Law, David Sklansky, UC Berkeley School of Law
12:15-1:15 p.m. - Lunch: Remarks and Q & A with Judge Lynn Adelman, E.D. Wisconsin
1:20-2:50 p.m. - Panel Three: Citizenship and Community
Jack Chin, University of Arizona College of Law, Bernard Harcourt, University of Chicago Law School, Wayne Logan, Florida State University College of Law, Richard Myers, UNC School of Law (moderator)
3-4:30 p.m. - Panel Four: Punishment and the Constitution
Doug Berman, The Ohio State University Moritz College of Law, Sharon Dolovich, UCLA School of Law, Reid Fontaine, Florida State University College of Law (moderator), Dan Markel, Florida State University College of Law
Sunday, September 26, 2010
Podium Filling Visitor Spots for 2011
I received a request from a reader recently to put up a thread in which schools can share information about the need for podium visitors starting anytime in 2011 (including spring or summer of this academic year). If you think your school may be interested in having a summer visitor or any other kind, please use the comments on this thread to share the relevant information about which school, which subjects and the contact info of the relevant person(s). Thanks!
Saturday, September 25, 2010
Inside Job and Academics
The new documentary about the recent financial crisis takes a look not just at financial insiders, politicians and journalists, but also at academics. Here is a taste via the WSJ:
"As "Inside Job" notes, research and for-hire reputations are a big business. Companies including Charles River Associates and LECG Corp. are for-profit companies that sell the services of academic experts. Until now, the conflicts of interest among academics who moonlight as well-paid corporate advisers haven't been page-one material. But "Inside Job" breaks new ground by exposing the failure of universities to regulate the integrity of their biggest stars...the honor and independence of the economic discipline in academia has become so sullied that it poses "systemic risk" by influencing policy. "
Geographies of IP
I am at a terrific conference at American University, The Second Annual ISHTIP workshop. ISHTIP, the International Society for the History and Theory of Intellectual Property is a deeply interdisciplinary association, bringing together historians, philosophers, musicologists, art and literary scholars, politcal scientists, and legal scholars. It is also highly international. Last year's conference happened in Italy. This year presenters have come from Australia, Canada, France, Sweden, Germany, England and the U.S. The confernece takes an interesting format, in which the commentators present the papers and the authors merely react. I liked the format -- my paper, Innovation Motivation, was presented by David Lametti (McGill University) -- hearing your paper be presented by someone else is a very good learning process indeed. Soon the conference proceedings will be streamlined on the society's website.
Bits Without Borders Conference
I am at the fabulous Bits Without Borders conference at Michigan State University College of Law. I am presenting my paper entitled Public Forum 2.0. Yesterday featured a host of great papers, including one by James Grimmelman from New York Law School on the lessons about the rule of law we can learn from the failed experiment of Sealand. Be looking for it soon in a law review near you.
Friday, September 24, 2010
Mainstreaming Women in Disaster Recovery Efforts
This post continues my discussion of social justice issues concerning women and disaster. Again, an adequate legal framework for development and recovery planning must recognize that women are vulnerable to disaster harm, including gender-based violence, and that they should be encouraged to participate fully in disaster recovery efforts.
Although there is relatively little legal scholarship in this vein, I am learning from a wealth of front-line policy work. This literature describes the differential impact of disasters on women and suggests practical approaches for mainstreaming women into the recovery process. Heeding the call, some organizations have already sought to protect and empower women. Take, for example, the Crescent House Healing Center, which provided support for domestic violence victims in the aftermath of Katrina through extensive outreach efforts and by maintaining a constant presence at the local FEMA facility. Or consider the work in earthquake-shattered Latur and Gujarat of Swayam Shikshan Prayog (SSP), an NGO based in Mumbai. SSP aided local women in rebuilding their communities, recognizing the leadership of women as well as providing skills training for sustainable livelihoods.
While private groups and NGOs have successfully integrated women’s voices into disaster planning and recovery, governments have lagged behind. Even worse, the designation of government relief monies for the “head of household,” coupled with the assumption that the head is male, further disenfranchises women. This gendered notion of family affected resource distribution in post-Katrina New Orleans and after the Berkeley-Oakland wildfires in California and Hurricane Andrew in Miami. Until our policymakers recognize the importance of socially inclusive, participatory disaster management, we risk exposing susceptible groups to additional harms and perpetuate their vulnerability to future events.
Thursday, September 23, 2010
Creating a Conference from Scratch
Tomorrow Wash U and SLU will be hosting the Fifth Annual Labor and Employment Law Colloquium. It's a terrific event, with close to 70 presenters, and I'm very excited to be one of the hosts.
The event itself is a testament to the power of a good idea and hard work by a few folks -- in this case, Scott Moss, Joe Slater, and Paul Secunda. Here's the original post by Scott that prompted the conference, and here's his follow-up post. I think it's a great example of what a few prawfs can do when they put their mind to it.
Justice Scalia at Hastings: Sex, Lies and Originalism
When I last chatted with you all, I remarked upon Justice Scalia's remarks upon the dedication of our wonderful new building here at Marquette. I once again bring news of Nino.
During a question and answer period at a Constitution Day event at Hastings College of Law, Justice Scalia announced the view that the Constitution does not forbid sex discrimination. His argument, I take it, is that the original public understanding of the equal protection guarantee was that is was limited to race and that no one imagined that it was intended to constitutionalize a particular view of gender roles.
The day before I had been asked to guest lecture in a colleagues' course on Law and Social Change. The idea was apparently to bring in a real life conservative to talk about judicial restraint. I spent a fair amount of time on Justice Scalia's textualism with which these latest remarks are in, I think it is fair to say, tension. If the equal protection guarantee was to be limited to race, why not say so? Writing at Balkanization, David Gans certainly seems to thinks so.
The answer, I suppose, is that an equal protection clause that might apply to other things could apply to anything. Courts have traditionally tried to limit its scope through the devices of multi-tiered scrutiny and through the identification of suspect classes that are thought to be situated in ways that justify more intensive examination of distinctions that are claimed to burden them. Few seem to believe that the extension of some form of heightened scrutiny to distinctions drawn on the basis of gender have proven unworkable or resulted in significant frustration of the popular will, so what's the problem?
My guess is that he Scalia's narrow concern is not so much about sex discrimination as it is about sexual orientation discrimination. In particular, I suspect that he is troubled by the use of changed gender roles to argue that the state can attribute no significance to gender. In Perry v. Schwarzenegger, for example, the district court used legal developments such as the abolition of coverture to argue that, because we don't have legally mandated gender roles, gender no longer has much to do with marriage.
My own sense in reading Perry was that the court had assumed the triumph of equality feminism over difference feminism. It is one thing to say that women are free to participate equally in public life. But it is yet another to say that there are not certain differences between men and women that might justify structuring certain institutions in a particular way thought to accommodate - or, perhaps more accurately - reconcile those differences. If men and women experience sexual desire in different ways and, therefore, have, in anthropological terms, differing "mating strategies" or if they experience parenthood in differing ways, then perhaps the state will wish to structure marriage in a way that accomodates or reconciles those differences.
These views cannot, in my view, be dismissed as "neanderthal" (many people experience them as significant factors in their lives) or as calling for a return of the hausfrau relegated to kirche, kuche und kinder. (Phrasing it in that way would also risk the invocation of Godwin's Law.)
Of course, they may not get you to a justification for the prohibition of same sex marriage. One might argue that, if same sex couples, due to inculturation or otherwise, want to buy into an institution shaped by the recognition of gender differences, perhaps they should be permitted to so. We are now at that curious point in the same sex marriage in which the views of conservatives and, for lack of a better word, radicals begin to proceed from the same set of presuppositions. Conservatives worry that same sex marriage will change the cultural and legal norms of marriage. Radicals hope that it will.
Scalia's broader concern is his oft-stated distrust of the views of "cultural elites." In his view, permitting courts to discern contemporary standards is a bit like the old line, about the nineteenth century modernist protestant seeking the authentic Jesus. He tends to find Him at the bottom of a well and is pleased to note the resemblance.
I suppose this is no insight. It is no mystery as to how Scalia would view the district court's decision in Perry. But I don't know that it means, as Gans and some of the commenters at Balkinization seem to think, that Scalia's constitutional method is incoherent or hypocritical. To be sure, it leaves room for manuever. If one wishes to say that the original public understanding of the equal protection clause was that it had to do with race while abandoning the idea of the original expected application (i.e., that it wouldn't require desegregation of schools), one needs to justify the level of generality at which this "original public understanding" is pegged. One also needs to justify, as Gans point out, the view that the racial equality mandated by the clause can be reduced to color blindedness and does not extend to ameliorative measures designed to repair the harms to blacks brought about by slavery.
But to ask those questions, it seems to me, calls for extending the conversation and not for ending it by assuming that there can be no answers.
Moral panic in public schools
I could never have been a public school teacher, much less administrator. And I have tremendous respect and admiration for those who do that job, especially those who do it well. But then there are those who don't do it well or who repeatedly fall prey to moral panics . . .
1) The ACLU last week settled a lawsuit by a student against the Tunkhannock Area School District (Wyoming County, PA), after a school principal rummaged through a student's cell phone, found naked and partially naked pictures, suspended the student and called the police and the district attorney. The student and her attorney got $ 33,000, with no admission of wrongdoing. The principal apparently needed to look very hard and take multiple steps to find the pictures, which also were stored on her phone and never shared with anyone (other than the girl's long-time (for high school) boyfriend). Just a slight overreaction there.
Here's the interesting part: The settlement is only as to the school; the lawsuit continues against former DA George Skumanick, who threatened to prosecute N.N.; Police Detective David Ide, who investigated and viewed the images; and Jeff Mitchell, the current Wyoming County District Attorney. If those names sound familiar, this case is part of the big sexting scandal in which the (now former) DA threatened to prosecute almost two-dozen high school students on child pornography charges unless they agreed to participate in a re-education course about why sexting (and other teen sexuality) were wrong. Three girls refused to take the course and filed suit, obtaining a preliminary injunction that was affirmed by the Third Circuit. The plaintiff in this case was one of seventeen students who went into the re-education program and her forced participation in it is part of her constitutional claim.
2) Keep-A-Breast is a breast cancer awareness organization specifically targeting young women and teen-age (motto: "Never Let Anyone Tell You 'You're Too Young for Breast Cancer''"). Given the target audience, the organization went for the lowest common denominator--putting out a line of t-shirts, rubber bracelets, and other swag with slogans such as "I love boobies," "I heart boobies," "Love your boobies" . . . you get the point. I previously considered the use of sexually suggestive humor in furtherance of important causes--whether it works and whether it is a good idea. Well, it turns out that school officials in several states have cracked down on wearing these clothes in school, suspending students or requiring them to turn them inside out so the text does not show.
Just a slight over-reaction, no? One principal insisted it was not the "proper way" to call attention to the cause. On the other hand, that message has people talking. Most important, however sophomoric (I hesitate to call the word boobies "dirty" or "sexually suggestive") it resonates with the target audience, the very group of kids (especially girls) we want thinking about this issue. Is that really disruptive to the school and educational environment? And is it really about the manner of speech? Should we really believe that the principal at Baltic High School in South Dakota would not have objected to a t-shirt that said, coldly, "Save the Breasts" or "Keep-A-Breast"? I imagine the reaction would have been the same--suggesting that this is just about keeping kids from talking about certain things.
In our post-Morse world, the students do not have a prayer on a First Amendment claim. But might officials exercise a little bit of First-Amendment-informed common sense?
The Centenarian Who Wasn’t, NASA v. Nelson, and the Constitutional Right to Information Privacy
Approximately thirty years ago, Sogen Kato became involved in an argument with his relatives, and then retreated into his bedroom to sleep. He never came out. Evidently none of the family members who shared his apartment went in to disturb him. This past July, after Kato ostensibly became Tokyo’s oldest living man, Japanese government officials sought to contact him to congratulate him on his longevity. After being given the run-around by his nervous relatives as to his availability, government officials eventually showed up at Kato’s apartment and discovered his mummified remains in the bedroom. His reprehensible relatives, who collected more than $100,000 in pension benefits in Kato’s name during his “lifetime,” are in very hot water.
The constitutional right to information privacy is the law’s equivalent of Sogen Kato. It has been thirty-three years since the Supreme Court hinted that such a right exists under the Constitution, and the Court has been as silent as Kato in the interim about this subject. The lower courts have had much more to say, with most circuit courts holding definitively that the Constitution protects a right to informational privacy and developing multi-part tests to determine when it has been infringed. The D.C. Circuit has expressed skepticism about whether the constitutional right lives on, and the Sixth Circuit has held that until the Supreme Court says otherwise, the constitutional right to information privacy is dead. On October 5, the U.S. Supreme Court is going to be opening the bedroom door, and considering oral argument in its first constitutional right to information privacy case in a generation, NASA v. Nelson.
In Nelson the Court will take up the issue of whether the constitutional right to information privacy prohibits the Jet Propulsion Laboratories (JPL) from asking open-ended questions about whether longtime JPL employees have done anything that might reflect negatively on their ability to continue performing their jobs. My view of Nelson, which I develop at much greater length in Reunifying Privacy Law (forthcoming in the California Law Review), is that the Court ought to hold in Nelson that there is no such thing as a constitutional right to information privacy. My primary basis for concluding that the constitutional right ought to simply go away is that the constitutional right to information privacy is largely redundant with privacy tort law. Because the Solicitor General decided not to argue that the Supreme Court should follow the Sixth Circuit’s approach, the briefs in Nelson have largely ignored the question of what happens if the Court holds that this constitutional right should disappear. But it would be very fruitful for the Justices to ask counsel hard questions along these lines next month. The answer in Nelson itself appears to be that abolition of the constitutional claim would leave the plaintiffs with robust remedies under tort law.
Let us begin with some case background on Nelson. The plaintiffs represent a class of JPL scientists, engineers, and administrators who are classified by NASA as “low risk” employees because their jobs “do not involve policymaking, major program responsibility, public safety, duties demanding a significant degree of public trust, or access to financial records with significant risk of causing damage or realizing personal gain.” Under new federal regulations, even longtime JPL employees were to be subjected to background checks in which government agents would ask employees, their references, their prior employers, and their landlords questions about whether they had used drugs or undergone treatment or counseling for drug addiction in the last year; whether they had used abusive language, been involved in personality conflicts, developed mental, emotional, psychological, or psychiatric issues, or had engaged in sex acts that might subject them to blackmail. In addition, third parties would be asked whether they knew anything, good or bad, about the JPL employees that would be relevant to their ability to work for the government.
The district court denied the plaintiff’s request for an injunction, but the Ninth Circuit reversed with respect to the government’s inquiries about drug treatment (as opposed to drug use) and open-ended “investigation[s] of the most private aspects of class members’ lives.” While the court held that the government’s inquiries into its employees’ backgrounds were legitimate, it applied intermediate scrutiny and held that the government’s investigations were not narrowly tailored to further these legitimate interests.
It turns out that the harms alleged by the plaintiffs in Nelson were remediable under tort law. California, where the JPL is located, is somewhat unique in that privacy tort law has largely merged with state constitutional privacy law. The California Constitution has a privacy clause that lacks a state action requirement. If you look at the state constitutional cases, you see results largely consistent with the Ninth Circuit’s ruling in Nelson. For example, in 1986 the California Supreme Court held in Long Beach City Employees Association v. City of Long Beach that requiring public employees to submit to polygraph testing in order to investigate a specific crime violated the employees’ privacy rights under the state constitution. Similarly, another 1991 intermediate appellate court case, Soroka v. Dayton Hudson Corporation, held that Target’s use of a psychological profiling device that required job applicants to answer questions about their religious beliefs and sexual orientation, violated the applicants’ rights under the state Constitution. Such acts, which violate the state constitution, almost certainly qualify as tortious intrusions upon seclusion under California tort law as well. A suit by Nelson against JPL thus would be able to proceed via the Federal Torts Claims Act, which waives sovereign immunity in cases involving tortious invasions of privacy. So held the Ninth Circuit in a 2000 case called Nurse v. United States.
If a winning tort claim exists, is there any reason why the law should recognize a redundant constitutional claim as well? Perhaps. We can imagine circumstances where having overlapping causes of action are desirable. If a police officer clubs a political dissident to prevent him from making an unpopular speech, it is a tort as well as a First Amendment violation. But most First Amendment violations will not be torts. By contrast, for reasons I explore here virtually all infringements of the constitutional right to information privacy will be either tortious intrusions upon seclusion or tortious public disclosures of private facts. As it happens, the common law courts have developed a sensible framework for deciding whether an invasion of privacy amounts to a tort. The applicable frameworks for deciding whether the government’s conduct violates the constitutional right to information privacy are by no means sensible. Courts commonly apply a seven-factor test, the overlap of the seven factors results in inevitable double-counting, and the results that emerge under the framework are very difficult to predict ex ante.
To be sure, the constitutional right to information privacy is not completely redundant. There are some jurisdictions outside California where suing the state for tortious invasions of privacy is impossible because of sovereign immunity or the weakness of state tort law protections. But the desire to fill these occasional gaps in the law, or an interest in helping plaintiffs recover attorney’s fees, hardly justifies the development of a convoluted body of constitutional law. Rather, the jurisdictions at issue should simply consider whether they ought to change their state tort claims acts and substantive tort provisions to deal with serious injuries that might otherwise go unremedied.
For more reading on NASA v. Nelson, see Dan Solove’s posts here (arguing that the Court should recognize a constitutional right to information privacy), and here (addressing the merits), as well as Eugene Volokh’s discussion of the implications of the Ninth Circuit’s holding here.
Cross Posted at the University of Chicago Law School Blog
Do You (Or Do You Not) Answer Student Substantive Questions Over E-mail?
Yesterday's post about the efficacy of e-mail office hours prompted an interesting and (to me at least) unexpected discussion in the comments section. As you can see, a few commenters indicated that they tell students that they won't answer substantive questions over e-mail for a variety of reasons, including: (1) if students can get answers over e-mail, they won't approach professors (as much) after class and during office hours, which leads to negative consequences; (2) e-mail exchanges are not pedagogically effective (because the student isn't quite asking what the e-mail suggests and/or because it is just the professor feeding the student an answer rather than the student learning it); (3) because e-mail is costless, it leads students to think of the professor as the first resource for an answer; and (4) e-mail answering can be time prohibitive and counter-productive.
In many ways, the choice to ban student substantive questions over e-mail seems similar to the choice to ban laptops in class, a choice that has often been discussed recently (see, e.g., here, here, here, here, and here). Just as some professors want students to fully engage in class discussions and not hide behind their laptops, some professors want students to engage with them after class and/or during office hours and, well, not hide behind their laptops. Indeed, I know one professor at my school who makes it mandatory that each student in his classes stops by his office at least once a semester so that he gets to know his students (and they get to know him) better.
That said, there are many pros to answering student substantive questions over e-mail. Some students learn better seeing answers written down than hearing answers to questions. If a student is at home trying to work through a case and can get an answer from me via e-mail within a matter of minutes, this can be more effective than the student waiting a day or days to get an answer. If I'm responding to an e-mail, I can give a little bit more thought to my answer than if I am immediately responding to a student's question after class or during office hours. And, I'm sure that readers can think of many more pros and cons to answering/not answering student substantive questions over e-mail. So, what do you think? Do you answer student substantive questions over e-mail or not, and why or why not? You can respond by leaving a comment and/or responding to the following poll.
"How weird is that?"
In the course of an on-blog joint effort to "decode" Christine O'Donnell, Slate's senior editor and frequent commentator on things legal and Court-related, Dahlia Lithwick, writes:
I have been fascinated by Christine O'Donnell's constitutional worldview since her debate with her opponent Chris Coons last week. O'Donnell explained that "when I go to Washington, D.C., the litmus test by which I cast my vote for every piece of legislation that comes across my desk will be whether or not it is constitutional." How weird is that, I thought. Isn't it a court's job to determine whether or not something is, in fact, constitutional? And isn't that sort of provided for in, well, the Constitution? In 2003, O'Donnell said of the Supreme Court that "it's kind of like we have the nine people sitting there in Washington who have a constitutional monarchy and that is an abuse of the system." So I do wonder a little whether she's claiming that her view of what's constitutional trumps theirs. Not a lot of space for checks and balances in that reading. . . .
It somehow upsets the Constitution's system of "checks and balances" -- it's constitutionally "weird" -- for a legislator to take into account her view concerning a measure's constitutionality when deciding whether or not to vote for that bill? (Note to first-year students looking ahead to Con Law: It doesn't. See, e.g., Art. VI.)
Wednesday, September 22, 2010
How the Constitution Can Make Our Military Stronger
I would like to recommend a book by my colleague Diane Mazur at the University of Florida Levin College of Law that could not be more timely. The book is called A More Perfect Military: How the Constitution Can Make Our Military Stronger. Here are the links to the book, with descriptions, advance praise, and so forth.
Florida DCA strikes law barring adoption by parent who is gay
Here is the decision. Florida's Third District Court of Appeal struck down Florida Statute 63.042(3), which bars any person who is homosexual from adopting. Significantly, the statute prohibited adoption by homosexual men and women, while allowing adoption on a case-by-case basis by people with criminal records or histories of substances abuse. The state had tried to justify the law on the grounds that the prohibition was rationally related to the goal of placing children in households with "better role models" where they would face "less discrimination." However, the statute specifically allowed single parent adoption, and it did not prohibit placing children with homosexual men and women as foster parents. The court, after surveying the extensive evidentiary record from the trial court indicating that homosexual parents are in no way inferior to heterosexual ones, concluded that there was no rational basis for the statute and that it therefore violated the equal protection provision of the Florida Constitution. Congratulations to my colleague Joseph Jackson and my former colleague Barbara Bennett Woodhouse, who authored an amicus brief in the case together with dedicated faculty, staff, and students from UF's Center on Children and Families!
Media Alerts on Federal Appeals Court Decisions
After years of being internet-shy (at least in terms of posting anything!), this has been a banner month for me. In addition to this guest-blogging stint, I've also been overseeing the launch of a new program at Pace Law School through which a colleague and I are working with students to summarize noteworthy Second Circuit decisions for a new ABA website. I just wanted to briefly let readers know about this website, and also mention that I'd be happy to talk more with professors at other law schools who might be interested in getting involved.
The website, called "Media Alerts on Federal Courts of Appeals," was set up by the ABA last year to provide the media and the public with short, accessible summaries of noteworthy appeals court decisions. So far, the website is covering the Fifth Circuit (with summaries from University of Texas Law School), the Third Circuit ( Temple Law School), the Ninth Circuit (University of Arizona Law School and University of San Diego Law School), the Federal Circuit ( Lewis & Clark Law School), and now the Second Circuit (Pace). You can check the site out here.
We are just getting started with this project--our first summaries went up last week--but so far, I can say that it is both interesting and challenging, particularly because of the timing aspect. (The idea is to have the summaries posted shortly after the cases come up.) I appreciate that it is forcing me to keep up with the Second Circuit's decisions, which I have to think will be helpful in both my scholarship and teaching.
What Do You Think About the Idea of E-mail Office Hours?
When I went to college (1995-1999) and law school (2000-2003), I never considered e-mailing a professor a question about a class. Rather, I would come up to the professor after class or stop by during the professor's office hours. When I started teaching (2007), I received some questions via e-mail, but the vast majority of student questions came from students after class or during office hours. But over the last 3+ years, I have seen a change to the point where I receive a majority of questions about class via e-mail.
As a result, I have considered converting one of my office hours to an e-mail office hour or adding e-mail office hours to supplement my traditional office hours. Basically, with an e-mail office hour, I would tell students that during a given hour (say, Monday from 2-3), I will be by my computer, answering student e-mails. Of course, I currently try to be diligent in answering student e-mails, but that still means that it is often hours or a day after a student's e-mail before I give a response. And, if the student has follow-up questions, we can be talking about a matter of several days before the student has his or her exact question(s) answered. With e-mail office hours, students would have complete answers within the hour.
Of course, the student could get such a quick response by coming to office hours, but many students have conflicts or do not want to come by the school just for office hours (especially at commuter schools). I give students the option of scheduling times to meet outside of office hours, but some students just feel more comfortable e-mailing questions than meeting with a professor face-to-face. So, what do you think? Have you noticed an increase in the number of e-mail questions and a decrease in students visiting office hours? What do you think of the idea of e-mail office hours? Would they be a good response to changing student behavior or should we be encouraging students to stop by our offices for a variety of reasons? You can respond by leaving a comment and/or responding to the following poll.
HeinOnline, Be My Valentine
I love HeinOnline. Who’s with me?
Like all loves, I can’t completely explain it. Maybe reading seventy-year-old law review articles on obscure topics like subrogation makes me subconsciously imagine a pudgy yet staggeringly brilliant assistant professor reading my work in 2080; maybe the hoary print aesthetics have more heart-pleasing character than the electronically-neutered text on Westlaw; maybe I’m a tenth-level black belt nerd oddly smitten with dusty legal arcana.
A little truth to all of that, probably. But I also have a more flattering theory: the old articles are an invigorating reminder of the organic complexity of legal intellectual history. The past can often seem entirely prefatory, populated by people, ideas, and events we reduce to simple simulacra to accommodate mental narratives that lead up to today. And I’m not criticizing such simplification; in many ways it’s an important part of intellectual evolution. Just the same, immersion in near-forgotten older scholarship can serve both as an engaging historical tour and a jarring creative catalyst.
So that’s my fancy explanation of why I dig HeinOnline. Either that or I’m just a weirdo.
Jewish Law, secular law, and flowing beards
I am a few days late commenting on Dan's pre-Yom Kippur post considering the link (or disconnect) between what we do as secular law professors and a higher calling to be a mensches. Ironically, the rabbi's sermon where Jen and I went to synagogue (at her childhood synagogue in Baltimore) was on a related issue--the link (or disconnect) between Jewish law ("Halakhah") and secular law. A few interesting tidbits:
First, the funny point. The famous frieze on the Supreme Court building depicting historic "lawgivers" (not religious figures, because otherwise we would have to create a coherent Establishment Clause doctrine) includes Moses holding the Decalogue. The problem, as the image at right shows, is that Moses' long, flowing beard covers the Hebrew word "lo," which means no, or in context, "Thou shalt not." In other words, the visible portion of the tablet says "Murder" and "Commit Adultery." Oops.
On a serious issue, the crux of the sermon was about how Jewish law can fill and guide our secular lives and how Jewish law and secular law operate compared with secular law. Jewish law is full of affirmative commands--things we ought to and must do to make the world and our lives better. On the other hand, secular law operates wholly negatively--telling us what we should not do and the consequences/punishments if we do them. The rabbi said he spoke with many lawyer friends in advance of the sermon and asked them to name some common laws positive-obligation laws, laws that require people to do something; the only thing anyone could come up with was pay taxes and (for men) register for Selective Service, along with a few places that have some sort of Samaritan Law. Other examples? I quickly tried to think of some while sitting there, without much success. Maybe "attend school" (for non-Amish minors)? "Purchase health insurance." "Disclose certain information to police in certain life-threatening situations" (think of those "mandatory report" professionals obligated to inform police of suspected domestic violence). Can anyone come up with others?
Or perhaps the positive/negative distinction really is beside the point. It seemed to me that the sermon missed the incentivizing function of negative legal rules, which winds us up in the same place. A prohibitory rule functions (or at least is designed to function) as an incentive for people to engage in the beneficial behavior society wants to encourage. Thus, a legal rule establishing liability for workplace harassment incentivizes the establishment of an equal workplace. A legal rule voiding a contract where a party fails to disclose material information incentivizes sharing of information and thus a fairer contracting process. A legal rule prohibiting the making of an unsafe car incentivizes the manufacture of safer cars. The difference, of course, is that negative rules only function via the threat of enforcement--the incentive to avoid the punishment/negative consequences by conforming conduct. But if the result is the same, does it make a substantive difference if the rule is stated in the negative ("Don't make an unsafe car" "Don't hide evidence or pursue criminal charges against innocent people") or the positive ("Make a safe car" "Pursue justice")?
Or does the sermon draw a false equivalence between secular and Jewish law, because they necessarily serve different functions? You cannot run a complex earthly, human society solely through positive commands, only through a system of prohibitions that can be enforced. The positive commands of Jewish law fill-in the gaps, providing additional guidance on how to act within the broader system of negative rules. And that gap-filling is important and something we should strive to obey more--echoing Dan's grandmother's command to be a mensche. But it is ultimately unenforceable, at least in the earthly context. It thus cannot form the central set of legal rules governing society.
One last point: The rabbi asked for a show of hands from the attorneys in the audience. I looked around and saw about 25-30 hands go up. At a synagogue on Kol Nidre? Seemed low to me.
Shieber on the Yale Biographical Dictionary of American Law
The Co-Op's series of reviews of new law books (to which I contributed) has been excellent so far. Allow me to point readers to a recent effort in that series: William Shieber's review of the recently published Yale Biographical Dictionary of American Law. There are a couple of occasions where I think he does not leaven his criticism with enough praise. I think the volume is a useful, although not indispensable, one, and readers who are in the American legal academy or interested in American law will enjoy dipping into it. That said, I think he rightly picks up on one thing that bothered me when I read the book, and one thing that I didn't notice but that I think he's quite right about. The latter point is that the book is too Yale-heavy, an observation he makes with great humor.
The former point is that the book too often publishes somewhat hagiographical biographies, often by those with a connection to the person they are writing about -- and especially bios of judges by their former clerks. Miss Jean Brodie's dictum seems to operate here: give a judge a clerk when he or she is 25 and ready to admire his boss uncritically, and that clerk is the judge's for life. I don't know whether most clerks fall prey to this phenomenon, but certainly most clerks who bother to write about their former judge do. (With, as I have said before, the exception of Posner on Brennan, and a few other examples here and there.) It seems a special shame that this should be true in the legal academy, where, as Noel Annan writes with mixed views in his splendid book The Dons, intellectuals often "move gingerly to judgements about people" and "give their first allegiance to ideas and (so they believe) to the truth," not to personal loyalty. A little more of the British obituary style, a greater mixture of affection and critical assessment, would have greatly benefited these biographical entries.
I do like the book. But I think Shieber's criticisms are apt and delightfully put. Both the book and the review are well worth your time.
Tuesday, September 21, 2010
Rodney King to Marry Juror No. 5
Unlike most normal human beings, I subscribe to the riot news ticker through Google. My excuse is that I write about riots and must keep up on the latest. Setting aside any scholarly agenda, though, the stories range from the heartbreaking to the bizarre, and I thought I would share some recent news:
Rodney King, whose vicious beating by LAPD sparked the Los Angeles Riot of 1992, is engaged to marry Cynthia Kelly, who was Juror No. 5 in King’s civil suit against the city of Los Angeles. The 1992 Riot, one of our nation’s deadliest urban riots, left at least 42 people dead, more than 700 businesses burned, and over one billion dollars in property lost. In his 1994 suit against the city, King was awarded $3.8 million. The happy couple has yet to announce their wedding date.
Lemrick Nelson, who knifed to death Yankel Rosenbaum during the 1991 Crown Heights riots, was stabbed in the head with an ice pick in Washington Heights on September 12. During the riots, roving bands of African American youths terrorized the Crown Heights Hasidic Jewish community, robbing and assaulting civilians and police officers, vandalizing property, and looting businesses. At least 38 civilians and an estimated 152 police officers were injured. One individual, Rosenbaum, was killed. The latest news update lists Nelson in stable condition at a hospital. NYPD have yet to track down his attacker.
Eldoris McCondichie, one of the remaining survivors of the Tulsa Race Riot of 1921, passed away on September 10. During the riot, angry whites destroyed the town of Greenwood, also known as America’s “Black Wall Street,” and killed African American men, women, and children. The riot, one of most devastating instances of racial violence in our nation’s history, claimed at least 39 lives. McCondichie was 9 years old at the time of the riot. She was laid to rest last Thursday.
Dean Searches and Head HuntersThe Faculty Lounge has posted a list of law faculties which are undergoing a dean search this year. Some of them (although as far as I can tell not a majority) of these schools, including my own school, University of San Diego, have hired a consulting firm to assist in the search. What exactly do these search firms do? Are they worth the very nice sum they are paid? Do they have a comparative advantage in our field given that academic hiring relies so much on insider information and word-of-mouth networks?
Student Evaluation Forms Have Too Many Questions: Strongly Agree, Agree, Neutral, Disagree, or Strongly Disagree?
In a previous post, I cited to anecdotal data showing that the percentage of students completing student evaluations has sharply decreased as schools have switched from paper and pencil evaluations to their online counterparts. The post also noted that one of the main reasons why schools have switched to online evaluations is because they are so much more efficient than older evaluation systems in which administrators had to compile results by hand or at least combine results after running evaluations through Scantron machines. But have we taken advantage of this increased efficiency by unduly increasing the number of questions asked on student evaluations, and has this contributed to the decrease in the percentage of students completing student evaluations?
At my school, student evaluation forms currently have 24 questions. This is markedly more than the number of questions on forms I used to fill out. To the best of my memory, most forms had between 5-10 questions when I was a student. I am on the Student Affairs Committee at my school, and we just put forward to our faculty a modified student evaluation form that only asks 5 questions. The theory is that with a reduced number of questions, we will increase the percentage of students completing evaluations. But will it work, or will students who don't feel like answering 24 questions feel the same about answering 5 questions (or do they not fill out forms based upon other concerns such as concerns about anonymity)?
Of course, this begs the question of which is better: 50% of students filling out a 24 question form or 80% of students filling out a 5 question form. Certainly, if we're using evaluations for tenure and promotion decisions, we would prefer the latter so that we can have statistical significance. But, if professors care more about student feedback on a variety of teaching criteria (24 at my school) than about the fact that 48 rather than 30 students are giving that feedback (on only 5 criteria), we would prefer the former. So, what do you think? How many questions are on your student evaluation forms? Has that number increased in recent years? Would a decrease in the number of questions significantly increase the percentage of students completing student evaluations? And would such a change be desirable? You can answer by responding to the following poll and/or leaving a comment.
The Habeas Scorecard Doesn't Matter--Except When It Does?
Lurking just behind the scenes in our ongoing debate over the Graham bill is a deeper conversation with regard to the importance and significance of habeas review in the Guantanamo detention cases. This appeared to culminate two weeks ago with my and Ben's exchange over the so-called habeas "scorecard," and the meaningfulness (or not) of the percentage of post-Boumediene cases in which the detainees have prevailed on the merits. Ben, as you may recall, finds the scorecard largely useless (or at the very least misleading), since it may (in his view) overstate the nature of the success of the detainees in these cases, while underselling the government's key "wins." (My response is here; Ben's reply is here.)
Now, Ben has a new post up extolling the virtues of an article by Aziz Huq arguing that, empirically, habeas has been largely unsuccessful in these cases, at least in actually producing the release of the detainee. After summarizing Aziz's findings, Ben asks rhetorically "How valuable is [habeas] really as a mechanism for freeing the innocent? Policy differences aside, Huq’s empirical answer seems to me profoundly correct." I don't disagree for a moment that habeas has directly forced the release of a detainee we otherwise would not have released in a distressingly small percentage of cases (indeed, Aziz's data is irrefutable). But Ben's post (and, to a lesser degree, Aziz's article) misses two critical points, defects that are all the more surprising given's Ben's arguments in his earlier criticisms of the "scorecard."
First, and directly, the data necessarily do not take into account cases in which the government decided to release a detainee before risking a loss in subsequent habeas litigation. There is, as Ben conceded earlier, no way to quantify how many cases fall into this category, but it's virtually impossible to believe, based on the numbers of detainees we've released from Guantanamo over the years, that it's a null set. Habeas doesn't have to work directly to work--it can, and almost certainly does, affect policy by requiring the government to decide up front whether it's going to defend particular cases or not. (Indeed, this is one of the themes of my review of Ben's book--that the courts often influence policy indirectly, and so one can't just rely on the results in individual cases.)
Second, the data don't take into account the extent to which the executive branch (under both the current and past administrations) has fought tooth-and-nail to limit the powers of the federal courts to effectuate release in cases in which the detainee has prevailed. And I think it is not an overstatement to say that the D.C. Circuit has been complicit in this regard, adopting decisions in Kiyemba I and Kiyemba II that heavily undermined the potential effectiveness of habeas--decisions I critique as being inconsistent with the original understanding of habeas in this forthcoming article. For those, like me, who find deep problems with these decisions, it is easy to see how habeas can--and should--do more in these cases.
Separate from these specific points, there's a deeper disconnect here: Step back for a moment and ask yourself where we would be today had the Supreme Court held in 2004 that the Guantanamo detainees were not entitled to pursue habeas relief, and things ended there. Would we really be "better off" from a policy standpoint? Is there any chance that we'd know as much as we now do about what has actually happened at Guantanamo (and to the detainees)? Would we have had any judicial review of the military commissions invalidated in Hamdan? Whatever the warts of the habeas process, do we really think it's had a marginal effect on the shape of U.S. detention policy? Folks may be troubled by the role habeas has played, but it strikes me as a silly argument (and one I thought Ben had already rejected in the context of our debate over the scorecard) that its effectiveness can be deduced from the specific cases in which it has directly produced a detainee's release.
Monday, September 20, 2010
Talent Wants to Be Free
Imagine an academic world with no lateral hiring. Not much to counteract the moral hazard embedded in job tenure. For some, scholarly productivity and teaching performance will remain constant. These are people whose motivation is completely de-coupled from the external rewards of outside recruitment. Others will evidence a noticeable drop in their work product.
Traditional economic models view post employment intellectual property restrictions (“EIP”) such as non-competes, expansive trade secret protections, patent holdover agreements, and NDAs, as a necessary limitation stemming from the fact that absent such contractual protection, employer would under-invest in employee training (Rubin & Shedd 1981; Glick 2002). Further, because employees generally lack the resources to self-finance their training costs, restrictive covenants are predicted to promote efficient investment in human capital (Posner & Triantis). In a new project, I seek to enrich the orthodox analysis of human capital development. I suggest a dynamic perspective, looking at the investment incentives of both the employer and the employee over time. The attempt is to integrate the following assumptions:
Time 0 (During employment relationship):
1) EIP restrictions encourage firms to invest in their managers’ human capital.
2) EIP restrictions discourage managers to invest in their own human capital.
3) The absence of EIP restrictions encourages compensation forms that are performance-based.
Time 1 (Post-employment):
4) EIP restrictions prevent loss of valuable employees and misappropriation of proprietary information.
5) EIP restrictions reduce mobility and efficient ee-firm fit, inter-jurisdictional brain gain, institutional new blood, entrepreneurship, social capital, network density, and tacit knowledge spillovers.
Almost half a century ago, Nobel laureate Kenneth Arrow argued that competition, not central control, is what fuels innovation. Writing specifically about human capital, Arrow observed that “mobility of personnel among firms provides a way of spreading information.” Contemporary markets and new scientific studies provide empirical bases for Arrow’s assertion. Drawing on new experimental and empirical data, I suggest that under certain conditions post-employment restrictions will reduce overall investment. In time 0, this will happen when self-investments in one’s human capital, stimulated by external prospects and/or internal performance incentives, is of greater effect than the investment of a company (Amir & Lobel 2010; Garmaise 2009). In the repeat game represented by time 1, overall gain happens when the effects of positive spillovers outweigh the negative externalities of human capital and information flows.
Recent field data provides evidence of such occurrences in both stages of the single firm level and the repeat game of job mobility at the industry and regional levels. Further, in several experimental projects with collaborators, we aim to provide insights on behavioral effects that support the dynamic double-perspective model. In Innovation Motivation, the first series of experiments, in collaboration with the one and only On Amir, we simulate market employment and seek to identify the effect of restrictive covenants on performance and motivation. In my next post I will describe our experimental study and our findings.
The Invisible Side of the Judicial BedOn occasion we all wake up grumpy (or grumpier than usual). We’re a touch more critical, a pinch more pessimistic, a bit less filled with neighborly love. Sometimes coffee and carbohydrates restore our spirits; other times an internal scowl lingers. As a result, minor decisions—e.g., whether to snap at a colleague, criticize a spouse’s outfit, skip a conference call—may turn out differently than if we were in our “normal” mood. The same is true in the opposite direction if we wake up feeling like Ned Flanders.
Judges, human as the rest of us, are subject to the vicissitudes of mood. How often do judges’ unusual mental states—from euphoria associated with the birth of a grandchild, to occasional cheerfulness/grumpiness, to profound mental distress occasioned by spousal loss—affect their legal decisions? Put another way: assume both Human Judge A and Robot Judge A normally make decisions according to the same set of jurisprudential heuristics. Human Judge A’s mood varies with roughly the same frequency and magnitude as a normal white-collar professional of similar age and education; Robot Judge A’s mood never varies.
How often will their decisions differ?
My own intuition, as yet uncorrupted by any effort at empirical study, is that (1) a nontrivial amount of “mood-based decisional divergence” occurs and (2) the divergence decreases the higher up the appellate food chain one rises. Among other things, the institutional structure and dynamics of the Supreme Court, as well as the intense scrutiny that accompanies all their judicial acts, seem to be powerful mood-scrubbers. Trial court judicial acts—including innumerable discovery and evidentiary decisions—seem much more susceptible to mood divergence.
Agree? Disagree? I’m also interested to hear examples where credible biographers/observers have concluded that particular Supreme Court Justice’s opinion or opinions were significantly influenced by his/her unusual mental state at the time a case was decided.
Sunday, September 19, 2010
The Graham Bill and Detention Authority: U.S. Citizens and Material Support
In last Sunday’s post, I attempted a relatively comprehensive critique of the Graham bill (S. 3037), which is supposedly designed to (1) codify existing practices in the post-Boumediene habeas litigation; and/or (2) provide clearer substantive, evidentiary, and procedural rules for courts to follow in these cases.
In the interest of highlighting two significant trees in a fairly dense forest (and in light of the various intervening exchanges between me and Ben Wittes, Bobby Chesney, and Peter Margulies; and the speech Senator Graham is apparently set to give tomorrow at the American Enterprise Institute), I wanted to focus more specifically on the heart of the problem--i.e., why the substantive detention authority provided by the bill is so troubling (Gabor Rona from Human Rights First already offered his own thoughts in the comments to the first post—they’re worth reading). As I explain in more detail below the fold, in addition to my original observations from last week, the detention authority provided by the Graham bill would dramatically expand existing U.S. law in two other respects: allowing for the stateside detention of U.S. citizens, and focusing on “material support” as a basis for detention.(1) Stateside Detention of U.S. Citizens:
Although the Graham bill borrows the critical detention authority language (new 28 U.S.C. § 2256(a)(6)) almost verbatim from the Military Commissions Act of 2009 (see 10 U.S.C. § 948a(7)), there is one vital difference: Whereas the MCA authorizes military commissions only for “alien unprivileged enemy belligerents,” the Graham bill authorizes detention of “unprivileged enemy belligerents,” regardless of their citizenship. Thus, the Graham bill would almost certainly apply to U.S. citizens, and it would also likely satisfy the Non-Detention Act, 18 U.S.C. § 4001(a), which provides that “[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” Moreover, because the bill incorporates no limits on where detention can occur, it would also likely authorize the detention of U.S. citizens who satisfy the substantive detention criteria even if they are initially arrested within the United States.
Of course, the Supreme Court in Hamdi held that the 2001 Authorization for the Use of Military Force (AUMF) did authorize the detention of a U.S. citizen, but Justice O’Connor’s opinion for the plurality there relied heavily on the extent to which Hamdi was captured “on the battlefield,” in an active combat theater in Afghanistan. Where a citizen was picked up stateside, it appeared in 2004 at least that there were five votes to hold that the AUMF did not authorize detention, given Justice Scalia’s dissent in Hamdi and the four-Justice dissent in Padilla. As a result, today it is unclear—at best—whether the AUMF would allow the United States to detain without charges a U.S. citizen captured within the territorial United States. The Graham bill--to the extent that it constitutionally could--would change that.
(2) Pegging Detention Authority to “Material Support”:
Of course, authorizing the stateside detention of U.S. citizens might not raise any hackles if the bill only applied to those directly involved in planning acts of terrorism against the U.S. or its allies. But part of why the potential domestic application of the Graham bill is so significant is because the bill goes much further, authorizing the detention without trial of anyone who “has purposefully and materially supported hostilities against the United States or its coalition partners.” The focus on the “material support” concept is troubling in at least three respects, which I’ll briefly try to delineate below:
First, the concept of “material support” has been given an incredibly broad reading by the federal government, which has used the federal criminal material support statute to prosecute individuals for a wide range of conduct, very little of which resembles anything close to active participation in hostilities. The government has even claimed the authority under 18 U.S.C. § 2339B to prosecute individuals whose only "support" came in the form of speech trying to convince terrorist groups to pursue peaceful measures. Whatever the merits of this reading, it unquestionably sweeps far beyond what me might previously have thought of as "belligerency."
Second, and related, the Supreme Court just this June upheld § 2339B against constitutional challenge, concluding that the statute was not void for vagueness, and did not otherwise violate the First Amendment even though it was a content-based regulation of speech. So long as the advocacy on behalf of a designated foreign terrorist organization was "coordinated," Chief Justice Roberts concluded, Congress could (and did) constitutionally proscribe it. Because of Humanitarian Law Project, virtually any “coordinated” activity with a designated foreign terrorist organization, regardless of its intent or purpose, is the provision of “material support” in violation of 18 U.S.C. § 2339B. It’s hardly a stretch to see how the same concept could easily be adopted in the detention context--producing a remarkably expansive detention authority, especially vis-a-vis U.S. citizens within the territorial United States.
Third, even if the material support statute doesn't violate the First or Fifth Amendments, "material support" as a concept has never been endorsed as a basis for detention under international humanitarian law, let alone as a basis for trial by military commission. There's certainly a lot of disagreement over just how far IHL goes in defining belligerency, especially in a non-international armed conflict, but the provision of "material support," without more, goes well past any recognized precedent, decoupling detention authority from any meaningful requirement of active participation in hostilities. In this sense, then, the Graham bill would provide detention authority that fundamentally transcends not just the limits of international humanitarian law, but its analytical underpinnings.
In one of his early posts, Ben already offered a bit of a defense of the Graham bill’s treatment of material support. In particular, he suggested that this provision, too, is merely codifying existing practice, since Judge Janice Rogers Brown already relied upon the similar language in the MCA in al-Bihani as informing the scope of the government’s detention authority (in the same opinion that suggested that IHL had no bearing on the scope of the AUMF). But even if that discussion in al-Bihani survived its August dicta-ization by the other seven active D.C. Circuit judges (and I don't think it did), it's a preposterous argument: Congress in the MCA was not even remotely speaking to detention authority--it was dealing with who could be tried by military commissions. The focus on material support was necessary because one of the offenses that the MCA creates is "providing material support to terrorism," which itself raises constitutional questions concerning Congress's power to create new war crimes and subject them to trial by military commission (and to do so retroactively). In that sense, it is telling that no other judge to consider the issue in any of these cases has found the language of the MCA at all useful in ascertaining the scope of detention authority. The limitless scope of "material support" may have a lot to do with explaining why...
Friday, September 17, 2010
Women and Disaster
As I mentioned in a previous post, disaster harm depends upon the vulnerability of particular groups of people and therefore implicates questions of social justice. Part of the difficulty in developing a comprehensive response to disaster, however, is that social vulnerability is a complex phenomenon. For example, women face increased gender-based violence during and after disasters. Yet, in the wake of disaster, women care for children and aging relatives, stand in line at relief offices, and otherwise hold together their communities. As I’ll discuss in a future post, the participation of women is critical to effective disaster recovery. More broadly, the challenge is to recognize and redress vulnerability without devaluing groups by treating them only as victims. Disaster recovery cannot occur without the full participation of affected populations.
Can Good Prawfs Be Mensches? And some excuses, apologies, and such.
I've been a bit overwhelmed on the domestic front lately between work and non-work stuff to be able to engage meaningfully online on various issues. I've been derelict in writing my response to the wonderful contributions from Professors Harbach, MacDowell and Sack on the blog the other day about Privilege or Punish. I've wanted to weigh in with some thoughts on the Sisk (et al) study. But mostly, I've been thinking, especially with Yom Kippur quickly coming, how one ought to balance the duties of being a mensch (as my grandmother would insist) with doing a good job as a scholar and teacher and colleague.
There are of course some prawfs who are notoriously menschy and yet remarkably adept in all aspects of their job. So some might wonder if there's any false tension being posited here. Here was my thinking. With respect to scholarship, it seems that one of the principal ways in which "the ball is being advanced" is by showing the shortcomings of other folks' work in a particular area--usually scholars but also courts or other actors. This can be done gently or rudely, but it's often nonetheless something that needs to be done in order to be advancing the conversation. The same concern might arise when assessing other peoples' work for purposes of hiring or promotion--one may want to be generous to everybody but you simply cannot and in explaining why some should thrive and some should not, decisions are made and feelings are hurt along the way.
Perhaps this is not the case with teaching (as opposed to grading, where again, I think the tension is more apparent). Maybe in the classroom one could really be an effective teacher and at the same time be the epitome of sweetness and light. I find this difficult too because sometimes there are discipline issues and sometimes just asking students questions and responding to them with some degree of truth may make them uncomfortable or unhappy.
Last, to the extent running this blog is part of my professional life, I like to think I use it to facilitate scholarly dialogue, catalyze community building, and provide a venue for reflection and sharing. But on a regular basis (though seemingly less now than the first few years), I have to make decisions (e.g., deleting a comment that goes over "my" line or is inappropriate on a particular thread) that will upset people. Sometimes these decisions affect the content that's up here (e.g., those who disagree with the hiring thread) and sometimes it's the content that's taken down (the mean anonymous comments). It's hard to do this when I know there are bruised egos or other forms of residue to these decisions. I don't know what the solution is, but like the Rav in Lonely Man of Faith: "All I want is to follow the advice given by Elihu the son of Berachel of old who said, 'I will speak that I may find relief;' for there is a redemptive quality for an agitated mind in the spoken word and a tormented soul finds peace in confessing." For these concerns and my other faults, dear readers and friends and colleagues and family, I ask your forgiveness and patience. The day is short, but the journey is not over. To that end, I hope that the new year augurs a time of passion and purpose, love and laughter, and that it brings sweetness and wisdom and happiness for all of us.
Thursday, September 16, 2010
The Writing Sweet Spot
We’ve all experienced being in the writing “zone.” Crisp phrasing comes easily; arguments fall into a near-musical pattern; the brain crackles, the keyboard dances, and beautiful publishable text is produced in an intense outburst so enveloping that time evaporates. You’ve become one with the Great Mind of the Universe.
Other times, not so much. There are the workmanlike episodes, where your text is a bit plodding, your arguments a bit floppy, your chair a bit uncomfortable. Not art, but clear progress. The worst times, naturally, are those mind-pinching, wince-inducing stretches where it feels like you’re writing with the tip of your nose. You wonder if you’ll ever again write a single sentence that anyone could even pretend to want to read. The DVR beckons.
I wish I knew exactly what led to the zone. My informal analysis is that the following three conditions, together, are most likely to lead to zone writing for me: (1) a publication deadline under four weeks away, (2) authorial consumption of tasty meals slightly (but not outrageously) too high in caloric content, and (3) I have no idea what the third condition is. I’ve done a lot of empirical work on condition #2.
I’m sure this topic or some variant thereof has been discussed here before, but does anyone care to reopen it and share what circumstances, for you, correlate with zone writing?
How Do You Grade Exams? Exam by Exam or Question by Question (i.e. Exam Hopping)?
Yesterday, there was an interesting discussion at a faculty brown bag lunch I attended. The topic of discussion was how law professors grade exams. Assuming that you give an essay exam with more than one question, you have two options: (1) You can read student A's exam in its entirety, assign a score, move on to student B's exam, do the same, move on to student C's exam, etc.; or (2) You can read student A's answer to question 1, assign a score, read student B's answer to question 1, do the same, move on to student C's answer to question 1, etc. I call option 1 "Exam by Exam" grading and option 2 "Question by Question" grading (or exam hopping).
It seems to me that both approaches have pros and cons. With the exam by exam approach, you get a better sense of each student's entire exam. Was this an exam that was extremely well written and organized throughout? Did it seem like this student was doing gangbusters on the first several questions and simply ran out of time on the last question(s)? These questions can easily be answered when a professor takes it one exam at a time. The main con seems to me to be selective information processing, the unconscious inclination to search out and recall information that tends to confirm one's existing belief and devalue disconfirming evidence. When I used to grade exams using this approach, I found myself fighting this bias. Basically, when a student had a great first answer or answers, I tended to be more forgiving of later errors, figuring that these must have been silly mistakes because obviously the student knew the material well. And if a student started poorly, my assumption was that later great answers were more the product of luck than skill. Now, I think that I was able to combat this bias for the most part, and I think that most professors can as well, but it is definitely something to take into account.
With the question by question approach, the professor has the advantage of comparing apples to apples. The professor can read each student's answer to question 1 back-to-back-to-back and more easily apply the same standard to each individual question. The main con is that a professor applying this approach sacrifices some of the big picture analysis mentioned above (Personally, I follow the question by question approach, and, after scoring the last question on each exam, read the prior questions again so that I can (a) correct any prior mistakes, and (b) see the exam as a whole).
So, which approach do you use and why? You can respond by answering the following poll and/or leaving a comment.
Wednesday, September 15, 2010
Gonzaga Law and the Curran Chair in Legal Ethics
Gonzaga University School of Law seeks applications for the newly established Donald Curran and VaLena Scarpellli Curran Professor of Legal Ethics. The purpose of this chair is to advance teaching and scholarship in the areas of ethics and professionalism. The chair holder will be expected to fulfill the normal responsibilities of a faculty member and to be a leader in the area of professional development. For example, the chair is expected to participate in seminars and projects with local, state, and national organizations, take an active interest in providing education to the bench and bar, and to publish regularly. Tenured faculty applicants with a proven publication record are preferred. The law school is strongly committed to diversifying its faculty and furthering Gonzaga’s mission as a Jesuit, Catholic and humanistic institution. Application is encouraged by December 3, 2010. To apply, send a resume and letter outlining relevant experience and teaching interests to Professor Cheryl Ann Beckett, Chair, Faculty Recruitment Committee, Gonzaga University School of Law, P.O. Box 3528, Spokane, Washington 99220-3528, or contact Professor Beckett by e-mail at firstname.lastname@example.org.
Family Ties Burdens from a Family Law Perspective
First, many thanks to Dan, who originally convened this group to discuss Privilege or Punish at last summer’s SEALS Conference. I congratulate Jennifer, Ethan, and Dan on their work, and thank them for its many contributions. And thanks, too, to the folks here at Prawfs for giving us a forum in which to continue our conversation.
As a family law teacher and scholar, I found it edifying and revealing to consider many of the issues we wrestle with in family law through the lens of the criminal law, as explored in the book. I was especially intrigued by the book’s analysis of “family ties burdens,” (criminal laws punishing things like failure to rescue a spouse, failure to pay child support, bigamy, adultery, and incest) many of which I teach in my survey family law class. And I found myself largely agreeing with the authors’ conclusions as to whether and how the criminal law should regulate these behaviors.
My critique, however, relates to how the authors arrive at their conclusions.
For many of the behaviors regulated as family ties burdens, civil law also provides a robust system of regulation that might obviate, or at least mitigate, the need for criminal sanction. I’ll give three examples here. First, the state regulates the entry into marriage, and substantive marriage requirements provide that bigamous marriages and incestuous marriages are void. These prohibitions serve an expressive function, and deny the significant benefits of marriage to bigamous and incestuous partners. Second, the law of fault-based divorce can act as a disincentive, or punishment, for things like failure to rescue, bigamy, and adultery. Fewer than 20 states and the District of Columbia have abandoned fault altogether; it remains an option at divorce in the majority of states. Here, the spouse herself has a remedy against a partner who fails to rescue her (cruelty), cheats on her, or purports to marry another (adultery). A finding of fault can significantly affect property division, alimony, and child custody at divorce. And even in the context of a marriage void for bigamy, an innocent spouse might be entitled to divorce-like remedies under the Putative Spouse Doctrine. Third, the civil law of child support provides a number of mechanisms to ensure compliance with support orders. Parties can pursue private enforcement through litigation, and family court judges can issue seek-work orders for malingering parents, impute income when parents are un- or underemployed, and punish noncompliant parents with civil contempt. And the states are experimenting with a number of other innovative methods to boost compliance – things like “most wanted” lists and “booting” cars (pink for girls; blue for boys). As these examples suggest, civil family law can provide a significant avenue to discourage many behaviors targeted by the criminal law’s family ties burdens.
Of course, once we recognize that civil family law could potentially do much of the heavy lifting here, the inevitable question arises: Is civil law or criminal law better suited to vindicate the government interests motivating these family ties burdens? And here, the meta-level issue of whether regulation of the family is the proper province of the criminal law is somewhat underexplored.
The first question, of course, is what goals the criminal justice system should seek to vindicate in this context. Some of the goals identified by the authors are: affirming the significance of marital obligations, reinforcing vows of loyalty, imposing an ethos of caregiving relations, and encouraging voluntary caregiving. The obvious question is whether criminal regulation is the proper vehicle for vindicating these interests and the harms they can help avoid. But I’m not quite as sanguine about the state’s motivations in the first place. Criminal sanction serves another goal identified by the authors in addition to protecting against harm: giving voice to disgust and moral/religious opposition. The criminal sanction serves an expressive function – setting out a normative, default model of the proper constitution of families, and proper behavior within them. Deviation from that standard is criminalized and punished. Put another way, when we look at the targeted behaviors in the aggregate, they define family deviance and set apart the “model” family in relief.
Is there something different about using the criminal law to express these norms? As other reviewers of the book have noted, criminal law can result in restraints on liberty, and it’s a markedly moralized state practice. For these reasons, I’d like to suggest that we might be more comfortable with the educative and expressive functions of the civil family law, as well as the other instrumental functions it serves.
Why might civil family law be preferable? Civil family law in some instance will have less dramatic moralized effects, but still serve an expressive function. Family law remedies may have a more public, condemnatory quality than simply enforcing a contract, so perhaps their expressive function falls somewhere in between the spectrum of criminal law on one end, and private ordering on the other. There will be fewer restrictions on liberty, but civil regulations can be an effective check against undesirable behavior and encourage better outcomes. More resources and education are available civilly. And importantly, civil family law can better address concerning issues of voluntariness and agency raised by criminal sanction. In the context of consensual adult relationships, family members themselves are free to decide whether they want to tolerate or “punish” (through divorce, e.g.) certain behaviors. Fault-based divorce, for example, is an “opt-in” remedy similar to the private ordering and registries advocated by the authors. By contrast, criminal law sanctions render the voluntary vows and promises of marriage mandatory. Ultimately, civil family law can offer more varied and nuanced approaches to particular behaviors than can the criminal law – more scalpels and fewer sledgehammers. We might therefore find that the benefits of civil family law lead us to prefer it as a mechanism to pursue state interests that might otherwise be vindicated by family ties burdens. (Although we might also question the propriety of civil law’s regulation of consensual adult relationships.)
Family law scholars often grapple with an existential question: What is family law, exactly – a separate doctrinal category, or a type of case that runs through number of other categories of law? The casebook I use, for example, surveys almost all of the privileges and burdens identified in Privilege or Punish, as well as exploring issues in tax law, social security law, bankruptcy, trusts and estates, etc. Are the family ties privileges and burdens of Privilege or Punish best thought of as criminal law, family law, or some sort of hybrid? My instinct is that it’s probably the latter. We can see from this project, for example, both the benefits and limitations of viewing these regulations through the lens of the criminal law, in relative isolation. My aim here has been to supplement the authors’ analysis and conclusions from the broader perspective of family law. Situating family ties burdens within the larger state apparatus regulating families yields, I think, a richer and more complete analysis.
Emily Sack on Privilege or Punish
The following comments are from Emily Sack, who teaches at Roger Williams:
The authors of Privilege or Punish have made an extremely valuable contribution to the discussion of the family’s treatment in criminal law. In particular, the framework they have developed for analyzing the value of specific family ties benefits or burdens is very helpful in moving the conversation forward. However, in my view, the framework, at least for family ties burdens, is not complete and seems to declare off-limits some of the most critical considerations for evaluating the value of a criminal law that involves family status. I want to explore this problem by using the topic of domestic violence’s treatment in the criminal law.
First, I have to note the short shrift the authors give to domestic violence, by which I mean adult intimate partner violence, as opposed to other types of family violence, such as child abuse. The authors discuss the topic only briefly in the book’s Coda. Their general lack of focus on this topic is surprising, given that it may be the quintessential criminal law based on family status. They attempt to explain their failure to address the issue more comprehensively by arguing that because many current domestic violence statutes include a broader definition of relationship than just those between family members, these laws are not relevant to their concern of family ties and criminal justice. But this is to define the problem out of existence. While domestic violence of course does include other adult intimate relationships beyond family, a major part of domestic violence occurs in relationships where the perpetrator and victim are spouses. To pretend otherwise only avoids the real issues in addressing how domestic violence should be treated under the authors’ rubric.
It is helpful to give some brief background on the historical treatment of domestic violence in the criminal law, and outline how it would fare under the Privilege or Punish framework. It is obvious that historically domestic violence enjoyed what might be called the “ultimate” family ties benefit (defined in the book as a state policy that treats defendants better because of their family status). Under the law of coverture, a husband’s use of physical force to “correct” the behavior of his wife was approved for centuries. Because a wife had no legal identity upon marriage, her husband could be held responsible both criminally and civilly for most of her actions. As a consequence of his responsibility for her, a husband then was entitled to discipline his wife. Even after the formal laws of coverture were revoked, domestic violence continued to be condoned by the criminal justice system, and treated as a “family” matter. Therefore, until the 1980s, there were no specific criminal laws against domestic violence, and facially neutral criminal laws such as assault routinely were not enforced when the victim and perpetrator were married.
Under each of the concerns raised by the family ties benefits test constructed in the book, it is clear that the historical treatment of domestic violence fails miserably, and I think we would all agree that domestic violence offenders’ enjoyment of a family ties benefit cannot be justified. The authors ask several questions of each family ties benefit examined in the book: Does the benefit perpetuate patriarchy or create gender bias? Does it create inaccuracies in the criminal justice system? Does it create inequality in the criminal law? Does it incentivize crime? For the family ties benefit created by the historical treatment of domestic violence, the answer to all of these questions would be yes. This treatment, which immunized husbands from prosecution, and permitted them to use physical force against victims with impunity, clearly raises all of the concerns that the authors have identified.
But how would we characterize the current treatment of domestic violence? Does it continue to be a family ties benefit, or is it a burden (defined by the authors as a state policy which imposed an extra burden on defendants because of their family status)? And if it is a burden, is that burden justified? These are more complicated questions.
As the authors point out, there is vastly different treatment of domestic violence in the criminal law across the states. Some jurisdictions continue to treat domestic violence assaults less seriously than stranger assaults – i.e., as a family ties benefit. Perhaps the most obvious example of a formal family ties benefit in the domestic violence context is marital rape. In many states, rape by a spouse or intimate partner continues to be a less serious crime, or to require elements of proof that do not exist for stranger rape. As was true with the historical treatment of domestic violence, there is little justification for awarding a family ties benefit to domestic violence perpetrators under any of the criteria outlined by the authors.
In some jurisdictions, though formal laws may not provide family ties benefits to domestic violence perpetrators, in reality they receive such benefits from facially neutral laws that are not neutrally enforced. The authors state that they are not addressing the impact, particularly the gendered impact, of facially neutral crimes in the book. Fair enough, but in failing to do so, they often omit the central motivation and impact of criminal laws. For example, there are obviously, facially neutral laws that punish assaults and threats. But if these laws are not enforced against perpetrators who are spouses or intimate partners of their victims, there is a strong bias effect. And while females can be perpetrators of intimate partner violence, multiple studies continue to demonstrate that in approximately 85% of domestic violence cases, the perpetrator is male and the victim is female. Therefore, failure to enforce neutral laws is both biased against all intimate partner victims generally, and female victims of crime specifically.
There are also domestic violence laws that may appear to be family ties burdens, but in fact are actually neutral. Many domestic violence mandatory arrest laws fall into such a category. Though the law may appear to be singling out domestic violence defendants for special or harsher treatment through mandatory arrest, in reality these laws are intended to rectify past failures, and to disrupt the norm of non-arrest in domestic violence cases. These mandatory arrest laws therefore attempt to put domestic violence on an even playing field with other types of crime -- to negate the longstanding family ties benefit that domestic violence perpetrators enjoyed. Criminal law cannot be evaluated without understanding the context of its past, in both formal law and in its enforcement.
And sometimes, domestic violence does appear in the formal law as a family ties burden. The issue then is to evaluate whether such a burden is justified. I want to explore this by taking one particularly controversial example. Federal law bars weapons possession by anyone convicted of a felony, but there is no analogous provision for those convicted of misdemeanors generally. However, 18 U.S.C. § 922 (g)(9), which was enacted in 1996 and is commonly known as the Lautenberg Amendment, makes it unlawful to possess a firearm if the individual has been convicted in any court of a “misdemeanor crime of domestic violence.” This law has been subject to a number of challenges which are not relevant to my discussion here, but it has been upheld as constitutional. It clearly imposes a burden on domestic violence offenders. The next question is whether or not this family ties burden is justified.
Applying the authors’ test for family ties burdens is helpful in answering this question, but it only gets you so far. The authors first ask if the relationship involved is voluntary, so that to punish is consistent with liberal views of autonomy. Yes, intimate partner relationships are voluntary in the sense meant by the authors. Is there a liberty interest for the defendant at stake here that society is prepared to recognize? This could be answered either yes or no. No, because there is no liberty interest we want to recognize in permitting a defendant to possess weapons after committing a crime of violence against a partner. The only liberty interest that can be invoked is the old “family privacy” one – that we should let couples work out their problems without state interference. This historical justification for the tolerance of domestic violence has long ago been jettisoned, at least officially, in our criminal justice policy. But the authors’ question also could be answered in the affirmative. There is a liberty interest that society is prepared to recognize here – the constitutionally protected right to bear arms.
The authors’ third question also can be answered either yes or no: Does the government have an important objective in creating this law and is the law narrowly tailored to achieving that objective, or are there alternative equally effective methods for doing so? Yes, the government has the critical goal of deterring and punishing violent crime and of reducing the private and public effects of injury to victims. As with other firearms regulations, this one attempts to reduce the potential harm of a high-risk population. And while there may be other civil means of deterring domestic violence perpetrators and assisting victims, that may be true of any violent crime; only criminal law achieves the retributive effect of punishment. But of course this question could also be answered in the negative. Banning firearms possession does not directly address domestic violence crimes. It is too attenuated and overbroad to be necessary or even effective. In their final question, the authors ask if the family ties burden contributes to concerns about gender, inequality and discrimination. This too could be answered either yes or no. If the relationship definition is broad enough, this question could be answered no. But it could also be answered yes. Since most domestic violence perpetrators are male, this law disproportionately impacts men.
The point is that the decision as to whether the family ties burden created by this federal law is justified is not clear under the questions posed by the authors. It must be acknowledged that the authors do note that when one harms a family member, as opposed to a stranger, one may deserve greater punishment because in addition to the basic harm, there is a breach of trust. This may be a justification for treating domestic violence differently than other crimes involving the same level of violence, and weigh on the side of permitting the burden. But the ultimate result remains unclear under the authors’ framework, because there are critical elements missing from their analysis.
What is left out from consideration is the context of this federal gun law, which includes the historical treatment of domestic violence in the criminal law, the current treatment of domestic violence in criminal law generally, the specific charging policies and conviction results for domestic violence crime, and the empirical data regarding guns and domestic violence fatalities. When all of these issues are examined, I think it becomes clear that the family ties burden imposed by the Lautenberg Amendment is justified.
As I’ve already discussed, historically domestic violence was not treated as a crime. The federal weapons ban for those convicted of domestic violence misdemeanors serves a critical communicative and deterrent function of the criminal law, by focusing on a specific type of crime that for centuries failed to receive state attention. This was in fact one of the primary goals of the Violence Against Women Act and other federal criminal laws concerning domestic violence. And, if it is true that domestic violence criminal law continues to be under-enforced, then again, isn’t it justifiable to focus on this type of crime to educate the public and to provide greater deterrence?
The specific context of this statute is also important. One of the primary reasons that the law focused on domestic violence misdemeanors was the finding by the Senate that domestic violence crimes were routinely under-charged. Crimes of violence that would be treated as felonies if the perpetrator and victim were strangers were most frequently handled as misdemeanors – both in charging and plea policies -- if the parties were intimate partners. Therefore, with only a felony prohibition on weapons, offenders convicted of domestic violence misdemeanors could escape the weapons ban, though they were often guilty of the same level of violence and presented the same level of risk. Finally, the empirical data demonstrates the close link between fatalities in domestic violence cases and gun possession. One analysis of female domestic homicides demonstrated that the presence of one or more guns in the home made a woman 7.2 times more likely to be the victim of such a homicide. Moreover, women are far more likely to be killed by their spouse, intimate acquaintance or a family member than a stranger. All of these issues lead to a much stronger case for enacting the gun law which imposes a burden on domestic violence offenders, but all of these considerations are omitted from the book’s framework.
Finally, there is another critical way in which the framework used in the book does not permit a full opportunity to analyze the meaning of domestic violence crime. Unlike most of the other crimes which create family ties burdens and which are discussed in the book, in domestic violence crime, the relationship between the perpetrator and victim is not just a factor that makes an otherwise non-criminal action criminal. Nor is it simply an “add on” to an already criminal act. In domestic violence, a central part of the act is not simply the assault or the physical harm caused, but the power and control that the perpetrator exerts over the victim because of the domestic violence relationship. As scholars such as Deborah Tuerkheimer have explained, domestic violence is best understood as a course of conduct and it is the repeated use of psychological and physical force over the history of and intimate relationship that creates the terror, fear and damage done to the victim. In this sense, domestic violence is a different crime, not just the same as a stranger crime with a family ties burden attached. Therefore, it may be inaccurate to frame the issue as whether it is justified to treat domestic violence crime more seriously is not really accurate, because it is not the same crime as a similar physical act against a stranger.
The authors have begun an important conversation in this book. But no study of criminal justice and family ties can be complete without a fuller exploration of domestic violence and its treatment in criminal law. I think the authors do themselves a disservice not to attempt to deal with this issue, which could only enrich their project. I think that if and when they do so, it will open up a broader and more complex framework for evaluating family ties burdens generally – one which more directly addresses the historical context, the current law enforcement realities, and the multiple functions of the criminal law.
Privilege or Punish Book Club (SEALS version): Elizabeth MacDowell (UNLV)
I’m delighted to continue this discussion about Dan Markel, Jennifer M. Collins, and Ethan J. Leib’s important and provocative book, Privilege or Punish? Criminal Justice and the Challenge of Family Ties, with some of my co-panelists from the SEALS Workshop on Criminal Law and the Family. Markel, Collins, and Leib make a unique contribution in terms of inquiry and method in their examination, using legal analysis and political theory, of formal criminal laws that treat defendants differently based on family status. Both the scope of the project and the method of its execution are painstakingly defined by the authors. But the principles of exclusion are especially tricky on a project like this one, at least at the margins, creating one of the book’s greatest points of challenge.
One area where the boundaries are unclear is domestic violence, which the authors have excluded from their primary inquiry due to the fact (they explain in the book and subsequent forums) that most jurisdictions no longer limit applicability of domestic violence laws based on family status alone, and treatment of the crime is uneven in terms of whether defendants are subject to criminal law burdens or benefits. A second grey area (not by any means unique to this project) is the appropriate scope of the normative inquiry. The authors analyze the laws at issue with reference to criminal law functions and external normative principles. But given the distance between the law on the books and the law in action, where does one draw the line?
While I don’t necessarily question the decision to exclude domestic violence from the statutes examined that facially differentiate based on family status, post-adjudication diversion programs used in domestic violence cases nonetheless provide an illustration of the ways in which benefits and burdens cannot necessarily be determined with reference to the formal law alone. In Privilege of Punish, the authors use such programs as an example of treating domestic violence more leniently than similar crimes between strangers. Diversion programs can indeed benefit defendants, by allowing those who complete the program successfully to avoid a criminal record and enhanced penalties if there is subsequent domestic violence offense. However, this isn’t the whole story. Diversion also creates significant due process burdens for defendants.
As Prof. Tamara Meekins has written about post-adjudication diversion programs more generally, a criminal defendant makes the decision whether or not to enter diversion early on in the case, before his or her attorney is fully informed about the case and without full knowledge of the results of failing to successfully complete the program. The defendant may also be under coercive pressure to accept diversion, especially if in jail and unable to make bail. Moreover, diversion is often offered in the context of “problem solving courts” that alter the adversarial process in ways that thwart effective assistance of counsel in making this and other crucial decisions (e.g., by implementing a “team approach”). In this light, diversion can hardly be considered a benefit to criminal defendants charged with domestic violence. (Check out Prof. Meekins’ illuminating article, Specialized Justice: The Over-Emergence of Specialty Courts and the Threat of a New Criminal Defense Paradigm.)
Of course, coercion may be present in other plea bargaining scenarios and in other types of cases as well. But the impact on domestic violence cases may be particularly significant. To the extent such policies add gravitas to defendants’ perceptions of mistreatment in the criminal justice system, research on the relationship between procedural justice and recidivism suggests they may increase rather than decrease crime. More generally, high rates of plea bargains in domestic violence cases may facilitate crime by undermining the victim’s confidence in the system. To the complaining victim, plea bargains of all types can look like the defendant is getting off easy. If, as a result, victims are less likely to report future crimes or cooperate with authorities in a future case, these policies indirectly may increase crime in this way as well. Such practices may also increase the potential for inaccuracy in the form of false convictions (including of victims of domestic violence) by focusing on obtaining plea agreements rather than correctly identifying perpetrators and holding them accountable.
In these ways, burdens created by diversion programs may undermine criminal justice functions with respect to domestic violence in ways that run counter to general principles. As Markel et al observe, criminal law burdens generally don’t implicate normative concerns about incentivizing more crime. But such generalizations do not apply with regard to burdens imposed in domestic violence cases as a result of due process failures, an inquiry that is doubly outside the scope of Privilege or Punish.
I am not the only one to push at the boundaries of the inquiry the authors have established and executed so well. (For example, see Prof. Emily Sack’s post in today’s PrawfsBlawg, Prof. Alafair Burke’s review essay, When Family Matters, available here, and review essays by Prof. Douglas Berman and Jack Chin, available here.) However, unlike some other responses, my purpose is not to argue that additional laws implicating families or normative criteria for their evaluation should rightly have been included. Instead, as someone deeply sympathetic to the enterprise of policy argument based on normative principles as well as empiricism, I am very interested to hear the authors’ views on the basis, in normative projects like this one, for drawing the line with regard to what factors will be considered from the larger socio-legal landscape within which law is enacted.
"Privilege or Punish": A Prawfs/SEALS Book Club
It is my pleasure to introduce a book club on "Privilege or Punish: Criminal Justice and the Challenge of Family Ties." The participants are following up on their discussion of criminal justice and the family at this year's SEALS conference. Joining us will be:
- Meredith Harbach, University of Richmond School of Law
- Elizabeth MacDowell, University of Nevada, Las Vegas, William S. Boyd School of Law
- Emily Sack, Roger Williams University School of Law
- and co-authors Dan Markel (FSU), Jennifer M. Collins (WFU); and Ethan J. Leib (UC-Hastings)
We thank the participants for following up on their great discussion at SEALS. And we look forward to your comments.
Should Tenure Committees Solicit Outside Teaching Reviews Like They Solicit Outside Scholarship Reviews?
Law schools traditionally conduct outside scholarship reviews when professors go up for tenure. For instance, at my school, the tenure committee selects two professors from other law schools and the professor-up-for-tenure selects one professor to review the candidate's scholarship and write a "tenure letter" to the committee assessing that scholarship. This review makes sense given the gripe that groups of 3Ls decide where articles are placed. The outside review allows experts in the field to comment on the quality of a candidate's work and argue that a candidate's articles were under- or overplaced (although I doubt that the latter happens often if at all). It also allows for some objectivity which would be impossible if the candidate's colleagues were doing the only review of the candidate's scholarship.
Most law schools also make promotion and tenure decisions at least in part based upon student evaluations and committee members observing one or two classes taught by the candidate. As I noted in my recent post, however, as law schools increasingly switch to online evaluations, the percentage of students completing those evaluations drops, to the point where (as one commenter pointed out) these evaluations lose their statistical significance. And there is still, of course, the concern about the objectivity of a candidate's colleagues.
It seems to me, though, that the digital age also offers a partial solution to this problem. At my school and many schools, classes can now be digitally recorded so that students who missed a class can easily watch it online. In the pre-digital era, the idea of an outside teaching review would have been impossible unless a school had a professor from another school attend several class sessions taught by a professor-up-for-tenure. But now, it seems to me that an outside teaching review would be considerably easier. A law school could digitally record a given number of class sessions taught by a professor in the semester before the professor is up for tenure and send the sessions to outside professors in the field to review just as outside professors now review the scholarship of professors-up-for tenure. So, what do readers think?
Do outside teaching reviews make sense? I can think of a few reasons why professors would find such reviews undesirable. First, they give an incomplete picture of the professor's teaching. When an outside professor reviews scholarship, all that matters i the published piece that the professor reviews. An outside professor watching a recording of a class session, however, does not see how the professor interacts with students outside of class, whether he frequently fails to show up for office hours, etc. Of course, the counterargument is that the tenure committee can get that information for student evaluations and could use the outside teaching review simply to judge in-class performance.
A second argument against an outside teaching review is that while we prefer professors' evaluations of scholarship more than 3Ls' evaluation of scholarship, the converse is true with regard to teaching. In other words, we care more about whether students feel like they are learning from the professor than whether some professor at another school views the teaching as objectively "good." Of course, the counterargument is that students often don't know who the most effective teachers are until they practice and that an objective assessment by an outside professor is preferable.
Of course, there are many other arguments on both sides of the issue. So, what do readers think? Does it make sense for tenure committees to start soliciting outside teaching reviews? Are the exiting methods for evaluating teaching sufficient? Is there some other method by which tenure committees might evaluate teaching? You can respond by answering the following poll and/or leaving a comment.
Tuesday, September 14, 2010
ASU's Aspiring Law Professor Conference
A very special thank you to Dan for letting me sneak a post on the blog.
Just wanted to remind all the aspiring law professors out there to come to ASU's second annual Aspiring Law Professor Conference. Not only will you get the skinny on the hiring process, but you can also sign up to do a practice job talk or interview.
Because of a glitch in our registration system, a number of attendees didn't complete the registration process. Just to be on the safe side, send me an email to let me know you're planning on coming: email@example.com or surf over to our updated, glitch-free registration page.
We will now return to your regularly scheduled blog programming.