Friday, September 30, 2011
JOTWELL: Thomas on White on juries in emerging democracies
The latest essay on the Courts Law Section of JOTWELL is up: In Juries and Emerging Democracies, Suja Thomas (Illinois) reviews Brent T. White's Putting Aside the Rule of Law Myth: Corruption and the Case for Juries in Emerging Democracies. She uses White's arguments about the rule of law in emerging democracies to argue for the continued importance of juries, both in emerging democracies as well as established democracies such as the U.S.
In Our Defense
Feeling soiled, as I do, by Wednesday's talk of institutionalized academic corruption, and anticipating my month on the Blawg coming to an end, I'm going to write, if you will, a closing argument. I rise to the legal academy's defense.
More and more, we legal academics talk about numbers -- whether it's rates of alumni employment, or institutional and student rankings, or our empirical research. And I will defend the value of each. But I now want to defend the institution itself -- the legal academy -- and to do so, it seems to me we must look elsewhere.
When I think about why I became a legal academic, I don't think in numbers. It starts for me, as I suspect it does for most of us, with my own law school experience. And what stands in relief is not student rank, or the movement in the US News rankings, or starting salary, though all of these certainly matter. Rather, it was a handful of professors who truly left an impression -- in their dynamic teaching, creative research, and ultimately, their sincere dedication to me and my student peers. And when I left school to enter practice, it suddenly hit me: my intellectual and moral growth is no longer the defining purpose of my day-to-day labors. My new superiors indeed spent a bit of time mentoring me, but frankly, it wasn't much; such was not their principal job description. And only then could I see and really appreciate that my professors (at least the best of them) were truly dedicated in their capacity as teachers to my own development. Inside the academy, this was true; outside, it was not.
From time to time, we professors are asked to serve as amateur counselors and life philosophers; when that student enters our office and says, "I don't know what I'm looking for in law school or in life," we need to be able to say something. And I typically say something like the following: the things I've found that are necessary to a meaningful life are creative freedom, sincere generosity, and an accomplishment that contributes something of yourself to the world. And my defense of the academy is this. I have observed these three things in the legal academy on a scale, and to a degree, unmatched in my experience: that senior colleague who voluntarily mentors me when he has no obligation to do so; the junior colleague who thoroughly reads and comments on a draft when she's already swamped; the teacher who gives more to her students than one could reasonably expect; the scholarship that truly transforms how we see and govern the world. It's beautiful stuff, and truth be told, it inspires me.
Yes, we have some numbers problems. And we need to fix them. But the legal academy -- the people who comprise it -- have shown me some of the very best that the world has to offer. I'm proud to count myself among you.
Thanks, everyone, for allowing me to write this month. PrawfsBlawg is a great institution. I didn't get to all of my corruption stuff, so we'll save it for next time. Until then . . .
Thursday, September 29, 2011
Tough Tests, Take 6: Have You Ever Given A Makeup Exam That Was Different Than Your Regular Exam?
Every semester, I get an e-mail from the administration at my school. It says something along the lines of: "Students A, B, and C need to take your exam early and/or Students D, E, and F need to take your exam late. Do you want me to use the original exam or do you prefer to use a makeup exam?" My response is always to use the original exam, and I wonder if/how any professors use a makeup exam. I suppose that the worry here is cheating. If some students are taking the exam early, they could disclose the questions to students taking the regularly scheduled exam. In turn, students taking the regularly scheduled exam could disclose the questions to students taking the exam late.
But is it feasible to give a different exam to students taking the exam early or late? The problem I see is that writing an exam for a class for me is a semester-long process, in which I am trying to ensure: (1) that the exam has a fair sampling of questions covering a good breadth of material from the class; (2) that the exam is neither too easy nor too difficult but just right; (3) that students can finish the exam in the time allotted; and (4) that there are no grammatical/factual errors or ambiguities. Now, could I create a different makeup exam for a class in a given semester? Sure. Would it be exactly as long/difficult/fair as my regular exam? I doubt it. I'm reminded of the short story/film about Harold Swerg, the filing clerk/athlete, who was the greatest athlete in the world because...he could equal score/time of his best competitor. "Winning doesn't take my all," said Harold, "Equalling takes my all." I'm not Harold Swerg, so I don't give a makeup exam. I don't know how I could compare students taking the regular exam and students taking the makeup exam on the same curve (this is also why I am reluctant to give a Choose Your Own Adventure exam). But maybe others have had more success. Have you ever given a different makeup exam, and how did it go?
Wednesday, September 28, 2011
Just wanted to wish a very sweet and happy new year to all our readers and writers who are celebrating Rosh Hashana. May we find laughter and love, passion and purpose, health and happiness in all that we do.
Maybe We're All Corruption Experts?
Comments on blogs are of course a mixed bag. Some are serious and challenging, while others we readily dismiss. But tell me, in which of those categories would you place the following anonymous comment, which posted yesterday:
"Prof. Spalding, I have read your posts and . . . your work on corruption doesn't resonate with me . . . I mean, if you're going to participate in a venture that uses intentionally misleading career placement statistics to trick students out of federal loan money then you do not have much credibility as a commentator on corruption. Glass houses, stones and all. I'm sorry to say this, but it's the truth."
Just an embittered student acting inappropriately? I'm not so sure. One need not teach legal writing (as VAPs such as me do) to suspect that despite the respectful salutation, this author fits a different profile. I won't speculate here.
We tend to blame the numbers-massaging on the administrators; the most serious charges leveled against us professors are typically that we write irrelevant articles and otherwise abuse tenure. But query: to what extent do the now-widely-discussed problems of excessive student debt and unemployment reflect on the the integrity of the faculty? Do our credibility and social standing, such as they are in this commercial culture of ours, depend on our institutional ability to place students in good jobs with reasonable debt loads? Is this a case of, "if you're not part of the solution, you're part of the problem?" Do we need to support measures that reduce the institutional pressure to massage?
I chuckled when I first read this comment; now, not so much.
Gay Marriage and Religious Freedom
This story out of Ledyard, New York, which is a very small town just up the lake from Ithaca, is interesting for a number of reasons. The gist of it is that the town clerk, a self-described "Bible-believing Christian," believes that sigining the marriage licenses of same-sex couples would violate her religious convictions. Since New York law requires her to issue those licenses, she has delegated the task of signing them to a deputy clerk. As a result, marriage licenses are only available in Ledyard with a prior appointment. A lesbian couple moved into town from Miami, sought a marriage license and then refused to wait for an appointment, preferring instead to file a lawsuit. On one side is People for the American Way, repsresenting the couple. On the other side is the Alliance Defense Fund.
So, first off, this is one of those stories that makes you just sigh, for lots of reasons, which I won't go into because they seem pretty obvious. What the story does bring out, though, is something that will be very different about same-sex couples' push for civil rights from other civil rights movements we've seen over the past few decades.Although there have always been churches and religious institutions that have espoused racial hatred or supremacy or separation of some sort or another, and although some of the arguments people raised in favor of Jim Crow were religious, they were (and even more so now, are) mostly on the fringe of both society and Christian thought. The bulk of opposition to civil rights was rooted in uncritical tradition and custom. In addition, there was a critical mass -- perhaps the bulk of -- Christian theological opinion on the side of civil rights.
What we see with same sex marriage is somewhat different. There are religious people (myself included) who favor marriage rights for same-sex couples. And most of us can even make religious arguments in favor of our position. But the center of gravity of the pro-marriage position is decidedly secular. On the other side is an opposition that is expressed in almost purely religious terms. And, while I disagree with their theological arguments on theological grounds, I can admit that their position represents the historical mainstream of Christian thinking on homosexuality, one that has prevailed for many, many generations. However one wants to characterize the views of anti-same-sex-marriage advocates, it is impossible to relegate it to the fringe of Christian thought, even contemporary Christian thought.
So this sets up a dilemma for same-sex marriage rights that civil rights in other contexts have not had to confront as seriously. Of course,there have been individuals who have claimed a right to discriminate on the grounds of race or, more commonly, gender, for religious reasons. But those claims have been easier to sideline. The fight over marriage is different. Even though it is clear that public opinion is moving in the direction of acceptance of same sex marriage, my sense is that opposition is likely to remain entrenched among religious conservatives.
On its face, the Ledyard town clerk's solution -- delegating the task she finds objectionable to a deputy clerk who is willing to perform the duty -- seems to strike a reasonable balance. Same sex (and straight) couples in Ledyard get their marriage licenses, and the town clerk can keep her job while remaining faithful to her religious convictions. I can certainly understand the offense that the plaintiffs took upon learning the reasons for the requirement that they make an appointment to receive their marriage license. But, since a straight couple has to go through exactly the same appointment process, I am struggling to understand the deep principle that is at stake.
The general counsel of PFAW says that the town clerk's religious convictions don't give her "the right to use them to relieve herself from doing a major part of her duties." I understand what she is saying as a legal matter -- thanks to Employment Division v. Smith, the legal entitlement to special treatment under the Free Exercise Clause has been dramatically narrowed. But I'm more interested in the substance of the matter. What is the genuine harm of allowing the town clerk to delegate this task, as long as the task gets done, albeit with some delay, and as long as it gets done equally for same-sex and straight couples?
[In response to comments on this site and over at Commonweal, a couple additional thoughts: I don't want to minimize the relevance of religious opposition to African American civil rights. But the southern churches that opposed civil rights, while certainly not on the fringe of southern society, were certainly on the fringe of global Christianity. That is to say, their opposition was rooted in their local situation, which distorted their theological commitments in ways that their correligionists in other parts of the country and world did not accept. So I think that situation is very different from the problem that Christianity has with homosexuality today. The Christian objection to homosexuality is far more mainstream within Christianity. Second, I want to make clear, as I did in the comments here, that my question is really focused on the delegation issue, because that is what the PFAW appears to be objecting to. The delay certainly complicates this question, and my question is premised on the assumption that (1) the delay is short and (2) the delay is equal for all parties seeking a marriage license. That said, I can see a very plausible position that any appreciable delay is a harm, strictly speaking, and that, while a harm might be tolerated for the right sort of reasons (e.g., lack of resources to staff an office), it cannot be tolerated for discriminatory reasons, even when those reasons are religiously based. In any event, in the comments, I'd love to hear people's thoughts on both issues, but I'm primarily interested in the delegation point.]
Hosanna-Tabor and "Act III of the Ministerial Exception"
Next week, the Supreme Court will hear oral arguments in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the first case in the High Court to directly raise the issue of the "ministerial exception." Most law and religion scholars agree that this promises to be one of the most important church-state cases in recent years. I am a strong supporter of the ministerial exception, because I believe it raises, in a fairly direct way, fundamental questions about the independence of churches that lie at the heart of what we might call the Western church-state settlement. At its core, I believe this ought to be an easy case. But beyond the big picture, a victory for the church raises many difficult questions about the limits of the civil rights laws, and I think some critics of the ministerial exception, whether in general or as applied to this and other cases, have raised superb questions: I would include Caroline Mala Corbin and Marty Lederman among those critics. In a sense, the deep question that Hosanna-Tabor raises is just how imperial the reach of the state is, and whether we should think of law as something with an absolute default reach--or whether, as Rick and I have each argued in our different ways, there are limits to the jurisdiction of the state where "the church" is concerned, limits that form a deep part of the structure of Western constitutionalism.
I'm happy to say that as part of the second Annual Law and Religion Roundtable, which was held at Northwestern Law School this summer, several people presented short pieces on Hosanna-Tabor, and these pieces will be published shortly in the Northwestern University Law Review Colloquy. I wrote one of those pieces, Act III of the Ministerial Exception, and I've posted a distinctly rough (typos and all) draft on SSRN; you can find it here. Quite coincidentally, what I write in this piece has something to do with an important observation made by Marci Hamilton at the conference: that in discussing church-state issues, and particularly issues of church autonomy, it is not enough to focus on the "law"; one must also give thought to the moral obligations of churches. I agree wholeheartedly with her, although Hamilton and I differ on church autonomy itself. This piece is an effort to do just that. I argue in favor of the ministerial exception, but I also argue that allocating authority to regulate or not regulate employment relationships with ministerial employees is only the beginning of the conversation, not the end: even if the ministerial exception is reaffirmed, it is important for those of us who believe in the sovereignty of the church to think seriously about the role of both internal debate and external criticism in encouraging churches to use their autonomy in a way that is sound, responsible, and consistent with both religious and public values. (Although, and unlike Hamilton, I would stress "religious values" more than "public values," or at least argue that our "public values" must include respect for religious values.) Hence the title. Chekhov argued that a gun that appears in a play in Act I will surely go off in Act III; I argue in the piece that too much legal thinking ends with Act II--the point at which a court decides where authority to act lies--and fails to consider what happens in Act III.
Enjoy. The abstract follows.On October 5, 2011, the Supreme Court will hear oral arguments in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, a case in which the Court will consider the existence and nature of the so-called "ministerial exception": the judicial doctrine that gives churches legal immunity in employment discrimination cases brought by "ministerial" employees. The case promises to be one of the more important church-state decisions in recent years. In conjunction with the second Annual Law and Religion Roundtable, the Northwestern University Law Review Colloquy will be publishing several pieces on the case.
In this contribution to the Colloquy, I argue strongly in favor of the ministerial exception, concluding that it is a necessary part of a principle fundamental not only to the Religion Clauses, but to the Western church-state settlement more broadly: that, in an important sense, church and state each represent separate distinct sovereigns or jurisdictions. Whatever else that settlement means, it requires at a minimum that the state cannot involve itself in questions related to the selection and status of church leaders or members.
I argue, however, that our focus on the question of power is inadequate. More important, perhaps, than the question whether the ministerial exception ought to exist is how we ought to behave if it does. Supporters of the ministerial exception--and I count myself among them--are morally obliged to give thought to how churches ought to behave toward their employees in cases in which those employees may be entitled to no legal remedy. I argue that the ministerial exception should be thought of as a responsibility or burden for churches, not just a license to act without legal consequence. Furthermore, where the law treats churches and other "First Amendment institutions" as entitled to a substantial degree of legal autonomy, we ought to think carefully about the role of both debate within the institution and public criticism of that institution in encouraging sound and responsible conduct by those actors. There are good reasons to champion the kind of institutional autonomy and pluralism represented by the ministerial exception, and to avoid thinking of the state as the font of all power and the solution to all problems; but taking that step requires us to think much more carefully about institutional responsibility, and about the civic duty of citizens to monitor and critique our key non-state institutions. Hosanna-Tabor should mark the beginning of an important conversation, not the end.
Bar passage, schadenfreude, and alternative media
I did not write about this last week, but folks around here were pretty happy when FIU pulled the highest bar passage in Florida, at 89.6 % (120 out 134). The interesting thing has been the way Miami New Times, the city's alternative weekly paper, has seized on the story as a way to take shots at the University of Miami, which finished sixth in the state, and at Ave Maria, which finished last and has generally seen its bar passage plummet since moving to southwest Florida several years ago. The paper even got in a barb about the relative success of the two football teams this year (although that is tempered by FIU's close loss at home last Saturday).
You just never know where alternative media will find pleasure.
Tuesday, September 27, 2011
And a Whole Lot Less Laissez-Faire?
Continuing our theme . . . part of the reason for the sanctioning effect of international anti-corruption law is that we fundamentally misunderstand the difference between the U.S. legal regime and that which is often held up as its principal alternative: China. We tend to think of the U.S. as practicing, and promoting, a system of protecting individual economic freedom and minimizing state interference. And we tend to think of China as subsuming individual economic freedom under the common good, while expanding state regulation to direct economic activity toward social and political goals. China still calls itself communist, right?
"You keep using that word . . . I don't think it means what you think it means." I'm going to argue that in international business law, exactly the opposite is true. In yesterday's post, I suggested that in such diverse areas as the FCPA, the ATS, economic sanctions, and the extension of our employment anti-discrimination laws to U.S. citizens overseas, we deliberately restrict short-term corporate profit-seeking to advance various liberal-democratic norms. And guess what? China does none of these things: it does not enforce anti-corruption laws systematically; it does not impose economic sanctions or hold corporations liable for human rights abuses; and it does not enforce employment discrimination laws overseas. So what is the upshot? In the regulation of international business, China is substantially more laissez-faire than we are. And this is in large part why the enforcement of anti-corruption law specifically produces such ironic results: Chinese companies significantly out-laissez-faire us, at the developing world's expense.
Sure, China's state is more heavily involved than the U.S. in such areas as fiscal or industrial policy. But when it sends its companies overseas, China is looking for resources, profits, and political alliances; any collateral impact on corruption, human rights, or social development more broadly is quite beside the point. Such is the world in which we now find ourselves; I'll next write a bit on what we might do about it.
How Many of Us Are There?
The U.S. Census Bureau released today new statistics on same-sex married couple and unmarried partner households. According to revised estimates from the 2010 Census, there were 131,729 same-sex married couple households and 514,735 same-sex unmarried partner households in the United States.
Why is this important?
Knowing who we are as a nation is essential not only for the proper apportionment of benefits and largess, but for the understanding of our national identity. When cities, counties and states become majority-minority, for example, we want to know when, how and whom. But, the increasing prevalence of same-sex family households reminds us that hundreds of thousands of people are living, working, paying taxes and raising children next door to millions of people doing the exact same thing. The former just happen to be gay. Growing awareness of the gay family will be the single most important factor in increasing acceptance of gays as parents and as entitled to the same rights to love, marry and defend the country as everyone else.
Some Proposed Changes to e-Discovery/ Patent Cases
The Federal Circuit Bar Association has posted a link to Judge Randall R. Radar's September 27, 2011 discussion of "The State of Patent Litigation." Of the six areas of improvement, Judge Radar discussed a "Model Order on e-Discovery for Patent Cases" which includes presumptive limits on the number of custodians and search terms for electronic documents (scroll to the end of the speech transcript).
The model order presumes a limit of five (5) custodians, for a total of five (5) search terms per custodian. Certainly, any such proposal can be modified by the district court or the agreement of the parties. It strikes me that the presumptive limits on depositions and interrogatories provided a welcome change when they were instituted. Particularly because courts retain discretion to modify these limits in appropriate case, there were several results that occured. As one, the rules introduced the principle that there should be some limits. As another, presumptive limits serve as a benchmark. That is, counsel are operating from the principle that five (5) is a norm, rather than infinity. Third, it may reduce the number and type of discovery disputes because these limits set up the framework for the parties' obligations.
Overall, these same results may occur for e-discovery. Although discovery costs for patent cases may be particularly high, I wonder whether this might serve as a template for other types of cases.
Structuring Faculty Workshops
A prawf writes:
We (i.e. “I”) are (am) thinking about starting a workshop here at ___ (not to bring in speakers, but for internal presentation). What ground rules do you set for participation in your workshop? Do you require any kind of commitment from faculty, or is it open to whoever wants to come that week? Any ideas on “best practices” would be helpful, especially since we're concerned about cultivating a committed group of regulars while minimizing free-riding.
Some thoughts and an invitation for you all to hop in, after the jump.
What do you all think about the best way to structure workshops?
Isn't there an actus reus problem with the prior pot arrest policy in NYC?
The other day, the NYT reported that the NYPD was going to stop arresting individuals who had a small amount of pot on their persons, pot that became apparent during a stop and frisk:
Just over 50,000 people were arrested on marijuana possession charges last year, a vast majority of them members of minorities and male. Critics say that as part of the Police Department’s stop-and-frisk policy, officers routinely tell suspects to empty their pockets and then, if marijuana is displayed, arrest them for having the drugs in public view, thereby pushing thousands of people toward criminality and into criminal justice system.
The important background here is that NY a while back decriminalized private pot possession but permitted arrests and prosecution for public use of pot. To my mind, this change in policy by Commish Kelly is a massive improvement. Today's editorial page lauds the change and also invites more scrutiny.
Ok, here's some scrutiny.Not knowing if this argument has been made before, I want to suggest that, from the perspective of conventional criminal law principles, there's a deep actus reus problem afflicting all those arrests made prior to the new memo.
In the casebook I use for crim law (Dressler), one that is widely used, we begin the semester discussing, among other things, the need for an actus reus (sometimes translated as bad act), which is a voluntary or willed act. The actus reus requirement exists for most crimes; the exception is omissions liability, a point that is irrelevant here. Crimprofs typically teach this principle through a cased called Martin v. State, 31 Ala.App. 334 (1944). In Martin, the defendant had been convicted for being "drunk on a public highway." The problem is he was drunk in his home and then taken to a public street by cops, where he acted boisterously. The appellate court reversed the lower court's conviction of Martin and noted that there had to be a "voluntary appearance" in public in order for the conviction to stand.
Now, if NY follows this canonical rule, it would seem that not only were the arrests bad policy, but also illegal for being contrary to the actus reus principle. The only way I could see one slicing the actus reus baloney more thinly (in defense of the legality of the arrests) is to say that the mere act of bringing and possessing pot into a public space is the sufficiently voluntary act. But it strikes me that this is an implausible understanding of what it means to possess or use pot in public view. (Put aside the X-ray glasses, Superman.) If persons take precautions to obscure the pot from public view and are not using it in public, then that should end the inquiry; the fact that, pursuant to a stop-and-frisk, they extract the pot from their pockets and place it in public view is not sufficient to satisfy the voluntary act requirement because they only do so at the behest of the frisker. True, the stopped persons are not having a spasm or seizure when they extract the pot from their pocket, but the conditions are such that it would be mistaken to think that the actus reus requirement is satisfied in any meaningful way when the cops are telling you to empty your pockets. That's my sense at least. Am I wrong?
P.S. Orin has a very sharp reaction to this news from the perspective of criminal procedure. Check it out.
Should Colleges Offer a "Law School Course" for Prospective Law Students?
Gobs of 1Ls started law school across the country about a month ago. Before then, they probably watched several legal movies and/or TV shows. They might have leafed through Scott Turow's One L. They could have tried to crack the law in a nutshell series. A few might have tried to get to maybe. Some might have attended a law school class or two as part of an admitted student weekend or otherwise. Some majored in pre-law or took law-related courses in college, but those courses probably bore little resemblance to law school courses.
During orientation and the first few weeks of classes, these new 1Ls are exposed to many new things: IRAC, briefing cases, and the Socratic Method, to name a few. For many (most?), that 1st semester is a perpetual game of catch-up, and the pieces of the puzzle often don't come together until after 1Ls have taken their first (or even second) set of exams, which are unlike any exams they have taken before.
So, here's a question: Should colleges offer a "law school course" for prospective law students that resembles and actual law school course?
Here's the way I envision it: A professor from the law school connected to the college or a local law school would teach the course. The course could either cover a core law school subject or a "fun" subject like sports law, entertainment law, or First Amendment. It's not the subject, though, that's important. The professor would teach the course like a regular law school course except at a slower pace and with more exposition. It would sort of be like a DVD commentary track.
In initial class sessions, the professor would provide an introduction to the American legal system. She would explain how to brief cases and later turn those briefs into outlines. The professor would maybe bring a few law students to class or show a recording of part of a law school class to demonstrate the Socratic Method. All of this would take several weeks, but after those first several weeks, the course would start to resemble a typical law school course.
At about the midpoint of the course, the professor would give students an ungraded midterm that looks like a law school exam. The professor would explain IRAC and how to write a law school exam. After the students take the exam, the professor would review their answers and give them feedback. A model answer would be discussed in class. At the end of the semester, students would take a standard-issue law school exam.
I think that offering a "law school course" for prospective law students would benefit both the students and the professor. Students who took the class would be (much) better prepared for 1L year. Their anxiety levels would be lower because they would have a better idea of what to expect. Of course, some students' anxiety levels would rise while taking the course, and they would realize that law school was not for them. But better they learn that then instead of after they started law school.
I also think that the course would benefit the professor teaching the class. I think that it's easy for professors to fall into the trap of "assuming facts not in evidence." In other words, we often assume that students know more than they do and jump from A to E without sufficiently explaining B, C, and D. I think this especially plagues those who bounce between teaching 1L and upper-level classes. Whenever working with non-law students, I think that professors really realize the value of methodically breaking things down and offering clear explications of complex topics. I am currently working with some high school students on a research paper, and I feel that this work has led me to re-calibrate the way that I am teaching this semester in a good way. I imagine that teaching a "law school course" to college students would have a similar effect.
So, is offering a "law school course" for prospective law students a good idea? A bad idea? Something some colleges are already doing?
Monday, September 26, 2011
Are We More Progressive Than We Think We Are?
I have argued in my previous posts this month that anti-corruption law has the ironic effect of exacerbating corruption and other forms of socially destructive corporate behavior in developing countries. This occurs because of the FCPA's sanctioning effect -- the withdrawal of capital from developing countries. The resulting void is filled by companies from countries that do not enforce anti-corruption and similar laws -- the so-called "Black Knights," particularly China. (For my longer discussion of the topic, see Unwitting Sanctions, at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1429207). In my remaining time on the Blawg, I want to flesh out that problem a bit and propose a few remedies.
The sanctioning effect of anti-corruption law is but a dramatic example of a much broader dynamic in international business. Although we tend to think of the U.S. as promoting a laissez-faire model of business regulation to the rest of the world, I want to argue that in international business law specifically, quite the opposite is true. Think of various federal laws governing extraterritorial business conduct -- the FCPA, the Alien Tort Statute, economic sanctions for human rights abuses, subpart F of the tax code, or the extraterritorial application of employment discrimination laws. In these and other ways, we promote social and political goals through extraterritorial corporate conduct. And the goals of which I speak are not narrowly tailored to free-market economics -- in fact, these laws generally represent the knowing curtailment of short-term profit to promote liberal-democratic values related to anti-corruption and human rights broadly. Moreover, the notion that federal authority should be marshaled to advance these goals traces its origin to an era of U.S. history that was a reaction against laissez-faire -- the Progressive Era.
A year of Fulbright research across Asia left me a big fan of our commitment to promoting these values through business conduct. But to be effective, we need to more accurately understand how our international business law regime compares to other models. More on that next post.
CV Advice: Should One Include Hobbies or Family Info?
I've reviewed what seems like a million CVs since last May, but occasionally one still has the power to surprise. I was struck by one this morning that had an especially extensive list of "hobbies." It made me curious to hear the thoughts of other profs as to whether one should or should not include such things on one's CV.
On my own CV, I've taken a conservative approach and haven't included hobbies or family information on the theory that some stuffy traditionalist out there might take offense or be dismissive. [I would probably only wear a dark suit to interviews for the same reason.] As a recruiter, however, I often enjoy getting some insight into a person through the hobbies they choose to include, and I find that the hobbies occasionally provide a conversation starter, though I prefer to start with more substantive questions at the faculty recruitment conference in D.C.
Regardless, I think one should probably omit hobbies if they are too mundane (e.g., travelling or reading--who in academia doesn't like to read or travel??) or too exotic (e.g., UFO hunting or making pipe cleaner animals). That doesn't mean, however, that I'd exclude a candidate for including them. Okay, maybe the pipe cleaner animals might make me think twice . . .
Saturday, September 24, 2011
It's Cool to be a Gay Footballer
With thanks to Ohio State law school student Pete Olsen, who writes a blog called Wide Rights about gay rights and sports, I recently discovered that the NFL has added protection for sexual orientation discrimination in its most recent collective bargaining agreement.
The language from the 2006 CBA Article VII, Player Security, reads :
Section 1. No Discrimination: There will be no discrimination in any form against any player by the Management Council, any Club or by the NFLPA because of race, religion, national origin or activity or lack of activity on behalf of the NFLPA.
The new language in the 2011 CBA, now moved to Article 49, reads:
Section 1. No Discrimination: There will be no discrimination in any form against any player by the Management Council, any Club or by the NFLPA because of race, religion, national origin, sexual orientation, or activity or lack of activity on behalf of the NFLPA.
This is a significant development. Homophobia has long found a haven in the testosterone filled environments of professional sports, but lately, high profile names in football, soccer, rugby and other sports have made "It Gets Better" videos and made commitments to advocate for marriage equality and an end to anti-gay bullying in schools. We cannot overstate the gravity of the role of these stars. It's one thing to be told by your teacher or by strangers on the "It Gets Better" YouTube page, but when the 300-pound lineman you cheer for every Sunday tells you that homophobia is "just not cool" and "not the NFL way," heterosexual youths are more likely to listen.
Rethinking drive-by jurisdictional rulings
Lower courts are beginning to take the Supreme Court at its word about backing away from drive-by jurisdictional rulings, especially those on the margins of jurisdiction and merits. Last month, I wrote about the Third Circuit overruling prior precedent to hold that the Foreign Trade Antitrust Improvements Act, which limits the extraterritorial reach of the Sherman Act, was a merits limitation. I mentioned that this set up a circuit split with the Seventh Circuit, which had held (in a sharply divided en banc decision) that the FTAIA is jurisdiction, although that 2003 came before the legal terrain began to shift.
Well, maybe not. Yesterday, a Seventh Circuit panel, in rejecting a claim under the FTAIA, noted that the position taken by the en banc dissent had prevailed in the Supreme Court (at least as to other federal statutes) and suggested that the issue may be ripe for reconsideration, which would require a new en banc case. The court did not resolve the issue, because the claim failed regardless of how it was characterized. But lower courts are beginning to read the Supreme Court's guidance.
Friday, September 23, 2011
Weekend reading in criminal justice and an idea for other areas
We are delighted to announce the launch of our new free website, Criminal Law and Criminal Justice Books, which features high-quality, timely, and concise on-line reviews of important and interesting new books in criminal law, criminal procedure, and criminal justice.
The website can be found at: clcjbooks.rutgers.edu
Please peruse it at your convenience. We welcome your comments and suggestions. Please subscribe to the site to receive notice of all new postings, and feel free to forward the link to anyone you think would be interested. Our hope is that, before long, CLCJ Books will become an indispensable resource for scholars, students, and others interested in the field.
With all best wishes, Jim Finckenauer and Stuart Green
Co-editors of Criminal Law and Criminal Justice Books
Check out in particular George Thomas' review of Brandon Garrett's new book and Adil Haque's review of the volume on Retributivism (and don't forget about the upcoming conference tied to that book at St. John's.)
The "Lawless" law-clerk-hiring process
Today's edition of the New York Times has an article about the law-clerk-hiring process called "Judges Compete for Law Clerks on a Lawless Terrain." "Lawless" or not, I know that I'm finding the terrain increasingly difficult to read, navigate, and guide. The combination of "the Plan" and OSCAR was, if I remember correctly, supposed to make the hiring process more regular, orderly, and transparent -- for the benefit of judges, faculty, and students alike -- but those hopes do not seem to have been realized.
For those of us who follow, and participate in, the process, I suppose there was nothing new in the piece (though I was struck by the fact that -- counting only electronic submissions to federal judges -- there were about 382,000 applications filed last year). We already knew, for example, that many judges are interviewing and hiring law-school graduates (as opposed to rising third-year students) "off plan", that some judges schedule, and then cancel, interviews, and so on.
What is to be done? I have no idea. I know that my colleagues in our Career Development Office and on the faculty do what they can to gather all available information about what particular courts and judges are doing, and maybe, in the end, that's all we can do. (Given, however, the extent to which judges are moving off-plan, and given the difficulties in the law-jobs market more generally, I don't see how a school can justify complying with any "Plan"-imposed requirements that they not assist students who apply "early.")
I sympathize somewhat with Judge Kozinski's well known (and quoted in the piece) hostility to "cartels" in and close regulation of law-clerk hiring, but I guess I sympathize more with those students to whom we have to say, when they come to us for advice on how and when to apply for clerkships, that we just don't know. These positions are such wonderful, life-changing opportunities; it seems a shame that the process for securing them is increasingly so mysterious as to be exclusionary.
I'd welcome others' thoughts . . . and advice!
UPDATE: I noticed Dan's post, right after I posted this. As per usual, he's a quicker-thinker than I am!
What's Keeping Prawfs from Imitating Judges?
The NYT has a funny story today about this year's clerkship madness. Judge Kozinski fesses up to recruiting at birth, or something approximating it. A triumphant student still vomits from the stressful experience. All this raises many questions but here's one: why has the FAR process held up more against the threat of unraveling than the clerkship market? Is it simply because hiring for a multi-year position requires more due diligence? The judges would probably deny that--they'd likely argue that a year with a judge is more socially significant than a career where we're marginalized to reporting our views in the ostensibly irrelevant law reviews. I'm not sure why some talent markets unravel and others don't. Maybe the law schools are more inclined to see the benefits to hiring in a context where one isn't operating under hot emotions. What's your rank speculation?
Posted by Administrators on September 23, 2011 at 02:34 PM in Blogging, Dan Markel, Employment and Labor Law, Getting a Job on the Law Teaching Market, Law and Politics | Permalink | Comments (11) | TrackBack
Court of Appeals of Maryland Affirms Trial Court's Judicial Notice of Fact That Proceedings Before Judge X Are "Absolutely Unconstitutional"
(Cross-posted on EvidenceProf Blog)
I'm going to put on record exactly why I ruled the way I did in the State's motion in limine. I just want to make sure it's clear for the appellate record.
I find and I'll take judicial notice that the proceedings that take place in front of [the judge who accepted Ms. Williams's guilty plea] are absolutely unconstitutional. He does such things as ask people certain things, tell them to nod their head, and then he just takes pleas and just does it. There is no state's attorney present. There is no defense attorney present. There is no semblance of any type of due process or any rights given to the defendants. It is so widespread that even the federal judges in Greenbelt won't recognize that as convictions.
Now, I understand [Petitioner's] argument, and I am not taking anything away from it. I just wanted to make sure that the record indicated why I was ruling, not that I was saying that [Petitioner] couldn't use a conviction against the witness. It's this conviction. It's unique only to what happened in that courtroom. I have long lamented what happens there. I just wanted that on the record. Thomas v. State, 2011 WL 4389167 (Md. 2011) (emphasis added)
This language originally came from a Maryland trial court, and the Court of Appeals of Maryland (Maryland's highest court) cited it yesterday in deeming the conviction of a witness for the prosecution unconstitutional and thus inadmissible. The Court of Appeals of Maryland had to agree with the trial court's decision to take judicial notice because the trial court had no evidence that the witness' conviction was unconstitutional, just the prosecutor's bare allegation of unconstitutionally. In other words, the Court of Appeals of Maryland must have agreed with the trial court that this "fact" was "not subject to reasonable dispute...." Maryland Rule of Evidence 5-201(b).
The rest of the post will lay out some more of the details of Thomas, but here's my question: Who is Judge X, and what can be done to remove him from power immediately (if he's still in power)? What happens to the (possibly thousands) of individuals who have been convicted after guilty pleas before this judge? What is the obligation of the Maryland judges and prosecutors who recognize the unconstitutionality of proceedings before this judge? What is our obligation?
In Thomas, Robert Lee Thomas, was convicted of carrying a handgun. After he was convicted, Thomas appealed, claiming that the trial court erred by precluding him from impeaching a witness for the prosecution, Timika Williams, with evidence of her prior conviction for theft of a motor vehicle.
According to the State, Ms. Williams's guilty plea was unconstitutional, because she was not represented by counsel when she entered her plea and had not waived her Sixth Amendment right to counsel. Counsel for Petitioner objected to the State's motion but did not challenge the State's characterization of Ms. Williams's plea as being unconstitutional.
According to the Court of Appeals of Maryland,
Our caselaw, derived from Supreme Court precedent, makes clear that such convictions cannot be used for impeachment purposes. In von Lusch v. State,...we cited Loper v. Beto, 405 U.S. 473, 483 (1972) as "directly govern[ing]" the issue. In Loper, the Supreme Court explained that the "rule against use of uncounseled convictions 'to prove guilt' was intended to prohibit their use 'to impeach credibility',"because "[t]he absence of counsel impairs the reliability of such convictions just as much when used to impeach as when used as direct proof of guilt."... That reasoning applies equally whether the prior conviction is that of the defendant or of a third-party witness.
In this case, it is undisputed that Ms. Williams's prior conviction was achieved without counsel or a waiver of counsel and is therefore unreliable, under Loper, for purposes of attacking Ms. Williams's credibility. We hold that the trial court neither erred nor abused its discretion in refusing to allow Petitioner to impeach Ms. Williams with evidence of that conviction.
In Loper, however, Loper did more than just allege that his prior convictions were unconstitutional because he was denied the right to counsel. Instead,
On the other hand, in Thomas, the trial court really did just have the prosecutor's allegation that Ms. Williams' prior conviction was unconstitutional. But, as noted, it got around this problem by taking judicial notice "that the proceedings that take place in front of [the judge who accepted Ms. Williams's guilty plea] are absolutely unconstitutional." I don't see any reasonable way that the court could have taken judicial notice of this "fact," but you can see the court's point and why the Court of Appeals of Maryland later agreed with it. If federal judges won't recognize convictions from this judge as real convictions, there's a real problem (Moreover, the Court of Appeals of Maryland in Thomas ultimately found that Thomas should have been able to interrogate Ms. Williams' about the conduct leading to her conviction under Maryland Rule of Evidence 5-608(b)).
Given the fact that there's this huge problem, what's the solution? I didn't redact the name of the judge to "[the judge who accepted Ms. Williams's guilty plea]" in the opening block quote. That was the decision of the Court of Appeals of Maryland. And while federal judges, prosecutors, at least one trial judge, and now the Court of Appeals of Maryland have all found that proceedings before this judge are "absolutely unconstitutional," as far as I can tell, they've done nothing to have him removed from power. Indeed, we don't even know his name. Today, he will likely take several more guilty pleas from defendants not represented by counsel. Next week, he will take several more. I plan to do my best to find out who he is and how to get him removed from power. Any help would be appreciated.
Thursday, September 22, 2011
Complaints about the "FAR Forms," the one-page candidate bios distributed by the AALS to schools recruiting potential faculty members, have regularly found voice on this blog. Common problems attributed to the FAR include its choice of subject areas, publication formats, its visual ugliness, and limits on search fields. There are also good questions and suggestions about the FAR form in this fall's clearinghouse-of-questions post.
The whole AALS recruitment conference is a very expensive shindig -- both for schools paying for multiple hotel rooms for committee members and interview teams, and for candidates who don't live in town having to dodge work and get to DC. I wish the AALS would think about a cheaper hotel, and then take some of those cost savings and sink them in to thinking about ways to improve the FAR form (and then hiring the computer club to make them work). Some "tech"-ish improvements could include:1. Video Resume (or mini-interview)
For instance, I'd like to see them build a "youtube" sort of database of candidates. Everyone has a webcam, right? So let's have the AALS compile a list of "standard" questions (the things candidates get asked in 90% of those introductory interviews). Why do you want to teach? What would be your approach in the classroom? Tell us about your law school activities/scholarly agenda/etc. I don't think it would be too hard to set rather strict time limits for responses. If a committee is thinking about extending a DC interview, why not give them the chance to see the candidate, not just a bunch of words about them?
Our committee in DC usually spends 25 minutes with each candidate, but to be honest, there are always a few candidates we meet and know within 5 minutes won't be a good fit with our faculty. Why not let us try to gauge that before we waste a candidate's time (and our time) scheduling a DC interview? In fact, if it were sufficiently robust, there might be schools that would use the FARtube in place of coming to DC. It would certainly make it possible for schools that have spots open up in November, December, or January to take a look at candidates they might have neglected to meet in October. Inviting a candidate back to campus sight-unseen can make for a long two days if there isn't a good fit, and organizing individual skype emails between 4-6 committee members and a candidate is kind of a pain.
2. Searchable Resume Distributions
I'd also like to see an easier way to search not just the FAR forms, but the PDF resumes themselves. I can search on FAR forms using the fields, or I can search the whole "distributions." But to get to individual resumes, I have to click a particular candidate. One of the nice things about getting the individualized "books" of resumes from Yale and Stanford and a bunch of other schools this year was that, when those were sent in the form of PDF documents, we could quickly search through all of the resumes for terms of interest (in our case, we're looking for a particular field).
3. An "Expresso"-style Submission of Resumes
Frankly, 600 or so (800 or so some years) FAR forms is a lot to wade through, especially for schools that might be in locations many candidates simply have no interest in calling home. We try to push candidates to tell us during an initial conversation (pre-conference) whether they are really willing to move to the midwest, leave California or NYC or wherever. Most say sure, but some will always later develop strong geographic reasons to withdraw or even decline an offer.
So why not have a system where candidates submitting resumes/FAR forms click on the schools to which they want to submit their resumes? Just like expresso, I would be able to click on everyone, if I so chose; also just like Expresso, if I wanted to be more selective, I could be more selective. Schools could then get individualized boxes of "applicants," with those not really interested in their region or their kind of school taken out of the pack. Candidates are sometimes told not to list a geographic restriction on their FAR form because it may be seen as a negative even by schools that meet that geographic restriction; but using an Expresso style system, candidates could have their preferences factored in, without it being obvious to schools what those preferences are.
Justice Palmer's apology to Susette Kelo versus Justice Kennedy's Kelo concurrence: What's the problem that the "public use" doctrine is trying to solve?
It is interesting news that the justice who cast the deciding vote against Susette Kelo on the Connecticut Supreme Court has publicly apologized for his decision. "Had I known all of what you just told us, I would have voted differently," Justice Palmer told a tearful Susette Kelo. But it is (to me) just as interesting that Justice Palmer's apology reveals an incoherence at the heart of the "public use" doctrine that Justice Palmer regrets not having deployed.
What exactly did Susette Kelo tell the justice? Only what I tell my students in my land-use class and what everyone now knows -- that "the city's development plan had never materialized and, as a result, years later, the land at issue remains barren and wholly undeveloped." The problem with the New London Development Corporation's condemnation of Kelo's house, on Justice Palmer's account,is that the New London Development Corporation did not have a reliable plan for disposing of the property after they acquired it, because the NLDC had not pinpointed a developer firmly and financially committed to improving the land after assembly. (The New London Development Corporation has put out a new RFP last May: I have no idea whether any developer bit).
Here's the confusion in "public use" doctrine revealed by Justice Palmer's apology: The facts that make Justice Palmer regret his vote -- the lack of a reliable development plan -- are precisely the facts that induced Justice Kennedy to defend his vote in his Kelo concurrence. Recall that Justice Kennedy concurred in Kelo on the ground that, because "[t]he identity of most of the private beneficiaries were unknown at the time the city formulated its plans," the condemnation could not have had the primary motivation of benefiting a specific private interest.
So what is the problem that the "public use" doctrine is trying to solve -- governmental corruption or governmental stupidity? It cannot solve both simultaneously. If the doctrine insists (as Justice Palmer suggests) that the condemnor have a specific and reliable development plan in place before condemnation -- a position being urged incidentally by the opponents of New York City's Willets Point condemnation -- then condemnors will probably have to choose a specific private beneficiary before the condemnation takes place, risking private corruption. If the doctrine insists (as Justice Kennedy suggests) that condemnations be pure of any taint of private interests, then there will be a greater risk of land assemblies' going forward without anyone's ever improving the assembled land.
Does such a fundamental dilemma at the heart of the "public use" doctrine make the doctrine's revival a hopeless cause?
Wednesday, September 21, 2011
What is the Point of Law School Grading Curves if They're Not (More) Fixed?
The way I see it, there are basically 2 points to having grading curves in law school:
(1) We want a forced distribution of grades so that relevant players can distinguish among students in the top, middle, and bottom of the class (e.g., schools can decide which students make which journals and employers can decide which students get which jobs); and
(2) We can ensure that there is fairness across sections. If students in Section A have a torts professor who has a median GPA of 2.8 every semester and students in Section B have a torts professor who has a median GPA of 3.2 every semester, it is easy to see how unfairness results.
Of course, we may (and many do) question under (1) how much of a role a student's GPA/class rank should play in journal/hiring/other decisions. And we may question under (2) whether a grading curve does produce fairness. What if students in Section A just happened to be "better" than students in Section B, whether intentionally or accidentally?
But here's the thing under (2): From what I've seen, most law school grading curves aren't like admission fees at museums, i.e., they're not fixed. Instead, they're (often extremely) variable. They're like suggested donations at museums. One patron could give the suggested donation of $5. Another patron could give nothing. And a third patron could give $10. This being the case, what is their point?For example, here is the grading curve for required courses at Seton Hall University Law School (picked at random and at least somewhat similar to curves at many other law schools):
A+ and A 15-25% (see below)
A- and B+ minimum 15% (see below)
B minimum 15% (see below)
B- and C+ 10-25%
C and C- 10-25%
D+, D and F 5-15%
Grades in the first two categories of the foregoing grade distribution schemes should not exceed 50% of the overall class.
Grades in the first three categories of the foregoing grade distribution schemes should not exceed 70% of the overall class.
So, in Section A of Torts (100 students), Professor A could give:
5 A+s and 20 As (25%)
20 A-s and 5 B+s (25%/50% total)
20 Bs (20%/70% total)
10 B-s and 5 C+s (15%/85% total)
10 Cs (10%/95% total)
5 D+s (5%/100% total)
Meanwhile, in Section B of torts (100 students), Professor B could give:
2 A+s and 13 As (15%)
3 A-s and 12 B+s (15%/30% total)
15 Bs (15%/45% total)
5 B-s and 10 C+s (15%/60% total)
10 Cs and 15 C-s (25%/85% total)
2 D+s, 5 Ds, and 5 Fs (15%/100% total)
Now, I don't need to crunch the numbers to tell you that students in Section B are getting the short end of the stick. And maybe it is justified. Maybe, as I noted above, the students in Section A are "better" than the students in Section B. And maybe that's the point of a flexible curve. If I have a terrific set of students in a given semester, I might give grades like Professor A above. If, during another semester, I have a collection of Sweathogs, I might give grades like Professor B above. Most semesters, my grades will fall somewhere in between these 2 extremes. And while a flexible curve gives me some flexibility, it still gives me boundaries so that my grades aren't that different from the grades of a professor teaching a different section of the same course.
In an ideal world, this all makes sense. But does it make sense in the real world? From talking to colleagues, I get the general sense that the answer is "no" because I think that a course's curve tells us more about the professor than her students. I know some professors who consistently award grades at the bottom of the curve and would give lower grades if they could. Conversely, I know some professors who award grades at the top of the curve and would give higher grades if they could. In other words, some professors are "hard" graders and other professors are "easy" graders, and a student in a section with a 3.2 median is "lucky" while a student in a section with a 2.8 median is "unlucky."
But let's say that I'm wrong. Let's say that most professors modulate their curves based upon the performance of each collection of students in each class. It is still easy to imagine problems. In a torts class in fall 2011, the median on the exam is 72 in both Sections A and B. Professor A and B each create curves where the median GPA is 3.0. In the fall of 2012, the median on the exam is 76 in both Sections A and B. Professor A concludes that this was an exceptionally bright class and awards a median GPA of 3.2. Professor B concludes that this was an exceptionally easy exam and awards a median GPA of 3.0. Both professors could be correct, but they both could easily be incorrect. Maybe the students in Section B were exceptionally bright and the exam in Section A was exceptionally easy.
And there's no easy way (as I see it) for Professor A and Professor B to compare notes to ensure consistent results. First, it is pretty tough (at least for me) to determine the difficulty of a test (especially) for a class I didn't teach. I'm Professor A. A good deal of Professor B's exam deals with the attractive nuisance doctrine. Is the exam easy or difficult? I don't know. How much time did Professor B spend on the doctrine? What cases did she use? How good was the class discussion when the doctrine was covered? Second, it is difficult to judge the quality of other professors (or ourselves). Is Professor B so adept at the Socratic Method that she would make Socrates himself blush? Or is Professor B teaching contributory negligence as the majority rule?
My point in all of this is to say that it is very difficult for a professor to determine whether his section is especially bright (or dim) or whether this characteristic is shared by the class of 201# as a whole. And trying to make assumptions based upon reading the exams and exam answers from other sections isn't likely to be helpful.
So, what's my overall point? I think it is that law school curves should be less flexible. I cited to Seton Hall's curve above, and you can see the disparity that can result between two sections under the curve. The same goes at many other law schools. For instance, at Chicago-Kent, 20% of students in Section A might get As or A-s while in Section B that percentage might be 5%. Are these and many other curves too loose, or are there good reasons for keeping law school curves as flexible as they are at many (most?) law schools? Are you an "easy" or a "tough" grader or do you significantly change your curve from semester to semester?
Fixing Direct Democracy
Zocalo Public Square asked a number of scholars the following question: "What is the single best thing we can do to improve the initiative process?" I'm not sure there is a quick fix, but here was my answer:
In democracies, it is both common and correct to say that “the people” should rule. But democracies differ in their understanding of who “the people” are–and how they are represented. In most democracies, elected leaders stand in for and represent “the people.” In direct democracies like California, by contrast, the polity is designed to let “the people” represent themselves with immediacy from time to time, reasserting their will over particular policy areas, disrupting elected leaders’ assumptions that they can always vindicate the voice of the populace with their democratic mandates from a prior Election Day.
It isn’t a surprise that “the people” are not always up to the task. Although there is no doubt that conventional representative democracy has its flaws, the “wisdom of the crowd” is just the flipside of “mob rule.” Under the conditions most citizens find themselves in modern mass society, they have neither the time nor the inclination to engage with the issues that find themselves on the ballot. Most do not deliberate with one another and most cannot get sufficiently informed about the policy debates. But it isn’t that citizens are incompetent. It is that we don’t design the institutions of direct democracy in a way to promote real deliberation and thoughtful decision-making.
All that could change with one simple fix.Instead of asking nearly 40 million people what they think about a question of policy, ask a much smaller random subgroup of “the people” what they think. When we want criminal defendants judged by a jury of their peers, we don’t ask everyone to vote: we ask a cross-section of the whole—12 people—to take time out of their private lives and serve their governments to decide if an individual in their midst should lose his or her liberty or life. When we ask “the people” to decide policy in direct democracy, it should be done by a scientifically stratified random sample of 535 people that is empanelled into jury service for the task at hand.
As Tocqueville wrote, the “jury is both the most effective way of establishing the people’s rule and the most efficient way of teaching them how to rule.” It is time to think of our exercises of direct democracy like policy questions sent out to a jury of our peers. Under those conditions, it won’t be money or misleading campaigns that decide ballot questions: it will be the deliberation of lay citizens who have all the right incentives and institutions to think through important questions with a manageable group of their peers, who are similarly motivated to produce an authentic, informed, and issue-specific voice of “the people.”
Ethan J. Leib is author of Deliberative Democracy in America: A Proposal for a Popular Branch of Government. He was a professor of law at the University of California’s Hastings College of the Law from 2005 to 2011. He is now a professor of law at Fordham Law School in New York.
My latest academic treatment of popular democracy, forthcoming with Chris Elmendorf in the California Law Review, can be downloaded here.
Reselling courtesy copies and the terms of employment
In a time of noise about law-school scams and lazy, pampered, overpaid law professors stealing money, perhaps this is the type of question that just highlights some complaints about our profession. Still, it came up in a conversation among colleagues (none of whom has or is thinking about trying to do this) and seems to raise and interest issue:
My university recently handed down a prohibition on faculty reselling courtesy copies of books. We are permitted to gift them, donate them, and take them home, and we can keep them if we leave the university to teach elsewhere; we just cannot sell them. The question is whether the university can impose this restriction. Obviously, the publishers can restrict what we do with these books (West and Foundation now place stickers on courtesy copies explicitly prohibiting resale). But can a third party, a stranger to the relationship between the faculty member and the publisher, do that?
So is this prohibition valid? What is the rationale or justification for such a rule? Does the rule interfere with property rights? Is the university impermissibly changing the terms of an employment contract without consideration?
Tuesday, September 20, 2011
Book Review: Redeemers, by Enrique Krauze
If you are interested in Latin American intellectual, literary, and political history (categories that intersect more in Latin America than in the U.S., for some reason), Enrique Krauze's new book, Redeemers: Ideas and Power in Latin America (Harpers 2011, $18.80 on Amazon) is a must-read. Krauze, a Mexican historian, who has also written for a number of U.S. publications, covers an amazing amount of territory in the book. It begins with the "four Jose's" (Marti (Cuba), Rodo (Uruguay), Vasconcelos (Mexico), and Mariategui (Peru)) whose influence transcended national boundaries in Latin America. In the process of describing these "prophets," as Krauze calls them, the book reveals some of the foundational elements of Latin American thought, especially its sense of cultural distinctiveness from (and even superiority to) North America, as well as its tendency towards hero worship and, as a result, caudillismo.
The middle parts of the book are dedicated to descriptions, or more properly, interpretations, of contrasting pairs of political and literary figures: Eva Peron and Che Guevara, Gabriel Garcia Marquez and Mario Vargas Llosa, Chiapas Bishop Samuel Ruiz and Subcomandante Marcos. The longest chapters are dedicated to a comprehensive account of the intellectual development of Mexican nobel-prize-winning poet Octavio Paz, for whom Krauze clearly has a special affection and admiration. The book ends with an interpretation of Hugo Chavez as a "postmodern caudillo" who embodies many of pathologies (although also a few of the virtues) that run through the earlier chapters.
As you can tell from this description, the book is incredibly wide ranging and impressively erudite. Translated into English by Hank Heifetz and Natasha Wimmer, it is written in an engaging style. Although it clocks in at nearly 600 pages, I found it almost impossible to put down and managed to get through it on flights to and from the West Coast. While appealingly nonideological, Krauze's analysis leans slightly more to the right than the left. This comes through pretty clearly in the discussion of the trajectory of Octavio Paz's thought from committed Marxist-Leninist to (almost) liberal-democrat, but even more clearly in the pairing of Garcia Marquez and Vargas Lllosa.
Krauze correctly takes Garcia Marquez to task for his obsequious relationship to Fidel Castro. One particularly damning passage included a description of the sumptuous dinners of lobster and cod that the novelist and the dictator enjoy in Havana, which Krauze contrasts with the meager monthly ration "enjoyed" by normal Cubans (which, needless to say, does not include any lobster). Krauze also pillories Garcia Marquez for his steadfast failure to criticize the Cuban government for its denial of political freedoms. Krauze pulls no punches:
Eventually, history makes both aesthetica and moral judgments. Aesthetically speaking, it is a little premature to say-- as Martin does -- that Garcia Marquez is the "new Cervantes." But in moral terms, certainly, there is no comparison. A hero in the war against the Turks, wounded and maimed in battle, castaway and prisoner in Algeria for five years, Cervantes lived his ideals, his tribulations, and his poverty with Quixote-like integrity, and enjoyed the supreme freedom of accepting his defeats with humor. One does not see such greatness of spirit in Garcia Marquez, who has avidly collaborated with oppression and dictatorship.
More broadly, Krauze consistently (and correctly) insists that the Latin American (Marxist) left has failed to place enough value on the value of political freedom, both as an intrinsic good and as an instrument for achieving social justice. On the other hand, if the left in Latin America has tended to err by over-emphasizing economic equality relative to formal freedoms, Latin American liberals have arguably made a similar mistake in the other direction. But Vargas Lllosa's classical liberal prescriptions, which downplay the difficulty of building democratic institutions on the racially and economically stratified societies of Latin America (some of the most unequal societies on the planet) merit only a passing criticism from Krauze. That said, I found myself sharing Krauze's clear preference -- on a personal level -- for Vargas Llosa over the hopelessly compromised and morally bankrupt Garcia Marquez. (As an aside, one of my favorite passages in the book was Jorge Luis Borges's quip about One Hundred Years of Solitude -- that it was fine, but it would have been even better if it were twenty or thirty years shorter.)
Finally, it was interesting that the two Latin American thinkers (Jose Marti and Octavio Paz) who seemed least prone to the vices of the left that Krauze identifies spent significant parts of their lives outside of Latin America. Krauze does not make much of this, but the book made me think that, perhaps as a result of their dual cultural citizenship, Latinos in the United States have a great deal to offer not only to their cousins in Latin America, but also to the United States. U.S. Latinos seem uniquely positioned to bridge the cultural gap between Latin America and North America, a gap captured so starkly in Rodo's famous essay, Ariel.
Prop 8 and "Don't Ask, Don't Tell"
Today is an important day. One day after Judge James Ware of the Northern District of California ordered the release of the Perry trial videotapes, the odious discriminatory policy known as "Don't Ask, Don't Tell" (DADT) finally dies. The two developments are related in that they mark important victories for the gay community: those of us who serve our country in silence no longer have to lie about who we are, and the release of the Prop 8 videos will help show the public how empty and hateful the opponents of same-sex marriage can be.
But, it's worth noting the differences. Despite the successful, yet ongoing facial challenge to DADT organized by the Log Cabin Republicans and litigated by White & Case LLP partner Dan Woods, DADT is dying due to legislative action taken by majority Democrats at the end of the last Congress. Perry v. Brown, on the other hand, is a federal court challenge to California's ban on same-sex marriage, enacted through the state's unique referendum system. Some activists in the gay rights movement are not sure either is the right process. Many think that it would have been better for DADT to be buried under Judge Virginia Phillips's world-wide injunction and declaration of unconstitutionality, and many think that the issue of same-sex marriage should be put back in front of the voters in 2012.
What are the merits or disadvantages of legislative versus judicial action in the gay rights movement?As I have written before, the most effective strategy in the search for civil rights is almost always a dual strategy in legislatures and in the courts. Progress in one influences progress in others, as Log Cabin Republicans v. United States likely did with the legislative repeal of DADT. But, we might be at a different stage today had we not taken the path we did.
The DADT Repeal Act is a great thing, but it leaves certain questions unanswered. And despite Dan Woods's almost constant attempts to score cheap political points against President Obama in his comments to the media, his litigation could accomplish much. As Lambda Legal's Jon Davidson noted yesterday in The Huffington Post, "[n]o sexual orientation anti-discrimination protections have been adopted into law by Congress, an executive order or military regulations. The same-sex partners and spouses of lesbian, gay, and bisexual service members and veterans largely continue to be denied rights and benefits provided to heterosexual service members' spouses." What's more, we can probably expect future litigation from those who were discharged under less than honorable circumstances under DADT -- dishonorable and bad conduct discharges are not only stains on veterans' records, but are also barriers to future employment. Many who were discharged lost benefits and pensions and there remain questions as to the ability of less than honorable discharges to rejoin the service. A broad decision from the Ninth Circuit could have addressed these issues.
Perhaps more importantly, a decision from the Ninth Circuit could have added precedent on the standard by which federal courts will review state action that discriminates on the basis of sexual orientation. Thanks to President Obama, it is the federal government's policy that intermediate scrutiny is the proper standard, but enshrining that view in an appellate court decision may have more lasting impact on the future success of gay rights litigation.
And, yet, legislative repeal has certain advantages. It protects repeal from the tired canard that a few unelected "activist" judges overturned the will of the people and it makes clear that Congress made particular findings that being gay is irrelevant to our ability to serve our country honorably.
A similar back-and-forth has been simmering in the same-sex marriage context. While the Perry litigation is winding its way through the courts -- delayed and detoured by a question certification to the California Supreme Court, a claim that the district court judge was biased and a motion to release the trial videotapes -- some activists want to bring the issue back to California voters in 2012. They say that majorities now favor same-sex marriage and that the Prop 8 case may get to the Supreme Court too early -- before intermediate scrutiny gains a foothold at the appellate level and before the membership of the court changes.
I share none of these concerns. Another round at the ballot box allows anti-gay forces to raise the same scare tactics and outright lies that helped them win in 2008, something that the truth-seeking trial process does not allow. Winning at the ballot box could moot Perry, which itself offers a great opportunity to clarify the sexual orientation standard of review. And, Perry is well-funded and well-litigated and well-managed, headed by capable advocates at the American Foundation for Equal Rights and the litigation team of Ted Olson and David Boies.
What do you think? Is one method -- legislative versus judicial -- that is better than the other?
Monday, September 19, 2011
The Problem with Bribery Law as Sanctions: Black Knights
I concede that something is not necessarily true simply because a publication such as The Economist says it is. But still, if you've been following these posts on antibribery law as economic sanctions, you'll want to see this week's article, "Bribery Abroad: A Tale of Two Laws." The author concludes that the FCPA deters investment in developing countries (full disclosure: while I'd like to think he did so independently of me -- thereby proving it to be a sort of self-evident truth -- this is not exactly what happened). And so what if it does? What is the problem with FCPA enforcement deterring investment in developing countries? The problem is that it leaves developing countries to be ravaged by companies from countries that simply do not care about bribery and other forms of socially destructive corporate behavior. Let me explain.
The economic sanctions literature teaches us what happens when some, but not all, of the world's powerful nations sanction a developing country. The sanctioning nations withdraw their capitial, leaving a void in the sanctioned country. That country must then fill the capital void, and it does so by looking to countries that are not participating in the sanctions. These latter countries are sometimes called sanction-busters, or black knights -- they swoop in and "rescue" the country by participating in the very conduct that the sanctioning countries protest.
I would suggest that this precisely what is happening today with anti-bribery enforcement. My previous posts this month on India and Kazakhstan are but examples of a dynamic that today can be observed across Asia, Africa, and Latin America. We have increased the costs of doing business in corruption-prone countries to the point that companies can't afford the risk and pull out. The developing countries still need foreign direct investment to stimulate growth, so they look to companies from countries that do not enforce anti-corruption laws. Most prominent of these is China. The result in the developing country is a dramatic net increase in the amount of bribery and related forms of socially destructive corporate and governmental conduct.
Have I convinced you yet? If not, give me a couple more posts, and then we'll get to remedies.
Retributive Justice and the Demands of Democratic Citizenship
As some of you may know, I've been preoccupied the last 9 months or so on a big project called Retributive Justice and the Demands of Democratic Citizenship. I've thrilled to say that I've finally uploaded a draft of it to SSRN. You can download it here. The piece represents my early efforts at thinking through some of the relationships between political obligation and decisions regarding crime and punishment. In particular, I try to argue, contra crim law gurus like Doug Husak and Michael Moore, why it is that appropriately scaled punishment may, under the right conditions, be justly imposed on offenders for crimes involving conduct that is itself morally neutral (prior to or independent of law). If I'm right about that claim, then the underlying arguments also generate a raft of unusual implications, some of which are detailed in the abstract.
Sadly, the piece is long. Still, if you plod through it, I would be very grateful for comments as my hope is to turn this (and some other) material into a book tentatively entitled Rethinking Retributive Justice. The abstract and some more background about the piece appear after the jump.
This article reveals and responds to the democracy deficit in certain retributivist approaches to criminal law. Democracy deficits arise when we insufficiently recognize the moral authority of liberal democracies to create new moral obligations for us as individuals. Specifically, I will argue, in contrast to the claims of some leading criminal law theorists, that conduct can be legitimately and justly criminalized even if the conduct is not morally wrongful prior to or independent of law. In other words, once we understand the basis for our presumptive political obligations within liberal democracies, a more capacious approach to establishing criminal laws can be tolerated from a political retributivist perspective.
If I'm correct, then here are some of the implications: we are morally obligated (in a pro tanto way) to (1) conform our conduct, in our capacities as nonofficials, not only to “good” mala in se criminal laws but also many mala prohibita laws, laws that I call permissibly dumb but not illiberal; (2) to render, in our capacities as nonofficials, reasonable assistance to law enforcement of the previous categories of laws; and (3) to enforce, in our capacities as officials, these categories of laws. While the implications of this "democratic fidelity" argument are extensive, there is no moral obligation to surrender one’s judgment entirely. Indeed, officials and nonofficials have no moral obligation toward laws that are illiberal or what I call "spectacularly dumb," regardless of their valid legal status.
Like democratic criminalization choices, democratic sentencing laws must also be scrutinized. To that end, I sketch two moral frameworks that should work in conjunction with each other and with the threshold criminalization question when deciding whether to enforce, conform to, or assist enforcement efforts of criminal laws within liberal democracies.
By way of background, the paper was the invited "launch" paper of a new journal devoted to criminal justice issues at UVA's law school, the Virginia Journal of Criminal Law. I am very grateful to Darryl Brown and the student editors of that journal for making possible the chance to come to Charlottesville to begin a dialogue with some of my favorite voices in criminal law theory: Josh Bowers, Michael Cahill and Antony Duff. When the first issue comes out, it will comprise my paper, the response essays by Bowers, Cahill and Duff, as well as a reply essay by me whose final touches I'm currently procrastinating via this blog post. While this project has been difficult for me at times to work though, I confess it's been a delight to have the opportunity for this conversation in criminal law theory to unfold both in person and in print.
Open Thread for Law Review "Angsting"
Updated and bounced to the front:
Redyip has finally been sighted for the season. The question is: has he departed for good until the spring? Are the law reviews still open for business and making offers?
Since we had such a successful thread this past spring about the submission season, I figured we should start a new thread for a joy/gripe-fest, a place where authors and editors can share stories and offer information about the upcoming submission season. Have at it!
Law School Hiring, 2011-2012, Thread One
NB: Bounced to the front every ten days or so.
We invite those on the market to leave comments on this thread regarding whether they have received:
(a) a first round interview at a school (including the subject areas the school mentioned, if any, as being of particular interest, and whether the interview offer was accepted);
(b) a callback from a law school and/or accepted it; or
(c) an offer from a law school and/or accepted it; feel free to also leave details about the offer, including teaching load, research leave, etc. A school listed as "offer accepted" may have made more than one offer and may still have some slots open.
Law professors may also choose to provide information that is relevant to the entry-level or the lateral market.
Four miscellaneous things:
1. If you don't want your contact information displayed, enter firstname.lastname@example.org or something like that as an email address.
2. There is a separate thread, "A Clearinghouse for Questions," for general questions or comments about the teaching market. Please do not use the thread below for general questions or comments. (Such comments will be deleted, not out of hostility or in a judgy way, just to keep this thread focused.)
3. There's quite a cache of materials relevant to the law job market under the archive category Getting a Job on the Law Teaching Market. The clearinghouse for questions thread from 2010-2011 is here.
4. Finally, in each of the last three years, someone who is on the market has volunteered to aggregate the information on a spreadsheet. If you would like to volunteer, please contact me directly at slawsky *at* law *dot* uci *dot* edu, and I will get you set up.
4. We now have an aggregator, and we will thus continue our spreadsheet approach: All information should come in through the comments. Our aggregator will 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, downloadable version below.
Here is the spreadsheet, which is downloadable.
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.
UPDATE: Members of hiring committees, if you see something incorrect in the comments (e.g., someone says they have an entry-level interview at your school, but you haven't scheduled any entry-level interviews), please email me directly, slawsky *at* law *dot* uci *dot* edu, and I will take corrective action (which sounds more exciting than it is--I'll delete or amend the comment and adjust the spreadsheet, and if the person at that IP address persists in posting incorrect information, I will block the IP address).
Tough Tests, Take 5: What Do You Do With an Exam in Which a Student Doesn't Reach Conclusions?
If you're like me, most of your exam questions are in the nature of "spot the issue," not "spot the conclusion." In other words, on an Criminal Procedure exam, a typical question might give students a fact pattern involving a questionable Terry "stop and frisk," with the student being expected to state reasons why the officer's actions would or would not be deemed constitutional...followed by a conclusion. But what happens when a student fails to reach a conclusion? In other words, what do you do when you have an IRA exam instead of an IRAC exam?
Obviously, a student's failure to provide a conclusion to some questions should lead to a significant loss of points. If I do have a "spot the answer" question in which it is clear that, for instance, the "stop and frisk" was constitutional, a student's failure to reach that (or any) conclusion will be quite damaging to her exam. The same goes if I include a red herring on the exam where something could be argued but should be dismissed. For instance, if I have an officer reaching into a suspect's pocket, and a student lists reasons why this might or might not have been a proper Terry frisk without ultimately (correctly) concluding that the frisk was unconstitutional, the student's exam will suffer a good deal.
But what if the question involves a really close call? What if a student could easily reach the conclusion that the "stop and frisk" either was or was not constitutional. In other words, what if it is exactly the type of question that most of us ask to ensure the neat "The prosecutor will argue," "Defense counsel will argue," "The court should conclude" answer? (Law professors are like Vegas setting the line on a sporting event and hoping for equal action on both sides) And what if a student adroitly lays out all of the arguments that both sides would make, expertly applying the law to the facts...but then doesn't reach a conclusion.
The way I see it, the conclusion is the least important part of an answer to such a question because the conclusion is essentially arbitrary. Student A could easily conclude that the prosecutor's arguments are more persuasive (constitutional), Student B could conclude the opposite (unconstitutional), and Student C could conclude that both sides' arguments are equally persuasive, with the prosecution having the burden of proof (unconstitutional).
Each of these students could receive equal credit for their answers because, as noted, their conclusions are basically arbitrary. If I have written a good exam question, there are equally good arguments on both sides, and a student's conclusion is nothing more than highlighting which arguments she deems most important. I always tell my students that it is not important what conclusion they reach on the exam as long as they reach a conclusion.
But how important? If I have an exam with 4 questions with 4 issues with 4 arguments on each side of each issue, let's say that Student A provides perfect analysis of each of the 32 arguments. But let's say that Student A never reaches any conclusions. And let's say that each question was a "spot the issue" question in which Student A could have reached either conclusion and gotten full credit. Is Student A's exam still an A exam? Is it "better," all else being equal, than Student B's exam, which perfectly analyzed 31 arguments but reached conclusions on all 4 questions? 30 arguments? 29? 28? How damaging is it to a student's grade if she doesn't include a conclusion to a question where any conclusion could be correct?
Friday, September 16, 2011
Does Anti-Bribery Law Amount to Economic Sanctions Against Developing Countries?
Having shared a couple case studies of anti-bribery law's ironic (and tragic) effects, I will spend the duration of my visit this month diagnosing the problem and brainstorming solutions. Here's why I argue that corporate anti-bribery law, as currently enforced, constitutes de facto economic sanctions against developing countries.
Almost all FCPA enforcement actions (about 95%) concern conduct in countries classified by the World Bank as developing countries -- that is, U.S. companies (or foreign companies subject to FCPA jurisdiction) paying bribes in developing countries. This is no surprise. We would expect most corporate bribery problems to emerge in countries that have strong enough economies to attract investment, but whose legal systems do not yet deter bribery. We also know that FCPA enforcement exerts downward pressure on investment in countries where bribery is perceived to be more prevalent. Again, these tend to be developing countries, and again, this should not surprise us. If we significantly increase the cost of doing business in certain markets, we will do less business in those markets. And what do we call the withdrawal of capital from developing countries in protest of their political conditions? You guessed it. Although few, including those who testified before Congress urging enactment of the FCPA, typically think of the statute as a form of economic sanctions, I am arguing that it functions in precisely that way. And many of us, perhaps most of us, generally think of sanctions (using again a phrase that will recur in my posts on this topic) as "right premise, wrong conclusion" -- we want to do something, but know that the sanctions aren't likely to make the problem better, and might well make it worse.
F. Scott Fitzgerald said that the sign of a first-rate intelligence is the ability to hold two contradictory beliefs at the same time. Yes, FCPA enforcement has helped to reduce bribery around the world. It has also done exactly the opposite, at the same time, to tragic effect. So what should we do? I'll want to bounce several ideas off of you, but first let me explain the problem more fully, next post.
Questions by students for prospective prawfs
A law student I know is serving as the student member of his law school's Faculty Appointments Committee, and asked me to ask others: "What would you like to be asked by students in an interview? Think about this in the context of a day full of deans and professors -- what haven't you talked about by the end of the day that students should know about and factor into a hiring decision?"
"Liberal Whateverism" in The Agnostic Age
My friend and colleague, Chris Smith -- a sociologist of American religion (and other things) here at Notre Dame -- has an opinion piece up at HuffPo in which he discusses the phenomenon of what he calls "liberal whateverism", an "outlook [which] reacts against sectarian conflict by dramatically discounting the claims of religion. The more aggressive side of this view asserts that religion per se is pernicious and should be eliminated or radically privatized. The more accommodating side says religion is fine as a personal lifestyle commodity, but that religious inclinations are ultimately arbitrary and should not be taken too seriously."
Paul's thorough response to Rob Vischer's review of The Agnostic Age is, among other things, a reminder that agnosticism of the kind Paul presents in his book is not (or need not be) "whateverism." Paul, it seems to me, can easily agree with Smith's conclusion:
I think we need to reject both sectarian conflict and liberal whateverism and commit ourselves instead to an authentic pluralism. Genuine pluralism fosters a culture that honors rather than isolates and disparages religious difference. It affirms the right of others to believe and practice their faith, not only in their private lives but also in the public square -- while expecting them to allow still others to do the same. Authentic pluralism does not minimize religious differences by saying that "all religions are ultimately the same." That is false and insipid. Pluralism encourages good conversations and arguments across differences, taking them seriously precisely because they are understood to be about important truths, not merely private "opinions." It is possible, authentic pluralism insists, to profoundly disagree with others while at the same time respecting, honoring, and perhaps even loving them. Genuine pluralism suspects the multi-cultural regime's too-easy blanket affirmations of "tolerance" of being patronizing and dismissive. Pluralism, however, also counts atheist Americans as deserving equal public respect, since their beliefs are based as much on a considered faith as are religious views and so should not be automatically denigrated. . . .
Should Law Schools Recruit Associate Deans Laterally?
I spent much of last fall in my second tour of duty on my school's dean search commmittee. We ended up hiring a long-time member of the faculty, but along the way looked very closely at a number of outside candidates. Hiring an outsider is often thought of as risky. You might end up hiring someone with skeletons in the closet (perhaps covered up by that person's current colleagues anxious to be rid of him/her); you might end up hiring a dean who will place his/her own financial interests above the school's intitutional concerns in discussions with central university admnistrators. And even if neither of these is true, there's no certainty that, upon further reflection, an outsider with deep roots in their current school or community will want to relocate for what is these days a 2-4 year job. A faculty invests a lot of energy in screening outside candidates, and those folks may be less likely to accept a position if offered than an internal candidate.
Looking at outside candidates offers obvious advantages, like fresh insights and a broader pool.As a practical matter, it may be a necessity to look outside in order to be able to satisfy a particular dean search charge (for instance, "give the provost/president three names"). The vast majority of deans, outside of the very top schools where fundraising is of a different character, will have served as associate deans at law schools (and most of those as "Associate Deans of Academic Affairs," or whatever that position is called, as distinguished from research deans). But on a typical faculty, there may only be one or two individuals who are available and have served in that office. So one has to look outside the building to find people with what is viewed by many schools as an essential if not absolutely required prior experience.
So here's my question -- in order to develop a better pool of future dean candidates, should schools consider bringing in associate deans from outside? I've never heard of such a search. There is certainly a question of how long it would take a laterally hired associate dean to get up to speed on the various institutional rules and customs that the person would have to enforce. But my outsider's perspective is that the learning curve for a professor-turned-associate dean is so steep anyhow that the differences in institutional approach won't be the main new thing a person has to master.
The laterally hired associate dean would be a sort of "coach in waiting," ala college football, or a "CEO in waiting," ala industry. The school woudn't be bound to the person, and of course, like coaches in waiting, some would end up bolting for other jobs before they get their turn (though that itself would be revealing; and I think most schools get more than their money's worth in service from associate deans).
I haven't seen associate deans recruited laterally, as noted, and in fact when we look at lateral faculty candidates we typically immediately dismiss someone who is currently an associate dean as "ungettable." But here's what I have seen happen in a couple of places -- a faculty member, relatively junior (perhaps untenured, perhaps tenurable or recently tenured) laterals from one school to another, and within 2-3 years is appointed the associate dean at the new school. Is it possible that schools are, without advertising it, looking at potential laterals who bring certain administrative tendencies not prevalent among mid-career folks at a school? I know of three schools, including my own, where a lateral faculty member ended up in the associate dean's chair within 2-3 years of coming aboard. I even know of a school that made a lateral offer, which was accepted, and then offered the lateral the associate dean's job before they'd even come into the building.
It's also possible that outsiders coming in as faculty laterals may end up as associate deans because they come in with fresh ideas which impress their colleagues and which demonstrate administrative and curricular reform aptitude.
Responding to Rob Vischer's Review of The Agnostic Age
Rob Vischer has a review in this week's Commonweal Magazine (a great magazine, by the way, and always looking for more subscribers) of my book The Agnostic Age: Law, Religion, and the Constitution, which is an excellent gift suggestion for the High Holidays/Autumn Equinox/Respect for the Aged Day (in Japan). If you're going to engage in public discussion and want to be taken seriously, you have to be prepared to accept criticism; and Rob has definitely come through! (I envision a new euphemism for tough reviews. "How's the book doing, Paul?" "Great! It's being taken very seriously.") I would have been happier, perhaps, if Rob had ended his review with the first line of the second paragraph, which calls the book "insightful and bracing." But I would have learned less. Let me give what I hope is a fair account of Rob's criticism of the book and give a little response.
The review is subscriber-only, but Rob describes some of his key points at this MoJ post. A brief summary of my own argument first. I argue in the book that modern religious freedom law and theory tries, for reasons related to the general liberal compromise, to avoid confronting questions of religious truth. There are excellent reasons for doing so, but the approach is ultimately unsustainable; we cannot truly avoid confronting this question. I argue that the best way for courts and others to do so is by taking religion seriously but not reaching a final answer on questions of religious truth. Rather, courts and others should, in a particular kind of open and empathetic fashion that I sometimes call "agnostic" or "empathetic agnosticism." They should, in short, ask what it might mean for a religious belief to be true. On the Free Exercise side, that means accepting the powerful claim of religious beliefs and practices on religious believers and trying as best as one can to enter the imaginative space of that believer before rendering a decision. Taking those claims seriously would, in my view, give us strong reasons to at least attempt to accommodate those religious believers, both constitutionally and as a matter of legislative and citizen discretion. I agree that there are points past which we inevitably will not go--we will prevent Abraham from sacrificing Isaac--but I think we will both create a greater scope for accommodation under this system, and find new and better ways of speaking to the affected parties, even when they lose--treating their claims seriously and not just, in effect, casting them out of the discussion. I also argue that because we are obliged not to decide questions of religious truth, on the Establishment Clause side there will be certain things that government is simply prohibited from doing--in particular, making decisions that clearly place the stamp of approval on particular religious truths. Equal access and opportunities for religious and non-religious groups in funding, yes; but no Ten Commandments.
Rob quite reasonably and sharply argues that that's not enough. If we took religious claims seriously as potentially, provisionally true claims, they would overwhelm any competing state interests. Since we don't do that, even under my approach, what I am saying either can't be entirely true or can't get us far enough to an explanation of why we sometimes put our foot down. "Thumb on the scale or not, we are still faced with the vexed question of how to balance the claimant’s interests against the state’s. Horwitz insists that taking the stakes of these cases seriously 'does not demand that we go past our breaking point.' But his constitutional agnosticism does not help us identify the breaking point any better than any other theory of religious liberty." He concludes: "More work to identify the bedrock values that define our 'breaking point' would provide a more helpful--though still frustratingly messy--path through the maze of religious-liberty disputes than any effort to assume the truth of claims that lie beyond our collective grasp."
That's a partial version of his criticism. Let me answer it first with a confession, and then with some broader considerations by way of a partial defense. I think Rob is right that the constitutional agnosticism approach still leaves a lot unanswered or imperfectly answered. I think that simply denying the truth of a religious claimant's assertions does too much damage to religious believers, and without adequate foundation. And I believe that seeking instead to translate the conflict away from questions of religious truth and into a balancing of state interests against something like the "conscience" of the believer, whether his underlying claims are true or not--and I think this is the approach Rob recommends, although he's welcome to clarify--has its merits but is still insufficient. I believe that when we disaggregate conscience claims from the underlying truth or potential truth of the beliefs that underlie them, we end up watering them down, and so we get the result we do under present law, in my view: those claims are often easily outweighed by what seem like more tangible and pressing state interests. Conversely, when we do treat those conscience claims robustly, we end up coming closer, if not to the same place, that I do: we end up taking those claims seriously as truth-claims. Even if we could take conscience claims seriously without treating them as provisionally true, we'd still face the same problem under that approach that we do under mine: that we are faced with incommensurable claims on either side.
That said, although this may give some sense of why I have gone the way I have, I think Rob is right that there is a deep incommensurability problem here. I cannot finally tell you why Isaac should live instead of die. (For that matter, I'm not sure someone else operating under a different system that ignores the truth of religious claims, or the depth of conscience claims, can tell us why Isaac should live instead of die either, at least not without smuggling in some truth-claims of her own.) I do believe that under my approach, we would be less casual about rejecting religious claims and more likely to accept a greater range of religious claims to accommodation, in part because we would be less ready to treat government claims of administrative convenience as easily outweighing potentially true religious obligations. But there would still come a no-go point, and most of us would rather that were the case. "Constitutional agnosticism" itself does not tell us much about where that point lies. Rob is right that I need--and perhaps we all need--to devote more thought to thinking about the breaking point.
Here, Rob both obscures and gets at a tension in my book--a tension between a general tragic sense that runs throughout the book and is especially apparent in the last chapter, and between the usual effort to at least come up with something: some better test, approach, rule, etc. that will serve us as far as it goes. So one partial defense of my book is that although I offer an approach to these conflicts, I am not utopian about it. I don't think any approach can satisfactorily answer the conflicts between church and state, between religious truth and state needs. There is always a tragic residue in church-state conflicts. I have not solved the difficulty that Rob presents, but I have not been blind to it or naive about it either. It's there in the book.
So what's the value of constitutional agnosticism given this fundamental problem? I think there are a few. The first is that, in my view, many other approaches to law and religion either ignore or purport to resolve the tragic remainder problem, and don't; my approach is more candid about it. Second, I argue that something different is needed in our approach to church-state conflict because approaches based on the liberal consensus and the values it champions are no longer likely to be sufficiently satisfactory to a sufficient number of people in the long run. My answers to many church-state questions are not radically different from those offered by current doctrine; the book doesn't seek to rebuild church-state law from scratch, although I disagree with current law here and there. But my point is that a different approach to those answers is necessary because the old one, based on values like neutrality or equality, is no longer going to be as convincing, both for philosophical reasons and because of the evident and increasing nature of pluralism and religious belief in our own age. One value of constitutional agnosticism, I argue, is that it is closer descriptively to the kinds of beliefs we hold in our own age, and the way in which we hold them: with a sense of deep respect for and interest in questions of religious truth, an awareness of the potentially changeable nature of our own beliefs, and an awareness of the existence of others--neighbors, friends, family--who hold deep beliefs on questions of religious truth that differ from our own. I argue that constitutional agnosticism, because it better reflects the spirit of our own age, can better sustain the church-state project in the long run, so that even if the results don't change too much they'll be more acceptable to more people for longer. Third, I argue that putting everything into language that avoids questions of religious truth will have a greater tendency to create or reinforce a sense of insiders and outsiders, acceptable and unacceptable reasons, that will simply freeze out some people and groups by speaking to them in what is increasingly a foreign language, and not properly acknowledging the dilemmas those believers face. I know it is a fair question how much and how well we can speak to the "losers" in these cases, but I tend to believe, and I argue in the book, that an empathetic approach is more likely to embrace the "other" rather than exclude him or her, even when he or she loses.
Finally, I think it is important to emphasize that constitutional or empathetic agnosticism is not only a rule for judges, the general focus of Rob's review. It's also about how others--officials, lawmakers, citizens--deal with their own role in church-state conflicts. If those people took more seriously the importance of religious beliefs and the powerful nature of religious truth, they might be more willing to take a different view of what Marci Hamilton calls the "public good." They might treat that as a less secular enterprise, and acknowledge more readily the value of and need for legislative and other accommodations. The more seriously we all take religious truth, and the more empathetically we treat our fellow citizens, the more likely we are to treat their needs as being a part of the "public good," to try to accommodate them as much as possible, and to speak to them with respect and make them a part of the conversation rather than outsiders. (Cf. the recent mosque debates.) And the more that lawmakers, citizens, and others do so, the less pressure we place on the courts to either deny all such claims altogether or engage in too much balancing and weighing of their own.
In writing this, I get to revisit my experiences and thoughts in writing The Agnostic Age, and--happily for me--the more confident I feel that there is some important value in changing the terms of our discussion, and that empathetic agnosticism, without being a silver bullet, has some potential to do so in a productive way. I would urge Rob, or similarly minded readers, to keep these questions in mind as well. That said, let me end where I began my defense, with a crucial admission (albeit one that's already in the book, in the last chapter especially but also elsewhere): constitutional agnosticism is not a perfect, or perfectly compelling, solution to the broader problem of incommensurability and tragedy that afflicts church-state relations. I believe there is no perfect solution to those problems. To paraphrase what I say in the book, I think these tragic problems are built into the DNA of the relationship between religion and liberal democracy. I only offer what I hope is a somewhat new way to think about these conflicts, one that may better reflect the spirit of our own age, take religious truth more seriously, and buy us a little additional breathing room to continue struggling with these issues. But the struggle cannot end. If viewed as attempting to do what many such books do--offer the answer to how to deal with church-state conflicts--then my book does not succeed. But I do not think that's really the book's aim. It's to help make our conversation more productive and offer a way of thinking about these issues that avoids the impossible dream that we can simply put religious truth to one side, even while admitting and even trumpeting the fact that church-state conflicts always involve a tragic remainder. I think Rob is right, though, that even within that tragic framework, a lot more work could be done, especially by me, to say something more concrete about the "breaking points" at which the state must refuse a religious claim, whether it is true or not. I don't think simply talking about secular needs or the "public good" will do it; I'm not sure any simple value or definition will succeed here, at least unless it is willing to avoid "smuggling" in substantive values and address them openly. But I am not immune from this criticism either, and I agree with him that there is a gap in constitutional agnosticism--one that I argue, however, is present in almost all law and religion theory--when we come down to the question of who wins and who loses. At least I hope this approach gives us greater resources to discuss that gap. But I have a lot of work left to do. Thanks, Rob.
Thursday, September 15, 2011
Tough Tests, Take 4: What Do You Do When a Student Misinterprets a Key Term in an Exam Question?
In my first guest post, I blogged about what I thought was a difficult question: Do you ever bump the grades of students who run out of time on your exams? Well, it turns out that it wasn't so tough. A resounding 95% of respondents answered "no." In the comments section, though, Professor Michael Froomkin (the founder of the terrific JOTWELL...seriously, check it out if you haven't already), posed a trickier question:
A hard question for me is a student who doesn't know the meaning of somewhat but not utterly common non-legal word that I happen to use in a question, a dictionary word that is not a legal term, guesses wrong, and thus writes an essay that misses the point. This happened once, early in my teaching career (and I am sorry to say I don't even remember now what the word was, but I do remember it was not a foreign student).
I touched upon this question a bit during an earlier guest blogging stint in a post entitled, "Avoiding a Biased Exam," which was about...well, avoiding a biased exam, e.g., not using terms that could confuse certain students and not using fact patterns that could disturb certain students. But what if, despite your best efforts, a student gets confused?
Thankfully, I haven't faced this issue yet, but I might have if not for my wife. I wrote a Criminal Procedure exam question in which officers arrested a suspect in his bedroom and then searched an armoire in the suspect's bedroom and uncovered weapons, leading to a protective sweep of the house, which uncovered contraband. The call of the question asked whether the search of the armoire and/or the search of the rest of the house were constitutional.
The correct answer (in my mind) was that the search of the armoire was justified under Buie v. Maryland, 494 U.S. 325 (1990), which allows officers, incident to a lawful arrest, to "look in closets and other spaces immediately adjoining the place of arrest from which an attack could be launched." The officers' discovery of the weapons in turn allowed them to conduct the protective sweep of the rest of the house pursuant to another part of Buie, which allows searches of areas beyond the spaces adjoining the arrest room when there are "articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene."
In reaching this conclusion, I had in mind the common definitions of an armoire: a large wardrobe..., a large, ornate cabinet or wardrobe, a usually tall cupboard or wardrobe, etc. Under these common definitions, it seems clear that an armoire is a space big enough such that a person could be hiding in it ready to launch an immediate attack. But what if a student didn't know the definition of an armoire and thought it was a smaller piece of furniture? What if the student thought that an armoire was something entirely different than what it was? What if the student had in mind a smaller armoire, in which a person could not (easily) hide?
In this case, how would I grade Students A, B, and C? Student A finds that the search of the armoire and the protective sweep were warranted. She correctly applied the law to the facts and reached what I regard as the right conclusion. Student B's response is that the armoire was too small to conceal a person, so the search of the armoire was not authorized under Buie, meaning that the search of the rest of the house was illegal. She doesn't discuss the test for determining the validity of a protective sweep because she found the initial search was unconstitutional. Student C doesn't even address Buie in her answer.
Student A obviously gets full credit. But what about Student B? I think she gets full credit for her answer regarding the search of the armoire because she correctly applied the law to (her interpretation of) the facts. But does she get the same credit for her (non)discussion of the protective sweep of the house because her analysis and conclusion were correct if the search of the armoire was unconstitutional? Or does she only get partial credit because she didn't discuss the standards governing protective sweeps (but why would she?).
And what about Student C? The obvious problem here is that we don't know what Student C was or was not thinking. Maybe she envisioned an armoire as a huge dresser but blanked on Buie. On the other hand, maybe she envisioned an armoire as a tiny dresser or something else incapable of concealing a person. So, do I give Student C no credit? If there are a few students like Student B, do I recognize that Student C could have been similarly confused and decided it wasn't worth it to mention Buie because it was obviously inapplicable. And, if so, do I give her partial credit? Full credit? At some point, do I just recognize that the question was too ambiguous and throw it out? And if so, what is that point?
Luckily, my wife taught me a valuable lesson before I gave the exam, which is that clarity is key. In the question, I changed the armoire to a "large dresser," even giving the students its height, width, and depth. That said, I'm sure the day will come when I use an ambiguous term and get ambiguous results. And then, what do I do? What do you do?
Law School Transparency Petition
In my earlier postings about Paul Campos's blog, I said that although I had many disagreements with both what he had said and how he had said it (more on that below), we should welcome rather than disdain his willingness to write about the need for reform in legal education and about the plight of jobless law students. If he had useful things to say, more power to him, I wrote. I pledged that I would continue reading his blog and would happily link to any useful information or suggestions. It required a good deal of wading through unbelievably self-serving writing, and a comments section that ranges from the genuinely useful and touching to almost absurd heights of vicious invective. (Welcome to the blogosphere, as they say.) I'm currently reading Alex Ross's book The Rest is Noise, a history of twentieth-century music, and the blog kept putting me in mind of Ross's descriptions of fin-de-siecle society in Vienna, in which "revolutionary gestures betray a reactionary mind-set."
That said, I think Campos's latest post is worth looking at and considering. In it, Campos, building on work performed by his commenters, proposes a petition for law professors to sign. It reads:
"We, the undersigned, believe it is imperative that all law schools provide prospective law school students with information that will allow them to accurately assess their prospects for finding appropriate employment within the legal profession upon graduation from the schools they are considering attending. We therefore call upon the American Bar Association to require all schools it has accredited to release clear, accurate, and reasonably comprehensive information regarding graduate employment, by for example implementing the proposals outlined in Part III of the Law School Transparency Project's white paper "A Way Forward: Improving Transparency in Employment Reporting at American Law Schools" ( http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1528862 ), so that prospective students may obtain adequate information regarding their likely future employment prospects."
It provides an email address for those interested in signing the petition: email@example.com.
I have not yet read the white paper, so I can't comment on it yet. But it seems to me that pretty well everyone I have seen discussing these issues agrees at a minimum that law schools ought to provide clear and transparent employment data to prospective students. Rather supporting my initial point about Campos's blog many weeks ago--that the more revolutionary one's aims, the less likely it is that anything at all will get done--some of his commenters have insisted that anything short of a total revolution in legal education is a capitulation. But I think Campos quite rightly confines the petition to the one thing that, in general, everyone seems to agree upon. Even those, like me, who think that students rely on a variety of sources of information besides employment statistics in brochures--including bad information, like the general cultural assumption, certainly long since outdated, that law school is a path to a guaranteed financially successful career--still believe that the information law schools provide ought to be clear and accurate. So I think Campos has a decent shot at getting signatories for this petition, and I certainly encourage my colleagues to think about signing it. If commenters have any useful points about the white paper or the petition in general, I welcome them.
I am not above adding that folks who visit Campos's site to look at the petition should look, while they're there, at the two posts immediately preceding that. In one, he uses the story of a student at his school who, according to the story, committed suicide. It's a tragic story, but Campos admits that, at best, the reasons the student committed suicide were far more complicated than anything relating to his failure to find the kind of work he wanted. Given that, it strikes me as a pretty exploitative post--heart-felt, no doubt, but still one that trades on someone's death for the sake of a blog post. ("But for Wales, Richard?") Remarkably, in the comments section Campos criticizes a purported law professor for commenting anonymously on the blog. I don't care for anonymous comments from law professors either, but of all the people in the world entitled to make this point, Campos is surely the last. I pray it was an attempt at humor, but I found it galling no matter what.
The other, titled "The first rule of Fight Club," is remarkable but quite characteristic of Campos's blogging. I've argued before on this site that what's so unfortunate about Campos's blog is that what he has to say that is valuable has already been said elsewhere, and what he has to say that's attention-grabbing is often crudely exaggerated and rhetorically inflamed. There's nothing wrong with repeating what's been said elsewhere--many people feel that the problems with legal education haven't been talked about enough or gotten enough attention--but I think there's something deeply wrong with using cheap tricks to get attention, especially when the author then repeatedly and vaguely disclaims those cheap tricks, while still employing them, leaving a residue of disgust over everything he touches.
This post is characteristic of these tendencies. In it, Campos casually walks back many of the silliest claims he's made, as if he weren't responsible for making them and doesn't understand why they attracted so much attention in the first place; just a poor honest workman doing his job, sadly misunderstood and attacked by his adversaries. Compare, for instance, the Inside Higher Ed story in which he describes himself as taking a "whistle-blowing approach," and earlier posts in which he implies that his blog has led other law professors finally to pay attention to legal education issues, with his current version, in which he writes: "[I]t seems rather odd to characterize this blog as involved in any sort of real whistle blowing. Almost everything I've said has been a matter of very public knowledge, after all." A simple "I was wrong" would have done quite nicely, thank you. I have read just about every word of the blog, and it is all pretty well of this character. I understand why he has loyal followers, but as they pride themselves on their skepticism, I hope they are not afraid to cast a critical light on what he has done and continues to do, the self-serving and self-contradictory as well as the commendable.
I consider myself entitled to raise these criticisms because, one, they're true and they're pretty well what I've been saying all along, and, two, I've kept my promise to keep reading and take seriously anything worthwhile he has to say. I think the petition post is worthwhile; I certainly welcome substantive comments about the proposal and encourage professors to make up their own minds about signing it, as I will. Even a wildly distasteful messenger can sometimes produce a useful message.
On the Virtues of Just Saying No
Brian Leiter links to this story about the stalled nomination of Janet Levin to the Tenth Circuit. Levit is the dean of the University of Tulsa's law school. Her background is in international trade and finance, and includes work for the Export-Import Bank of the United States and in private industry. According to the story, Coburn, who believes judges should not look to international law in making decisions, was concerned about her background in international law.
If that's true, it's pretty close to absurd. There is, of course, a debate about whether judges should look to international law in deciding constitutional cases. And there are broader debates out there about the legitimacy of customary international law in particular, although what the latter debate has to do with being a federal judge is beyond me. But I am unaware of any sane sentient being who thinks that there is no such thing as law touching on international affairs. An entity like the Export-Import Bank must, of course, be aware of the variety of domestic laws affecting United States entities engaging in international trade. And it must be aware of treaty obligations binding on the United States by virtue of Senate ratification of those treaties. But those laws have no bearing on the general debate about judicial reference to international law in constitutional interpretation. Coburn is welcome, of course, to ask Levit whether she would look to international law in interpreting the Constitution. But simply blocking her because she's been exposed to international law, especially when most of that law is of unquestioned legitimacy, is generally domestic law, and has nothing to do with the Constitution is bizarre. Does Senator Coburn think there is some kind of international law cooties problem? First you're leafing through the OFAC regulations, and the next thing you know you've turned into Anthony Kennedy?
This episode persuades me yet again that there are times where the general norm of reason-giving that seems to have attached to judicial nominations can have bad effects. Senators are entitled to refuse to confirm judicial nominees for bad reasons or no reason at all. (They're entitled to block them for the same reason, in my view, although there are good independent reasons for us to disfavor the use of blocking tactics.) The idea that they're obliged to provide good reasons to oppose a nominee sometimes leads them to adopt reasons, with or without candor, that help introduce foolish ideas into the public discourse about judging. Conservative nominees like Miguel Estrada are treated to the Bork narrative, in which they're not only conservative but lawless and inhumane. Liberal nominees are treated to a narrative in which the very idea that judges are obliged to "make" law in the absence of an unambiguous constitutional text becomes some form of sweeping lawlessness of its own. And in both cases, the opponents reason from anecdotes in a way that turns one questionable decision into a total abdication of any possibility that these individuals are capable of reasonable judging in any case. Surely there are some cases where the assumed requirement of reason-giving does more harm than good. I would rather have a senator declare that he or she opposes a nominee for strictly political reasons, or just out of spite, than to have that senator give transparently silly reasons--like the notion that having knowledge of and experience in international trade and finance renders a nominee unfit to interpret FIFRA.
Advice to Schools and Faculty Hosting Visitors?
I'm sorry no one has commented yet on Eduardo's post seeking advice on how visitors can make their experience a success. For what it's worth, I've had three visits, all of more or less a podium-fill character. My first two jobs in teaching, before hitting the tenure track, were visits at Iowa and San Diego. At Iowa at the time, the school had a habit of hiring a couple of people every year to teach substantive first-year courses with a small-group format, meaning that we also had responsibility for much of their legal research and writing requirement. Things may have changed since then. At San Diego, I spent a lovely visiting year (there is no such thing as an unlovely year in San Diego) teaching three substantive courses. Later, I did a podium fill as a pseudo-Rick Garnett at Notre Dame. I mention the details because of those first two visits: teaching candidates who for whatever reason didn't make it in the hiring process but are nonetheless promising candidates should keep their eyes open for opportunities of this sort, some of which are word-of-mouth affairs and some of which are posted in the weekly job openings email on SSRN. (I got my San Diego job by applying after seeing a posting on SSRN.) Those jobs not only got me a full-time teaching gig, but were tremendous learning experiences and made me many of my best friends in the legal academy. Have hope!
In any event, having done so many visits, I'd like to double down on Eduardo's post and urge us all to think about visiting jobs not from the perspective of the visitor, but from the perspective of the host. Whether you're talking about a look-see visitor or a podium filler, hosting a visitor should be seen as carrying a "host" of obligations on the part of the hosting institution and its faculty. Of course visitors ought to be thinking about how to make their visit a success; but the greater part of the burden surely falls on the host. Does your faculty make a concerted effort to welcome its visitors, say with a party or coffee gathering, or does it just send around a cursory "please welcome so-and-so" email? Do you know all your visitors, not just the ones who are there on a look-see basis? Have you invited them out to lunch? Shared some of the hidden norms of the school? Walked them around the place? Made sure to include spouses, partners, and children in your invitations?
I think it's always well worth talking about our own burdens and obligations, and I would just add to Eduardo's post the point that a successful visit is a two-sided affair. Commenters are welcome to share their own observations and experiences. I will say that my wife and I, after having visited in a couple of places, vowed to make sure to include visitors in our social lives once we became part of the permanent faculty family. I'll also add that we have not always been true to our word. Eduardo's post is a valuable reminder that as hosts, we have duties of our own.
Scholarship and the iPad
I've been using an iPad for about a year, and it's proven more useful than I originally thought. For reading. The text of PDF's and books is bright and sharp, and adding content adds no weight. After taking the iPad on the road, I also found its wifi and cell data plan workable. I'm able to use Westlaw easily, download cases into an emailed-PDF format and analyze from there.
I've taken the iPad to Europe a few times now, where wifi bandwidth has supported some hefty downloads without any problem. I offer as a contrast my old Dell laptop, which when I first exposed it to French wifi asked me three times whether I was sure that I wanted to connect, and after I responded "yes" three times refused to do so. That Dell is now rolling in the deep. (No, not literally).My verdict on writing and editing on an iPad is less favorable. The lack of formatting capability is the largest drawback. Although some applications insist that they "support" footnotes, this notion of support is different than mine. There's a difference between making a footnote readable, and providing the capability to make a footnote in the first instance. To law professors (and lawyers), that's a significant difference.
I usually get my Word documents onto my iPad by emailing them to myself in Word format. There are other ways to do this, using clouds, lockers or the like. Here's the first page of my document when I open it in my iPad email:
You might say that it looks a bit sparse, given that the footnotes are wiped out. Don't worry, they didn't disappear forever. You have a choice to transfer to document to another app. Here's the same page opened in a "Pages," an iPad app intended to support Microsoft Word documents:
Voila, the footnotes re-appear. I can edit the text, including footnote text, using Pages. But I can't add new footnotes. There is no capability for large and small caps, and other commonly used formatting text. Outline format doesn't hold true, and inserted images don't always display.
Here's the same page opened in Documents To Go Premium, which advertises "footnote support"-in this screen capture, I've highlighted the footnote text by clicking on a footnote number:
Unfortunately, the footnote text disappears when it isn't selected. And although the documentation states you can edit footnotes, the feature wouldn't work for me. However, outline format seems to hold true and image display is better than Pages. There are more formatting choices available, but not all that would be needed to make a work bluebook ready.
The application that I've used most is iAnnotate PDF. You can highlight and make notes on any PDF document. I can save a Word document to PDF, upload it to iAnnotate PDF, make sticky notes and edit, well, just like I would on paper. Which saves me from needing to find a printer, as well as some trees I suppose:
I've found the iPad useful for lectures--you can make changes right up until you start, and the size is convenient. Still, it's not a true substitute for a laptop. If you've found more helpful applications for word processing, please feel free to share in the comments.
Wednesday, September 14, 2011
Advice for Visitors
Visits are a kind of unexplored territory on law blogs and so I thought it might be useful to open up a thread for people to share their visit horror-(or happy) stories as well as any cautionary advice they might want to share. A successful visit is a genuine challenge, particularly for more junior faculty members, who may not know that many people at the school that has invited them in and who are just starting to learn the intricate norms on their own faculty. I've only done one full-length visit -- my three weeks teaching in the January term at Harvard was just too short and hectic to really count as a visit in the meaningful sense. On the other hand, I've seen a number of visitors come through Cornell, and so I have more data points than just my own thin visiting experience. I'm not sure I can put my finger on what has made for successful visits I've observed, but it seems to me that the best visitors are those who somehow manage to integrate themselves into the life of the law school without coming off as excessively eager or aggressive. That strikes me as a very hard balance to achieve. In any event, I'm eager to learn from your collective wisdom.
Can I Flip Your Deontological Switch? Part II.
I want to spend one more post challenging our assumptions about corporate bribery of overseas officials. I mentioned last post that many of us, including our beloved DOJ, seem to assume that because bribery is severely harmful, we should punish it as severely as due process allows, end of discussion. I've come to think of this as a deontological switch that, once flipped, keeps us from engaging the question with more nuance and sophistication. Let me run one more case study by you from my field research, this one from India.
Two of India's most pressing social problems are child malnutrition and the low profitability of agriculture. So farmers need to sell more food, and kids need to eat it. And yet, the percentage of produce raised in India that perishes before it gets to market? 40. The principal reason? Bad roads -- they can't move the produce fast enough, and it rots in the trucks. But unlike China, India lacks the financial and administrative (or authoritarian?) capacity to build the needed roads, so it has aggressively solicited outside investors. Nonetheless, of all public requests for road construction proposals in India, almost half receive absolutely no bids. No one is willing to build these roads, at any price. Why aren't more U.S. construction companies seizing this profit opportunity? Answer: corruption. The infrastructure sector is notoriously corrupt; the FCPA risks are far too high.
Query: if the criminal penalties now associated with FCPA enforcement have made the costs of building roads in developing countries prohibitive, such that roads aren't built, farmers can't sell, and kids can't eat, have we done the right thing? Not to be too sentimental here, but this is percisely the kind of trade-off inherent in international anti-bribery law today, although enforcement officials won't admit it. Moreover, where is India now looking for infrastructure investment? China. And as I mentioned last post, they don't penalize corporate overseas bribery.
So this is the problem, and it's serious. What might the law, and the legal academy, have to say about it? We're going there next.
Tuesday, September 13, 2011
Why The Rule Against VAPs?
A friend who's a VAP somewhere asked me: what gives with the so-called rule against hiring one's own VAPs?
I tend to agree with the implicit critique of this Ulysses-mast-binding rule. Certainly the argument from authority (ie, what do the fancy schools do) has dissipated. Schools like Chicago or Harvard, in the last decade (if not more), have hired their own Bigelows/Petrie-Flom fellows. Harvard even hired (and recently tenured) someone who actually was a VAP (a position whose title is not all that prevalent at HLS so far as I know).
Nonetheless, the stated or implicit justifications are at least threefold:
a) this way we can really promote you the VAP on the market without having a conflict of interest;
b) this way the host school's prawfs will be immune from lobbying by the VAP or the VAP's students or friends on the faculty; and relatedly
c) presumably in the course of "maintaining standards," this way we'll spare ourselves the discomfort associated with not hiring the VAP and yet having the VAP "on the premises" still, where s/he will could wreak havoc (Screw you! I'm giving A's to everyone!) or just grouse at us.
The justifications in other words are that the rule can benefit the VAP as well as the institution.
Of course, a rule that allows VAPs to be considered allows some VAPs to be benefited (the ones who are hired). It may even be that there's plausible deniability available when the current VAPs are not hired b/c the host school can always say, the VAP wanted to go elsewhere or there wasn't the right geographic fit or subject-matter fit. These would all help the non-hired VAP save face ex post, and ex ante, a VAP might want to buy a chance at getting hired by the host school, even if it's not great odds.
From the institution's perspective, the benefit of considering VAPs is that you get to look at people who might already be really good AND interested in your school and location. For schools that are in relatively GU places, this seems like a wise decision, much like being open to hiring couples or polyamourous units if possible :-)
So, does your school have a "rule" or a norm against hiring VAPs, or does it expressly consider the VAP pool as an optional "dating" pool for later hiring? My school, FSU, (note the following aspect of the blog post has been revised) has a rule against considering visitors while they're on the premises (and that includes VAPs) but the rule against hiring can be waived by 2/3 faculty vote in individual cases. In the last six years, we have done this once, and it wasn't related to a VAP. While the rule has an exception built in, the "ruliness" of it tends to dominate clearly... perhaps because of the concern that VAPs are no different than "regular" tenure-track visitors with respect to the downsides of voting while the visitors are "on the premises." But maybe VAPs are an entirely different kettle of fish? I can see why we'd treat both pools similarly based on purported justification c) above. But these rules or strong norms seem to me to be welfare-deflating. Tell me why I'm wrong (or right) in the comments. And why do you think the fancy schools (or some of them at least) have said they'll hire folks who are on the premises? Is the situation very different "down the chain" or have we failed to learn from the "best practices" at the top schools?
What's in an Acronym?
Last weekend, I had the honor of attending Lavender Law, the annual conference of the National LGBT Bar Association. I gave a few talks and chaired a wonderful panel on cyberbullying and the First Amendment, but, as with many conferences, it was the individual and informal conversations with colleagues that were particularly rewarding.
On Friday, I met Mason Davis, Executive Director of the Transgender Law Center in San Francisco, California, and asked him how he responds to members of the gay and lesbian community who feel that they face different issues than members of the transgendered community and that gay and lesbian interest groups should not be diverted to transgender issues when gay causes are so in need. They wonder why the L and the G should always be linked with the T.
The question might seem strange or even hateful, but it exists as a undercurrent in many minority groups. All groups fighting for their civil rights do so with allies, or, at a minimum, with different generations or different subgroups. But, not every group wants or needs the same things. Not everyone's direct personal interests are always aligned and, in fact, those interests could be so misaligned that affiliation could, some think, be a bad idea. It is not often openly discussed, but many gay men have approached me wondering why our leaders' time is spent on issues like health insurance for gender reassignment surgery, for example, or our lobbyists would oppose clearly pro-gay legislation if it did not include pro-transgender elements.
I do not write on or research transgender issues. Nor do I know any transgendered persons, and I regret that. I am concerned that my views on these issues may be colored by the uniformity of my social and professional circles. Therefore, I have always stayed on the sidelines of these debates, unsure of where I stand until I could understand transgendered persons' needs better. But it always struck me as very selfish to think that just because a gay person's personal interests are not the same as a transgendered person's, that means that should not be allies in the search for civil rights. After all, gay men and lesbians are not always concerned with the same issues. In the 1980s and early 1990s, HIV/AIDS was almost exclusively a gay male concern, not a lesbian one.
I asked Mr. Davis if he hears these objections and how he responds.
He said he hears it all the time, but in his experience, it's not selfishness. Some gay strategists find gay people more relateable to the average American voter, so inclusion of transgender issues makes a successful gay rights strategy more difficult. Other gay donors are concerned about this or that issue and would prefer that their money be used for their area of concern. But, while our goals are not always the same, Mr. Mason says that we are all part of the same project: we are all trying to be who we really are unencumbered by discrimination, but some of us need a little more help to be who we really are.
Gays and lesbians can be who they really are by coming out of the closet, by being out at home and in the workplace and by marrying their partners and starting families. They are concerned with tearing down barriers that stand in their way: Don't Ask, Don't Tell, employment discrimination, same-sex marriage bans, second-parent adoption bans, and so on. But, transgendered individuals need a little bit more to become who they really are. They have unique medical hurdles to cross in order to get there, but Mr. Mason believes that L's, G's and T's are all searching for the same thing. We all want a country where nothing stands in the way of our true self.
I have yet to field test this argument on some of my gay friends. What do you think?
Faculty Lounge on Financial Market Reform
The Faculty Lounge is hosting a two-day on-line symposium on Reforming Financial Reform, featuring regular lounger Kim Krawiec and a host of top people. The introductory post is here and the collected posts so far are here. Enjoy.
The One Final Exam Mentality and Blind Grading: You Can't Have One Without the Other?
I've written several posts on this blog about the "one exam to rule them all" mentality that exists in law schools across the country (see, e.g., here and here). And, I've written several posts about the process of "legally blind grading," which is also encoded in the DNA of the modern law school (see, e.g., here, here, here, here, and here). I get the sense that students recgnize that there are pros and cons to blind grading in law school and that having the practice ablosished isn't high on their priority list. But I think that many a student laments the fact that one final exam can make or break her. So, I think that many students would welcome multiple points of grading in law school, such as, at a minimum, a graded midterm. But here's the thing: Are the "one exam to rule them all" mentality and the process of blind grading like love and marriage, you can't have one without the other?
Try to imagine a world in which a law professor gives a graded midterm at roughly the midway point of the semester. Under a blind grading system, students will turn in exams with exam codes and not names. And then...radio silence. As far as I know, most schools don't allow students to talk to professors about the final exam after they take the exam and before the professor turns in her grades, and I imagine that the same would apply to graded midterms. I imagine that it would take the average professor at least 3 weeks to finish grading midterms, especially if the professor is teaching 2 classes and giving midterms in both classes.
If I'm giving a fair midterm, I assume that it covers most of the material from the first half of class. And, I'm assuming that, for many students, the midterm is a gut check, after which they will have many questions for me about what they've learned in class and how it applied to the fact patterns they just answered. Indeed, I give an ungraded midterm in my classes, and I think that some of the best learning in my classes takes place in the week or 2 after the midterm when I meet with individual students to discuss how they performed on the midterm and how they can improve on the final. With a blind graded midterm, I could do this as well...but it would be 3 or more weeks after the midterm...after the dust has settled...after we've become entrenched in material from the back nine of class.
Pushing exam review back in this way would also cause me to question whether final exam grading is truly "blind." As noted, after my ungraded midterm, I meet with students at about the midpoint of the semester to discuss their performance on the midterm. A small, but significant minority of students avail themselves of this opportunity, and, for the most part, these reviews are out of sight, out of mind when I grade final exams. The exam I grade is by 24601, not Jean Valjean. That said, every once in a while, thoughts creep into my head based on meeting with students after the ungraded midterm. Isn't this the way that I told Student A to address this type of issue? Doesn't Student B often confuse these 2 rules? I usually dispel these thoughts, though, and I doubt that they have any influence on my grading.
But if I gave a graded midterm... My meetings with students would be later in the semester. I imagine that (many) more students would want to meet with me. I imagine that my meetings with these students would be more in depth. I would look at what they wrote more closely. These are all good things. But when I got to grading final exams, would there still be the veil of ignorance required for blind grading? I don't think so, which is part of the reason that I haven't (yet) pulled the trigger on a graded midterm.
So, are these concerns legitimate? Can you have a graded midterm and still engage in blind grading?