Tuesday, September 14, 2010
Disaster Law and Social Justice
I write about disaster law and policy and have a few projects cooking that I may share with you over the next few weeks. My overarching goal is to identify a normative legal framework that can guide efforts to fortify communities before and to rebuild after disaster.
The starting point, as others who write in this area have noted, is to recognize that disasters almost always cause disproportionate harm to those who are already disadvantaged – tornados, for instance, don’t just materialize at mobile home parks, and it’s no accident that the hardest hit areas of New Orleans during Katrina were also the poorest. Whether the disaster is a flood, hurricane, fire, tornado, or riot, preexisting social inequality and vulnerability predicts how severe and how lasting the damage will be. Accordingly, how a society grapples with disaster tells us a lot about its commitment to social justice.
Michael Bloomberg, Adventure Outdoors, Bob Barr, and Libel
Former Georgia Congressman Bob Barr is representing a gun dealer suing New York City Mayor Michael Bloomberg for libel. The gun dealer, Adventure Outdoors, was named in a public nuisance suit brought by the City of New York against a number of dealers to stop "straw-person sales." At a news conference concerning the suit, Mayor Bloomberg called the dealers targeted in the suit a “group of bad apples who routinely ignore federal regulations” and stated that they had “New Yorkers’ blood on their hands.” Barr sued for libel on behalf of Adventure Outdoors, and Bloomberg's lawyer Peter Canfield invoked Georgia's Anti-Slapp law. The law requires, among other things, that a libel plaintiff file a "verification" that his claim is well-grounded or filed in good faith. Barr refused to file the verification, and the trial judge dismissed his claim. Barr then appealed to the Georgia Court of Appeals, where, according to a newspaper account, he continued to make the fairly ridiculous argument that Georgia's anti-SLAPP law did not apply because the defendant's speech was defamatory. This argument is ridiculous because the anti-SLAPP law is designed to prevent plaintiffs from using frivolous libel claims to chill free speech; if all it takes to get around the anti-SLAPP law is an allegation of libel, then it really wouldn't be of much use, now would it? Barr also made the more plausible argument that the anti-SLAPP statute did not apply to Bloomberg because he isn't a Georgia citizen. The story is in the Daily Business Review.
A Surreply to Ben Wittes on the Graham Bill
Not surprisingly, my rather harsh criticism of the Graham bill in this post from Sunday morning has provoked a series of reactions from its defenders over at Lawfare (for what it's worth, this is my favorite thing about blogging--meaningful substantive disagreements fleshed out over time). Although I have thus far been responding offline, Ben's latest salvo mischaracterizes what I've said in a couple of ways that may affect the substance of the ongoing dialogue, so I thought I'd clarify a bit (below the fold) for those who have been following this debate all the way through.
First, Ben says that "it’s a revealing admission on Steve’s part that current law is not adequate" with regard to the class of individuals who can be detained without charges under the extant legal regime. That's not quite what I said. In my original post, I suggested that the 2001 Authorization for the Use of Military Force (AUMF) is itself insufficiently clear on this point, since it nowhere refers at all to any detention authority. I, for one, think that the D.C. district court has made significant strides in bringing clarity to the subject in the two years of litigation since Boumediene (whatever the merits of the specific answers that it has provided), and (I think) I was exceedingly careful in my original post to distinguish between the AUMF itself and how it has subsequently been interpreted.
To be sure, I believe that Congress can try to legislate more specifically with regard to who can be detained. There are certainly other examples in American history of statutes that more precisely identified the subject class. I nevertheless believe, for reasons I articulated ad nauseam over the weekend, that such legislation isn't needed in light of these intervening judicial developments (and because statutory precision in this context may in any event be impossible). Moreover, legislation could in fact be dangerous to the extent that it effects a sub silentio extension of the scope of the current armed conflict (as, in my view, the Graham bill would).
Second, Ben is rather critical of my concern with what would be new 28 U.S.C. § 2256(a)(6)(C), which would authorize the detention of anyone who, before, on, or after September 11, "was a member of, part of, or operated in a clandestine, covert, or military capacity on behalf of the Taliban, al Qaeda, or associated forces." As Ben writes, "If members of enemy forces are not covered by the international laws of war, then who exactly is?" Ben's rhetoric is powerful, but he overstates my argument and understates the scope of the provision: My particular focus is on those individuals whom the government claims are "part of" these groups even though they have never committed a belligerent act--or otherwise provided any support whatsoever for hostilities against the United States. (Or, relatedly, individuals who were involved with al Qaeda in the early 1990s, but not since.) Indeed, if you read the three subsections of § 2256(a)(6) together (go ahead, I'll wait), you'll see that subsections (A) and (B) already address those other cases (participating in or providing material support for hostilities). [And as Gabor Rona noted in his comment to my original post, even those raise some issues under IHL.]
To put it succinctly, the only cases in which subsection (C) would be necessary would be cases in which neither (A) nor (B) was satisfied--i.e., cases where the detainee had engaged in no affirmative act of belligerency vis-a-vis the U.S. or its coalition partners. Let me be clear, here: I am not an IHL expert, and try very hard not to pretend to be one. But my amateur understanding of the relevant law is that, at a minimum (and even in non-international armed conflict), there must be some nexus between the individual and the underlying hostilities in order for there to be authority to detain. In cases where neither (A) nor (B) are satisfied, just how strong is that link?
Finally, Ben joins in my reading of the myriad ways in which the Graham bill would otherwise cut off judicial review of claims besides challenges to ongoing detention (a point curiously missing from summaries of the legislation), but is rather dismissive of my concerns, "finding myself nodding in agreement with each [result] straight across Steve’s incredulity." In that regard, Ben completely ignores the decades of precedent establishing the right of defendants before military tribunals to litigate their right not to be tried before the trial takes place. Perhaps he believes these cases are wrong or inapposite; I happen to think they're bedrock. He also doesn't respond to my point about the bill's constraint on the scope of post-conviction review of military commissions, which is basically rendered pointless by the exhaustion requirements and the concomitant bar on re-litigation of non-jurisdictional claims. And with regard to transfers, he assumes that, so long as the government swears it is acting in "good faith" to secure the release of a detainee, there is nothing for courts to do, and so no reason why Congress shouldn't take away their power to act.
As in my original post, I think this argument misses the distinction between sound (or, in my view, unsound) exercises of judicial discretion and congressionally imposed constraints on judicial power. And lest this appear to be a distinction without a difference, imagine a case where it is abundantly clear that the detainee will be tortured if returned to his home country, and the government seeks to return him anyway. Would we be so comfortable with the Graham bill's categorical preclusion of judicial review then, when domestic and international law would both clearly prohibit the imminent transfer? What about if the government's "good faith" efforts drag on over the course of a decade? Are we so willing to accept that courts won't exert pressure on the political branches to prevent detainees from languishing in permanent (as opposed to long-term, but temporary) limbo?
Lest we lose sight of the big picture, though, it's important to realize that the wrangling over collateral review and transfers is a sideshow to the real problem (a point that should itself make one wonder why those provisions are even in the bill). The heart of the Graham bill both (1) goes well beyond problems that critics have identified in the post-Boumediene habeas litigation; and (2) doesn't do nearly as much as its defenders suggest to actually resolve those problems (other than substituting new ones in their stead). However convincing Ben's thoughtful response to my post is on its own terms, I think it's telling that these two core critiques are largely unaddressed.
Monday, September 13, 2010
Mid-Semester Evaluations: Yay or Nay?
In a post last week, I cited to an article discussing the decreasing percentage of students completing student evaluations as schools switch to online evaluation systems. One way that some professors have tried to circumvent this decrease is through the mid-semester student evaluation, discussed on here by Verity Winship in October 2008. On the one hand, these mid-semester evaluations can be more useful than end-of-semester evaluations because they allow professors to see if there is anything students dislike and change it before the class is over. On the other hand, I think that students might pull their punches in mid-semester evaluations rather than have to face the professor whom they criticized for the rest of the semester, reducing the efficacy of such evaluations. I also think that student concerns about anonymity are higher for mid-semester evaluations than for end-of semester evaluations.
That said, colleagues using mid-semester evaluations uniformly have told me that they love the feedback that they get and that they find it much more valuable than the feedback they get on end-of-semester evaluations. So, I have several purposes in this post. The first is to get a general sense of how many professors (or at least how many professors reading this post) use mid-semester evaluations. You can answer that by answering the poll below. The second is to ask professors who use mid-semester evaluations how they conduct their evaluations to ensure against concerns about student anonymity and lack of candor in responses. You can answer that by leaving a comment. The third is to ask professors who don't use mid-semester evaluations why you don't use them. You can also answer that by leaving a comment. Finally, my fourth questions is whether tenure committees should use mid-semester evaluations in making tenure and promotion decisions as they now use end-of semester evaluations. You can answer that by answering the poll below and/or leaving a comment. Thanks.
Law School Hiring Thread, 2010-11, Thread One
This thread is now closed. Please post comments on Thread Three.
This thread is for both law professors and people who are on the market this coming year for becoming a law professor. We invite those on the market and those who are prawfs to leave comments (anonymously if they prefer) regarding:
a) whether they have received a first round interview at a school, and if the school mentioned the areas they were looking into, and whether the interview offer was accepted
b) a callback from a law school and/or accepted it and
b) whether they have received an offer from a law school and/or accepted it; feel free to also leave details about the offer or info about teaching loads, research leaves, etc. Please note that a school listed as "offer accepted" may have made more than one offer, and may still have some of those slots open. If we have an "aggregator," the aggregator will try to keep track of these (to the extent people let the aggregator know) in the spreadsheet that will be posted here.
Law professors may also choose to provide information that is relevant to the entry-level or the lateral market. Bear in mind: if you don't want your contact information displayed, please just enter in firstname.lastname@example.org or something like that as an email address.
Last two things: we have a separate thread called "a clearinghouse for questions" up over here at this link. Please do not use this thread below for general questions about the market. Second, there's an unbelievable cache of materials relevant to your job search under our archive category: Getting a Job on the Law Teaching Market, including a link to last year's clearinghouse for questions. Good luck!
Why Governments Use Social Media and Why They Should
Lately, I've been exploring whether public forum doctrine may impede desirable governmental uses of interactive social media. As part of that project, I'm examining both government incentives to use social media and citizen interests implicated by government social media use.
Governments must speak in order to govern. Governments speak to educate and to inculcate democratic values, to shape behavior and norms. Governments seek to persuade, manipulate, coerce, nudge, wheedle, and imprecate. They tell citizens to say no to drugs, to vote, to return the census, to get flu shots, to pay taxes, to wear seat belts, and to volunteer. Indeed, effective government communication is essential to effective policy implementation. Without the acquiescence of the governed, it is almost impossible for a democratic government to perform its roles and functions, and acquiescence is secured through communications. Traditionally, government has spoken through mass media using advertisements and position pages, interviews and pamphlets, public art and press conferences. Now, however, the government has begun to convey its message through emails, websites, Facebook pages, tweets, and text messages. Here’s why.
Access to citizens. The government has a host of practical reasons for using “new media” for communications with citizens. Willie Sutton was reported to have said that he robbed banks because “that’s where the money is,” and governments turn to social media because that’s where the citizens are. However, sheer audience size is only part of the picture.
Access to Desirable Audiences or Constituencies. Audience demographics are also important. The audience of citizens that the government reaches via social media is likely different than the audience that the government reaches via traditional mass media, and these differences may make the audience especially desirable for government communication purposes. MySpace users, for example, skew younger than citizens who attend city commission meetings or watch the network news, making MySpace a better platform for informing college freshmen about the benefits of the meningitis vaccine. In addition, government may wish to reach social media audiences because they are more likely to be politically engaged than their fellow citizens. It is not far-fetched to presume that the same initiative that leads social media users to seek out government information online may lead them to other types of political engagement.
Community-Building and Political Engagement. Government actors have not been slow to appreciate that social media is not just a tool for communication but a tool for community-building and engagement. Social media create social relationships, and they may help mobilize citizens from different walks of life and strata of society. Social media may even help humanize government by giving citizens the sense that their voices are being heard by those in power, thereby defusing social tensions.
Crowdsourcing and improved governance. The sense of community that is sometimes fostered by social media may ultimately improve not only the relationships between governors and the governed, but also the processes and outcomes of governance. Social media can serve many of the functions of town hall meetings without the expense or the geographic or time constraints. Indeed, social media can be used not just to create communities of citizens, but even communities of “experts,” who can share their knowledge to improve the decisions made by government actors.
Speed, Economy, and Elimination of Intermediaries. All social media, whether interactive or not, have the advantages of allowing government speakers to quickly and cheaply introduce messages into the public information stream without having to rely on intermediaries. Social media are ideal for communicating during emergencies because government can issue messages to citizens with rapid speed. Moreover, social media create a direct line of communication between governor and governed. Social media decrease government reliance on the traditional mass media to relay (and potentially distort) government messages. In an age when citizens are highly skeptical of the mainstream media, often for good reason, eliminating their role in the communication process is tremendously beneficial to government actors, though of course it creates an avenue for disseminating propaganda.
Responsiveness. In order to maintain legitimacy, democratic governments must appear to be responsive to the needs of citizens. Interactive social media allow governments to gather information from citizens, to listen to their needs and interests, and to respond directly to them quickly and efficiently. Indeed, the desire to appear responsive to the needs of citizens is a key impetus behind government use of social media.
Luckily, government social media use, even when motivated by pure self-interest, often benefits citizens. Citizens have an interest in receiving government information quickly, cheaply, and without distortion. They also have a strong interest in having governments that are responsive to their needs and interests. However, it is also worth considering how government use of social media fosters the First Amendment interests of citizens. I use the word “interests” rather than rights because the Supreme Court has never explicitly interpreted First Amendment doctrine to require governments to enable citizens’ exercise of First Amendment freedoms. That said, the effect of public forum doctrine is to create, in the words of Cass Sunstein, “a right of speakers’ access, both to places and to people." Public forum doctrine acts as a government subsidy for speech. The government must hold open traditional forums such as streets and parks for the benefit of speakers who would otherwise lack the resources to reach a mass audience. Yet, the Supreme Court has been oddly reluctant to extend this understanding to places that have not been open to the public since “ancient times.”
Social media forums, and especially government sponsored ones, have the potential to advance the First Amendment values of free speech, free association, and the petitioning of government for redress of grievances. With regard to speech and association, social media bring citizens together across boundaries of space and time that often separate them in the offline world. But government sponsored social media provide speakers with a particularly valuable commodity. Just as governments use social media to reach desirable audiences, citizens can use these same social media outlets to address audiences that would otherwise be difficult or impossible to reach. A citizen may seek out the U.S. Coast Guard’s Facebook page, for example, in order to register a complaint about its handling of British Petroleum’s oil spill in the Gulf of Mexico. Although the same citizen would be free to set up his own Facebook page to complain about the Coast Guard’s clean-up efforts, the government sponsored Facebook page provides him access to a receptive audience that likely already knows something about the Coast Guard and cares about its performance.
Not only can the Coast Guard sponsored page provide speakers a unique and valuable platform to reach interested fellow citizens, but it can also increase the likelihood that speakers and audience can unite to engage in political action. Again, audience members who seek information on government sponsored sites may be especially interested in the government policy discussed at that site, and thus more likely than others to engage in action to change or improve the program. In the Coast Guard example, a citizen might use the government sponsored page to invite fellow citizens to take collective action, such as attending a rally or volunteering to assist with clean up of polluted beaches. No other online forum is likely to reach quite as interested an audience, nor foster political association, as effectively as the government sponsored one. Thus, it is incumbent as a matter of public policy to encourage government to open social media as forums for communications to, by, and with citizens.
Perhaps the most compelling argument supporting government creation of social media forums is that they give meaning to the often neglected constitutional right of citizens to petition government for redress of grievances. In his new book on the Petition Clause, Professor Ronald Krotoszynski explains that “at its core, the Petition Clause stands for the proposition that government, and those who work for it, must be accessible and responsive to the people.” Even if governments create interactive social media sites only to create the appearance that they are responsive, citizens can still use them to demand actual responses, as the First Amendment entitles them to do. Indeed, the use of social media may create pressure for government to be responsive to citizen demands. This feature of social media forums makes them distinctive from streets and parks, which may sometimes be used to protest government practices and policies in ways that demand action, but do not provide a direct conduit to the government officials in charge of those practices and policies. Although the right to petition is doctrinally underdeveloped, it plays an important role not played by the rights of speech or association. The Petition Clause guarantees not just a right to speak, but a right to speak to those empowered to take action in response. It therefore helps guarantee governmental accountability to the electorate, which is the essence of democratic self-governance.
Sunday, September 12, 2010
Clerkships right after graduation: a dying trend?
According to a recent post on Concurring Opinions by Dave Hoffman (http://www.concurringopinions.com/archives/2010/09/the-quickly-unraveling-clerkship-market.html), the "law clerk hiring plan" is unraveling--fewer and fewer clerkships are being filled via this system. Dave highlights several reasons why this is occurring, but one observation that particularly caught my attention is that judges are increasingly hiring practicing lawyers (to whom the hiring plan explicitly does not apply) rather than 3Ls.
This absolutely seems to be the case. I saw it developing when I was clerking on the Second Circuit from 2005-06, and now that I direct a program at Pace that places students in judicial externships, I frequently hear from students that the law clerks with whom they are working have some previous practice experience (at least a year, if not more).
I can definitely understand why judges are interested in hiring clerks with practice experience. I myself clerked twice -- for a district judge right after law school; and then for a circuit judge after having practiced at a law firm for two years in between -- and I know that all of my previous experience helped make me a better clerk the second time around. What's more, with the way things are in the legal market currently, it seems inevitable that increasing numbers of practicing attorneys will be applying for clerkships, making it easy for judges to fill their openings from these ranks. (That judges can feel completely free to make these hires on their own schedules, as opposed to through the "law clerk hiring plan," probably -- and understandably -- makes it even more appealing.)
Is there any downside to this? It makes sense from several perspectives, but I still feel a little sad about the idea that clerkships right after law school are becoming an increasing rarity. It sounds corny, but clerking is a genuinely inspiring way to begin your career in the law (not to mention a great learning experience)--at least it was for me and many of my fellow law school graduates. So I can't help feeling that something is being lost here, but I'm not sure what the answer is.
The Case Against the Graham Bill
Looming in the background of the ongoing conversation over the appropriate way forward on detention (both at Guantánamo and elsewhere) is S. 3707 (the “Terrorist Detention Review Reform Act,” better known as the Graham bill), introduced last month and framed as one of the most comprehensive attempts yet at legislative resolution (or at least clarification) of many of the recurring issues in the post-Boumediene habeas litigation.
Those who defend the Graham bill (and, more generally, the need for some legislation), tend to rely on three related arguments: (1) that the substantive, procedural, and evidentiary issues raised in detainee habeas cases are too important to be left to the “common-law process” unfolding in the D.C. courts; (2) that, to date, the D.C. courts have answered the questions that have arisen in a manner that is either inconsistent or simply incorrect; and (3) that, as such, legislation will not just stabilize the current litigation, but will also have a significant settling effect on forward-looking policy, since the relevant government actors will have a clearer sense of the substantive and evidentiary standards to which their decisions will eventually be subjected. Indeed, one can see threads of each of these arguments in the series of posts (e.g., this one) by Ben Wittes on the Graham bill (on which he consulted) over at “Lawfare.”
In the post that follows, I aim to identify a number of problems with the Graham bill as currently drafted, at least some provisions of which cause a lot more mischief than Ben’s posts suggest. (Some of these concerns have already been raised by Daphne Eviatar here and here.) But lest readers think that my concerns with the Graham bill can be “fixed” simply by addressing the critiques outlined herein, I conclude with a more general explanation for why, in my view, detention legislation like the Graham bill is both unnecessary and unwise. In short, my specific objections to S. 3707 notwithstanding, better drafting won’t—and can’t—solve my real concerns.Because of the unusual length of this post, I begin with a roadmap: Part I summarizes the current version of the Graham bill. Part II offers my specific objections to it. Part III lays out the more general critique of such “framework” detention legislation.
I. The Graham Bill in a (Rather Thorough) NutshellAs currently drafted, the Graham bill would create new 28 U.S.C. § 2256, titled “Habeas corpus review for certain unprivileged enemy belligerents.” Section 2256(a), the definitions provision, defines “unprivileged enemy belligerent” (those who can be detained under the statute) as anyone other than a privileged belligerent (curiously, the bill doesn't really deal with detaining any of them) who “(A) has engaged in hostilities against the United States or its coalition partners; (B) has purposefully and materially supported hostilities against the United States or its coalition partners; or (C) was a member of, part of, or operated in a clandestine, covert, or military capacity on behalf of the Taliban, al Qaeda, or associated forces.” This definition is basically a carbon copy of the controversial definition of who can be tried by a military commission under the Military Commissions Act of 2009 (see 10 U.S.C. § 948a(7)), but I’ll come back to that point later.
New § 2256(b) “reaffirms that the United States is in an armed conflict with the Taliban, al Qaeda, and associated forces and that those entities continue to pose a threat to the United States and its citizens, both domestically and abroad.” (emphasis mine). As such, the bill authorizes detention of anyone involved in that conflict, “regardless of the place of capture, [and] until the termination of hostilities.” New § 2256(c) deals with “jurisdiction and venue,” although in addition to vesting exclusive jurisdiction in the D.C. district court (even if the detainee is moved somewhere else), § 2256(c)(2)(B) purports to bar the exercise of that jurisdiction over any claim other than a “challenge to the legality of the continued detention” of the petitioner, including claims “relating to the detention, transfer, treatment, trial, or conditions of confinement of the covered individual or any other action against the United States or its agents.”
New § 2256(d) deals with the issue of “organizations considered associated forces,” and provides procedures through which the detention authority provided by § 2256(b) can be brought to bear against those affiliated with groups other than al Qaeda and the Taliban, procedures that even Ben finds somewhat troubling given that "[a]s written, the provision would do nothing to prevent a secret, sealed notice to the court and no notification of Congress at all, when the government effectively expands the legal war by interpreting the AUMF as covering a new group."
Section 2256(e), titled “Procedures,” is the most intricate provision in the bill. In particular, § 2256(e)(1) deals with burdens and evidentiary presumptions, including the language to which Daphne objected (e.g., in § 2256(e)(1)(E)) that creates strong presumptions both with regard to a detainee's training and his membership in the relevant organizations that can only be overcome with "clear and convincing evidence."
Section 2256(e)(2) governs discovery, and § 2256(e)(3) deals with witness production. There’s interesting stuff in both (and, as Ben notes, the bill is more favorable to the government than the current case law), but I’m going to basically skip over them here given the more important fish to fry elsewhere. Section 2256(e)(4) deals with the admissibility of statements alleged to have been obtained involuntary, including those obtained through torture or other coercion. Curiously, other than the bar on admitting statements obtained through torture, the provision otherwise allows admissibility so long as a statement was either voluntary or "was made incident to lawful conduct during military operations at the point of capture or during closely related active combat engagement, and the interests of justice would best be served by admission of the statement into evidence."
Section 2256(e)(5) provides for the “reliability” of statements against interest; § 2256(e)(6) governs attorneys representing detainees in habeas proceedings; and § 2256(e)(7) provides procedures for the use of video testimony. Again, although there is fodder in each of these, I’m going to leave it to the reader to delve into their specifics.
Most commentary on the Graham bill thus far has completely overlooked new § 2256(f), which all-but precludes two additional classes of habeas claims: those seeking to collaterally attack military commission proceedings, and those seeking to block transfers to third-party countries. To that end, § 2256(f)(1) requires a stay of any habeas petition brought by a detainee against whom military commission charges have been sworn; § 2256(f)(2) creates significant exhaustion requirements for military commission defendants who have been convicted by a military commission before they can use habeas; and § 2256(f)(3) requires a stay of any habeas petition in a case where the executive branch is making "good faith efforts" to secure the transfer of a detainee who has been "designated" for transfer or release.
Finally, § 2256(g) deals with second or successive applications for habeas relief, and § 2256(h) governs the release of detainees, including § 2256(h)(1), which bars courts from ordering release into the United States, § 2256(h)(2), which leaves up to the Secretary of Homeland Security to transfer a detainee who has been ordered released. I may be skipping other relevant provisions, but it's a dense 23-page bill, and I wanted to focus on the highlights.
II. Problems With the Graham Bill
There are any number of problems with specific provisions of the Graham bill. For ease of reference, I am going to break the issues discussed below into five major categories, in loose order of their structural-ness: (1) the identity of the enemy; (2) the scope of detention authority; (3) the bars on claims that might be protected by the Suspension Clause; (4) the evidentiary presumptions; and (5) the voluntariness of statements. I by no means suggest that the following is an exhaustive catalog; rather, it is just the issues that jumped out at me when reading through the bill.
A. The Identity of the Enemy
One of the most remarkable things that the Graham bill does--in two separate places--is provide for the potentially fundamental expansion of the scope and nature of the armed conflict Congress authorized in the September 2001 Authorization for the Use of Military Force (AUMF). Just to remind ourselves, here's the critical authorizing language enacted nine years ago next week:
the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
Whatever else might be said about the AUMF, the requirement that the organizations have a direct link to the September 11 attacks is manifest, and has routinely been enforced by the D.C. courts in detention cases (as manifested perhaps most strongly in the D.C. Circuit's Parhat decision).
The Graham bill provides for the silent extension of the conflict in two distinct places: First, § 2256(b)(1), the "Statement of Authority," "reaffirms that the United States is in an armed conflict with the Taliban, al Qaeda, and associated forces," (emphasis added), regardless of whether those associated forces had anything to do with 9/11 whatsoever. Second, and relatedly, § 2256(d), which deals with "Notice of Organizations Considered Associated Forces," requires district courts to give "utmost deference" to the government's "notice" that "a particular organization" is "among the associated forces of the Taliban or al Qaeda." (A notice that could presumably be filed ex parte and under seal). In other words, the government can simply assert (behind closed doors) that a group is associated with the Taliban or al Qaeda, and that assertion is not just effectively unreviewable, but is itself the basis for detaining individuals affiliated with that group (whether or not they have any ties to the Taliban or al Qaeda).
Indeed, the bill is dead silent on what standard the government should even use in ascertaining whether a particular organization is "associated with" the Taliban or al Qaeda. Such authority could hypothetically be used to work a dramatic extension both of the class of individuals who can be detained without charges, and, relatedly, the scope of the conflict Congress authorized nine years ago. Indeed, for all of the current debate over whether the AUMF authorizes the use of drones far from active military theaters, including in Somalia, Yemen, and other parts of the world, this provision could well be viewed as sanctioning such authority, so long as the targets were affiliated with "associated forces."
B. The Scope of Detention Authority
As noted above, the Graham bill provides something vital that the AUMF did not: a specific definition of who can be detained (new § 2256(a)(6)). So far, courts have been relying on the vague language of the AUMF quoted above, and the assumption derived from the Supreme Court's opinions in Hamdi and Hamdan that the scope of authority under the AUMF can be understood at least largely by reference to the laws of war. (This was the heart of the fight over the D.C. Circuit's Al-Bihani decision, as I explained here.). The Graham bill provides specific detention criteria, borrowing rather expressly, as I noted above, from the 2009 MCA. Under the bill, the government can detain individuals who are not "privileged enemy belligerents"; and (1) have engaged in hostilities against the U.S. or its coalition partners; (2) have "purposefully and materially supported hostilities against the United States or its coalition partners," or (3) were members of, parts of, or "operated in a clandestine, covert, or military capacity" on behalf of the Talbian, al Qaeda, or associated forces.
Assuming, for the sake of argument, that (1) and (2) are basically consistent with international law (I recognize that this may not be a satisfying assumption, especially re: (2)), the real problem is (3), because the laws of war are hardly clear that being a "member" or a "part" of a group like al Qaeda or the Talbian automatically makes one a "belligerent" subject to detention under international law. I don't mean to assume the debate over whether international law meaningfully constrains the scope of Congress's power to authorize detention without charges. But for those, like me, who believe that it does, this is a substantial defect in the Graham bill (let alone in the 2009 MCA, which raises the separate and additional question of whether such individuals can be tried by a military commission).
Nor is it any consolation to argue, as Ben does, that this language merely codifies existing case law. There is dicta in the D.C. Circuit's original Al-Bihani decision to the effect that this is the scope of the government's detention authority, but (1) it's only dicta; and (2) it is not even a little clear how the 2009 MCA, which was not in any way addressed to detention, could have expanded the detention authority conferred by the AUMF. Thus, for better or worse, the Graham bill would dramatically enlarge the scope of who could be detained as compared to the status quo (or, at the very least, would codify the erroneous dicta in Al-Bihani), and in a manner that might well be inconsistent with international law. [In addition, wrangling over what it means to be "part of" al Qaeda is itself an issue that would surely create a similar range of decisions from the district court as those that we've seen under the AUMF. So the Graham bill replaces one ambiguous set of terminology with another.]
Finally, although it's a bit of a tangent, the Graham bill asserts that detention authority exists "until the termination of hostilities," and specifically disavows any need on the government's part to show that the detainee represents a continuing threat to the national security of the United States. Although I, for one, do not think such provisions are inconsistent with international law (assuming that the individual is properly detained as a belligerent), there may be due process issues (to the extent the Due Process Clause applies), and there are certainly policy concerns, as Ben documents here. Periodic review should be a staple of any long-term detention regime, and yet the Graham bill's only response to this concern is to constrain the scope of second-or-successive applications for habeas relief in new § 2256(g). (For more on this problem, see Peter Margulies' thoughtful analysis.)
C. Barring Claims that Might Be Protected by the Suspension Clause
Although the Graham bill has been marketed almost entirely as being geared toward the post-Boumediene "detention" cases, it includes several provisions that would constrain judicial review of other claims, and which may thereby implicate the Suspension Clause as applied to the Guantanamo detainees. Ben emphasizes in one of his posts that the Graham bill's "limited impact" is "one of its virtues." As evidence, he suggests that "[i]t does not in any way impact the scope of federal court jurisdiction to entertain habeas claims." (emphasis his). Quite to the contrary.
First, new § 2256(c)(2)(B) bars the use of habeas to litigate claims "relating to the detention, transfer, treatment, trial, or conditions of confinement" of the petitioner other than pure challenges to the legality of continued detention. It is hardly settled that these claims all fall outside the scope of the Suspension Clause, especially those relating to transfer. Even Kiyemba II, the problematic D.C. Circuit decision that rejected the ability of the D.C. courts to enjoin a detainee's transfer until the detainee had a hearing and an opportunity to be heard, turned on the government's assurance on the merits that it would not transfer detainees to countries in which they credibly feared mistreatment. To take away jurisdiction over such a claim regardless of whether the government has made such assurances raises serious Suspension Clause concerns, since it bars access to habeas even where a detainee can prove that he credibly fears torture if returned to his home country (and that such a transfer would therefore violate both domestic and international law).
Second, new § 2256(f)(1) imposes a mandatory stay of any habeas petition brought by a detainee against whom military commission charges have been sworn, even though the Supreme Court has repeatedly recognized (most recently in Hamdan) that defendants before military tribunals have a right to contest their amenability to military trial before the trial takes place. As Justice Stevens put it in Hamdan, "we do not apply Councilman abstention when there is a substantial question whether a military tribunal has personal jurisdiction over the defendant." To be sure, nothing in Hamdan (or any other Supreme Court decison) suggested that such a right not to be tried is protected by the Suspension Clause, but as I've argued elsewhere, there is at least a colorable (if not substantial) line of reasoning supporting that conclusion. Indeed, there would be little point in protecting the ability of military defendants to collaterally invoke their right not to be tried if such a right had no constitutional foundation.
Third, proposed § 2256(f)(2)(D) constrains the substantive scope of post-conviction habeas petitions attacking military commissions to only those claims suggesting "that the commission was without jurisdiction." In other words, no habeas for non-jurisdictional constitutional defects at trial. At least since 1941, the Supreme Court has recognized a broader scope for federal habeas review of state-court convictions, and there are fairly strong arguments that at least some of that review may be constitutionally compelled. And as Justice Frankfurter repeatedly pointed out, whatever deference federalism might require the federal courts to show to convictions obtained in state courts, similar arguments are far less availing when the trial court was a federal military tribunal.
Fourth, new § 2256(f)(3) imposes a mandatory stay of any habeas case where the petitioner has been designated for transfer or release, and where the government is making "good faith efforts" to facilitate that result. In other words, as long as the government is, in good faith, trying to effectuate a detainee's release, the courts not just should, but must, stay their hand.
Especially with regard to these objections, I suspect one response will be that they are largely reflective of extant case law. Section 2256(f)(1) is basically the D.C. district court's decisions in the Hamdan and Khadr litigation; and § 2256(f)(3) reflects the practical result of the D.C. Circuit's decisions in Kiyemba I and Kiyemba II -- that there's nothing more for the courts to do once the government avers that it's doing everything it can to effectuate a detainee's transfer and/or release. To me, at least, such a rejoinder is unconvincing. For starters, there are serious problems with each of those decisions (especially Hamdan, Khadr, and Kiyemba II), and I'm hopeful (perhaps unjustifiably so) that the Supreme Court will eventually distance itself from the relevant conclusions contained within each of them.
But more fundamentally, it is one thing for courts to decide that discretion is the better part of valor, and that they should stay their hand while other events (be they military commissions or diplomatic negotiations) are underway. It is quite another for Congress to affirmatively bar the courts from acting, and in a manner that, as noted above, may go beyond existing precedent. In short, I don't think it is a sufficient defense of these provisions that they merely codify existing law. Even if that were descriptively accurate (and I don't think it is), it assumes that existing law is correct--and final.
D. Evidentiary Presumptions
I have somewhat less to say about the various evidentiary presumptions that the Graham bill creates, not because they aren't significant, but because Ben and Daphne have already discussed them at some length (Ben himself is critical of most of them, for reasons with which I basically agree). The shorthand, though, is that proposed § 2256(e)(1) creates strong presumptions supporting the government's authority to detain where there is a showing that the detainee received any "military-style" training from the Taliban, al Qaeda, or associated forces (back to those guys again), and an even stronger presumption against a detainee's withdrawal from his affiliation with that organization. (So strong that it cannot be rebutted after capture, even if, as in the Slahi case, the detainee turns state's evidence.) Section 2256(e)(1)(E)(2) requires a detainee to show withdrawal by clear and convincing evidence, something that will be extremely difficult for an individual detained at Guantanamo -- and without meaningful access to witnesses, or other potentially exculpatory evidence -- to do.
Finally, the Graham bill also redefines when statements can be admitted against a detainee in § 2256(e)(4). In particular, statements can be admitted so long as they were not obtained through torture or other cruel, inhuman, or degrading treatment; and (1) they were voluntarily given; or (2) they were made incident to lawful conduct during military operations at the point of capture or during closely related active combat engagement, and the interests of justice would best be served by admission of the statement into evidence." For the most part, I find this provision unobjectionable. My fear, though, is that this last provision could be broadly construed to admit against detainees any number of statements they make in the process of their capture, including statements that would not traditionally be admissible as excited utterances, statements against interest, and so on. Put simply, why isn't voluntariness enough, here?
But the real trouble may come from new § 2256(e)(4)(D), which creates "a rebuttable presumption in favor of the voluntariness of statements against interest given before a Combatant Status Review Tribunal, Administrative Review Board, or comparable review board or as a result of treatment in compliance with the Army Field Manual." (emphasis added). In other words, any statement against interest not obtained through torture is presumed to be voluntary. Hmm...
F. Concluding Thoughts on the Graham Bill
At the end of one of his posts defending the Graham bill, Ben poses the following question: "Do you object to legislative action that does nothing to alter the status quo but merely codifies the points the courts have already largely settled?" I've endeavored in the above paragraphs to explain the ways in which the Graham bill does in fact alter the status quo, or, at the very least, how the current status quo is itself problematic, whether as a matter of policy, legal constraints, or both. In that sense, then, Ben's question is misleading, because "merely codif[ying] the points the courts have already largely settled" isn't really (or only) what the Graham bill does. It also is worth emphasizing that, as with the "part of" language vis-a-vis the scope of detention authority, the very interpretive inconsistencies that supporters of the Graham bill invoke to justify such legislative reform will likely recur under the Graham bill, albeit in the context of different language. Some of the problems critics have identified just aren't problems; others are problems, but inherent ones. But, if we assume for the sake of argument that Congress could write a statute that did not raise the policy or legal problems charted above, would that be a good thing? That's the harder question to which I now turn.
III. Structural Problems With Any Detention LegislationIn one sense, it is more than a little silly to object categorically to detention legislation. After all, we're only here because Congress passed a statute (the AUMF) that, as interpreted, authorizes the detention without charges of certain individuals. And so one might understandably assume that since detention authority is up to Congress, it makes perfect sense for Congress to fill in the rest of the puzzle, as well.
The reality, though, is more complicated. Habeas is at its core an intensively fact-bound inquiry into whether the jailer had the legal authority to incarcerate the prisoner. Yes, there are baseline rules that Congress can articulate (e.g., we're at war with Germany, not Australia), and evidentiary standards Congress can adopt (e.g., preponderance vs. clear-and-convincing), but it is difficult for a one-size-fits-all statute to otherwise deal with every contingency. Should Congress really be specifying whether one night in a Taliban training camp is enough to make someone a "part of" that organization, as opposed to two? Does it make sense for legislation to specifically delineate the circumstances in which evidence should and should not be given particular weight? Or to precisely differentiate between the kinds of documents that should and should not be discoverable in individual cases? Are there reasons why Congress is better suited to make these decisions across the board than district judges, on the records of the individual cases in which they arise?
Justice Brennan once wrote that the Supreme Court has "consistently rejected interpretations of the habeas corpus statute that would suffocate the writ in stifling formalisms or hobble its effectiveness with the manacles of arcane and scholastic procedural requirements." At a fundamental level, this sentiment reflects the belief that habeas is essentially an equitable remedy, designed to be shaped by judges based upon the circumstances of individual cases, and not by legislators who can't possibly (and shouldn't be expected to) account for such hyper-specific variations.
But there's an even more pernicious problem with "framework" detention legislation, and it's one that's hardly new. In his fascinating recent study of habeas practice in England from 1500-1800, Paul Halliday documented how Parliament's increasing "codification" of habeas actually weakened the writ, by cutting down the presumption that King's Bench had the sweeping common-law powers that it routinely exercised in habeas cases well into the 1700s. Even benign habeas legislation (a characterization that I do not believe the Graham bill deserves) had the effect in England of cabining the discretion of judges to adapt the remedy that habeas is designed to provide, a practice that I dare say American history has reflected.
This is not to say that there is no role for Congress here. I freely concede, as I must, that the scope of detention authority is entirely Congress's baliwick, just so long as the legislature operates within constitutional limits. I believe that Congress should trust the courts to apply a general rule to specific facts, but I also recognize that, in the end, this question is, and must be, a threshold policy question for our legislators, that judges are then charged to implement. But the further afield Congress goes past identifying those who may be detained, the more it is wading into the traditional (and necessary) equitable discretion of habeas courts--the more it is assuming the job not just of lawmakers, but law-appliers and law-expounders. Either Congress must leave interpretive flexibility in the hands of the courts, or it must legislate with a scalpel. I have a hard time believing that the latter is truly the approach we should be sanctioning in an area so dominated by gray, even if that gray itself creates some uncertainty in the decisional law.
As those familiar with my work (and recent postings) should know, I am no fan of the current status quo in the Guantanamo litigation, especially the vast majority of decisions in detainee cases by the D.C. Circuit. As a result, it may seem strange that I am devoting so much energy to defending the power of the courts when I am so troubled by how those courts are (or, more precisely, aren't) using that power. But as problematic as some of the recent decisions have been, framework legislation like the Graham bill could do even more damage, on a far wider (and longer-range) scale. For better or worse, the Guantanamo cases are a short-term problem. But the notion that these kinds of decisions are for Congress, and not the courts, is a principle with the ability to transcend the current debbate, and to go to the very structural separation of powers between the branches.
As such, absent a far more convincing and compelling showing that the current, judicially-driven status quo is unworkable, and that the proposed legislation meaningfully fixes those shortcomings (indeed, many of the problems with current practice identified by Ben are either unaddressed, unresolved, or perhaps even exacerbated by the Graham bill), we should all be exceedingly wary of any legislation, from any quarter, purporting to have all, or even many, of the answers.
Saturday, September 11, 2010
9/11 and Me
My personal connection to 9/11 follows, but to summarize: (1) I was in Manhattan that morning and watched one tower fall through a midtown office window; (2) I worked for the plaintiff-side firm that led the consolidated wrongful death litigation arising from the attacks; (3) only several months before 9/11, I considered an alternate professional opportunity that would have changed my life -- and probably ended it.In September 2001 I was a young associate living on the far west side of Manhattan. I worked for Kreindler & Kreindler (“KK”), a long-established plaintiffs’ firm that had, in the 1950s, essentially invented modern aviation litigation. KK officed at 40th and Park.
I walked to work in good weather, and my walk-commute took me cross-town via 42nd Street. Normally I turned off 42nd at Fifth or so and walked one block south and a couple of blocks over to use the back entrance on 41st. As I turned to walk down Fifth, I saw people concernedly looking southward at an enormous plume of smoke coming from lower Manhattan. I assumed it was nothing and headed into work.
The KK office was buzzing. I inquired and a co-worker said something like “there a plane crash at the World Trade Center.” I initially assumed it was an idiot in a Cessna who veered off course, but another colleague corrected me. No small private plane, he said: two big commercial airliners had crashed into the towers.
“Yes. It appears to be a terrorist attack.”
I raced to the web, which had famously slowed to a crawl. My firm had TVs in the office, and some gathered to watch, but others of us (including me) found office windows that afforded a clear view of the scene a few miles southward. Seeing the enormous towers burn in real time – through a window – was as unbelievable an experience as I’ve ever had. It was out of body-ish: a voice inside your mind is attempting to take stock. “Is this really happening? What am I seeing here? Maybe most people will escape the fire and survive.”
Then one of the towers fell, plummeting downward in a rippling veil of smoke. Far better writers than me have described the immediate visceral impact of witnessing a gigantic tower you imagine is filled with thousands of people collapse, so all I’ll say is the following. It was staggeringly terrible, a real-life version of the horror innumerable disaster movies have failed to convey, except, un-movie like, the collapse was totally silent from my seat. No sound at all, except the screech of sirens of first-responders racing to assist.
The next few months (and years) – for the nation, for New York, for the KK firm – were a historic blur. KK had litigated virtually every major aviation case of the previous fifty years. With its pedigree and huge mass of clients, the firm eventually served as head of the plaintiffs’ executive committee in the wrongful death litigation arising from the attacks. (The litigation was consolidated in the SDNY before Judge Alvin K. Hellerstein.)
There were essentially two wrongful death litigations occurring: the 9/11 “tort” litigation (against non-terrorist defendants, such as, inter alia, the airlines) and the 9/11 “terror” litigation (against, roughly, the terrorists and their sponsors). KK also handled hundreds of claims made pursuant to the Victim’s Compensation Fund, the special fund created by Congress in the aftermath of 9/11 to compensate victims who chose to forego suit. I was acutely involved in both the litigation and the VCF work. I spent many a weekend in the firm offices working on 9/11 filings, a transformative experience (and also something I never failed to point out during my annual review). I can also assure those who think differently that there was no government conspiracy to “orchestrate” the attacks.
The Other Option
Working on a case of that historical magnitude is itself a story: no one expects that sort of thing leaving law school. The truly astonishing part of the tale is the alternative.
Prior to joining KK in early 2001, I had considered joining a financial services firm with offices at the WTC. When I interviewed there, the WTC security procedures – pre 9/11 – were memorable. To go in, I was issued a photo ID card, which they produced by taking an onsite photo and printing out a plastic card with your photo, your name, the company being visited, and the date. (The WTC had been a target for terrorism eight years earlier, in 1993, by way of an unsuccessful truck bomb.)
I kept the security card – not because of any prophetic ability – but because, nerd-like, I thought the whole process was “neat.” When the 9/11 attacks happened a few months later, the card assumed a different sort of importance.
My interview was at Cantor Fitzgerald, a financial firm with offices on the 101st through 105th floors in WTC 1. In the 9/11 attacks, Cantor lost over 600 people – almost two-thirds of its workforce. Had I ended up at Cantor, I would have very likely been killed. Instead, I signed on with KK, ultimately suing those responsible for the tragedy that I unknowingly avoided.
Rarely are forks in destiny so stark. I still have the ID card.
Sound and fury, signifying nothing
So, after all that, Terry Jones now swears he and his followers will not burn the Koran, today or ever. Of course, he came to that conclusion after being promised a meeting with the people behind the new Muslim cultural center--meaning he has been elevated as an important voice in this (silly) public debate, as I had feared. One could call this a victory for the American vision of free speech and counter-speech, as Jack Balkin does.
Or one could say this whole story shows the dark side of the First Amendment, something Brooke Gladstone of NPR captures (no audio until after the weekend, it appears). [Update: Jackson Diehl at the Washington Post's PostPartisan Blog makes the same point, as does one of his commenters]. There are a couple elements to this notion.
First is the fact that this was, in many ways, a made-by-the-media controversy. It became a national/international story only when the media started covering it. The media could not resist, Gladstone argues, because we "love crazies." One commenter on my earlier post posed that "[i]f a crazy pastor in Florida with a congregation of less than 50 can cause masses of people to hit the streets in Pakistan, Afghanistan, and other Muslim countries, perhaps the problem lies more in those Muslim countries than in Florida." The response is that the media coverage made Jones much more than a crazy pastor with a congregation of less than 50. He was given the same microphone as any major social, religious, or political leader and this rally might have reached a massive audience because of it. And it earned him a seat at the table of national/international public discussion. Now, I question the Administration's fear that this rally would unleash a torrent of anti-American violence and protest in the Muslim world. But not because this was still a tiny rally by a no-name fringe crazy in a small southern town.
The second element was the media's subsequent hand-wringing and public declarations of professional self-righteousness over whether to cover the rally. Fox news announced it would not cover the rally; the AP said it does not cover events that are "'gratuitously manufactured to provoke and offend.'" Other outlets planned to use a minimum of visuals and emphasize context (whatever that means). Of course, there only was a rally for the media to cover (or publicly and obtrusively decline to cover) because the media has been talking incessantly about the planned rally for weeks--and the plan to burn the Koran was just as "gratuitously manufactured to provoke and offend."
The idea of the media "creating" stories is a common refrain, although not one to which I typically subscribe. But in this case, there is something to the accusation. The best we can say for Rev. Jones (as Gladstone says) is that he worked the system, particularly the media, masterfully. And it has paid-off royally for him and his political goals--whatever those are.
Friday, September 10, 2010
Expression v. Expressive Manner: More on burning the Koran
Jack Balkin comments on Rev. Terry Jones's planned Koran-burning ritual this weekend (Update: Which may not occur after all this noise--or not--depending). Much of Jack's piece is an explanation of why book-burning is constitutionally protected, in keeping with what he calls the "economy of speech" and the belief that "approval and disapproval of speech in the public sphere . . . will eventually solve the problem of intolerance in democratic life." This approach contrasts sharply with the system in other countries, which seek to instantiate tolerance by prohibiting certain intolerant speech.
Balkin notes that many of the people who have been whipping up anti-Muslim resentment recently (primarily over the Muslim cultural center near Ground Zero--Balkin calls out Newt Gingrich and Sarah Palin) have denounced Jones's planned event. They "have realized that supporting book burning is a bridge too far." Palin, he argues, understand "that there are limits to how much polarization she can stoke, and what sorts of anti-Muslim tactics she can condone. She too, is governed by the American norms of fair place and equal respect . . .. [and] is also regulated by the American economy of political and religious tolerance that is underwritten by the First Amendment." (Of course, in calling on Rev. Jones not to go through with the book burning, Palin likened this event in its offensiveness to the building of the cultural center in New York (which she has been saying should be moved). So she has not exactly become a real religious pluralist.).
But this calls up something I raised in the comments to Paul's post on book-burning and "un-Americanism": Precisely what is the objection to the planned event? Is it that they are burning books? And if so, what, exactly is the unique problem with burning books--is it an objection to the manner of expression or does book burning express a unique, even-more anti-Islam message. Balkin seems to suggest the latter, calling book burning "the very symbol of religious intolerance in America." In truth, of course, message and manner cannot be so easily separated--the manner of expressing an idea is part of the idea and a different manner of expression sends a slightly different message.
But suppose Jones were presenting his message in a different manner--say, a march and rally featuring speeches and signs featuring every anti-Islam and anti-Muslim slur imaginable, with cartoons of the Prophet and calls for a "Tenth Crusade" so the Christians can carry out God's will by wiping Islam from the face of America and the World. Would Jones have gotten nearly so much attention? Is burning the Koran more anti-Islam--more the symbol of religious intolerance--than the rally I imagine? Would such a rally still be a bridge too far, so that even those stoking flames against the "Muslim Enemy" would recoil? Would Palin have called on Jones to "stand-down" from such a rally? Would the media have gotten so caught up in this craziness? Would the President and Secretary of Defense be calling on Jones to cancel the rally, citing fears of anti-American backlash overseas and a "recruitment bonanza" for Islamist terror groups?
If the answer to these questions is no, then I would suggest that we have become unduly distracted by manner over ideas and thus are missing the broader point about religious tolerance and pluralism. We are paying special attention to this one instance of intolerant anti-Islam expression, while ignoring other instances that may be just as problematic in the ideas expressed. This has several troubling effects. First, it publicizes and elevates Jones above other demagogues, giving his message more public attention and notoriety than it otherwise would have gained. Jones--by all accounts the fringe head of a small fringe group--has been turned into a major voice in this debate entitled to a seat at the table, simply because of the heightened response to his chosen manner of expression. Secretary Gates called Jones personally on Thursday. His becomes a powerful voice--one to which even the President and his cabinet listen and feel the need to respond. Second, it enables these other demagogues--spewing equally hateful anti-Islam messages that are as troubling as intolerant--to pass under the radar of the "public sphere's" checks against intolerant messages that Balkin argues is what the First Amendment relies on. Finally, it allows people such as Palin and Gingrich to look as if they are standing up for First Amendment values when they likely would not say a word about an identically anti-Islam message expressed in a different, less-visceral way.
If the answer is yes, then reports that Rev. Jones will cancel the event based on new assurances that the New York center will be moved and a proposed meeting on the matter become even-more problematic (assuming the assurances are true and not a product of Jones's delusions of grandeur). Because it means the lowest common denominator among a whole host of demagogues has succeeded in his efforts.
Thursday, September 09, 2010
I Scream, You Scream, We All Scream For Law & Ice Cream
At yesterday’s dedication of Eckstein Hall at Marquette University Law School, Wisconsin Supreme Court Chief Justice Shirley Abrahamson referred to Justice Scalia’ s admonition that students not take courses in Law and Ice Cream. Speaking later, Justice Scalia confirmed that advice and added his relief that Marquette offers no such course.
It will surprise few who know me that I yield to no one in my admiration for Justice Scalia. But, being an enthusiastic proponent of both law and ice cream, I wondered what such a course would look like. What might it teach? I have imagined Law and Ice Cream and it turns out to be quite (may God forgive me) rich.
The learning objectives are almost as unlimited as the menu of custards at Milwaukee's jsutifiably famous Kopp’s Frozen Custard, running a legal gamut every bit as diverse as the distance between, say, Éclair Affair to Banana Walnut Chocolate Chunk.
We might consider:
The Rule of Law: Consider this treatment of Kant’s Categorical Imperative as expressed in a rule limited customers to one sample at a Melbourne gelateria. The story raises the question of precedent and the tension between even handedness and circumstantial justice. How is one supposed to decide on a flavor if she does not like the one sample that she is permitted? Can consumer choice – can the entry into a contract (e.g., “I’ll take the Palermo Lemon”) – be considered free when a customer cannot find out what she likes? The author’s treatment of Menu Anxiety brings to mind the Paradox of Choice and Cass Sunstein’s work on the need for the law to engage in “libertarian paternalism” and shape our choice architecture. Bienenstichenkuche is too busy. Maybe we shouldn’t ban it, but we may well want to nudge people toward, I don’t know, Grasshopper Fudge.
The Regulatory State and Administrative Law: Years (ok, many years) later, I still recall reading, as a law student, a withering critique of federal regulations seeking to define the Platonic Ideal of Peanut Butter. Yet 21 CFR Part 135 is chock full of regulatory requirements defining what can and cannot be ice cream. We could learn how to read a code while considering whether the regulatory scheme can accommodate the many variations of ice cream, including the soft ice cream developed by a British chemical team that included a young Margaret Thatcher. (What a woman – the revitalization of the UK, victory in the Cold War and Soft Serve. That is a legacy.)
Liability: What ought to be the responsibility for the manufacturer and purveyors of ice cream for inducing the dread sphenopalatine ganglioneuralgia (more commonly known as the “ice cream headache” or “brain freeze.”) How should lawyers manage that risk? Can we devise a warning (Slurp Slowly)? How prominently must it be displayed? (Should it, for example, be embossed in cones?) Should it include remedial advice such as placing one’s tongue on the roof of the mouth? I see a very practical, skill-based component.
I can think of other pedagogical goals. Many law firms – including my old one – now organize their lawyers into industry groups rather than departments organized by legal specialty. What would it mean for a law firm to organize a group to serve the frozen confections industry? I’ve got to believe there would be a huge IP component. Rocky Road and Chubby Hubby did not just fall from trees.
There may even be a criminal justice aspect and, in AALS terms, “socioeconomics” slant. Consider this illustration of the alienation caused by ice cream deprivation and the unity in demanding custard from power as illustrated in Jim Jarmisch’s classic film Down By Law.
Justice Scalia Throws Down (sort of) at Marquette
As some of you know, we at Marquette recently moved into a spectacular new building. Yesterday, we dedicated Eckstein Hall and heard remarks from, among others, Antonin Scalia. Justice Scalia decided to comment on the perceived divide between the legal academy and practicing lawyers. He suggested that too many academics regard the practice of law as somehow “dirty” and called on law professors to spend more time on teaching than on publishing – even as he recalled how he, as an academic, had come to begrudge the time that teaching took from his scholarship. The life of the Great American Law Review Article is, he said, about ten years and "[t]he reality is that the part of your academic career that will have the most lasting impact and that will be remembered after you are long gone is those hours you spent producing a living intellectual legacy in the classroom …."
This brought to mind the ongoing debate over the practical and theoretical and whether law faculties are made up of those who cannot – or will not – practice what they preach.
I came to full time law teaching with more practice experience (twenty six years) than a handful of faculty around the country. I agree that most law school faculty have very little practice experience and often don’t know it. Three to eight years as an associate at a large law firm does not make an experienced lawyer. In fact, I would argue that, even in the rarefied air of a Big Law Firm, a person has no idea of what the practice is really about until they spend a few years as a partner. That divide is about a lot more than money and prestige.
But, of course, even my own experience is limited. Most students at most law firms are not going to become part of Big Law (perhaps to their professional and personal gain) and will face different challenges that I faced as a litigator at a mega firm and (essentially) the only lawyer for a privately held firm with operations around the world. In particular, they will face pressures for efficiency and a need to demonstrate the emotional intelligence required for those in a helping profession that are, while not absent, far less acute in big law firms.
But my own experience suggests that the debate – at least as it often proceeds – is overly crude. I found (as I expected to find) that moving into full time teaching and scholarship would challenge me and force me to stretch myself. It took work to find my place as a scholar (if, in fact, I have). It took, to be honest, even more work to find my groove as a teacher – something that I think I am only beginning to accomplish.
But there is more. I still practice a bit. I have found that that – particularly in litigation – I practice differently (and better) than I used to.
This suggests to me that the theoretical and practical are less alternative approaches than they are two essential paths to the same goal. The reason, ironically, is rooted in what it means to be a successful lawyer at levels of experience that most full time law faculty never reach.
Practicing law ultimately becomes an exercise in judgment and in the management of uncertainty. Technique is important but legal problems are often not merely a matter of discerning the law or exercising technical craft. The thorniest issues require critical analysis that, while aided by legal knowledge, is not circumscribed by it.
What I think needs to improve – at least it’s an area where I want to improve – is in connecting theory and even the occasional “high minded course” (I teach Law and Theology) to what lawyers do.
Fashionably Late ...
Thanks to Dan for another stint at Prawfs. I am one of those odd people who came to full time law teaching after many years (26!) in practice. My own special mid-life crisis was to find a job where I ahd to work twice as hard for a fraction of the pay. I have been disappointed on neither count (although, really, law professors can't complain about salary in comparison to the real world out there). Nor have I been disappointed in my expectation that it would be a ton of fun and better suited to me than the practice ever was.
Although my scholarship tends to be in the area of law and religion and election law (I see them as connected but that's for another post), I also have spent a fair amount of time at Marquette following the Wisconsin Supreme Court and state constitutional law. I think that the latter tends to be neglected in law schools because, for any particular state, there are very limited outlets for scholarship and a perception that this type of local work won't build cred.
I include myself in this. I have never written a law review article on state constitutional law (although I have written more "popular" things).
But isn't this a problem? State courts of last resort can have a huge impact on community life. While some of what they do gets picked up in general doctrinal study, there are bodies of law flowing from, say, particular state constitutional provisions that do not.
Am I right? Is this a neglected area? If so, what's the solution?
It's All in the Numbers: How Can We Increase the Percentage of Students Completing Student Evaluations?
Student evaluations. Some people love them. Some people hate them. Some claim that they are reliable and reasonably valid. See, e.g., Arthur Best, Student Evaluations of Law Teaching Work Well: Strongly Agree, Agree, Neutral, Disagree, Strongly Disagree, 38 SW. L. REV. 1 (2008). Others claim that they are unreliable and invalid. See e.g., Roger W. Reinsch et al., Evidentiary and Constitutional Due Process Constraints on the Uses by Colleges and Universities of Student Evaluations, 32 J.C. & U.L. 75 (2005). Meanwhile, others agree with the idea of student evaluations but believe that law schools must fundamentally change the way that we conduct them. See, e.g., Deborah J. Merritt, Bias, the Brain, and Student Evaluations of Teaching, 82 ST. JOHN'S L. REV. 235 (2008).
Some claim that attractive professors fare better on student evaluations than their less attractive counterparts. See, e.g., Todd C. Riniolo et al., Hot or Not: Do Professors Perceived as Physically Attractive Receive Higher Student Evaluations?, 133 J. Gen. Psychol. 19, 30 (2006). Others claim that male professors fare better than their female colleagues. See, e.g., Susan A. Basow & Nancy T. Silberg, Student Evaluations of College Professors: Are Female and Male Professors Rated Differently?, 79 J. Educ. Psychol. 308 (1987). Meanwhile, others claim that Caucasian professors fare better than their minority counterparts. Kathryn Pourmand Nordick, Essay, A Critical Look at Student Resistance to Non-Traditional Law School Professors, 27 W. New Eng. L. Rev. 173, 188, 191 (2005).
In this post, my intent is neither to praise student evaluations nor to bury them. Instead, I seek to raise a new issue with students evaluations and solicit opinions on how to correct it (or whether it needs correcting). That issue? The decrease in the number of students filling out student evaluations as law schools move from paper to online evaluations.
Student evaluations are actually a pretty new feature of the American education system. Apparently, "[t]eaching evaluations were initiated on many U.S. campuses in the 1960s, as students clamored for more of a say in their education." These evaluations thereafter didn't exactly catch on like wildfire, with "[o]nly about 30 percent of colleges and universities ask[ing] students to evaluate professors in 1973." Instead, the adoption of evaluations was more of a slow burn, with more and more schools deciding to use them to the point where it is now shocking if a school does not have student evaluations.
Initially, these evaluations were strictly a paper and pencil affair, with the first quantum leap being the addition of Scantron forms on which students could now bubble in whether their professor deserved a 1, 2, 3, 4, or 5 for organization, clarity, overall quality, and a host of other measures. Recently, these traditional forms of evaluations have gone the way of the pager, with schools increasingly creating online student evaluation systems with the goals of saving money and increasing efficiency.
Many schools also thought that this conversion would increase the percentage of students completing student evaluations, but anecdotal evidence suggests that the conversion has had the opposite effect. For instance, at Northeastern, the percentage of students completing evaluations dropped from 80% to 54% after the school converted to online evaluations. See Getting students to make their mark. I know that at my law school, we have seen a similar dip.
And I think that regardless of your view of the reliability and validity of student evaluations in general, we would all agree that student evaluations become more reliable and more valid as the percentage of students completing them increases. Moreover, I have heard that many colleagues ignore the overall numbers on their student evaluations and simply focus upon student comments. Obviously, if only 50% of students fill out evaluations, such professors have a lot less feedback to use than if 80% of students completed them.
So, what can and/or should schools and individual professors do? Our school has decided to award prizes randomly to students who fill out all of their evaluations, but it hasn't really worked. "Harvard, which moved to online evaluations in 2005, began allowing undergraduates who fill out the surveys to view their grades a few weeks early. As a result, participation rose to 96 percent, compared with 65 percent a few years ago." People at my school have floated the idea of students not being able to take their final exam until they fill out their evaluation or docking the grades of students who do not fill out evaluations. Obviously, there would be many negative consequences to such an action, which is why this remains just an idea. Schools could also go back to paper and pencil, but would they be willing to eat the cost and inefficiency (and would today's students even know how to use pencil and paper j/k)?
So, do any readers have any ideas? Is there anything that your school has done or that you have done as a professor to increase the percentage of your students completing student evaluations? And is the drop in the percentage of students completing student evaluations a problem we need to address or something that we should just accept?
Happy New Academic Year & Shana Tova
I like how the Jewish calendar is synchronized with the academic calendar. Rosh Hashana is always a good time to make resolutions, define goals, make plans, spread goodwill, and make amends. That's basically what we all want to do at the beginning of the school year, thinking about our new research agendas, our travel commitments, our work/family balance. Wishing all our readers a sweet and fruitful new year!
and for fun -- do watch this.
Wednesday, September 08, 2010
Post-racial America, in black and white
A recent blog post by Taunya Lovell Banks addressing the race requirements for running for student office at a Mississippi public school caught my eye. For the past thirty years, the Nettleton Middle School allowed only white students to run for eighth grade class president or reporter. Only black students were eligible to run for the office of vice president or secretary-treasurer. As an Asian American and the president of my eighth grade class (way back in the day), I was stunned – not only by the racial exclusion of blacks from certain offices and whites from other offices, but also by the apparent exclusion of non-whites and non-blacks from all student government positions. This policy resembles the South Carolina pageant policy of yesteryear that prematurely ended Nikki Haley’s run for Little Miss Bamberg. Pageant officials were accustomed to crowning a white queen and a black queen; Haley, as an Indian American, didn’t fit the bill.
Although the Nettleton school announced an end to the racially restrictive election policy on August 27, 2010, the story is a reminder of the binary paradigm of race that leads many to see the world around them in black and white. While it may be tempting to dismiss the school’s policy as a vestige of our racially charged history, the view of race as purely a black-white issue persists. Yet, neither Mississippi, South Carolina, nor any other state in the union is solely populated by blacks and whites. The time to recognize this demographic fact is long past.
I’ll close with a personal anecdote. In my college days, I recall sitting in the back of a police cruiser (long story, don’t ask) in Memphis, Tennessee, listening to the officer at the wheel dictate our coordinates to dispatch. She described our progress heading west on Poplar Avenue and informed dispatch that she was traveling with – then she paused and glanced back over her shoulder at me before continuing – a WHITE female in the back seat of her cruiser. Instantly intrigued and genuinely curious, I leaned forward and said, “I didn’t know I was white.” She replied, by way of explanation, “Well, you’re not black.”
For Law Clerk Diversity
Lawyers and law bloggers love a Supreme Court story, even when it doesn't present much news that is "new." So it is with Adam Liptak's Times story about ideological polarization among Supreme Court law clerks. (It's unfortunate, but understandable, that he focuses his attentions on the high court rather than the federal appellate courts.) It has provoked some interesting responses. In particular, at Balkinization, Jason Mazzone argues:
Supreme Court Justices don’t need law clerks in order to hear every argument on every side of a case. The parties, the amici, the lower courts, the law review editors, and, increasingly, the legal bloggers—as well as the other Justices themselves--all ensure every argument is brought forward. While there is some evidence (which Liptak discusses) that law clerks can influence a Justice’s position in certain cases, we should not overstate the effects, particularly in cases with strong political overtones. Supreme Court Justices are very smart and very experienced. It is naïve to think that a 20-something year-old law liberal clerk will be so persuasive that Justice Scalia will abandon originalism or vote to invalidate gay marriage and it is equally naïve to imagine that Justice Ginsburg will be persuaded by a conservative clerk to find gender classification should only be subject to rational review under the Equal Protection Clause. . . .
[S]urely it is better for a Justice to hire law clerks who will be faithful lieutenants and who will perfectly execute the Justices’s wishes. Liptak’s argument for diversity presents the risk of having a law clerk who tries to manipulate outcomes: providing selective information to the Justice, hiding key facts, burying cert. petitions, inserting language in an opinion to lay the groundwork for overruling a case with which the clerk disagrees, or colluding with clerks in other chambers who share the clerk’s own political disposition
I'm unpersuaded.I agree entirely with Mazzone that it is naive to think that a law clerk can influence a Justice to make major changes in a decision in a major case or change his or her method altogether (although that says little about whether a clerk could influence a Justice to make minor changes in an opinion). But it is also naive, I think, to suppose that just because every argument in a case is available, each Justice will listen to all of them. One hardly expects Justices to pay much attention to arguments made in law reviews, which in any event often come along after the fact and are increasingly (if still only slightly) not necessarily geared to the judge as ideal audience. Nor, if we listen to what some Justices have said, do they necessarily pay attention to amicus briefs, beyond skimming them or picking them over for arguments to support conclusions they have already reached. What is important is not that every argument be available, but that the Justices pay attention to them. Even if not every clerk-Justice interaction is a deep and searching dialogue, having a clerk with a different ideological disposition surely enhances the possibility that more opposing arguments will be put before the Justice in a way that is harder to disregard altogether.
Mazzone writes that those clerks may manipulate the process. It seems odd to me that the same Justices that he portrays as immune to influence from 20-something law clerks are somehow not able to monitor for these shenanigans. In any event, the question is not whether that risk exists but which system is better on the whole. Mazzone writes that Justices should hire law clerks who will serve as "faithful lieutenants . . . perfectly execut[ing] the Justices' wishes." But that assumes that the Justice's wishes are already perfectly formed; those wishes might change in the presence of more and better information. Good lieutenants follow orders, of course; but good commanders rely on their lieutenants to offer candid advice before the order is given. They need not surround themselves with dissidents, but neither do smart leaders surround themselves with clones and yes-men [yes-persons?]. Conversely, they should be worried that surrounding themselves with ideological allies will indeed have a polarization effect on their opinions, and lead them to give insufficient attention to evidence and arguments that run contrary to their own biases. Justice Thomas, in the same article, complains that hiring a clerk who doesn't share his priors would be unpleasant, something that concerns me not in the least, and pointless to boot. Maybe he's right, but it's also possible he's not living up entirely to the demands involved in being a principal.
As an aside, I note that far more attention was paid to Liptak's article on the lack of ideological diversity between clerks and Justices than to his article, published the same day, on the lack of diversity of background, especially in terms of law school, in the clerk pool -- a story in which Justice Thomas comes out looking much better than his colleagues. As usual, the attention goes to questions of ideology among the elite rather than to the ways in which the elite itself, left and right, is altogether homogeneous.
How Much Teaching Do You Do In Your First Class?
At some point in the last few weeks, most of us have taught our first class of the semester, so I guess that now is as good a time as any to ask: How much teaching do you do in your first class? After introducing myself and the material, I do a full class session. One reason is so that students can see what the class is all about on the first day and make the decision to keep or drop the class with minimal collateral consequences. Another reason is that I don't like to test material from the last week of my classes. Most of my classes are twice a week, so not teaching during the first class would mean that 3/28 classes wouldn't have testable material. Of course, there are arguments against teaching or teaching a full class session on the first day of class. Upper level students are still shaking off the rust from the summer and might not be ready to process much of substance during the first day. For 1Ls, law school is a completely new experience, and it might make sense to ease them into law school rather than assaulting them with minimum contacts and the act requirement on the first day of law school.
So, what do you do and why? (And if you are a student or non-teaching law school graduate, what do or did you prefer?) You can respond by answering the following poll and/or leaving a comment. For purposes of the poll, assume that the class meets more than once a week.
Should the Government Call Koran-Burning "Un-American?"
Like other supporters of the rights of American Muslims to live on equal terms with other Americans, I was pleased to see this story in which a group of religious leaders came together to express their concerns about anti-Muslim sentiment, not just with respect to the New York mosque but elsewhere in the country -- indeed, more disturbingly elsewhere, since the many recent objections to mosques and Muslims elsewhere in the country lack even the fig leaf of the supposed sacredness of a site two blocks away from Ground Zero.
I was a little perturbed, though, by the news (found in the same story) that various government spokespeople, including General David Petraeus, have taken to the airwaves to condemn the planned burning of Korans by an unfortunate pastor in Florida, with a State Department spokesman calling the plan "un-American." Perturbed, not outraged. It may well be correct that the church's actions put the lives of American soldiers (not to mention many local innocents) at risk, and it should be obvious that I find those actions deplorable whether they would do so or not. Of course private citizens are entitled to deplore those actions and ought to do so, and surely government is entitled to do so too. But I cannot forget that the last administration also played this kind of card in the wake of 9/11, both in its immediate aftermath and when newspapers attempted to write stories describing the actual actions of the administration in the war on terror, and was often condemned for it. Those people who condemned the administration then may want to reexamine their views in light of the current administration's actions.
My own view is that General Petraeus was entitled to say what he did, especially in light of his obvious duty to his own soldiers and the Afghan nationals he is charged with protecting. But it is worth remembering that the exercise of First Amendment freedoms, even in a way that is worthy of condemnation, is part of the cost that we necessarily factor into any foreign policy venture. And something about the word "un-American" used by the First Amendment spokesman sticks in my craw. For one thing, although respecting the religion of others is indeed an "American" value, so, alas, is book-burning, at least as a matter of history. One is worth championing and the other deserves condemnation, but on more specific terms than "un-American." We can't hope to reach those we disagree with by counting them out of the conversation. As it turns out, I doubt we can converse very productively with this pastor at all, and I assume that word was used to describe ourselves to Muslims outside this country rather than to converse with the pastor in the first place. But I still think it matters what words we use, and that the government ought generally to hesitate before calling an exercise of free speech, no matter how worthy of condemnation it is, "un-American." Call the Koran-burning stunt by its proper name: "offensive."
Why the Scorecard Matters: A Response to Ben Wittes
Over at the new "Lawfare" blog, Ben Wittes has a post up outlining some objections to the media's increasingly common use of the Guantanamo "scorecard"--the unofficial tally of the 50-something post-Boumediene detainee habeas cases that have thus far been adjudicated on the merits. (For one of the more easily accessible versions of the scorecard, see here.)
Ben's critique operates on several levels. For starters, he points out that the scorecard counts the same decision multiple times when it implicates more than one detainee (like the Uighur cases or Boumediene itself). Thus, it overcounts detainee "wins." (Of course, this depends on how one defines a "win.") Second, he notes that some of the detainee "wins" are only temporary, given the likelihood (in his view) that the D.C. Circuit will reverse on appeal. Third, he argues that the scorecard doesn't account for the number of cases in which detainees, for whatever reason, have chosen not to pursue habeas relief. And finally, as he observes, the figure the scorecard represents "ignores–or, rather, downplays–the most important government wins in these cases. These are not numerical but qualitative in nature; that is, it matters how the government wins and loses."
In my view, Ben's post has two distinct--but equally profound--flaws:First, in putting so much emphasis on how the scorecard might over-state the detainee wins both numerically and qualitatively, he ignores several ways in which it under-represents them, as well. For example, the scorecard says nothing about cases in which detainees were released by the government prior to a judicial determination that they could no longer be held--the fate of an overwhelming majority of those held at Guantanamo, since we know that, at one point in time, upwards of 800 non-citizens were detained there (compared to the under 200 still in custody today). If anything, the fact that these decisions today are coming only after that process took place underscores how remarkable it is that so many of the detainees are prevailing on the merits in any event, regardless of how or why they are winning. Even Judge Leon, who wrote in 2005 that there was "no viable legal theory" on which a Guantanamo detainee might prevail, has ordered the release of a number of detainees.
Second, and more fundamentally, I fear that Ben's post fails to grasp why the scorecard matters. No one invokes the specific win-loss total (which, if I understand correctly, currently stands at 38-16) as proof of anything that a different ratio in the same ballpark wouldn't prove. That is to say, the actual numbers aren't the reason why the scorecard is such a big deal. The scorecard is important because it provides hard data for the proposition that the government lacks the authority to detain a more-than-insignificant number of Guantanamo detainees (including, for the record, all of the Uighurs). For those critics of the Supreme Court's decision in Boumediene and the litigation that both precipitated that decision and that has followed, the fact that the merits of these cases are so often favoring the detainees should prove the importance of the project, and the reason why habeas corpus jurisdiction matters. It's one thing to argue against judicial review when that review would make little difference--after all, how different would the ongoing debate over closing Guantanamo look if the government were winning in 80-90% of these cases? But where there is an unmistakable pattern identified by a bipartisan range of highly regarded judges, shouldn't that tell us something, regardless of the specific statistics used as evidence thereof?
Civil libertarians, human rights groups, and the detainees' lawyers themselves have maintained for years that many of the men still detained at Guantanamo are not there legally. What the scorecard shows, more than anything else, is that the judges of the U.S. District Court for the District of Columbia agree with that proposition more often than not. It's perfectly fine to argue, as Ben does, that the scorecard may not be precise. But that's hardly the point of it.
Since 1900, no Supreme Court justice (nor any nominee) has been under the age of 40.
One reason may be politics. Supreme Court justices sit for life, and a younger justice will likely serve a longer term. Political opponents of the nominating president will be more hostile to a younger nominee. Alternatively, the president may be concerned that a young justice might, over a long career, drift in an undesirable political direction.
Of course, politics aren’t the whole story. There are two immediately obvious substantive reasons why we don’t see young nominees: inexperience and small sample size.
The inexperience concern is the worry that young jurists lack sufficient life and/or judging experience to be effective justices. The sample size concern is the worry that however brilliant a young potential nominee may seem, his or her track record is too short to be reliable evidence of the exceptional judicial quality we expect of justices. They’re different objections. The latter worries about whether we can know Young Nominee A is good enough; the former worries about whether Young Nominee A is actually good enough. Neither is necessarily a winner: maybe only a few years of judicial experience can reliably indicate jurisprudential quality, and maybe too much life experience in the same field, e.g., big firm litigation or government practice, hardens the mind and thus diminishes rather than enhances adjudicative ability.
One (to me) entertaining way to assess the attractiveness of Supreme Youth is to ask: would the path of the law be better, worse, or the same if we had one or more justices in their thirties? Let’s isolate the youth issue by framing the question such that we’re talking about the path of the law in the period in which the Imaginary Young Justice is in his/her thirties and early forties -- in other words, is the IYJ good or bad for the path of the law in that period, compared to a grey-haired alternative?
Tuesday, September 07, 2010
What Might Retributive Justice Be?
I have a new draft up on SSRN. Those of you teaching criminal law or sentencing law this semester or next may find it of interest as a possible teaching supplement. The paper is titled, What Might Retributive Justice Be? Here's the abstract:
There are many conceptions of retributive justice. This paper is designed to articulate and defend a particular kind of retributive justice, one that I call the “Confrontational Conception of Retributivism,” or the CCR. This particular conception is political, not comprehensive, and thus is interested in defending the claim that *state* punishment is, as a general matter, warranted as a response to *legal* wrongdoing. Accordingly, the focus is on the legal manifestations of punishment, particularly within a liberal democracy; it is not concerned with justifying punishment in other spheres such as parent-child relations. Related to this account of state punishment is that its contours should be devised principally ex ante and that such punishment should be distributed through actors upon whom there are checks with respect to their remaining discretion.
The paper here is a chapter in a volume forthcoming from Oxford including essays on the theory and practice of retributive justice. My paper in particular is an effort at restating, clarifying and correcting some of my prior work in retributive justice theory. It is, relatively speaking, reasonably short and might serve as a useful introduction for students and scholars wading into contemporary retributive justice theory.
oh... and, by the way, hello!
Hello, all, and thanks very much to Dan Markel and the rest of the Prawfs crew for having me back on Prawfsblawg. I write on social justice issues in disaster law and policy and look forward to discussing some of my work in this area with you. At the moment, I’m researching women in the context of disaster as well as corporate entities and their role in development and disaster recovery. I also have a particular fascination with riots and will be seeking your thoughts on ways to protect our urban centers from harm.
Earlier, I let fly a post on multilingual disaster warnings before properly introducing myself – my apologies for jumping the gun! Since then, I’ve also posted brief comments on the FCC Blog and the Commission’s Electronic Comment Filing System about the importance of alerting language minorities in the United States about pending disasters and other emergencies. If you’ve thoughts on this topic, I encourage you to let me (or the Commission) know. Feel free to post in English or whatever language moves you.
The Guantanamo Litigation and the D.C. Courts
One of the more under-reported stories arising out of the post-Boumediene Guantanamo litigation has been the quiet but very real disagreements between the judges of the D.C. district court and different panels of the D.C. Circuit on virtually every question that matters, including the fundamental propriety of the entire post-Boumediene project. And although I posted last week on the immediate significance of the D.C. Circuit's decision not to go en banc to rehear the three-judge panel decision in Al-Bihani, I have put together some more extended thoughts on how that plays into the broader tension between the trial and appellate courts in a guest post for ACSblog up as of this afternoon. In particular, as you'll see, the post suggests that the real winner in last week's drama may in fact be the district court.
The Value of the Casebook Method?
When I was in my first year of law school, I remember periodically returning to the same thought about the way law school classes were taught: "This is so inefficient." I was actually enjoying most of my classes, but still, the basic approach of having us read cases on our own and then spend class time answering questions about them seemed backward to me. Why wasn't the professor starting out by explaining the basic principles to us, and then having us read and discuss the cases to see how they illustrated (or deviated from) them?
So I was fascinated to read Prawfs-blogger Eric Johnson's "A Populist Manifesto for Learning the Law" in the current Journal of Legal Education. Eric argues that "law professors should cease to regard as sacrosanct the process of learning law through the reading of judicial opinions." What's more, he spends the first few days of his Torts and IP classes providing an overview (through lectures) of the blackletter law. He then has the class start over, working through the doctrine again with a casebook. This is exactly the model I envisioned during my 1L year.
What gives me pause, though, is the epiphany (or at least it seemed that way to me at the time!) that I remember having during the summer after my 1L year, when I was interning for a federal judge. I was thrown into working on lots of different cases, including ones in legal areas that I knew nothing about. I often ended up teaching myself the relevant law -- by reading judicial decisions. That summer gave me a new appreciation for the casebook method and the experience I'd gotten in having to make sense of cases on my own. I had similar experiences throughout my time in practice. So now, as a law professor, I find myself sticking much more closely to the model that I'd originally questioned as a student. But I do spend more time in class answering questions and providing end-of-class summaries than I remember my professors doing. I think Eric is right that many students think law professors "hide the ball," and that is something I really want to avoid.
What about the rest of you--how do you balance the competing considerations of having your students learn to teach themselves the law, while not having them feel like you're hiding the ball?
Let's Get Personal: Did You Prefer the Pre-ExpressO Law Review Submission Days?
I started submitting articles to law reviews in the summer of 2003, just after I graduated from law school. At the time, it seemed as if most journals only accepted paper submissions, which was cost-prohibitive for many outside of the legal academy. That said, there was a very useful listing of law reviews which accepted Electronic Submissions. That listing, maintained by Rick Bales of Northern Kentucky, is still in existence today. But while that listing still exists today, it now serves a very different function. Now, in essence, it lists journals that still accept e-mail submissions (or submissions via a journal's website) as opposed to the vast majority of journals, which exclusively accept submissions via ExpressO. Other journals indicate that they still accept e-mail submissions but that they greatly prefer ExpressO submissions.
Started in August 2003, ExpressO allows authors to submit to as many law reviews as they want at one time. The author simply needs to upload a copy of his or her article, a form cover letter, and perhaps a c.v. and abstract. I think the general understanding is that ExpressO has exponentially increased the number of submissions to each law review as authors can now carpet bomb a wide array of law reviews, with law schools often underwriting the costs. Basically, this is similar to the way in which OSCAR has ratcheted up the arms race in the judicial clerkship application process.
Of course, there are definitely some pros to ExpressO. Authors now can submit to a large number of law reviews in a matter of minutes rather than over the course of several days. And authors expediting and withdrawing articles can now do so in the click of a few buttons rather than through individual letters/e-mails/calls. I also assume that ExpressO makes the process easier for law reviews, which is why many journals now only accept ExpressO submissions to the exclusion of e-mail submissions (I wonder why this is the case, though? If an author sends an e-mail submission with a cover letter, abstract, and c.v., how is that different from an ExpressO submission?).
That said, there are cons.If the general understanding is correct, and the number of submissions to each journal has greatly increased, editorial boards have less time to devote to each article. In my mind, though, the biggest con is the generic nature of the submission process. When I used to submit to law reviews, I would often send targeted letters to law reviews if (1) my article addressed a topic that uniquely impacted the state in which the law review was located; (2) the law review had recently published a good article on a similar topic; (3) the law school was especially known for the field addressed by the article, etc. Even if there wasn't a particular reason for a journal to publish one of my articles, it still felt good to write a personalized letter to a journal addressed to a specific person. As late as 2008, I was able to send e-mail submissions to many journals, but as I was submitting articles this fall, I found that there simply aren't many law reviews left in the e-mail game.
It seems as if John Doyle's LexOpus is at least in part an attempt to put some personalization back in the law review submission process, but I'm a bit gun shy to try it because I simply haven't heard from people who have used it (Have any readers had success with it?). It also seems as if the online supplements that many law reviews have added also put some personalization back in the process in addition to having a much shorter window from submission to publication.
So, what do readers think? Did you prefer the personalization of the pre-ExpressO days or do you prefer the efficiency of ExpressO? You can respond by answering the following poll and/or leaving a comment to this post.
Monday, September 06, 2010
Studies of studying
The New York Times today reports on studies of effective studying. You law profs out there might want to share this article with students. Some of the results are surprising. For example, studies indicate that students retain material most effectively when they study it in several different locations and when they study several different but related topics in one study session. Less surprising is the finding that testing is a powerful tool for learning.
Banning the Raising of Hands in the Classroom?
Here's a report concerning a small study of 13-year-old schoolchildren suggesting they learned significantly more when they were banned from raising their hands in class. Instead, every child had to write the answer to the teacher's question on a whiteboard and raise it at the same time. Interestingly, this method helped not only the shy students but the bold ones who would otherwise dominate the classroom discussion. What applications might this study have for the law school classroom? Does it validate a random call system? Does it validate use of the TWEN instapoll?
Labor Day Trivia
Labor Day, as I tell my labor and employment law students, is (and definitely used to be) more than just about the end-of-the-summer-beginning-of-the-football season bbq. Here are a couple of questions, with answers after the jump.
Where was the first Labor Day celebrated in the United States and when? (here is an image of the place)
Why is the national Labor Day slotted in September?
Union Sq. NYC 1882
The day was selected as different and a few months apart from its more militant international counterpart May Day.
Sunday, September 05, 2010
A "web alternative to peer review"?
The NYT ran, a few days ago, this piece, "Scholars test web alternative to peer review," in which the author notes, among other things, that:
[S]ome humanities scholars have begun to challenge the monopoly that peer review has on admission to career-making journals and, as a consequence, to the charmed circle of tenured academe. They argue that in an era of digital media there is a better way to assess the quality of work. Instead of relying on a few experts selected by leading publications, they advocate using the Internet to expose scholarly thinking to the swift collective judgment of a much broader interested audience. . .
The traditional method, in which independent experts evaluate a submission, often under a veil of anonymity, can take months, even years.
Clubby exclusiveness, sloppy editing and fraud have all marred peer review on occasion. Anonymity can help prevent personal bias, but it can also make reviewers less accountable; exclusiveness can help ensure quality control but can also narrow the range of feedback and participants. Open review more closely resembles Wikipedia behind the scenes, where anyone with an interest can post a comment. This open-door policy has made Wikipedia, on balance, a crucial reference resource. . . .
Any thoughts? Do such developments represent a welcome "democratization" of the process, or instead a failure to appreciate the fact that (as Michele Lamont is quoted in the piece as saying) "knowledge is not democratic"? Or something else?
Hamdan and the En Banc CMCR: A Stalling Tactic or a Noteworthy Development?
Apparently lost in the pre-Labor Day weekend rush on Friday was the story that the Court of Military Commission Review (CMCR) has decided to hear the appeal of Salim Hamdan's military commission conviction en banc, rather than before a three-judge panel. Although this isn't that unusual a step in the abstract, it's a bit surprising here, if for no other reason than that the appeal was argued to a three-judge panel in January--almost eight months ago. There's no obvious (public) development that would explain both (1) why the panel would feel the need to go en banc at all (indeed, it's not like there's a lot of prior precedent to bind it); and (2) why it would decide to do so now.
The most optimistic explanation might be that the panel has come to appreciate the structural significance of the issues raised in Hamdan's appeal, especially his challenges to (1) Congress's power to make certain offenses triable by a military commission; and (2) Congress's power to apply those definitions retroactively--i.e., to conduct that pre-dated the Military Commissions Act of 2006. And whatever the answers to these questions are, there can be little doubt that their significance transcends Hamdan's case--indeed, they pervade virtually every military commission proceeding currently underway. By that logic, allowing these issues to go to the en banc CMCR as an initial matter might make good sense, given that the answers will matter in virtually every case this court hears. (That still doesn't explain the delay, of course.)
But the downside is that going en banc probably means still more delay before the CMCR decides these issues, at which point they can (and surely will) be appealed to the D.C. Circuit. I've written at some length both about the substance of the jurisdictional issues plaguing the military commissions, and, as importantly, the extent to which their continuing lack of resolution (one way or the other) has a dramatic impact on current debates over civilian courts vs. military tribunals, especially for the 9/11 defendants. Unfortunately, Friday's news suggests that we're no closer to making progress.
Postscript on Crawford v. Metropolitan Government of NashvilleFor those of you who teach Crawford v. Metropolitan Government of Nashville in employment law, here are some interesting facts about what happened after the Court's decision, taken from this Nashville Post article :
- The district court denied summary judgment on remand (2009 WL 3348233).
- The case went to trial.
- Crawford was awarded $1.436 million in damages ($300,000 in compensatory damages, $409,000 in back pay, and $727,000 in front pay).
- Her attorneys received $453,000 in fees, including UW Professor Eric Schnapper, who received $183,000.
Also, the employee resources director -- the one against whom Ms. Crawford testified -- resigned in 2003 after admitting he had falsely claimed to have been a lawyer, a Navy SEAL, and a professional football player in the past.
Multilingual Disaster Warnings
On August 16, Lisa Fowlkes, Deputy Bureau Chief of the Federal Communication Commission’s Public Safety and Homeland Security Bureau, blogged on the official Blog of the FCC about the issue of multilingual emergency alerts. She discussed the importance of receiving timely alerts and warnings during times of disaster and described the dire situation of non-English speaking individuals who are unable to receive disaster warnings in their own language. After detailing some suggested fixes to this problem, she invited stakeholders and other interested individuals to post comments on the FCC Blog and to submit ideas through the FCC’s Electronic Comment Filing System.
Considering the significant numbers of language minorities living in the United States, this issue is important. And, considering the not infrequent occurrence of natural and manmade disasters and the deadly consequences that can ensue from a lack of multilingual emergency warnings, this issue is urgent.
And yet, I find this discussion troubling. But I’m not troubled by the fact that the FCC is pondering the issue of multilingual disaster warnings. What’s troubling me is that the FCC is STILL pondering this issue. For the whole saga, meet me below the fold.
Over 6 years ago, on August 12, 2004, the FCC released a Notice of Proposed Rulemaking, seeking comment inter alia, “on whether current methodologies for providing alert and warning to non-English speaking persons are adequate.” In the Notice, the Commissions acknowledged a desire to “consider the needs of people with primary languages other than English when considering the best method of contacting the public during an emergency” and solicited comments on how to provide for multilingual alerts.
On November 10, 2005, after receiving several hundreds of responses to its initial Notice, the FCC released a Further Notice of Proposed Rulemaking. In this Further Notice, the Commission sought additional feedback on how to “more effectively reach … speakers of languages other than English.”
On June 19, 2006, the FCC released a Notice of Proposed Rulemaking to “address and implement” the recommendations of the FCC’s Independent Panel Reviewing the Impact of Hurricane Katrina on Communications Networks. The Panel, charged with studying the impact of Katrina on telecommunications and media infrastructure in disaster-struck areas, recommended, inter alia, that the FCC “[p]romptly find a mechanism to resolve any technical and financial hurdles … to ensure that non-English speaking people … have access to public warnings.”
On July 12, 2007, the FCC released a second Further Notice of Proposed Rulemaking asking for additional comments on the issue of multilingual emergency alerts.
We’ve been talking about multilingual alerts for a long time. To date, however, our national Emergency Alert System rules contain no provision ensuring the dissemination of disaster warnings to non-English speakers.
Over the past six years, the FCC, through the notice and comment process, has facilitated valuable discussion on this critical issue. But there is a difference between being deliberate and being dilatory. As I wrote some time ago, “discussion will not stop time from passing or the seasons from turning. The Atlantic Hurricane season began on June 1, 2008. The public interest requires a little less conversation and a little more action.”
Friday, September 03, 2010
The Millennium Trilogy and the Death of An Author
I have just finished reading the three Stieg Larrson books and am happy not only to have read them, but also to now be done with them. They are good. But they are good in their genre – detective type thrillers with suspense and conspiracies, interesting characters and lively fast paced action. My reading of the books serendipitously coincided with my summer travel to Scandinavia and reading the books from my hotel balcony in Stockholm overlooking the city in which the action takes place was a special treat. The series however is not my usual pick for fiction. Larrson’s characters are fun to get to know, but there isn’t a particularly noteworthy depth in their interactions, psychology, or discoveries. The question that is intriguing to me is how much the surrounding events of the author’s life -- his untimely death, the post-mortem controversy about his legacy, the unfinished sequel and the undeniable mirroring of some of the aspects of his and the lead character of the books – contributed to my enjoyment (and the general popularity) of the series. The legal fight about ownership of the copyright and his life partner’s ability to compete the fourth book is of course also intriguing to us prawfs.
Thursday, September 02, 2010
If We Laugh, The Terrorists Win
Is there an informal norm against humor in legal environs? If so, what are the contours of the norm? My answers are “yes” and “I’m not sure.”
Humor exists in the law: in trials, in appellate argument, in client meetings, in classrooms. About that there is no doubt. Yet in many circumstances -- circumstances I find difficult to categorize or describe with precision -- humor (whether an outright joke or simply a wry observation) is seen as evidence of the speaker’s lack of seriousness, competence, or some other desirable quality.
Certainly some attempts at humor are simply unwelcome because (1) they are not funny or (2) the subject matter is patently inappropriate for a professional setting, e.g., ribald humor. But that’s only a partial explanation. I believe, for example, that using a quasi-goofy analogy to orally illustrate a relevant point in a corporate legal setting is commonly understood to be less desirable than using a dry analogy (holding the explanatory power of the two analogies constant). Put another way: I suggest grey dialogue does no disservice to the speaker’s reputation, while colorful dialogue may, if only modestly. And I think there are a variety of other circumstances, which I admittedly cannot broadly categorize, in which the informal norm against color/humor holds.
Agree or disagree? If you agree, but believe it’s a good thing, I’d like to hear why.
Here at University of San Diego we have begun a dean searching year. Our current dean Kevin Cole announced that he will be stepping down at the end of this year. Kevin and his predecessor Dan Rodriguez (who hired me and immediately announced the completion of his tenure as law dean...) continued the school's strong trajectory. We need someone who will continue the terrific path. My question to our wise readers -- what are the best strategies to identify possible dean candidates? Word of mouth? Focusing on those who are already on the dean pool radar? Or is it also productive to pursue people who officially claim no real interest in becoming dean? What is the likelihood that someone who hadn't thought of becoming dean will be convinced?
Any leads, advice and thoughts about the process most welcome.
I'm very excited to be doing my first-ever blogging stint on PrawfsBlawg. I'm in my fifth year on the faculty at Pace Law School, where I teach Education Law, Employment Law, Civil Procedure, and (for the first time next semester) Constitutional Law. I'm especially interested in K-12 public school students' speech rights. I really look forward to getting some feedback this month on my current project: students' hostile speech about school officials, especially--but not only--on the internet. Although student-on-student cyberbullying understandably gets a lot of attention in the popular press, the vast majority of reported decisions about student cyberspeech involve hostility not toward fellow students, but toward teachers, principals, and other school personnel. And while sometimes this hostility is pretty tame, other times it can be incredibly vulgar and derogatory (if not outright threatening). I'm interested in how courts and schools should approach this issue, from both legal and pedagogical perspectives. I'll write more soon, but in the meantime, thanks very much to Dan Markel and the rest of the group for having me!
Pro Bono/Public Service Graduation Requirements: Yay or Nay?
According to A Handbook on Law School Pro Bono Programs, published by the AALS in June 2001, "123 law schools currently have pro bono opportunities available for their students." These programs are relatively new, with Tulane in 1987 becoming "the first American law school to institute an administratively supported service program for the express purpose of instilling an ethic of pro bono service within all law students. This program was also the first pro bono graduation requirement in an American law school, requiring all students to perform 20 hours of law-related public service in their third year of law school."
According to the report, as of 2001, 14 schools, including Tulane, have "pro bono graduation requirements programs," i.e., they "require students to perform a set number of hours of law-related public service. The number of hours required by these programs ranges from 20 to 70. The students’ service is pro bono as they receive neither academic credit nor pay for their service." Another 12 schools have "public service requirement programs," under which they "require students to perform law-related public service but are flexible in the form of the service, allowing service in pro bono placements, externships, clinics, and/or internships to count towards the requirement. Some of these programs allow the requirement to be met only through participation in a for-credit clinic. A few of the programs do not require actual service but allow the requirement to be met by exposure to poverty law through a class or independent study." Gonzaga's program is similar to this latter type of program, "except that it allows non-legal service to meet the graduation requirement." The remaining schools have voluntary pro bono/public service opportunities under which they might utilize a referral system or public service center.
Having never been at a school with a mandatory pro bono/public service requirement, I am curious if those at such schools could share their experiences. It seems like a great idea to me, but obviously there are also costs involved. I am thus curious to see how those with personal knowledge have seen such requirements play out. I am also curious to see how those at schools without such a requirement feel about adding one. You can respond by answering the following poll and/or leaving a comment.
Wednesday, September 01, 2010
Two (or more) Bodies: Problem or Opportunity?
Not sure how I ended up on its email distribution list but I often receive email blasts from the American Association of University Professors. Today's was about how universities could address the increasingly challenging situation of hiring faculty with a partner or spouse who is also an academic. I personally would love to see FSU hire more couples (or threesomes, or more; those 3 of you who have read Privilege or Punish know that I've got nothing against the polyamorous). I think I read not long ago that UVA has 11 couples on its law school's faculty. If true, um, wow!
Anyway, after the jump is the email and its relevant links. Feel free to weigh in with comments on success/horror stories. Please don't use the comments to make specifically disparaging remarks though!
Do you have a “two-body” problem? Are you and your partner or spouse searching for academic positions in the same area, or even at the same institution? Or are you an administrator or department chair seeking guidance on sound policies and procedures for appointing an academic couple? Would you like to know what kinds of dual-career accommodation programs might be available to assist you, or what procedures an institution should follow to best accommodate your partner? If so, the AAUP’s newly released “Recommendations on Partner Accommodation and Dual Career Appointments” is a must read.
The new recommendations were formulated by the AAUP’s Committee on Women in the Academic Profession in view of the increasing likelihood that faculty, especially women faculty, will have domestic partners or spouses who are also academics. The recommendations provide critical guidance on developing sound, equitable policies. In addition, they provide a comprehensive review of the types of partner accommodation programs already available to dual-career academic couples at many colleges and universities.
The recommendations recognize the diversity of academic institutions and their needs, rather than endorse a particular partner accommodation program or policy as appropriate for all institutions. Research universities, for example, may have a particular interest in accommodating partners to remedy the consistent underrepresentation of women among their tenure-track and tenured faculty. Smaller institutions or those with collective bargaining agreements, because they may have more difficulty accommodating dual career couples, may be less inclined to do so. Whatever their needs, colleges and universities can benefit from well-developed policies that, according to the recommendations, “meet the strictest tests for transparency and good governance practices.”
Included among the recommendations:
- Accommodation policies should be developed by appropriate faculty bodies.
- The policies should take into account local conditions and institutional particularities, departmental hiring priorities, and programmatic and budgetary needs.
- Any faculty appointments made as a result of their implementation should be driven by considerations of merit, and, whenever possible, appointments should be made to tenure-track positions.
- Dual career appointments should not be the occasion for increasing the number of contingent faculty members at an institution.
Balancing the needs of departments and institutions with the needs of faculty members is of paramount importance to successful partner accommodation appointments.
We hope these recommendations will prove a useful tool to faculty and administrators seeking to harmonize sensitivity to the needs of academic couples with due attention to good governance and the protections of tenure long recommended by the AAUP.
Ann E. Green, Chair
Committee on Women in the Academic Profession
Ann Higginbotham, Chair
Subcommittee on partner accommodation recommendations
Greetings. Brendan Maher here, and I'm very much looking forward to guest-posting over the next month. I’m particularly fond of civil procedure and ERISA and especially love talking about the latter, which might make me the most boring cocktail guest in the entire world. I believe I make up for it by being an excellent dancer.
One of the attractions of being a law professor is how idea-centric it is. Ideas make life interesting and the future exciting, and the 21st century's a wonderful time for professional idea-lovers, because the internet makes so many serious ideas accessible for both consumption and discussion. SSRN, Westlaw, and various blogs have influenced the evolution of my own thinking in ways that are undoubtedly positive but also…fun. Which, to paraphrase Kurt Vonnegut, is a thing we shouldn’t forget to have.
In short: I’m delighted to be joining the roster of guest Prawfs. Looking forward to a month of conversations!
What Class That Is Currently Optional At Many Law Schools Should Be Made Mandatory?
I would like to thank Dan Markel for inviting me back for another guest stint at PrawfsBlawg. The last time I was here, I led my posts with an entry about what class more law schools should add to their curricula. I ended up getting some very good responses: classes in plea bargaining, depositions, law firm management, statistics, state constitutionalism, etc. Based upon the good responses, I thought I would lead this set of guest posts with an entry asking what class is currently optional at many schools but should be made mandatory.
Of course, this begs the question of whether law schools should increase the number of mandatory classes, so let's start with this poll:
Now, part of your answer might depend upon where you teach. Some schools merely require students to take the Big Six: Criminal Law, Civil Procedure, Contracts, Torts, Property, and Constitutional Law. Other schools require students to take significantly more classes. For instance, at Detroit Mercy, students are required to take:
Contracts, Property, Torts, Civil Procedure, Applied Legal Theory and Analysis (ALTA), Core Concepts, Criminal Law, Constitutional Law, Evidence, Professional Responsibility, Taxation, two Law Firm Program courses, a Clinic, an International Law elective, and an upper-level writing requirement.
At Thomas Jefferson, students are required to take
Torts I, Torts II, Contracts I, Contacts II, Civil Procedure I, Civil Procedure II, Legal Writing I, Legal Writing II, Criminal Law, Property I, Business Associations, Constitutional Law l, Constitutional Law ll, Criminal Procedure, Evidence, Professional Responsibility, Professional Skills Course Requirement, Property II, Remedies, and Upper Level Writing Requirement.
My general sense is that lower ranked law schools require students to take more classes than higher ranked law schools and that the goal of these additional classes is to prepare students for the bar exam. Of course classes important for the bar exam are also usually important for the practice of law, and every law school has some concern about students passing the bar. The counter-argument is that students can learn all bar subjects during bar prep and that they can learn any subject while practicing, meaning that we should allow students to pick and choose their classes with a minimum of required classes.
So, I am interested in two types of comments in response to this post. First, why do you think that the number of required classes in law school should increase, decrease, or remain the same? And second, if you are not averse to increasing the number of required classes, what class that is not required at many schools would you make a requirement?
As an Evidence professor, my answer is Evidence, which many schools require but many schools do not. It is tested on the MBE and MEE. If you ever see the inside of a courtroom, you need a working knowledge of the Federal Rules of Evidence. And, even if you never do, a working knowledge of evidentiary rules can be invaluable in conducting depositions, doing document review, etc. Another class which I have often seen recommended as a required class is Administrative Law. So, what are your thoughts?
Course Releases vs. Reducing the Teaching Load
As usual, I should begin with an apology for my sporadic (if ever there was a euphemism) blogging here as of late. Part of it has been guest-stints elsewhere; part of it has been a little bit of writing (why can't book reviews have 24,000 words?!?). But I hope to resume relatively normal Prawfs status shortly, and am bolstered in my hopes by the fact that I have a course release this fall, meaning that I'm teaching one class, as opposed to our usual two (we're a fairly strict 2+2 school, regardless of credits or enrollments).
This is the first time in my career that I've had a course release. Miami (where I started) had a strict 10-credit-per-year program for juniors, and American had not, until this year, allowed tenure-track juniors to participate in the course release program available to tenured profs, at least in part because entry-level folks get a course release their first two years anyway (which I missed by spending my first two years somewhere else). I'm not trying to generate sympathy; I love teaching, and actually miss having a big class this semester to go along with my seminar--or at least I will until grading time.
Needless to say, because I have too much time on my hands, this got me thinking about the merits of course-release programs. In one sense, they're awesome. They give their beneficiaries time to write, to blog, and to otherwise catch up on the myriad projects on which they might have hypothetically fallen behind while teaching 14 credits last year. And at American, at least, this has all been with an eye toward slowly moving our faculty toward a three-course teaching load. The strongest counterargument, I have to think, is that they're not great for students--the more of us who have courses "released," the fewer courses we can offer collectively, and so either our offerings become less diverse, or we become more dependent upon visitors or adjuncts.
But it seems to me there's another negative, too, and this one affects the released professors more directly: Yes, course releases give the illusion of a reduced teaching load, but they do it in a way that is both imperfectly transparent (leaving open the possibility that good institutional citizens will be treated better when it comes to releases than bad ones--something that I don't think actually happens that often, but could), and that cures the symptom (occasionally overstaffed faculty) without seriously addressing the disease. If anything, doing course releases on a year-to-year, ad hoc basis may also hide some of the true curricular needs of the faculty, since it's more difficult for associate deans to think long-term about where there might be gaps based upon frictional releases, rather than those that would arise from an across-the-board teaching reduction.
So here's my question: am I just looking a gift horse in the mouth, or is there something to the notion that course releases are a relatively easy way for law schools to avoid harder--and more important--conversations about teaching loads?