Thursday, October 28, 2010
4-year-old capable of negligence?
For you Torts professors out there, here's a case to share with your students: http://www.nytimes.com/2010/10/29/nyregion/29young.html?_r=1&hp
I'll take "Moving Abroad" for $1000, Alex
Should Hiring Committees ask "Recruits" to Incur Some Bonding Costs?
N.B. The following post is meant to be offered strictly in my personal and professorial capacity, but not as indicative of my views or others sitting on the appcomm at FSU.
I'm a rank amateur in this realm (at least so far), but in the realm of agency theory, my understanding is that agents are frequently encouraged to "assure the principal that certain actions inconsistent with the principal's interest will not be taken." These are referred to, in the jargon, as "bonding costs." My sense is that this concept could be useful in an area near and dear to our hearts: hiring prawfs, a topic of special interest this week with the rookie meat market happening now.
Although a candidate (rookie or lateral) is not really an agent of the prospective law school -- because the candidate is instead a possible future agent (or more accurately, in the realm of tenured prawfs: a possible co-principal) -- the idea of trying to encourage candidates to incur some bonding expenses may make sense (at least ex ante). Otherwise, schools might be "used" by lateral candidates for simply seeking raises or other retention deals from their current school, and schools might be "used" by rookies for practice on the job market, so that they get more feedback on their work and more experience giving talks, fielding questions, etc. Candidates who are not serious about the law school they might interview with are a good bit like (though not necessarily identical) to those who send their papers to law reviews with whom have no desire to publish. The hiring scenario raises the question: what kinds of bonding costs, if any, are reasonable to ask candidates to incur to signal their genuine interest? *So how can schools reasonably try to reduce situations where candidates are not genuinely interested?
A few options:first, require some co-payment on the part of the candidate for the travel expenses. Say: 250$. Tell candidates that they will be reimbursed that co-payment if the candidate is offered a job and it is accepted, or alternatively, if the candidate is not offered a job. This or some similar gambit might work for deciding who to invite to campus. (Instead of a co-payment for travel, the school could just as easily, though perhaps less reliably, say please make a donation of X dollars to one of the following charities (or a charity of your choice) in order to signal your non-trivial interest in us; this might seem a bit more paternalistic because the donation to charity is non-refundable, or so I would suppose. One senior academic has indicated another bonding cost that lateral candidates should incur is requiring them to come on a day that they normally teach, so that they have to reschedule their class and do a makeup, which generates a small but nontrivial expense/burden to them.
This still leaves open the question of which candidates' work should you consider before deciding to bring them to campus. Schools already rely to some extent on the signal sent when candidates at the rookie level send packets to specific schools, instead of just using the FAR form. But even packets are a pretty weak signal of interest, and it also offers no help in the context of hiring laterals.
I think asking rookie applicants to make a 5 or 10 dollar donation to a charity in your school's name is a potentially useful sorting device to decide whose work to read carefully. It's somewhat trivial in money terms but the very fact of having to do something for 10 minutes extra hassle could be a useful signal. I'd even be in favor of giving them back the money once they do it, or alternatively, those who plead paupery should be spared the expense but not the time by having to just write: I wish I could pay this "application" fee but I need relief; but by this statement, I am genuinely interested in working at your school and hope you will consider my candidacy.
The same tactic might work at the lateral level, but here, more due diligence up front could benefit both parties: appcomms should ask all interested lateral candidates to provide not only the cv and pubs, but also some teaching evaluations and names of 3-4 references so that candidates who are brought in are brought in because the committee has already done most of its homework, or at least had the opportunity to do most of its homework, and people don't have to fly out to campus only to get killed in committee after the job talk based principally on information that was available to the committee before the job talk. [This leaves the committee some flexibility to stymie a candidate based on the job talk or the interviews but hopefully not on the substance of the job talk, which, in my mind, should have been vetted before an invitation was extended--but that's another post.]
Anyway, I'd be curious to hear reactions to this proposal (good concept, but poor implementation; bad concept, but interesting implementation? etc.). Also, I'll let this post be a placeholder for a different post on whether committee attitudes to rookies should be different than those to lateral invitees (for example, rookies should be treated as applicants who need to impress the faculty whereas laterals should be treated as guests whom the faculty hopes to recruit).
*Conversely, is it possible that sometimes schools bring candidates through (whether to join the faculty or even more especially in the dean market?) even though there is no genuine interest in hiring those persons; instead they are simply brought in to show efforts were made to achieve X goal. One reason this is less likely to present itself is that schools spend a couple thousand dollars on travel and food expenses for each candidate brought in for a day of interviews, plus the value of the time for each of the faculty members spending any time with that candidate. Hiring faculty is a costly and time-sucking endeavor. To be sure, some colleagues may feel fine with externalizing those costs onto their faculty, but it's not a best practice, so far as I can tell!
Another AALS Post: When Do You Read?
As I am preparing to get on a plane to DC later today to interview faculty candidates, it occurs to me to ask a question that has bothered me since the last time I served on the appointments committee a few years ago: When do you sit down to read a candidate's scholarship?
In the past, my practice was to read a few pieces here and there before the AALS interviews, usually when a candidate had written something in my field and/or was particularly interesting to me on paper. I get the sense that many people don't read any scholarship until after a candidate has been scheduled for a call-back (or maybe before definitely deciding to call them back), which strikes me as pretty defensible, given that committees can see as many as 30 candidates in 2 days (or schedule as many as 30, some of whom drop out in the final days), and that many of those candidates will disqualify themselves based on the interview (which is also too brief to discuss anyone's scholarship in great detail anyway).
But I also seem to recall a friend of mine who teaches at a top-10 school saying that she had been trying to read the scholarship of everyone her committee was seeing in DC. I suspect that this latter approach may be more common at the very top schools, where presumably few candidates drop out of the mix shortly before the conference, and where candidates who are offered callbacks are pretty likely to accept.
I generally feel like I can get a better sense of a candidate and get more out of the screening interview if I have read something he or she has written, but the practical considerations I outlined above tend to militate against doing this for every candidate. What do others think? What is your practice?
Wednesday, October 27, 2010
Academic Illusions About Work and Retirement
Now that the protests in France against the raising of the retirement age from 60 to 62 are quieting (the protesters having lost), I can't help but comment on this piece in Le Monde from a few days ago by Robert Redeker, who styles himself (a) "philosophe." The piece asks how to understand the protests and strikes, and goes on to claim that the French have never really understood retirement for what it is -- a time of decrepitude, hospitalizations, Parkinson's Disease, and so on. Instead, the French have "mythologized" retirement. They don't live for their work; they don't find joy and fulfillment and worth in their day to day activities. They imagine and exalt a future time when they will be able to accomplish all of the thousands of projects that life has prevented them from enjoying -- a paradise where the best of life will be concentrated, "le bonheur sans le souci."
Indeed, continues Redeker, the false promise of retirement is actually worse than an illusion; it is the "grand social promise which maintains the coherence of the collective tissue," and in the process it renders the populace more docile about social ills -- inequality, exploitation, submission. The promise of retirement "erodes social progress" because people are holding out for a fabulous (literally) future that will never come.
I understand that France-bashing is something of a national pastime in this country, so it may be anathema to suggest that criticism of the French (especially by a Frenchman) is unfair and silly. But in my view, Redeker's article is both. It is also, I believe, representative of the kind of illusions that academics too often have about the nature of work for most people, French or otherwise.
In the first place, there is nothing especially "French" about looking forward to a time of retirement. There is nothing uniquely Gallic about being upset when the state modifies an entitlement which was very valuable to people. It may be that we in the United States are afflicted to a greater extent with the Protestant ethic and the somewhat sanctimonious ideology of the sanitary virtues of work. But most people, whether French, American, German, or Swedish, do think about retirement with hope and positive feeling -- not as a sacred "Graal" or transcendent paradise in the way that Redeker caricatures it, or as some kind Freudian security blanket against the big bad world, but as a perfectly ordinary terrestrial period when one can enjoy a little leisure. Cool it, philosophe.
Second, I find Redeker's piece to reek of the smell of academic removal from the mundane concerns of most working people. For the vast majority, work is not eminently fulfilling, joyful, or an occasion to seek out grand social improvements. Work is what you do to live and support your family. Work is about getting through the day and to the next, not, per Redeker, about extra-terrestrial visions of either the religious or Marxist variety. The fact that work is sometimes (hopefully often) deeply fulfilling and pleasurable for academics -- or that many academics do believe that their work is connected to the search for social improvement -- is an extreme rarity. Indeed, it is a luxury of the academic life. It is a quality of the academic's work that should be recognized as aberrent. But often it is not so recognized; just the reverse -- the attitude is somehow that everybody ought to feel that way. The piece by Redeker manifests a peculiar sort of academic blindness about the nature of work which itself reflects his utter insulation from the concerns and feelings of many people with respect to what work is all about.
The point, of course, is not that many people cannot find satisfaction in their work. Hopefully they do. It is that a certain limited satisfaction is not at all the same as the glorification of work that permeates Redeker's essay -- the presumption that because academics find deep existential fulfillment in their work, everyone else should too. If it's true that "the French" idolize retirement, Redeker does the same for work. For most workers and for most kinds of work out there, the former seems a great deal more rational to me.
Obviously, none of this discussion speaks to the necessity of the measure being considered, a matter about which I have nothing to say. Whatever that necessity, columns like Redeker's do nothing at all to make the case for it more powerful.
So you want to go to grad school?
You've probably seen the one about becoming a lawyer via Leiter. The life choice of becoming (trying to become rather) a humanities professor certainly doesn't seem more appealing to these animated folks. Nor do the Simpsons think much of it.
US News Ballots are Out--Please Stop Sending Me Brochures
In my part of the postal coverage area, at least, US News law ranking ballots have arrived (as Howard noted this morning). This means that all of the law school Deans kindly sending me massive quantities of now-recycled material can throttle back. Of course, I read every word, since I didn't want there to be even a single law school on which I could not form a defensible position.
Holding a ballot in your hands, for the first time in my case, is a funny feeling. One is struck by how many law schools there are to rank. As one of three faculty members tenured last spring, I wasn't actually sure I was going to get one. One of the other "newly tenured" has also become the school's Associate Dean for Academic Affairs, and we suspected she might also get the "newly tenured" ballot to facilitate super-power double-fisted reputation-ranking.Comments on two aspects of the voting instructions. First, the magazine urges me to vote under what is essentially a "totality of the circumstances" basis (suggesting, without limitation, that curriculum, scholarship, faculty and graduate quality be considered). Which means if I have a particular set of values about legal education, even if they seem inconsistent with dominant voting patterns under US News or are not specifically mentioned, I can use those to construct my ranking. If I value, say, affordability, I might favor more highly a school that produces high bar passage at a relatively lower price. Or if I think law schools do a disservice to students if they don't have an "in-the-building" culture, I can disfavor schools I know to have "Tuesday/Thursday" and "Monday/Wednesday" faculty contingents.
Second, the rankings task voters to assign numbers. Each number comes with a word, like "outstanding" (5) or "good" (3) or "adequate" (2) or "marginal" (1). This last word is unusual and odd. These are all ABA accredited law schools. How is it that any significant number could really be deemed "marginal"? Maybe "needs improvement" would be better? There are any number of truly marginal law schools under freeway overpasses in a certain western state, but those schools aren't on the ABA's list.
Some other thoughts, in no particular order. I wish that instead of asking us to assign each school a 1-5 score on a paper ballot, US News employed a software platform or web survey to force assignment of 20% of schools into each of the five numerical categories. If the point of "reputation" ranking is to divide schools up, the current system may do a poor job. Some ballots by voters under the view there are too many law schools might identify 50% of the schools as "marginal." Another, by some social butterfly with friends on faculties across the country, might have 80% of the schools identified as "outstanding." In any event, since the words used for each numerical category are so subjective, some effort to smooth or curve the scores of individual voters would be a plus.
And how about concerns over "gaming"? I seem to recall reading that the magazine's response is to discard the single "highest" and "lowest" votes. So if the Yale dean is the only person to give Harvard a "1" (or vice versa), that gets tossed out. But if lots of voters "game" by assigning high or low scores, I gather that most of those would get counted. So why even let me vote on my own school? (After all, don't I have a fiduciary duty to sing my employer's praises?).
And why not exclude me from voting on other schools in my state or region viewed as competition? Or even other schools in the same 20-30 spot range in the overall rankings? Let the deans at "Tier 4" decide whether NYU or Columbia is better, and make the deans at Harvard and Yale decide who belongs in the unranked "Tier 3" and who belongs at the bottom of the top 100.
Should the Girls Gone Wild Plaintiffs Be Able to Sue as Jane Does? A New Approach to Pseudonymity
The Washington Post reports on a civil suit against Girls Gone Wild founder Joe Francis, one of many filed against him. In this suit, four women who were allegedly between the ages of 13 and 17 at the time that Francis's company filmed them wish to proceed using pseudonyms. The Eleventh Circuit just held oral argument in the case.
In a brand new paper I advocate a novel approach to deciding when litigants should be permitted to sue using a John Doe or Jane Doe pseudonym. I argue that many of the factors most relevant to determining whether pseudonymous litigation is appropriate cannot be resolved at a preliminary stage in the proceedings. Rather, courts will have much better information about whether a pseudonym is appropriate after a final judgment is issued and any pertinent appeals are resolved. In cases involving sensitive privacy matters, courts should provisionally permit parties to litigate pseudonymously but unmask the losing party at the conclusion of the proceedings. Alternatively, courts might apply a more subjective balancing test at the conclusion of proceedings to determine whether the pseudonymous plaintiff's complaints would have been dealt with more productively via pseudonymous self-help.
Part of intuition behind the paper is that in the Internet era parties have a variety of channels for airing a grievance anonymously or pseudonymously. In a low-stakes dispute involving a consumer and a business, or a landlord and a tenant, resort to a Better Business Bureay grievance or even an Internet gripe site may provide a litigant with as much value as litigation at a small fraction of the cost. But in other disputes, the magnitude of the harm alleged is very high, the parties have disproportionate levels of sophistication in using channels of communication or dispate access to them, and legal issues of first impression may be implicated by the allegations. Pseudonymous litigation is appropriate in these settings. If the allegations in the suit against Francis have merit, then the four plaintiffs would have very strong arguments for proceeding pseudonymously. Readers interested in learning more about how such a "wait and see" approach to Jane Doe litigation might work can download my essay addressing these questions, Pseudonymous Litigation (University of Chicago Law Review 2010). The essay discusses Doe v Smith, an earlier Seventh Circuit case that raised similar issues.
Rankings, rankings everywhere
So the US News surveys are out (I managed to escape the task of filling it out--my reign as most-recently-tenured at my school lasted all of one year). Like the Rose Bowl, the US News rankings remain the "Grand[parent] Of Them All." Meanwhile, other surveys and rankings proliferate like so many Motor City Bowls--albeit without corporate sponsorship, but subject to just as much criticism. So, in the past two months alone, we have had Leiter's Scholarly Impact Study, Sisk's Expansion of the Scholarly Impact Study, Leiter's Voter Survey of the Top 40, Best Values, Best Law Schools for Hispanics, and the various Princeton rankings (including Most Diverse Faculty).
I wonder to what extent the US News has become the meta survey, with these other, smaller surveys influencing (to some degree or other) what US News voters think and say about particular schools based on how those schools did in the smaller surveys.
Tuesday, October 26, 2010
Prawfs Happy Hour at the Meat Market...Thurs Oct 28th at Zoo Bar Cafe
Bumped to the front:
For reasons announced earlier, I won't be able to join the fun with my appcomm colleagues in DC at the AALS meat market this year. However, a friend asked if there was going to be a Prawfs happy hour at the meat market, so I'll make the odd suggestion that y'all hook up on Thursday evening October 28th from 8-11pm at the Zoo Bar Cafe near Woodley Park and the Marriott hotel. The Yelp site indicates that it's open-mic nite too and the photos reveal some outdoor seating that will likely be quieter too...if you prefer a different place/day/time though, feel free to signal in the comments a better suggestion. Have fun!
Law School Hiring Thread, 2010-11, Thread Two
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
c) whether they have received an offer from a law school and/or accepted it; feel free to also leave details about the offer or info about teaching loads, research leaves, etc. 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. The aggregator will try to keep track of these (to the extent people let the aggregator know) in the spreadsheet below.
Law professors may also choose to provide information that is relevant to the entry-level or the lateral market. Bear in mind: if you don't want your contact information displayed, please just enter in email@example.com or something like that as an email address.
We now have an aggregator. All information should come in through the comments. Our aggregator will to use a spreadsheet to aggregate the information. Only the aggregator will be able to edit the spreadsheet, but when the aggregator edits the spreadsheet, those changes will be reflected in the embedded version below.
Please be patient with the aggregator, who will try to update this spreadsheet once a day, but may have a job, and perhaps may even be on the market.
This year's first hiring thread, where comments are now closed, is available here.
"Dissenting in Large Part"
We may need a new Bluebook rule in light of today's dissent by Chief Judge Kozinski in Gonzalez v. Arizona (see pg. 63 of the slip opinion).
What's next? "Mostly dissenting" (a la Princess Bride)? Or "Only Concurring a Little?"
Reception of Religiously Affiliated Law Schools at AALS
If you are planning to attend the upcoming hiring conference, consider stopping by a reception -- sponsored by the AALS Section on Law and Religion -- of Religiously Affiliated Law Schools. It's on Thursday night, at 7:30, in the Hoover Room (at the Wardman Park).
Monday, October 25, 2010
A Writer's Time
I came to the study of law because it seemed like a good career for someone who loved reading, writing, and analyzing texts but was not creative enough to make it as a novelist nor independently wealthy enough to risk becoming a medievalist. I also thought that studying law would allow me to make things happen in a way that studying the venerable Bede might not. I question some of my reasoning now, but the decision has turned out to be an excellent one for me. Yet I always admire those who tread the path not taken. One of them is my friend Maud Newton, who was one of my very fist research assistants in her former life--the one she partly abandoned to pursue her dream of writing fiction. Maud (though I still think of her by a different name) is a well known literary blogger, and she and I share a fascination with the writing process. She has a great post this week about her struggles to finish her novel, and it includes the following quotation from E.B. White:
[T]here is nothing harder to estimate than a writer’s time, nothing harder to keep track of. There are moments — moments of sustained creation — when his time is fairly valuable; and there are hours and hours when a writer’s time isn’t worth the paper he is not writing anything on.
I am not a novelist, but I do presume to call myself a writer, and I find it oddly encouraging that the great E.B. White experienced the same joys and frustrations with writing that I do. I plan to track down One Man's Meat, the work from which this quotation was drawn, immediately.
...is all the rage: upload your lectures at night and have the kids apply the concepts in class during the day.
Sunday, October 24, 2010
Updated (again): Lincoln Jonah Markel is now on the scene.
With gratitude and joy, Wendi, Benjamin, and I are thrilled to announce the arrival of Lincoln Jonah (Hebrew: Yonah Makahbi) Markel, who surged into our life Wednesday last night (10/13) at 7:07pm, weighing 7lb 3oz, and measuring just under 20 inches. Mommy and LJ are doing well. Many thanks to the incomparable Dr. Andrea Friall and the wonderful team at TMH, as well as the many friends, colleagues, and family helping out while we get things sorted! Picture and elaborate explanation for the names (spoken words at the naming ceremony at Shomrei Torah on 10/20 at LJ's bris) appear after the jump:
First, thanks so much to all of you for being part of our family here in Tallahassee. We're so grateful you could be here to share with us this incredible simcha. Before Wendi and I share some thoughts about our son’s name, I want to highlight the co-incidence, the wonderful timing, of the brit milah (the covenant with God and our people) that our son just entered. Every week, Jews around the world read a portion of the Hebrew Bible, the Torah, in rough synchronicity. This past Shabbat, we read from the portion Lech Lecha, in which Abraham, the father of the Israelite religion and his son Ishmael, were circumcised. This coming Saturday on Shabbat, we will read VaYeira, the portion in which Isaac, Abraham’s son who becomes the second patriarch of the Jewish people, enters into the covenant with God. Isaac entered into the brit on the eighth day of his life, and for that reason, Jews ever after have had the Brit Milah on the Eighth day too. So we are thrilled that your Brit, our beautiful son, can coincide with the auspicious timing of reading about the origins of the brit in the weekly torah portion.
Lincoln Jonah, you are named for a notable historic figure, a truly great human being, my grandma, Lorraine Jacobs. Without any qualification or exaggeration, I can tell you that my grandma was one of the best people ever. Where do I begin? She was funny, so funny, and she laughed with such dedication and fantastic intensity that her nostrils would flare, just like mine do, and maybe yours will, too. Even though she’d had double knee replacements, she never complained, and she used to get down on the floor to play “house” with me, with my dollhouse. Playing “house” was a little different with my grandma. It was actually “Peeping Tom” that we would play, and she would peek in the windows with one of my brother’s action figures, and say, “Hello, I can see you!” which would cause me to collapse in giggles. My mom observed this version of “house” once and said, “Ma, what in the world are you doing?” And grandma said, “She loves it, Donna, let her enjoy.” The same lack of discipline was applied to the fact that I loved to eat out all of the pie filling or all of the apples of the apple cake without touching the dough or the cake part. Grandma probably knew it was me, but she blamed my dad anyway. When he told her I was the culprit, she’d just laugh and shrug, “Oh, she loves my apple cake.” Her love for me and my brothers was fierce, funny, and without fail. We have a million wonderful stories that we share about my grandmother, and they will be a part of your heritage and your upbringing as well. She passed away more than a decade ago but we still think about her and miss her humor, her hugs, her feisty spirit, her generosity, and her love each and every day. She would have loved you, Lincoln, and you too, Benjamin, more than you’ll ever know and we know she is sharing this moment with us today, cognizant that her zesty spirit lives on in our family.
LJ, your name Lincoln resonates with us in other meaningful ways as well. For example, Lincoln Road was a place in Miami where Abba and I have had many happy times, walking up and down the pedestrian streets, sharing meals at the Books and Books cafe, gorging on gelato, coffee and snacks with each other, as well as with close friends and family.
And, as you’ll learn in school one day, once you are diaper trained and all, Abraham Lincoln, 16th president of the U.S., was widely known for his upright character, decency, and wisdom, and we hope we’ll merit the chance to see you manifest these traits over the course of your life, long may you flourish. Lincoln was also instrumental in facilitating the end of slavery in the United States and thereby helping envision a new political order of equality and freedom. Because part of my work involves working with victims of human trafficking, and educating against all forms of human exploitation, I find a special significance in naming you after someone who so deeply catalyzed a world of greater justice.
We hope you’ll heed Lincoln’s famous aphorism of trying to live a life well lived. He said in words that still ring powerfully: “I am not bound to win, but I am bound to be true. I am not bound to succeed, but I am bound to live by the light that I have. I must stand with anybody that stands right, and stand with him while he is right, and part with him when he goes wrong.” Another statement by Lincoln also serves as a guidepost in the uncharted landscape of life: I want it said of me by those who knew me best, that I always plucked a thistle and planted a flower where I thought a flower would grow.
One last point about your first English name, Lincoln: Abba and I both cherish our connection to our people and the faith and practices that unite us across time and space. Each one of us is not only a link in the chain of the Jewish people, but also a link to the rest of humanity and in those links are also our tethers, our obligations, our duties as responsible stewards for our fragile and frequently broken world. For this reason, we also love the nickname “Linc” and hope that you will be the next link in the chain of the longstanding history of our people, participating in those glorious achievements, sharing them with the world, and all the while, learning from our mistakes and those of others.
Sweet boy, your middle name, Jonah, means “dove” in Hebrew, which the world over serves as a symbol of peace. During their college years, Mommy focused heavily on Peace and Conflict Studies and Abba worked on issues of inter-ethnic and inter-racial dialogue, all aimed at the promotion of a more peaceful world, genuinely respectful of the enlivening differences characterizing the quilt of humanity. We hope, Lincoln Jonah, that you will be a force for peace, honesty, goodness, joy, and connection to the Jewish people.
Lincoln Jonah, your Hebrew name will be Yonah Maccabee. Yonah, as we just said, symbolizes a dove or peace. Yonah was also one of the prophets whose story we read every Yom Kippur, our most solemn day. Like the person of Lincoln himself, the Biblical figure of Yonah presents complications. First, he was a reluctant prophet. But that’s not so bad, right? Maybe that means he’ll bring a healthy dose of skepticism and caution to claims of puffery and charlatans. And sure, he managed to get swallowed by a big fish. LJ, let it be a lesson that you should avoid sailing the high seas, especially without a life jacket! Your mommy will rightly worry… But let’s put things in perspective. Yonah was also responsible for bringing understanding and enlightenment to the people of Nineveh, and by virtue of his roar of prophecy, the people of Nineveh repented and thus were spared. So, Yonah, our hope is that like Jonah the prophet, you’ll be able to hear wisdom, investigate its claims, and share it widely and persuasively with the people around you.
LJ, your second Hebrew name is Ma’kahbi, which would be rendered in English normally as Maccabee or transliterated as Makahbi. In selecting this second Hebrew name, we had in mind Abba’s Zaidy Max Markel, who would be your paternal great grandfather. Zaidy Max’s Hebrew name was Mordechai, a name now proudly shared by your cousin Ari, the son of your Aunt Shelly and Uncle Ian. And of course, you now have a new cousin Max, the son of Uncle Rob and Aunt Haritha.
So what’s the story with Makahbi? Well, in popular Jewish lore, Makahbi signifies a hammer, a sign of strength, heroism, and to a degree, nationalism or pride. The dynastic Tel Aviv basketball team, unsurprisingly, is the Makahbi Electra Tel Aviv. This connection to the Maccabee family, whose good deeds and works we celebrate during Hanukkah, is one that we think my Bubbie Helen would have cherished, such was her love of Am Yisroel, the Jewish people. The Maccabee family is commonly thought to have led a Jewish rebel force against the Seleucid Empire. Through their might and wisdom, they re-established control over parts of the Land of Israel, and therein created space for an authentic Jewish political presence there instead of the faux Hellenized version then prevailing, a life of oppression in which celebrating the Sabbath or observing the Brit Milah was forbidden. The Makahbi rebels should be regarded by you, sweet boy, as catalysts for religious freedom and cultural expression, and popular self-government.
To be sure, Yonah Makahbi, the details are no doubt more complicated, and it’s not as if we want you to reject the gifts of civilization brought by other peoples. But you should always be critically proud and proudly critical, our young boy, of the rites and markings of our cultural and religious patrimony. Importantly, while we want you to live in and pursue a world of peace, we also recognize that in a rough and tumble world, having a hammer nearby for use as a last resort, will help protect the sphere of liberty in which the blessings of life should be yours and your children’s.
Wendi and Danny:
We love you, Lincoln Jonah. We -- Abba, Mommy and Benben -- love you, Yonah Makabi. Welcome to our world, our community, and our family, the world we must care for, the community we must tend to, and the family we eat up we love so much. Please join us in trying to make this world a better place, by plucking thistles wherever you see them, and planting flowers wherever you think they might grow.
Saturday, October 23, 2010
Wikileaks, Genies, and Bottles
The New York Times profile of Assange gives some indication of his motive. He apparently believes his disclosures may curb what he sees as dangerous aggression by the U.S. More significantly, he is a (former, alleged) computer hacker who apparently believes in disclosure at all costs, even if the costs are human lives.
Assange apparently feels a kinship with Daniel Ellsberg, but Assange's disclosures are far more dangerous and potentially deadly than Ellsberg's were during the Vietnam War. The Pentagon Papers purloined by Ellsberg--the original documents, that is--were filtered through real journalists and editors at the Washington Post and the New York Times. These "intermediaries" exercised judgment about what should be revealed and what shouldn't based on some consideration of the safety of American military personnel and whether the disclosures truly served the public interest. Apparently no such editorial judgment is at work behind the Wikileaks disclosures. Assange is determined to disclose, devil take the consequences, and the Internet gives him the power to release the 391, 932 documents in an instant to the entire world.
In the U.S., I fear that the Wikileaks incident may doom passage of the federal shield bill (the Free Flow of Information Act). The shield bill, which contains a broad exception to protect national security, gives reporters limited protection from being forced to reveal the identities of confidential sources in response to federal subpoenas. It had passed the House and the Senate Judiciary Commitee, when it stalled over the definition of "journalists" entitled to its protection--thanks in significant part to Wikileaks' original release of Afghan war documents. This second release by Wikileaks probably spells an end to any desire legislators may have to limit the discretion of the Executive Branch in pursuing leakers of any stripe.
If anything, the Wikileaks controversy ought to illustrate the important role played by the institutional or so-called "mainstream" media and ought to give Congress more confidence in adopting a narrow definition of "journalists" entitled to the protections of the shield law. The released documents appear to contain information suggesting governmental abuses of power in the conduct of the war in Iraq. This information is of vital public interest, and had the documents been leaked to a responsible news outlet, it would no doubt have analyzed, organized, and assembled the information to focus primarily on the items of public interest while minimizing the risks to our troops, our allies, and our national interests. The fact that the institutional media have no protection from federal supoenas may in fact have helped convince the person who leaked the documents to give them to an alleged computer hacker based offshore rather than a responsible outlet such as the Wall Street Journal or the New York Times. Even if the mainsteam media are flawed, they still have institutional checks and balances and mechanisms for enforcing institutional norms that "non-mainstream" media lack. The important role the Fourth Estate plays in democracy deserves protection even if it means Congress must draw messy lines excluding others who are occasionally capable of playing that same role.
Do 1Ls or Upper-Level Students Need / Benefit From Midterms More?
At various points in the past, different folks have posted on Prawfs about the costs and benefits of giving midterm exams, and the various approaches to doing so (for example, see Colin Miller's posts here and here). I've always given midterms in my two "big" classes -- Constitutional Law and Federal Courts -- because I think they're pedagogically useful in (1) requiring the students to put things together earlier in the semester; (2) giving the students two different opportunities to show their stuff / have a bad day (my midterm is usually worth half of the grade; the final worth the other half); and (3) reducing the otherwise massive amount of material for which students in both classes would be responsible on the final exam, which, in light of the midterm, is non-cumulative.
Here's my problem: Next spring, I'm slated to teach both classes in the same semester. And I know myself well enough to know that it's going to be extremely difficult to grade 175-200 midterms in anywhere near a reasonable amount of time -- and that it might even be unfair to the students to try. Moreover, the academic calendar is such that it would be difficult to give a midterm in both classes and not have them overlap with each other, such that the slowness of grading issue is difficult to cure (unless I give all-multiple-choice exams, which I won't do). So the question is whether, if I am forced to choose between my two classes, a midterm is "better" for second-semester 1Ls in Constitutional Law, or 2Ls and 3Ls in Federal Courts? Below the fold, I offer my own set of pros and cons, but I'd welcome yours, as well.
Reasons to Offer Midterm in Federal Courts Rather than Constitutional Law:
- I cover a lot more material in Federal Courts than I do in Con Law.
- In lots of ways, I think the material in Federal Courts is more dense and more difficult than the material in Con Law, such that the more the students can narrow their focus, the better.
- My Federal Courts syllabus admits to a more obvious "break" between one half of the semester and the other than Con Law does.
- Students would choose to take Federal Courts knowing that there is a midterm, whereas Con Law students wouldn't have a choice (even if they have midterms in other classes or other commitments).
- In my anecdotal experience, upper-class students are, as a group, less likely to stay on top of the material on a class to class basis than their 1L colleagues, such that a midterm might have a greater effect on their overall handle on things.
Reasons to Offer Midterm in Constitutional Law Rather than Federal Courts:
- 1Ls are more likely than 2Ls and 3Ls to benefit both directly and indirectly from additional in-semester evaluation of their work.
- Constitutional Law is, in some ways, a sharper break from what 1Ls are used to than Federal Courts is from other upper-level courses.
- A midterm in Constitutional Law would allow me to test on deeper issues than I'd be able to if covering the whole course in one four-hour exam.
- 1L grades may be more significant than 2L/3L grades, and to the extent they are, it's better (fairer?) for them to be based on more differentiated evaluation than upper-level classes.
- Unlike Federal Courts, I do give some multiple-choice questions on my Constitutional Law exams, and so the more of these to which the students are exposed, the better (both for my class and for the MBE--which is why I do it in the first place).
I'm sure there are other reasons, and I'm sure readers will dispute / disagree with some of those I've offered above. So, I open it to you: if you were me, and you could only offer a midterm in one of these two classes (I know--the "right" answer is to offer a midterm in both), which one would you choose and why?
Friday, October 22, 2010
Things You Oughta Know If You Teach Tax
As a new tax professor, you have joined an active and friendly community. Tax law professors are a diverse bunch, but because we are bound together by a love incomprehensible to many others--love of the tax code, of course--we are, I think, an unusually cohesive and supportive group.
You will find many resources for tax professors on the internet.
The most important set of tax prof internet resources is maintained by Paul Caron, of the University of Cincinnati. Because of Paul, you can:
- Read TaxProf Blog. In addition to providing constant updates on the most current tax news and tax scholarship, TaxProf Blog offers many useful links, including a list of the blogs of various tax professors and of tax colloquia around the country.
- Join the active (and almost always on point) TaxProf mailing list.
- Draw on the resources of the TaxProf exam bank.
- Examine other tax professors' syllabi in the TaxProf syllabi bank.
More generally, as you probably already know, the weekly publication Tax Notes, and its daily counterpart, Tax Notes Today, are incredible resources for tax news. The website is by subscription only, but I believe you can also access Tax Notes through Lexis (or perhaps you can ask your library to subscribe to the Tax Notes website). Tax Notes also keeps an amazing and free tax history archive, which includes many presidential tax returns. I find these to be not only fascinating browsing, but also useful for teaching.
In the real world:
You might want to check out the ABA Section of Taxation's Committee on Teaching Taxation. This active committee has nearly 300 members and sponsors various programs at ABA meetings throughout the year.
Try to sign up for the Junior Tax Scholars' Workshop, which is held every summer. The number of participants is limited, but people get tenure every year, so there are always slots opening up. You get to talk tax nonstop for two days, plus it's a great way to get to know your fellow junior tax scholars. (Here is the call for papers for the most recent workshop, and here are the two days' schedules.)
Finally, you should take every opportunity to talk to other tax professors, especially local tax profs. You might find out, for example, that tax folks in your area meet for informal lunches every now and then, or that a regional tax prof conference meets a few times a year. Or maybe there's a local coffee shop that has a special tax professor discount (or maybe not).
Anyhow, welcome to the tax professor community. As our numbers grow, we come ever closer to world domination which, is, of course, our ultimate goal. So we're happy you're on board!
(I look forward to corrections and additions in the comments.)
Who butters your bread?
On occasion, I have had conversations with colleagues about the idea of law professors seeking outside grant funding. Of course, we prawfs should all be aware of, and extremely grateful for, the fact that, unlike many of our peers in other corners of the campus, we are supported by "hard money," i.e., fixed salaries, because our positions are primarily funded by student tuition. I do have some colleagues who (usually working with other profs in other disciplines) have brought in substantial government and/or private grants, which provide huge benefits to the university in terms of the "indirect costs" that the university receives when the government or foundation funds a research project. But I don't get the sense, even for those folks, that these grants are significant, in comparison to their salaries, in providing their overall compensation (unlike in other fields, especially the hard sciences, where grants may in fact provide significant salary support for the faculty member).
In principle, I think it is probably not a bad idea for law prawfs to consider more often whether some of their work might attract outside funding. Not only do grants help support the university financially, thereby perhaps also increasing the value of the law school within it, but applying for grants may in some cases encourage prawfs to think more practically about the potential real-world impact of their work and to try to bring their research to bear more directly on real-world problems.
At the same time, if seeking substantial outside funding became the norm in law schools, including garnering substantial supplemental income from those grants, I wonder how it would change the culture in law schools. If we were no longer primarily dependent on students for our salaries, and instead were focused on bringing in outside funding, would our attitude toward our students change? My husband, recalling his days as an engineering student and then a medical student, is often amazed by the amount of time I spend meeting with students, participating in student events, etc. - and I don't think I spend an unusual amount of time doing those things, by law school standards. But in hard science fields, where (some? many?) faculty salaries and, indeed, faculty members' value to the institution depends in large part on their ability to attract outside grant funding, one might get the message that interacting with students is not the highest priority. So, it seems to me that we ought to consider that the dependence on tuition funds may in some ways be a positive, and not just a negative, for law schools' culture and educational missions.
Do we need to impose more "outcome measures" on law schools? Or, what to do with "entrenched cohorts"?
A few months ago, I noted (here) the proposed revisions to Chapter 3 of the ABA's law-school-accreditation standards regarding "student learning outcomes." And, in the course of trying to learn more about the proposed revisions, I came across this submission, from Prof. Andrew Horwitz (Roger Williams), to the ABA. Prof. Horwitz writes, among other things, that:
. . . A genuine and meaningful move in the direction of outcome measures is both time-consuming and expensive. In the absence of enforceable regulations, all that is left is a leap of faith that law schools and law school faculties will move in the direction of outcome measures simply because the ABA thinks it is the right thing to do. We know from history that this leap of faith is entirely unjustified.
The vast majority of law school teachers who presently engage in teaching that focuses on outcome measures fall into two categories: clinical teachers and legal research and writing teachers. Until the ABA began to enforce regulations designed to encourage reasonable treatment of these two categories of teachers, law schools behaved miserably. . . . The only progress that has ever been made in forcing law schools to recognize the importance of this kind of teaching has been made through the ABA regulatory process, usually with law schools and law deans kicking and screaming.
Despite that clear history and track record, the proposed approach would assume that law school faculties, controlled by tenured faculty who are accustomed to doctrinal classroom teaching that uses a single examination at the end of a course as the only outcome measure, will somehow embrace a new world and a new philosophy. To expect a cohort of people who are quite entrenched in their behavior to gladly move toward a regime that will require them to acquire new skills and to spend much more time providing feedback to students simply defies our common experience. It will not happen without clear and enforceable regulations. . . .
Now, my own views on the proposed revisions (and, I think, on the general project of using the ABA accreditation process to regulate excessively the educational programs and practices of law schools) are closer to those expressed in this memo, from the American Law Deans Association, than they are to those of Prof. Horwitz. It seems possible to me that one reason faculty and deans might not "gladly move toward a regime" of the kind that Prof. Horwitz wants the ABA to impose is because those faculty really do think not only that ABA micro-management of law schools is unhelpful but also that (i) this move would yield no real benefits to students while (ii) imposing substantial costs to the educational and scholarly mission of law schools (and, therefore, on students, the academy, and the profession).
Putting that aside, though . . . I found the sharp, "us v. them" dichotomy that Prof. Horwitz's submission seemed to presume, and the image of "entrenched", self-interested, stick-in-the-mud, protected-by-tenure, all-about-doctrine faculty, kind of, well, sad. It would be a very bad thing indeed if the dichotomy really were so sharp (I don't think that it is), but it is also a bad thing if well meaning and dedicated people think it is so sharp. What can be done?
Fellows Versus Permanent Legal Writing Faculty
From 2007 to 2009, I taught Legal Research and Writing at UC Berkeley. Unlike some of its peer schools, Boalt doesn't use Fellows to teach LRW. Instead, it has a group of full-time, permanent lecturers, often with substantial practice backgrounds. (I ended up with a kind of unofficial Fellowship, since I got the job only a few years out of law school and eventually went on the tenure-track market. But that's not the norm).
My time at Boalt reinforced what I'd felt about LRW as a beginning lawyer and as a law clerk: if you want to litigate, LRW is the class. (It also reinforced what I'd suspected as a law student: that LRW teachers deserve huge raises). And it made me curious about the virtues and drawbacks of the Fellowship model. Of course, I can see how it'd appeal to schools (which effectively freeze salaries with the perpetual turnover) and to Fellows (who take a big professional step forward). But I'm a little skeptical that it works as well for students. For one, practical experience is the coin of the realm for skills-based classes, and Fellowship hiring is largely based on other criteria. Moreover, I can't imagine that the same incentives exist to hone the class and have it evolve when it's taught by a revolving group of Fellows.
What do others think?
Thursday, October 21, 2010
Judge Randolph Comes Clean: Boumediene Was Wrongly Decided
In a speech titled "The Guantanamo Mess" delivered yesterday at the Heritage Foundation, D.C. Circuit Judge A. Raymond Randolph launched a quite pointed (if wholly unsurprising, given his own jurisprudence) attack on the Supreme Court's 2008 decision in Boumediene v. Bush, which held that non-citizens detained at Guantanamo are protected by the Constitution's Suspension Clause. (Reversing, it should be noted, a D.C. Circuit opinion written by Randolph.) Although the theme of Judge Randolph's remarks went to Boumediene's negative consequences in the D.C. courts, he spent a fair amount of time in the speech attacking the opinion itself, especially the extent to which it distinguished the Supreme Court's 1950 decision in Johnson v. Eisentrager.
The speech itself is worth watching. But I wanted to post about it to share two distinct observations, one of which goes to the merits of Judge Randolph's argument, and the other of which goes to the forum in which he presented them.
On the merits, as I've previously argued, we have an alarming tendency today to overread Eisentrager. Yes, there are lots of statements by Justice Jackson suggesting that non-citizens detained outside the United States are not generally shielded by the Constitution (statements Randolph quotes at length in his speech), but all the Court actually held was that those petitioners--who had been tried and convicted by a U.S. military commission--were not entitled to pursue habeas relief. Indeed, Jackson devoted a substantial chunk of his opinion (Parts III and IV, which are virtually never mentioned by those who criticize Boumediene) to rejecting the petitioners' principal claim on the merits, i.e., that the commission acted without jurisdiction [in 1950, this was the only claim cognizable in a habeas petition attacking the judgment of a military court]. If the petitioners were bound to lose simply by virtue of being non-citizens detained outside the territorial United States, over half of Jackson's opinion was totally irrelevant and unnecessary. Thus, as I've suggested before, whatever Boumediene's merits, I think it is clear that the Court was not bound to "follow" Eisentrager, since the petitioners in the later case had not been convicted by a U.S. military commission acting within its jurisdiction.
As to the forum for Randolph's remarks, a colleague of mine asked me if I thought it was inappropriate for a sitting circuit judge, whose docket includes a number of related cases, to speak out so publicly on this topic. Quite to the contrary, I think it's far more appropriate for Judge Randolph to air his hostility to Boumediene in speeches than in the forum in which it has thus far appeared, i.e., his opinions on the merits in the post-Boumediene Guantanamo cases. If one reads the D.C. Circuit's opinions in Kiyemba I and Al-Adahi, both of which were penned by Randolph (and the former of which was vacated by the Supreme Court), one can see some of the same unbridled opposition to the Guantanamo litigation in general, and to Boumediene, in particular, that comes through in his speech. Don't get me wrong--I'm not suggesting that sitting judges should decline to object to Supreme Court precedents; indeed, I think that such criticism is one of their noblest and most important obligations. But objections usually come in the context of detailed opinions calling for the Court to revisit the issue, or in "special" concurrences suggesting that, though settled law compels that particular result, the author believes that the settled law is wrong. Rather than state such views directly, Judge Randolph has taken to adopting rather narrow readings of the Supreme Court's decisions in Rasul, Hamdan, Boumediene, and Kiyemba I (each of which, it should be noted, reversed a Randolph opinion), and in some cases, ignoring them altogether.
Consider as just one example the original panel opinion in Kiymeba I, in which, after Boumediene, Judge Randolph held that the federal courts cannot order the release of Guantanamo detainees into the United States. In the same opinion, Randolph held that the detainees do not have due process rights, citing Eisentrager (among other cases), and not Boumediene. [Ironically, later in the opinion he castigates Judge Rogers for failing to recognize existing Supreme Court precedent.] Boumediene didn't address the due process issue, of course, but it certainly did articulate a new framework within which to evaluate that question, a framework that Judge Randolph nowhere adverts to.
To be sure, readers may disagree with me about Boumediene being rightly decided, or even about Boumediene being decided on a clean slate. But Judge Randolph has given the Supreme Court every opportunity to revisit its rulings in the Guantanamo cases, and it in turn has reversed him every single time. Isn't there a difference between lower-court judges objecting once (and publicly) versus repeatedly writing opinions that all-but suggest that Supreme Court precedent doesn't exist?
Sketchbook of Legal Pessimisms
I am about half way through Professor Bruce Ackerman's new book, The Decline and Fall of the American Republic, a very well written and passionately argued (as well as invitingly slim and artfully designed) monograph which deals primarily (though not exclusively) with what Ackerman perceives as the threat to the American republic posed by an overly potent presidency. Throughout the book, Ackerman castigates the "triumphalist" character of constitutional thought -- he has special skepticism for "ancestor worship" but he seemingly repents his own contributions to the "Panglossian premises of legal scholarship." He makes a number of predictions that he sees as dire for the continuing health of the republic, and he concludes with an appeal to "sustain the Enlightenment tradition in the twenty-first century" (I read ahead).
I want here not to examine Ackerman's substantive claims but instead to reflect more generally and in somewhat impressionistic terms on his style of argumentation -- or maybe better, the mood or orientation which he brings to this book. I believe the book might be described as one kind of manifestation of a burgeoning style in legal, and particularly constitutional, scholarship, which I will call legal pessimism. But Ackerman's is only one flavor of legal pessimism. Other very different varieties are also to be seen (or about to be seen) in today's scholarship. In fact, the mood of these other varieties may in some ways be exactly opposite to Ackerman's pessimism.First, it's probably useful to pin down what I mean by legal pessimism in legal scholarship. The core of legal pessimism is that the evaluation of legal materials -- particularly, but not only, constitutional materials -- ought to avoid the illusion that it is the legal scholar's role to aim at large-scale resolutions in which society greatly improves, let alone perfects, itself. That does not mean that legal pessimism necessarily posits theories of decline (though some, like Ackerman's, do). It also does not mean that legal pessimists need deny that over time society has in fact changed for the better in many ways (Ackerman notes such positive changes in the 20th century). Legal pessimists call for a clear eyed view of today's legal problems and a bleak appraisal of the possibility that their own scholarship can result (or, in certain strains of legal pessimism, should result) in dramatic or large-scale social improvements.
Ackerman's view in The Decline exhibits various of these traits. He dwells for long portions of the book on the deep structural and social problems that he associates with American constitutionalism and the American presidency. He is skeptical that any particular suggestion he offers can cure what ails us. And his is in some ways a backward looking vision -- preservationist and nostalgic for the republicanism of bygone days (though without that unhealthy hero worship): Professor Sandy Levinson describes it as "conservative," and I suppose it is, after a fashion -- an effort to conserve the ideas that progressive law professors from the 1970s forward have been advancing, to great acclaim for the last generation.
In beginning to sketch a taxonomy of legal pessimism, I want to start with two categories that Sandy Levinson develops in his discussion of Ackerman's book, the Cassandra pessimist and the Paul Revere pessimist. Levinson describes these as different styles of pessimism, but I actually think that they are really only a single variety. In his recent response to the commenters at Balkinization, Ackerman refuses the Cassandra label. That's just as it should be, for there really is no Cassandra pessimist in legal scholarship -- and if there is, it certainly isn't he. Almost nobody in American legal academia writes simply to proclaim the oncoming doom -- and the absolute horror of what is, without a hint of doubt, to come -- utterly without hope that someone (anyone?) will heed their unpleasant prognostications. Maybe Sandy Levinson himself comes close, but I don't think even he is a pure Cassandra pessimist.
At all events, Ackerman is instead squarely within what Levinson describes as the Paul Revere tradition: "warning fellow concerned citizens about an oncoming danger secure in the knowledge that they will respond if only informed." In fact, there is a rich tradition of work that is, to a greater or lesser extent, representative of Paul Revere pessimism in constitutional law. Examples in the field I am most familiar with -- Religion Clause law -- include Professor Martha Nussbaum's book Liberty of Conscience, which was explicitly intended as a kind of bracing wake-up call to citizens of good will to come to the defense of an "American tradition" under threat, as well as (from an entirely different angle) Professor Marci Hamilton's slightly older book, God vs. the Gavel, which was again offered in the spirit of the alarm bell as to the dangers of religion for the republic (I've started to read Amos Guiora's recent book, and it sounds similar notes in a different context). Paul Revere pessimism diagnoses terrible dangers ahead and prescribes solutions that it takes to be rooted in some profound, and, it believes, comparatively uncontroversial American principle.
The distinctive quality of Paul Revere pessimism is that it really isn't legal pessimism through and through. Some might even say that in the end it isn't legal pessimism at all. Ultimately its aspirations (which it fears deeply, and expects, won't be realized) are quite grand and transformative.
There is a different variety of pessimism that I think is emerging in legal scholarship today -- a more authentic pessimism. We could call it mellow pessimism, as a contrast with the alarmist, Paul Revere variety. This is a pessimism which accepts features of our social and legal makeup today as enormously complex, varied, and often irresolvable -- even by the keenest and most acute minds that legal academia can produce. The mellow pessimist wants to investigate and reflect on these features of our common legal life, but he is much less apt to become agitated about our current situation. Agitation often can result in overly ambitious diagnoses and prescriptions, which in turn can lead to illusions about the extent to which legal theorists can resolve (or dissolve) legal problems and challenges. Steering clear of Paul Revere pessimism permits the mellow pessimist to think in entirely new ways about those challenges, and to offer different sorts of prescriptions. Last, the prescriptions themselves, uninfluenced as they are by profound agitation about our legal and social condition, tend to respect the limits of what legal theory can and should do. They do not oversell. They are reserved, even reticent, in their recommendations, not because they are uninterested but because they tend to consider these questions in a mellow light.
Are there examples of mellow pessimism in legal scholarship? My own view is that Paul Horwitz's forthcoming book on "constitutional agnosticism" in Religion Clause theory moves in the direction of a mellow pessimism (though he may disagree, and I won't say too much more about it), but I predict more mellow pessimism to come.
Wednesday, October 20, 2010
Has Facebook sucked up the law blog comments?
In Paul's post below, he talks about reactions to the Hill-Thomas voice mail -- not in the press or on the blogs, but on Facebook. I'm not on Facebook, but I wonder -- could Facebook be the reason we see far few comments on law prof blog postings? I remember back in the day when you had posts like this one, where the comments from profs numbered in the 70s and 80s. Nowadays, ten comments are a lot. Perhaps many of the conversations that took place on the blogs in 2005 are now taking place on Facebook. Facebook is much less noisy, as you only see comments from non-anonymous "friends," and your comments seem more private as well. Perhaps folks are sharing there rather than on the blogs.
Of course, when you want to talk to strangers who are experiencing what you are, and/or you want to talk anonymously, blogs are the best vehicle. Witness this post, with over 400 comments. But it looks like the conversations over current events may be taking place elsewhere.
The Phone Call
What to say about The Phone Call? "Nothing" would be a prudent response, and so far the legal blogosphere hasn't lit up about it -- but it's early yet. My early returns on Facebook are that my liberal friends believe Virginia Thomas is, to use language used about another woman in another context, "a little bit nutty." It is an occasion for jokes about Clarence Thomas, disdain for his wife, and renewed support for Anita Hill. It becomes a bookend with the story last week about Virginia Thomas's prominent (and to my mind undignified) Tea Party activism. One supposes one will see mirror-image comments from the other side. (And yes, I have some FB friends on that side as well, although fewer, and have seen one mirror-image comment so far.) Perhaps the ickiness factor will mostly limit responses to the story to Facebook comments and tweets rather than full-blown commentary.
I have only one thing to say about the story, which mostly strikes me as an illustration of the messiness of human lives rather than a deep political story: if anyone will have anything interesting to say about it, it ought to be the privacy scholars, many of whom are also bloggers. What strikes me the most about this story is that we know about it at all. I find something disturbing and off-putting about a sentence in a news story about it that says: "Ms. Hill played the recording, from her voice mail at Brandeis University, for The New York Times." It does not take a position on the truth or falsity of Hill's original allegations (I tend to believe them, for what it's worth, although I don't take a strong position on the matter; and whether they are true or not says nothing about whether Virginia Thomas herself believes they are true or false) to wonder why she replayed these words for a reporter, or why she turned it over to Brandeis campus security or asked for an FBI investigation. I understand why she found the message offensive, but have a harder time concluding that she genuinely thought the message was a serious threat. My sense is that the best explanation for why Hill replayed the message to the media and brought it to official attention is that she concluded that revenge is a dish best served cold.
Perhaps our privacy scholars, who are generally so concerned with public disclosures of essentially private facts, and who ought to be concerned to distinguish between genuine threats and genuinely private affairs, will have more to say on this incident, even if it entails a possible reversal of their natural sympathies for the persons involved. Co-Op, I'm looking at you.
Tuesday, October 19, 2010
Perhaps my title is a bit inflammatory but I'll leave it up there until we provoke some response from the powers that be at our friendly neighborhood SSRN headquarters.
FYI - Apparently SSRN's terms of service now include a nonexclusive
license to edit and translate articles posted there, among other
assorted privileges. I wasn't notified of the change (which happened
last year) and I didn't find it today after a cursory examination of
Sent: Tuesday, October 19, 2010 3:55 PM
Subject: [CyberProf] SSRN discretionary terms of us
Thanks, XXX! The terms "edit" and "translate" are not acceptable to
me. The former, granting a right to edit, could effectuate a stealth
waiver of the moral right of integrity. I could tell horror stories
about editing done without giving authors the chance to check and veto
the edits. The latter, granting a right to translate -- well, there's an
old Italian proverb: Traduttore, traditore! Translator, traitor! I've my
doubts about being bound by terms I didn't see on submission. So when
did the SSRN slip these weasel words -- "edit" and "translate" -- into
the mix? XXX
On 10/19/2010 11:58 AM, firstname.lastname@example.org wrote:
> Re: [CyberProf] FW: SSRN Announces Forthcoming "Purchase Bound Hard
> Copy" option for Free PDF documents in SSRN eLibrary
> Tue, 19 Oct 2010 14:58:10 -0400
> An enterprising member of my faculty just found this. It seems we've
> been had. Perhaps I will now take all my content down; it's available
> on my own site anyway and this pisses me off. - XXX
> from the authors page. Not limited to electronic reproduction:
> License to SSEP
> Users grant SSEP a limited, non-exclusive, worldwide, royalty free,
> revocable license to all contributed content to perform the Services.
> By posting or contributing content using these Services, you are
> granting SSEP a non-exclusive, royalty-free, perpetual, and worldwide
> license to use your content in connection with the operation of the
> Services, including, without limitation, the license rights to copy,
> distribute, transmit, publicly display, publicly perform, reproduce,
> edit, translate and reformat your digital and non-digital content,
> and/or to incorporate it into a collective work.
> . . . .
> SSEP reserves the right to change, at any time, at our sole
> discretion, the Terms under which these Services are offered. You are
> responsible for regularly reviewing these Terms. Your continued use of
> the Services constitutes your agreement to all such Terms.
A new (?) paper on the Roberts Court
Now available on SSRN and, I'm told, due to appear any day in print is a short essay by me entitled A Radically Immodest Judicial Modesty: The End of Facial Challenges to Abortion Regulations and the Future of the Health Exception in the Roberts Era. Short essay, long title. Here's the abstract:
If there is anything as strongly associated in the public mind with Chief Justice John Roberts as his black robe and judicial temperament, it is surely his claim to judicial modesty. And indeed, some commentators have suggested that there are signs of newfound judicial restraint in the Roberts Court. One example of this purported restraint is the Roberts Court’s expressed preference for narrower, as-applied decisionmaking in constitutional cases, as opposed to striking down statutes on their face. The Roberts Court has turned away facial challenges or otherwise expressed a preference for making decisions on an as-applied basis in a number of cases. Examples range across a wide spectrum of subject matter, including voting rights cases, an Americans with Disabilities Act case, First Amendment cases, and abortion cases.
In this contribution to a symposium on “Access to Courts in the Roberts Era,” I focus specifically on the Roberts Court’s decisions in Gonzales v. Carhart and its predecessor Ayotte v. Planned Parenthood of Northern New England in order to consider the meaning and impact of the Roberts Court’s preference for as-applied adjudication in one specific area - abortion jurisprudence. Moreover, I evaluate the likely impact of these rulings in light of Chief Justice Roberts’s expressed preference for judicially modest rulings.
I argue that Ayotte and Gonzales, which on their surface appear to indicate a preference for modest, narrow rulings, are anything but modest in their implications. These decisions call for federal judges to re-write legislation and to make judgments in areas in which they have little expertise. They thus assure continuing federal court involvement in micro-legislating the scope of abortion rights. In addition, the holdings in Gonzales and Ayotte, which ostensibly turn on the appropriateness of facial challenges, are really about re-shaping the underlying substantive constitutional law pertaining to abortion rights. As such, they represent an instance of the remedial tail wagging the substantive dog - a case of the proper remedy, as determined by the Supreme Court, shaping the underlying right. In this sense, these cases form a stark contrast with prior judicial practice, in which the availability of facial invalidation depended at least in part on the nature of the underlying substantive constitutional doctrine, rather than vice versa. I thus explain why the Roberts Court’s stated preference for as-applied challenges, at least as it has been presented in the abortion cases, does not serve the end of judicial modesty.
It feels a little odd to be plugging this article now, as it was written for a symposium that was held at Case Western back in January of 2008 on "Access to Courts in the Roberts Era." But, as a wise person recently said to me, a symposium publication can only move as quickly as its slowest contributor (and, to be fair, I was undoubtedly *not* one of the faster contributors). Still, I am wondering whether others have had experiences with publications appearing after they are already a bit stale, or at least, far less fresh than were when they were written. Perhaps timeliness is overrated? On the one hand, SSRN allows us to make our scholarship available immediately, whether or not it has been published; at the same time, scholarship should presumably have some sort of staying power, since it remains both accessible and accessed long after the day it was published. Thoughts?
The Great Unranked: Leiter versus the "Third Tier"
It was nice to see Brian Leiter's critique of the US News rankings' "Third Tier" and "Fourth Tier" classification of law schools. His site's usual focus on "top" schools' scholarly output leaves those of us looking up from below feeling sometimes left out, so much that some go out and do their own studies.
In his post, he makes what strikes me as a quite strong argument against taking the "tiers" in US News too seriously. The differences between schools within each "Tier" -- from their mission to their teaching to their scholarly output -- are far greater than their similiarities. Yet the classification of certain schools into Tiers has dramatic effect. Unlike moves in the rankings within the "top 50," the classification into Tiers is essentially a zero-sum game. If a school in the "Third Tier" moves up into the coveted "ranked" position, that means another school has moved down.
And once you lose this game, you lose your ranking. My only quibble with Leiter's post is that he refers to schools as "unfairly ranked", when in fact, I think they are "unfairly UNranked."It's a game with meaningful consequences, at least for law school deans. When schools slip into the mass of the unranked Third and Fourth Tiers, deans lose their jobs. Or at least, get apoplectic. When Buffalo slipped into the Third Tier last year, it's dean was "shocked and dismayed." (Why someone would be shocked to be treated in an arbitrary fashion by an arbitrary ranking is something I have a hard time understanding, but the dismay can certainly be appreciated).
When my own school has slipped into the "Third Tier" from its occasional bottom-of-the-second position, students have been disappointed, and those are our customers. Faculty recruiting may suffer. Even staff morale may fall. (The main demonstrable effect, however, was a decline in submissions to our law review, since we no longer were in the "Top 100" that some Expresso users select for law review submissions). As the Washington Monthly noted a few years back in discussing the US News college rankings, "one tiny change in a school's data or in U.S. News' methodology, can bump it from the second 'tier,' where its score is identical to the 51st best school in the country to the third tier where its score is identical to the 176th."
So why does US News keep ranking into "Tiers"? Two obvious alternatives exist. One would be to continue ranking schools numerically in the range of, say, 100-160, and leave the remainder in a "schools also worth considering" category. A few years ago, US News accidentally (?) posted the full positions of all of its law schools when releasing the results on-line. Bob Morse and crew seem at least superficially aware of the criticism that "Tier"-ing is misleading for students. In discussing the 2011 college rankings, he blogged, "We believe dropping the "Third Tier" would make the rankings less confusing for users." (By stopping ranking at some point, the magazine, which is obviously interested in readers' feelings, would avoid stigmatizing the bottom-ranked school and its students with the label of "worst" law school in America).
Another alternative would be, ala Forbes' MBA rankings, to only rank the very top (20? 30?) schools, and then leave the rest unranked. That of course simply changes the trigger point for Tiering (perhaps the schools up higher are more secure in their positions without an arbitrary ranking, but I'm no so sure). But the main downside for US News would be that fewer ranked schools means fewer potential readers who care. Incidentally, what percentage of subscribers to the "full access" law rankings on US News.com do you think work as faculty members or deans at ranked schools?
Expanding the rankings would, presumably, increase interest in the rankings, since that would mean that schools solidly stuck in "Tier 3" due to low funding or geographic stigma might now have something to play & hope for.
So why not do it? Here's my theory. Once you get to around 60 or 70 in the US News ranking, the differences going further down become miniscule. That is, the difference between school 90 and school 127 is a hair at most. Publishing 150 rankings positions would reveal -- to an extent that the current list of 100 obscures -- that the rankings have almost no intellectual coherence. Moreover, Morse and crew regularly defend their rankings by pointing to stability-- generally, among the ranked schools, there is relatively little wild movement (exceptions, of course, abound, particularly when the methodology changes). But the tiny gap in the schools between 60 or 70 and 140(?) means that, were all those schools ranked each year, there would be perhaps dozens of moves of more than 20 to 30 positions each year -- something that would make the rankings look as predictable as the PowerBall lottery.
Monday, October 18, 2010
Web Video and the Academy
This Wed. evening I am giving a TED-like talk in Los Angeles. It’s called BINA “ a fast-paced, thought-provoking evening” with talks that are later uploaded here. I love watching TED talks. Even though it takes longer to listen to the ideas transmitted by video than by the written word, the is something powerful about watching people describe their own work and ideas. In the academy, we of course are well aware of the irreplaceable quality of live interaction and talks. We can read 50 books on a topic but we still want to attend the weekly faculty colloquium. TED as a conference of great ideas has been around for over two decades. But only in 2007 it launched its website making available its talks under a Creative Commons license. Recently, TED’s own curator Chris Anderson gave a TED talk about the rise of web video and how it is driving a worldwide phenomenon he calls Crowd Accelerated Innovation – “a self-fueling cycle of learning that could be as significant as the invention of print.” Anderson claims that since TED introduced its videography, speakers have stepped it up – the stakes are higher – many more viewers will be able to watch you for ever and ever. And in turn, ideas themselves flow more rapidly and are built upon when millions of viewers have instant access not only to the written article, but the spoken word, the power point, the gestures, the facial expression and the body language. The video drives up our game exponentially.
Republic of the Lion
I have always wondered why the founding generation never really looked to the Republic of Venice as a model for republican government. To be sure, America was just in the offing as Venice suffered its coup de grace at the hands of Napoleon. Venice's 18th century history was marked by Sybaritic decline in the form of Carnevale and the Grand Tour -- a kind of Las Vegas for wealthy English and continental gentlemen.
Still, many of the founders were quite cultivated, and it seems strange that they would have bought into Napoleon's obnoxiously prudish and self-congratulatory views about an ancient civilization with an extremely distinguished republican history. For centuries, Venice was the closest thing to a pure republic since pre-Caesarean Rome, and certainly by far the most successful and enduring of the late medieval/early modern republics (at points its voting systems were almost preciously democratic). But I haven't located any love for Venice. I am not a historian and haven't studied the issue thoroughly, but I've largely found the opposite.
For purposes of this post, I'll limit discussion to what can be found about Venice in the Federalist. Obviously that is not the only relevant source in this kind of discussion, but I very much hope that readers will point to additional documents and references involving the early American understanding and appreciation (or not) of Venice.
In the Federalist, one sees two kinds of views about Venice, which are quite different but both negative. There is, first, a critique of Venice as the prototypical decadent oligarchy -- indeed, as luridly decadent because oligarchical. Second, there is a view of Venice as essentially ungovernable because overly or too commitedly democratic.
In the first category, consider Federalist 6, where Hamilton offers Venice as an example of a republic that was beguiled by the love of lucre and rightly put down by the League of Cambrai in the 16th century (good grief). Similarly, in Federalist 39, Madison describes Venice as a kind of ersatz republic “where absolute power over the great body of the people is exercised, in the most absolute manner, by a small body of hereditary nobles.” Madison contrasts this state of affairs with an authentic republic, in which power is derived “from the great body of the society.”
Contrast that ahistorically Napoleonic position with Federalist 48, which is, in my view, a much truer and more sophisticated sort of critique. There Madison is describing the checking powers that one branch ought to have over the others -- that the branches ought not be strictly separated. Madison is nervous about the despotism that a purely majoritarian system of government might portend. He says,
“One hundred and seventy-three despots would surely be as oppressive as one. Let those who doubt it, turn their eyes on the Republic of Venice . . . . an ELECTIVE DESPOTISM was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others.”
While I think this is a better angle on some of the problems Venice encountered in its republic history, I am still surprised that the overall picture of Venice which emerges is so unqualified in its condemnation. And once the 19th century got rolling, Venice's stock seems to have declined even more in American eyes: I once tried (unsuccessfully) to read James Fenimore Cooper's "The Bravo" and thought it ridiculous and overblown, the product of a kind of prideful, ignorant Americanism.
I hope readers will weigh in with data about how Venice was viewed by the founding generation.
Zoning for Minority Jobs at 15 Penn Plaza
For all of you zoning aficionados who are looking for skyscraper-high piles of legal and policy issues to pack into a single problem, 15 Penn Plaza may be your dream parcel. The site is owned by Vornado, a major REIT in New York City which has been seeking to build a 1,216-foot Rafael Pelli-designed skyscraper on the Hotel Pennsylvania site opposite Madison Square garden on Seventh Avenue. New Yorkers know 15 Penn Plaza as the proposal that would would supplant the Empire State Building as the tallest tower in NYC, much to the chagrin of Anthony Malkin, ESB's owner. But the building has another claim to fame: The City Council approved the re-zoning permitting Vornado to acquire the extra floor-area ratio ("FAR") necessary to top the Empire State Building only on the condition that 15% of the contractors hired for both "hard" (e.g., electrical, plumbing, ironwork, etc) and "soft" (e.g., financing, architecture, legal, etc) costs be minority- or female-owned firms. Apparently, City Council slipped this condition for the re-zoning in at the last minute: Mayor Bloomberg was unaware of the requirement until apprised by the press.
One might think that there is a towering Croson-style 14th Amendment problem with this last-minute condition on a zoning map amendment. But who would have standing to raise it in litigation? Vornado is obviously not going to challenge the condition, given that the set-aside helped induce the City Council to approve the extra FAR. Disappointed contractors bidding on work would face causation difficulties: They might have to argue that, but for the city council's condition, Vornado would not have adopted a 15% set-aside -- a tough proof, given that the City Council could have unconditionally approved a big tower so far as state and federal law was concerned. (Standing requirements sometimes mysteriously get relaxed in affirmative action cases, so one cannot rule out standing in an Equal Protection challenge based`on "integrity-of-the-process" grounds).
I suspect that any federal constitutional questions are over-shadowed by the larger and less legalistic policy problem of ad hocery in re-zoning policy. Having city pols pile on pork for their constituents through re-zoning without data or standards, is a recipe for lousy policy-making. Sadly, there is no obvious state law "fix" for this sort of egregious lawlessness.
Consider, first, the gap between the city council's posturing and the data or study that would be needed to make 15% a plausible number. Since even Bloomberg did not know about the 15% proposal, one can be sure that there is no study from DCP or Planning Commission suggesting that there is a significant pool of minority-owned engineering, law, and architectural firms standing ready to perform the work that Vornado requires. One suspects, therefore, that, if Vornado actually keeps its promise (which I deem unlikely), they will do so with firms that use front-men and phoney owners to qualify. In effect, "minorities" (however defined) will be retained to rent out their ethnicity to firms that would get the work without the requirement. Whatever the egalitarian merits of a real set-aside policy, such a policy requires careful definitions, decent data, and meaningful policy goals. The eleventh-hour posturing of council members looks like either empty rhetoric or mere pork for for council members' pals.
Are there plausible remedies for such ad hocery rooted in state or local zoning law? Yes -- but state judges would have to be willing to impose some sort of substantive limits on the now-freewheeling bargaining process that constitutes NYC re-zoning. In an administrative context, state supreme court judge Edward Lehner famously struck down a sale of city property back in 1987 where the price was contingent on the buyer's getting extra FAR approved by the City's Planning Commission, on the theory that the city was effectively "selling" its zoning power for cash, for which there was no provision in the zoning resolution.
One might reason that, if zoning for dollars is illegal, then zoning for quotas might also face some legal problems. But Judge Lehner's doctrine was imposed on an administrative agency's implementation of the special permit process, a procedure governed by standards contained in the zoning resolution. No such substantive limits on the city's legislative re-zoning process are contained in either the City's charter or the City's zoning resolution. Section 197-c of the City Charter provides merely a procedural framework for re-zoning -- the "Uniform Land Use Review Process" (ULURP) -- but this framework is mere "zoning theater" -- a lengthy routine to give residents their minute at the mike in a Potemkin Village of zoning democracy. (Since the design decisions are generally resolved in pre-certification before the Planning Department, the various hearings before Community Boards are strictly for entertainment, as nothing about the proposals changes as a result in most cases). There are no substantive limits in ULURP that any court could enforce.
To extend Lehner's Municipal Art Society decision to the legislative side of zoning, a state judge would have to invent some substantive limits on the City Council's power to sell off development rights. 15 Penn Plaza might be a plausible vehicle for such a challenge, if only because the state judge could import some substantive standards straight from federal constitutional law. But do New Yorkers really want Culture War fights over affirmative action infecting the zoning process on the heels of the "Ground Zero" mosque farce? The issue should be the merits of eliminating lawless ad hocery in the zoning map amendment process, not the merits of racial set-asides. Sadly, given the last-minute opportunities for empty posturing and/or constituent pork afforded by standardless discretion, this is one issue that council members and the state legislature are most likely to leave unaddressed.
Sunday, October 17, 2010
I am very bad at being bored. I change casebooks often to avoid boredom, I rarely write an article that builds directly on a previous one, and I sometimes "multitask" in meetings when I should be paying attention. As a result, what I'm about to say is hypocritical. However, I'll say it anyway. Learning to deal with boring tasks in an important professional skill, and it might behoove us to let our students in on this secret.
There's a common misconception that students only become bored when they are not being intellectually challenged. While it is true that boredom often results when one is not intellectually challenged, boredom can also result from being asked to learn challenging but important (and mind-numbing) minutiae. Although as a student I was able to find intellectual pleasures in the most unexpected legal places (tax!), certain material has the potential to be boring no matter how engaging the teacher and no matter how practical the material. This contention should in no way be construed as an excuse for bad teaching. A bad teacher can make the most exciting material dull. But teachers shouldn't feel (as I sometimes do) that they have to apologize to students for not making every second of every day absolutely scintillating either.
I've sat in the back of my colleagues' classes--classes which I thought were engaging and well taught--and watched students throughout the classroom on the Internet. It pains me, because I am sure the same things is going on in my classes. I worry for the students who can't go a class period without being on the Internet because they haven't developed the ability to be bored. Practicing law is not always exciting. Who wants to listen to a client drone on and on? And sitting in a courtroom for any length of time brings one face-to-face with just how unrealistic courtroom dramas on television are. For every dramatic moment, there are hours of deadly dull arguments or testimony, but the lawyers involved have to pay absolute attention during these hours nonetheless.
How do we convey this lesson to students? Is it something they must learn on their own? Once, as a summer associate, I was asked to do research on nuclear regulatory issues for a good bit of the summer; I thought I might slit my wrists from the sheer tedium of it, and yet the topic required every bit of my intellectual ability to understand. I was shocked by the experience, because it ran completely contrary to my fundamental faith that learning new things is always exciting. Should my law professors have warned me? Would I have been able to benefit from the warning? What should I say to students that won't scare them from the practice of law entirely? As it currently stands, I tend to address the issue only obliquely. I am fond of saying to students that I love my job so much that I would do most of it for free, but grading exams and attending committee meetings is something I have to be paid to do. I also tell them, when we're in the midst of a particularly detailed and tedious topic, that lawyers get paid well (did get paid well?) because they are willing to wade through complexities few people are willing or able to understand. Is it my place to do more?
The Reverse "Bill Stuffer"
My favorite lawyer is currently Larry D. Thompson of Houston, Texas. Here's why. If you have a credit card, cable television, or a telephone, you've probably received a "bill stuffer" from your lender or service provider: a notice in your monthly statement that purports to change the terms of your ongoing contractual relationship with the company. Shameless self-serving plug: I've written about the use of these unilateral modifications in the context of arbitration clauses here and here. For several reasons--including the fact that these changes lack consideration and treat silence as acceptance--I've argued that they should not be binding under traditional contract principles.
Back to Mr. Thompson: he transferred a large balance to a certain credit card company that had offered a "teaser" rate of 0% for six months. After that period elapsed, the company raised his interest rate to 22.9%. But Mr. Thompson volleyed this serve: he sent his own bill stuffer to the company, adding new terms that saddled the lender with hefty fees and interest rates if it did not immediately refund any amounts that he overpaid. And he informed the company that it had ten days to reject these changes.
First, I want to raise a glass to Mr. Thompson. That takes chutzpah. Second, it's worth noting that a Texas district court refused to enforce the reverse bill-stuffer, reasoning that "modifications to an agreement can occur only with the consent of both parties and consideration." Thompson v. Chase Bank USA, No. H-07-1642, 2009 WL 290186, at *2 (S.D. Tex., Feb. 5, 2009). I guess that kinda proves my point: these unilateral modifications are "contractual" in name only.
Friday, October 15, 2010
Law and Religion's Bayreuth Festival: St. John's Law
Are you interested in law and religion? If so, I hope you can make the pilgrimage to New York, and the additional (and generally very rapid) jouney by camel to St. John's law school and pitch a tent (my office available at a non-usurious rate). Please join us for the following events:
- On Thursday, October 21, the Center for Law and Religion will host a roundtable on Christians in the Middle East.
- On Monday, October 25, the CLR and the Center for International and Comparative Law will host Professor Amos Guiora (as part of the Global Speaker Series) for a discussion of his book, Freedom from Religion.
- On Friday, November 5, the CLR will host a symposium on the subject of Religious Legal Theory: Religion in Law and Law in Religion.
- On Friday, November 12, the Ronald H. Brown Center for Civil Rights and Economic Development will host a symposium on the subject of Legal, Secular, and Religious Perspectives on Marriage Equality/Marriage Protection/Same-Sex Marriage.
Will the deal get done in time?
UPDATE: from the Guardian blog:
3.58pm: LIVERPOOL FC HAVE BEEN BOUGHT BY NEW ENGLAND SPORTS VENTURES, Owen Gibson confirms that the deal is done.
Soft Drinks and Federal Food Assistance: Another Likely Failure from the Laboratories of Bureaucracy
Does federalism promote policy experimentation? Thirty years ago, Susan Rose-Ackerman offered a now-famous riposte to the idea that states are laboratories of democracy. According to Rose-Ackerman, states suffer from a free-rider problem: A governor or mayor bears the political risk that their novel policy experiment will be a flop, but other politicians who stand on the sidelines and wait to see how the idea fares can reap the political rewards simply by copying the idea if the policy turns out to be a success. As I have noted in an earlier post, Brian Galle and Joseph Leahy have a smart refinement of Rose-Ackerman's basic insight, noting that subnational politicians' ambitions for higher office might not induce them to take the risks of being a policy pioneer because, citizen ignorance about politics being what it is, the average voter will not be able to tell who was the first mover when credit is being claimed. One might, therefore, expect subnational politicians to hang back rather than experiment, waiting for neighboring politicos to test new policies.
My casual empiricism suggests that this is not an accurate account of how subnational politics operates. But the question of whether states are decent labs o' democracy, in any case, is: "Compared to what?" The issue is not whether federalism is a perfect laboratory but rather whether federalism, imperfect as it is, outperforms the unitary state. Assuming that governors and mayors have incentives to hold back with the experiments, they might still outperform federal agencies and Congress if the federal officials are even more paralyzed by fear.
The recent fracas over whether the U.S. Department of Agriculture should allow New York City to launch a pilot program barring the use of Supplemental Nutrition Assistance Program (SNAP) benefits to purchase sugary soft drinks provides an excellent illustration of the following hypothesis: However cowardly and risk-averse subnational politicians might be, members of Congress and federal agencies might be even more craven.
The central uncertainty with SNAP and soft drinks is whether, by limiting recipients' entitlement to buy unhealthy beverages, one will reduce the high levels of obesity and diabetes among indigent households. There is no doubt that low-income households are disproportionately subject to both ailments, and there is no doubt that sugary soft drinks are a major culprit in these health hazards. But opponents of New York City's proposal argue that, by barring food stamps from being used to purchase soft drinks, one will simply stigmatize the recipients of food stamps without making much of a dent in their consumption of unhealthy drinks.
Maybe the opponents are right. But the claim that restricting food stamp purchases will produce substantial stigma strikes me as, at best, a hypothesis in need of confirmation. Food stamps already are ineligible for use in purchasing non-food items, alcoholic beverages, tobacco, and prepared foods. Therefore, food-stamp recipients already have to use cash along with their Electronic Benefit Transfer (EBT) card to purchase a normal mix of groceries and personal items. Why exactly will stigma of using an EBT card increase because users have to put their Coca Cola in the "cash" pile on the checkout counter along with beer, Stouffer's frozen dinner, and Kleenex? On the other hand, if the restriction reduces the consumption of sugary soft drinks, then it could save lives and avoid diabetes-induced amputations. Of course, food education might also change eating habits, but, given the difficulty of changing eating habits, it is not obvious that education will work better than simply restricting the use of federal benefits.
In short, the question is an empirical question for which we need data rather than rhetoric. But my bet is that, despite having significant discretion to authorize a waiver, the Department of Agriculture will not permit New York's policy experiment to go forward.
Why not? Here's a hypothesis. Perhaps both incumbent congresspersons and agency specialists are allergic to controversy, and perhaps controversy is endemic to important policy experiments launched at the national level. Consider, as an example, New York City's anti-soft drink policy: In Washington, it attracts empty libertarian or egalitarian slogans like a dead cat attracts bluebottles. As Jonathan Adler put the question, "is this an example of over-weening paternalism? Or is it a responsible limitation on government assistance?" Of course, framed in this manner, the policy debate is an immediate call to arms for social conservatives, libertarians, and egalitarians to battle it out on the high plains of abstraction. Highlight the "government assistance" aspect of the case, and egalitarians immediately smell an assault on the dignity of the indigent -- that is, an implicit claim that poor people make poor food choices. Libertarians, by contrast, are incensed by a claim of entitlement to what they regard as governmental largesse -- charity rather than private freedom. We are accordingly treated to tired rhetoric when we need fresh data.
Bloomberg can sidestep these controversies, because he rules a one-party town where libertarian slogans have little purchase. Everyone knows that Bloomberg (who makes war on everything from public smoking to trans-fats) is motivated by technical health concerns, not bash-the-poor rhetoric. A meddlesome nuisance he may be, but an indigent-bashing Tea Partier, he ain't. So he can go forward with a policy experiment free from the paralyzing cant that generally freezes Washington, D.C. into a perpetual battle of slogans worthy of bumper stickers and C-Span. Put more generally, political homogeneity increases rather than decreases the power of politicians to sidestep gridlock-inducing controversy. Increase the number of antagonistic factions, and Madison's Nightmare haunts one's efforts to launch any controlled experiment.
Of course, this theory about the incapacity of federal officials to authorize experimentation is just a hypothesis. Maybe I am overlooking a plethora of exciting policy experiments being launched by field offices of federal agencies throughout the nation. In any case, the Rose-Ackerman/Galle-Leahy thesis will only be persuasive when likes are compared to likes -- when subnational politicians who are allegedly free-riding off of each others' experiments are compared to shell-shocked federal bureaucrats huddled in their agencies just trying to avoid the latest salvo in the national Culture Wars. Assuming that the Department of Agriculture does what I (sadly) predict and declines Bloomberg's petition for a waiver, we will have one data point on the question of relative institutional competence to experiment: On an issue where the ratio of rhetoric to data favors the former overwhelmingly, the feds turned down a chance to get a little more of the latter.
In short, these waiver fights are one laboratory from which we can all learn a great deal about the relative merits of federalism and Leviathan.
I am grieved to learn of the passing of Louis Henkin (information available here). In a week in which we suffered the passing of Richard Nagareda after far too short a life, it is some consolation to celebrate a long and well-lived life, but I am sorry for the loss. Henkin was my constitutional law professor and I will always be grateful for the experience.
Thursday, October 14, 2010
"The Perfect Lawyer"
That's what Washingtonian magazine called my former boss, Herbert "Jack" Miller, a lawyer who "[w]orked for Nixon and the Kennedys--and Built a Law Firm the Likes of Which They No Longer Make." I received a nice announcement from some former colleagues of an upcoming event dedicated to Jack's memory, and was reminded -- and confirmed in my view -- that we can hope not only to "live greatly", but also to live well, in the law. Check out the piece.
FSU Law Review Exclusive Submission Window
My research assistant, the wonderful Will Ourand, is also the FSU Law Review's Senior Articles Editor. He asked me to post this:
The Florida State University Law Review will be conducting exclusive fall article reviews. Any article submitted to this exclusive review between now and October 17, 2010 will be evaluated by October 31, 2010. By submitting the article you agree to accept an offer for publication should one be extended. Any articles accepted through this review will be published in Issue 4 of Volume 38, which is slated for publication in summer or fall of 2011.
If you have an article which you would like to submit, please e-mail an attached copy of the article and your resume to email@example.com with the subject line "Exclusive Fall Article Review." (Keep in mind: this opportunity applies also to articles you may have submitted earlier this season).
International Corporate Warfare in Real Time
Whether or not you are a scouser, I would encourage you to go to this page right now -- now! -- to experience the thrill of international corporate warfare in real time. Yesterday a British court ruled that the board of Liverpool Football Club had the power to go through with its sale of the club to the folks who own the Boston Red Sox. I say the "board," although that was part of the dispute, as the owners -- two Americans, including the former owner of the Texas Rangers -- had changed the composition of the board in breach (as the U.K. court found) of an agreement with UBS, who had lent them £200m. If this is all a bit much to figure out, then add in a late-breaking TRO from a Texas trial court judge enjoining the sale! Today the parties are back in U.K. court, and there could be a verdict as I am writing this now. If the sale doesn't go through today, UBS can take over the club tomorrow, which will cripple LFC's standings in the Premier league. So check out David Zaring's piece from yesterday for background, and keep hitting "refresh" at the Guardian's site. And feel free to email the Guardian's reporters if you have any in-depth knowledge about Texas civil procedure.
UPDATE: Mr Justice Floyd is back, but a decision is still pending. Tough to take! And I'm wholeheartedly in the board's camp. I've been brainwashed, perhaps, by things like this.
UPDATE 2: From the Guardian blog:
5.21pm: Judge rules that anti-suit injunction wanted by RBS and other parties (board) against owner's action in Texas is granted. "This case has nothing to do with Texas."
If anyone with international civil procedure expertise would like to weigh in on what happens next, I'd be much obliged.
Wednesday, October 13, 2010
The Uniqueness of Usury
Usury -- the practice of lending money at interest -- occupies an unusual place as a historical phenomenon: it is a practice that is condemned in the Jewish, Christian, and Islamic traditions (to greater and lesser degrees), but forms the foundational bedrock of modern capitalist societies. Is there any other practice about which this can be said?
C.S. Lewis (in Mere Christianity) claims that the practice was also condemned in antiquity: "There is one bit of advice given to us by the ancient heathen Greeks, and by the Jews in the Old Testament, and by the great Christian teachers of the Middle Ages, which the modern economic system has completely disobeyed. All these people told us not to lend money at interest: and lending money at interest-what we call investment-is the basis of our whole system."
Can you think of another social practice with this history and which holds this status?
Just to be specific: I am not asking about practices condemned by (all of) these traditions but now tolerated, or even celebrated, by some or many today. To stand in the same position as usury, the practice would have to have been universally condemned, and also constitute an indisputable, core feature of our contemporary social makeup -- something foundational and taken for granted by people with very different moral outlooks.
Admittedly, the practice of usury doesn't find absolute or unequivocal condemnation in ancient sources. In Deuteronomy 23:20 (Douay-Rheims) (what else?), one sees this statement: “Thou shalt not lend to thy brother money to usury, nor corn, nor any other thing: but to the stranger. To thy brother thou shalt lend that which he wanteth, without usury.” And there are other prohibitions in Exodus and Leviticus. But this passage makes plain that usury is permitted to "strangers" -- that is, to non-Jews. And, of course, there is a famous example of such lending practices to "strangers" in The Merchant of Venice -- it is perfect that Shakespeare chose Venice which is, I think, one of the first societies in which modern banking was born.
In the New Testament, there is some ambiguity about what exactly the parable of the 10 talents means with respect to usury (the guy who put his share away for safe-keeping gets chewed out when the master comes back). But Jesus does say, “Give to every one that asketh thee, and of him that taketh away thy goods, ask them not again . . . . But love ye your enemies: do good, and lend, hoping for nothing thereby: and your reward shall be great, and you shall be the sons of the Highest; for he is kind to the unthankful, and to the evil.” Luke 6:30, 35. That seems to be an even stronger and more universal condemnation than one sees in the OT.
And in the Roman Catholic Catechism, one can find this: “Those whose usurious and avaricious dealings lead to the hunger and death of their brethren in the human family indirectly commit homicide, which is imputable to them." Section 2269. That seems like a considerably moderated position, though. The position here might be interpreted to mean that usury at a reasonable rate of interest is acceptable, but usury that leads to "hunger and death" is tantamount to homicide. I have it on good authority (but haven't checked myself) that Islam also prohibits the practice of usury, and that the prohibition is quite strong.
Then, of course, there is Dante. Dante consigns the usurers to the lowest bolgia in the Circle of the violent against nature (Canto XVII -- Gustave Doré, up above, quite understandably chose to draw the monster Geryon, rather than the usurers, for this Circle, and so there is an association of fraud with usury as well). The usurers are perpetually warding off hot firebrands on some kind of a wasteland/beach-type area (like dogs in the hot summer, biting and scratching at fleas and horseflies). From each of their necks hangs a purse, and they look on that purse with unsatable hunger.
I was reminded of these folks on the drive home yesterday, as NPR aired a story about "payday" loans. Perhaps it's worth resuscitating the term "usurer" for such people.
Tuesday, October 12, 2010
Interview Tips . . . For Faculty
It's just about meat market time again, and as always the interwebs are filled with advice for candidates, including recent posts here and at the Faculty Lounge. Perhaps it's time we change focus a little by asking what interviewing tips we should offer to hiring committees. Having been through the process, most of us are perhaps a little able to offer some suggestions about what interviewers at the meat market ought to do or ought not to do, both for the sake of a friendly interview and for the sake of a successful hiring process. I welcome suggestions, although I'll start things off with a few tips of my own.
1: Be on time. We always tell candidates to knock politely then wait patiently. But what's good for the goose is good for the gander. In a room with six or more people, surely someone is capable of keeping his or her eye on the clock and keeping things moving. It seems discourteous to make interviewees wait. This includes the hour after lunch; if your 1 o'clock candidate can make it back in time, so can you. (Conversely, candidates, keep an eye on your own watch; if the interview is over, I know you may want to linger as long as the faculty want to keep chatting with you, but have some consideration for the next person waiting and politely make your excuses. "I'm sorry, but I've got to interview with Yale in a minute" is a good exit line.)
2: Have something specific to say about your school. Candidates are often told not to ask boilerplate questions about the law school they are interviewing with -- to have done some studying and have pertinent questions to ask. Again, the same thing should be true the other way around. Telling a candidate that you have a fine, collegial environment with lots of support for teaching and scholarship is like a law firm telling you they have excellent work and a friendly environment: it may (or may not) be true, but it's not very helpful. Have answers ready about what actually distinguishes your school (if anything -- it's not clear that there's always a really great answer to this question), what specific virtues it has and what challenges it faces and how it plans to meet them, what its five-year goals are, what the living environment is actually like (a selling point for many schools, in my view, including those outside the great cities, which can become commuter schools for students and faculty alike), and so on -- and make them as specific as you reasonably can. You may not always want to be thorough in your disclosures, but be honest in what you do say and as candid as you can be.
3: Ask about the candidate's scholarship, not your own. I suppose this could be two recommendations. First, you should actually ask about the candidate's scholarship. Law schools at the AALS are (or were -- I suspect it's no longer as true) divided between those that spend the whole half-hour asking about the candidate's job-talk and those that devote only a few minutes, if any, to that question. I'm not entirely sure the former approach makes sense, but I'm sure the latter approach no longer does, since even teaching-oriented schools are increasingly hiring for scholarship. So ask about it. And don't use that portion of the interview to bloviate about your own work, or to judge it based on how it relates to your own work or, alas, your own politics. (I was once asked at the meat market what the most interesting litigation I was working on at the time was. It was my defense-side work on the slavery reparations litigation. I do not believe some of the interviewing faculty were pleased with that answer.)
4: Don't ask questions you don't care about the answer to. Every interview can run a little dry, and of course there will be some standard questions. But don't just fill the time with useless questions. They bespeak your own lack of imagination and suggest that you either don't care much about this candidate or don't care much about your own hiring process. Ask engaged and specific questions and actually listen and respond to the answers.
5: Skip the "private" cocktail party. I think this one might divide opinion a little more. Not every school does this, but several schools invite anywhere from a substantial number of promising candidates to all of their interviewees to a cocktail party. Shy as I am, I suffered through a couple of these. I tend to think they're a waste of time. First, one feels obliged to attend, and the coerced nature of the attendance makes it sort of like...well, like a legal ethics class. Second, it advantages the glibly social over the shy and quiet (a little personal bias here, I know), without telling anyone what kind of friend or colleague you'd actually be like. Third, the more people you invite the less purpose there is to the whole thing -- except to demonstrate that you can make people who want an offer dance to your tune. Just skip it, and if you want to get to know a few candidates better, have a small dinner for them.
6: If you have a room for alumni candidates, be there. Schools with large numbers of alumni applicants often reserve a room to host those alumni and give them a place to kick back between interviews. I think this is a great idea, and I'm grateful to my alma mater, Columbia, for doing so. If you're going to do this, it might also be helpful to make sure you have some faculty members there, or at least a relevant dean, to offer advice and feedback to the candidates if they want any. (Columbia did a good job on this, as I recall.)
7: Clean up after yourself. Hotel rooms can come to look like, well, hotel rooms over the course of a day. Keep the room professional. Put away all the used glasses between interviews, keep the bathroom fresh, and so on.
8: Be discreet. That candidate waiting outside the door for the next interview can hear you assessing the virtues and flaws of the last interviewee. Be quiet and discreet, in the room and in the hallways or elevators; save up most of your comments for debriefing sessions. Personally, it also drove me a little nuts to be waiting outside while the last interview ended on an uproarious note of laughter, but I'm not sure I could enforce any relevant rule on that score.
Other suggestions for faculty interviewers?
P.S.: I will be one of the interviewers this year, and I apologize in advance if I ever fail to live up to my own advice. Two days can be a long time.
Greg Mankiw is threatening to stop working (again)
Two years ago, Greg Mankiw threatened to stop working if Obama was elected, basically on the theory that his tax rates would go up and his incentives would thereby go down. It was one of those "Going Galt" threats that looks ridiculous in retrospect. Mankiw, of course, is still a professor at Harvard. But he has stopped working in one respect -- he's recycled that old blog post into an op-ed for the New York Times. A few thoughts:
- First, if you're looking for reasons why the print media continues to lose importance and market share, compare this and this. The New York Times essentially ran a two-year-old blog post in its Sunday edition. I can't even really blame Mankiw for this -- where are the editors? In fact, I think Mankiw's op-ed is an elaborate inside joke on his part. "Two years ago, I threatened to stop working. And I made good on that threat! Of course, if people want to pay me for not working, I'm happy to accept it, even with higher taxes. I just won't do any new work."
- I'm willing to offer the Times this two-year-old blog post, which was my response to Mankiw's original post. I could summarize it here, but I'm not getting paid for it, so what's the point? You can read DeLong, Ezra Klein, etc., etc. Frankly, they take his argument far too seriously. I still think Mankiw's blog should have the banner headline, "I'M BLOGGING AWAY MY CHILDREN'S INHERITANCE."
- The man still needs a course in basic taxation. Can I recommend this one next spring, with Louis Kaplow? You can learn about tax goodies.
- Todd Henderson got a ton of grief for a blog post that was far more open and personal about the effect of the tax cuts than Mankiw's op-ed. I disagree with Todd's perspective, but at least he was being honest about his personal concerns. Mankiw should get a lot more grief for this pseudo-threat to stop making the world a better place because he will lose some small percentage of any additional income he brings in. Mankiw admits: "Paying an extra few percent in taxes wouldn’t create a lot of hardship." And yet he claims that percentage will dictate whether he gives a guest lecture, takes on consulting work, or writes an article. That, my friends, is someone with a strange set of utility curves.
Three Quick Meat Market Tips
The Faculty Recruitment Conference--bka the "Meat Market"--is a little less than three weeks away. Of course, there's a ton of great info about it already on the web. Nevertheless, I was a candidate recently (two years ago), and I thought I'd pass on a few quick things that either (1) proved invaluable or (2) I wish I'd known. For whatever it's worth, I'd heard a lot of horror stories, but I actually found the experience--dare I say it--kinda fun. Appointments committee members are nice and enthusiastic. The process is exciting. And you learn a lot.
1. Get to know the hotel. I know this is probably the single most common piece of advice, but it would be hard to overemphasize. The Marriott really is sprawling and counter-intuitive. It's like that movie Labyrinth, but way less cool (i.e., without the Muppets and David Bowie). It really can take awhile to get from the top of one tower to the top of another. It really is worth the time and effort to walk the route you'll take between your first few interviews. (If memory serves, you can tell which tower your interviews are in by the second digit of each room number, which is unique for each tower).
2. Master the interview modes. Very roughly, appointment committees operate in three interview modes. The first is pleasant, informal, non-substantive small-talk. The second focuses on your actual/potential scholarship (or sometimes teaching or service). The third is "what questions do you have for us?" Most interviews cycle through all three modes.
I'm going to go out on a limb here and say something counter-intuitive:your performance in modes one and three matter more than you'd think. I'm not denying that the proverbial rubber meets the proverbial road in mode two: it's critically important to be able to discuss your field in an accessible, thoughtful way. (As you may have read, it helps to come armed with one and five minute mini-job talks for anything you've written).
But it's grueling on the other side of the table, and so it's worthwhile to let the conversation linger in mode one if that's where you're being guided. There's a tendency for candidates to try to leap into mode two. Resist the urge. Show that you can be engaging even if the subject is the weather, or Mad Men, or high school. Part of what committee members want to know is what it'll be like to bump into you in the faculty lounge, or have an office next door to yours.
And mode three can be the deadly ninja. Needless to say, you need a stable of stock questions that you can ask any school. But one thing that I now think happens in mode three--but didn't know at the time--is that some schools in areas to which you don't have obvious ties expect you to ask about their city/state/region. If you don't ask a question that demonstrates genuine curiosity about what it's actually like to live there, you run the risk of seeming disinterested. And that's a killer. In retrospect, the common thread among schools that didn't invite me for callbacks wasn't their rank or even how I felt I'd done in modes one and two, but rather whether I'd failed in this regard.
3. Roll with it. Stuff happens. You might be late, or lose your train of thought, or forget to pack your pants. (I know the last one sounds far-fetched, but it happened to me during a callback. I'd worn a ratty pair of "comfort" jeans on the plane and only discovered ten minutes before dinner with faculty members that I'd brought only my suit jacket. I spent most of the meal trying to rationalize why it wouldn't be weird to ask whether anyone knew a good place near the restaurant to buy pants). Try to hang in there. Go easy on yourself. Good random things happen, too: the unexpected offer, the promising new professional connection. And the payoff is worth it: law teaching is a great job.
Best of luck!
Monday, October 11, 2010
Revamping the 1L Curriculum
How do law schools justify their curricula in a world where tuition keeps rising and employment rates for grads keep falling?
In response to this question, and at the nudging of our curriculum committee, several of my colleagues today began discussing what should be done to revamp the 1L curriculum. It was amazing to hear how much consensus there is about what skills too many students lack after the 1L year. They can't (or don't) read cases closely enough; they can't (or don't) read statutes closely enough; their writing skills are underdeveloped; their analytical skills are weak; they lack initiative and self-reliance.
There was far less consensus on how to solve the problem. Proposals included having a separate class to teach legal reasoning skills, adding skills components to traditional 1L classes, making sure 1L students have a small section experience, beefing up legal research and writing requirements, requiring 1L profs to use essay exams, banning laptops in class, and adding components to 1L classes designed to boost "emotional intelligence" or professionalism.
Inevitably, when it comes time to vote for changes, many of my colleagues will resist some or all of these proposals. Some will refuse to believe that the traditional methods simply aren't working adequately to teach legal reasoning, even while they complain about the supposedly "lazy" students "this generation" has produced. Some will contend that teaching skills (however defined) is somehow beneath us profs (although they won't use these words) and that students can pick up skills on their own. Some who make this argument will genuinely believe, as I once did, that students can teach themselves almost anything once they understand the process of legal reasoning; others will simply be reluctant to revamp a course they've taught for years. Yet others will say it is the job of law firms to mentor young lawyers,thereby showing that they've completely missed the transformation of law firm culture that took place after they left law practice. It is becoming increasingly clear, however, that if law schools aren't proactive in training students to "hit the ground running" when they graduate, the ABA will force our hand.
I don't know what the answers are, but I do know something must be done. What has your school done? Is it working?
Would a post-employment non-compete restriction affect your performance on the job? My collaborator On Amir and I researched this question in an experimental setting. We find that under some circumstances, when the motivation to perform is mostly linked to extrinsic rewards, performance, as measured by task completion, effort and accuracy, falls. When tasks invoke more intrinsic motivation -- that is, the tasks are more interesting and thought-provoking -- non-competes have a lesser effect on performance. Would love to hear your thoughts and comments on our study, Innovation Motivation: Behavioral Effects of Post-Employment Restrictions. The full article is here. Here is the abstract:
While post-employment restrictions may encourage firms to invest in employee skill and research and development (R&D) such restrictions may also under certain circumstances discourage employees from investing in their own human capital and work performance. The article reports the findings of an original experimental study designed to unpack the effects of post-employment restrictions on task performance. The results demonstrate that under certain conditions of contractual restrictions, when tasks involve pure effort and are relatively easy to perform, individuals will abandon the tasks at higher rates, spend less time on task, and overwhelmingly fail more often to find the correct solution. At the same time, our findings show that under the same restrictions but different types of tasks – tasks that invoke internal talent and creativity rather than pure effort – some of these effects, including time on task and quality of performance, largely disappear. Significant gaps in task completion remain even under the more creative tasks. Traditional economic models view post-employment restrictions, primarily covenants not-to-compete, as necessary limitations stemming from the assumption that absent such contractual protections, employers would under-invest in research and development and employee training. This study enriches the analysis of human capital development and proposes a dyadic-dynamic investment model. It demonstrates in an experimental setting that regulatory and contractual background affects motivation and performance. The article complements recent empirical evidence about positive spillovers effects stemming from increased labor mobility with a behavioral analysis that suggests further positive effects, offering a nuanced view of the costs and benefits of post-employment contractual and regulatory restrictions.
Cause lawyering and conflicting causes
Interesting story in The New York Times yesterday on the rise of Supreme Court specialist practices, including clinics associated with several top law schools, seeking out pro bono cases to bring before the Court. The piece points to several conflicts and problems this creates, including the divergence of interests between cause lawyer and client that I discussed earlier today.
But the article actually points out (unfortunately without fully elaborting) a different conflict--between causes lawyers representing and seeking to further different, often conflicting, causes. Many Supreme Court practices are interested in getting cases before the Court, not necessarily in moving the law in a particular direction. Of course, the goal is to win the case, which is not going to pit them against the particular clients they are taking on in that case, who similarly want to win and who often lost in the court of appeals and have no other options. Rather, the real conflict is with the specialist bar in a given substantive area, which has an interest in the shape of the law and which often wants only the "right" case to reach the Court at the right time.
The story centers around Humberto Fernandez-Vargas, the petitioner in Fernandez-Vargas v. Gonzales, as an illustration. After Fernandez-Vargas lost his immigration case in the Tenth Circuit, a lawyer from Mayer Brown stepped in to take the case and argue it before the Court. Certainly Fernandez-Vargas and his original lawyer were on board with having Mayer take the case, since Fernandez-Vargas had lost in the court of appeals and was going to be deported anyway--the "human stakes" in the case supported exhausting every last option. The disapproval came from the immigration bar, which feared (correctly it turned out) that the Court would use the case to create unfavorable national law, which is less palatable thanmaintaining a circuit split in which some circuits (notably, in this case, the Ninth) have more favorable law.
In other words, the purported bi-lateral conflict between cause lawyers and clients is too simplistic. There are a host of conflicts among different lawyers and types of lawyers and different clients and types of clients--often all in the same case.
Richard Nagareda, RIP
I'm stunned and saddened to post the news here of Richard Nagareda's untimely death this past Friday. The Vanderbilt notice is here. I didn't know Richard very well but everything I knew about him impressed me; he was a model of decency, dignity, diligence, and smarts. And he was an outstanding intellectual mentor to one of my junior colleagues.
The world is a far poorer place without him.
Conference at Cardozo Law School on "Twenty Years After Employment Division v. Smith"
I just returned from a wonderful conference on "Twenty Years After Employment Division v. Smith" at Cardozo Law School. Perhaps my only complaint is that the wireless internet access at my hotel was extremely spotty, so I wasn’t able to report on the conference until I got home.
Though it would be a truly daunting task to attempt to summarize the large and diverse array of papers, there are a couple of interesting themes that ran through the presentations. One of those is that Smith was perhaps not the earth-shattering revolution in Free Exercise jurisprudence that many commentators considered it to be at the time. Indeed, there are a number of areas (such as family law and employment law) in which Smith appears to have had virtually no effect at all. Another surprising realization for me was that there are not (or at least no longer) as many opponents of Smith out there in the legal academy as I had expected. The views toward Smith were by no means universally hostile, and perhaps tended more toward the friendly side.
The papers will be published in a forthcoming issue of the Cardozo Law Review, and I expect, based on the presentations, that there will be a number of interesting and important contributions. The conference agenda and speaker list is available here.