Saturday, September 29, 2012
See you in D.C. Oct. 25-26?
The leaves here in Connecticut are turning, the SCOTUS term begins Monday, and so it must be nearly October! I've enjoyed guest-ing at prawfs in September and am signing off for now. However, I hope to see some of you, particularly the crim prof types, at a joint conference of the ABA Criminal Justice Section and Association of American Law Schools Criminal Justice Section, planned for Oct. 25-26th in Washington, D.C. The program is here. The track of joint programming planned by the AALS Criminal Justice Section, led by Michael Mannheimer and Laurent Sacharoff, is Track "B", the "Academics" track, including panels on implicit bias in the criminal punishment system, guilty pleas and ineffective assistance of counsel, and the U.S. prosecution of foreign crimes. The afternoon of Thursday Oct. 25th there will be a roundtable-style workshop of papers by crim profs, featuring prawfs blawg's own Miriam Baer, as well as others including Kim Buchanan, Sanjay Chhablani, Cara Drinan, Andrew Ferguson, and myself.
A bonus event planned to coincide with the conference is a meeting of the ABA Corrections Committee, set for 4:00-5:30 at the Washington Court Hotel. My co-chair David Ball and I have invited Jenni Trovillion of the National Prison Rape Elimination Act (PREA) Resource Center, to talk with our committee about the Resource Center's plans for training regarding the new PREA regulations. We hope that some of you who are attending the conference will join us to learn more about the work of the ABA Corrections Committee. Our current projects include PREA implementation, as well as efforts addressing over-use of solitary confinement and promoting external oversight of corrections facilities.
All the best for the OT12 Supreme Court term and the 2012-13 school year, and hope to see you in D.C.!
Stewart on a Pragmatic Approach to Corporate Criminal Theory
My friend and former office-mate Jim Stewart has an elegant and very interesting new piece engaging in a pragmatic critique of corporate criminal theory (h/t Larry). If you have not read Jim's work on corporate war crimes, you should. Jim writes beautifully and in the new piece, he approaches the difficult subject of legal pragmatism gracefully, extracting a number of "themes" that unite the very different pragmatists and then exploring how those themes might be usefully applied to two specific scenarios in the international corporate criminal area (to the questions of corporate pillage and corporate weapons supply). Here's a section of the piece I thought nicely put together -- it comes just after Jim has discussed his 5 themes of pragmatism:
Finally, let me qualify the foregoing and situate these principles within criticisms of pragmatism. On the one hand, I remain agnostic about pragmatism as an interpretative technique, and I certainly see enormous value in an ongoing engagement between philosophy and law. I am also almost entirely on board with Henry Smith’s thoughtful argument that “[l]egal pragmatism is best understood as a kind of exhortation about theorizing; its function is not to say things that lawyers and judges do not know, but rather to remind lawyers and judges of what they already believe but often fail to practice." While I agree that most of the key tenets of pragmatism are just basic features of any defensible theory, I suspect that there is still something unique to the pragmatic method in an area such as corporate criminal theory, where the contingencies are immense and cannot be known ahead of time. In essence, I believe that at least here, pragmatism has unique value. Thus, we should embrace a pragmatic theory of corporate criminal liability that circumstance forces upon us.
Friday, September 28, 2012
Jurisdiction Week at SCOTUS
Perhaps still traumatized by deciding cases that the media is covering (poorly or otherwise) and the whole nation cares about, the Supreme Court opens its new term on Monday with three cases that only procedure profs could love: federal subject matter jurisdiction, including two involving merits/jurisdiction overlap.
• Lozman v. City of Riviera Beach raises the issue of whether a houseboat is a vessel (Mike Dorf has some fun with this in a Hart-and-Fuller, or Scalia-and-Posner, way), both for the merits of a foreclosure claim on a maritime lien and for federal admiralty jurisdiction. The Court may have to deal with some sub-issues, such as how to define "Any civil case of admiralty or maritime jurisdiction" in the jurisdictional grant; whether a merits fact, such as whether something is a "vessel," also goes to jurisdiction; and, if so, the standard of proof for that fact in the jurisdictional context. Kevin Clermont and Dorf filed an amicus on the subject, arguing that the fact for jurisdictional purposes should be subject to a prima facie standard, as opposed to a preponderance standard for the merits. I will have more to say on this after the argument.
• Kiobel v. Royal Dutch Petroleum, held over from last term for reargument, raises the issue of whether a claim can be brought under the Alien Tort Statute against a corporation for extra-territorial conduct. As a preliminary matter, the Court also must consider whether the availability of corporate civil liability is an issue of merits or jurisdiction. I will have more to say on this, as well; I would argue that whether the corporate defendant can be liable is a purely merits question and has nothing to do with the court's jurisdiction.
• Kloeckner v. Solis considers where a federal employee must challenge a decision by the Merit Systems Protection Board in a "mixed case" (one raising discrimination and termination issues) in which the Board did not resolve the merits of the discrimination issue--the Federal Circuit (which ordinarily reviews MSPB decisions) or a federal district court (which ordinarily hears discrimination claims). I wrote the case preview for SCOTUSBlog, so I will be coming back to this case over the course of the term.
JOTWELL: Epstein on Greenhouse on the Supreme CourtThe new essay for JOTWELL's Courts Law is by Lee Epstein, reviewing Linda Greenhouse's The U.S. Supreme Court: A Very Short Introduction.
The Unintended Reformation, Pro and Con
I'm very grateful to Rick for pointing me over the summer to a fine new book by Brad Gregory, The Unintended Reformation: How a Religious Revolution Secularized Society, published by Harvard University Press. Here's a description:
In a work that is as much about the present as the past, Brad Gregory identifies the unintended consequences of the Protestant Reformation and traces the way it shaped the modern condition over the course of the following five centuries. A hyperpluralism of religious and secular beliefs, an absence of any substantive common good, the triumph of capitalism and its driver, consumerism—all these, Gregory argues, were long-term effects of a movement that marked the end of more than a millennium during which Christianity provided a framework for shared intellectual, social, and moral life in the West.
Before the Protestant Reformation, Western Christianity was an institutionalized worldview laden with expectations of security for earthly societies and hopes of eternal salvation for individuals. The Reformation’s protagonists sought to advance the realization of this vision, not disrupt it. But a complex web of rejections, retentions, and transformations of medieval Christianity gradually replaced the religious fabric that bound societies together in the West. Today, what we are left with are fragments: intellectual disagreements that splinter into ever finer fractals of specialized discourse; a notion that modern science—as the source of all truth—necessarily undermines religious belief; a pervasive resort to a therapeutic vision of religion; a set of smuggled moral values with which we try to fertilize a sterile liberalism; and the institutionalized assumption that only secular universities can pursue knowledge.
The Unintended Reformation asks what propelled the West into this trajectory of pluralism and polarization, and finds answers deep in our medieval Christian past.
It's a terrific read, encyclopedic in the sources it draws on and compelling in spinning them together into an interesting and valuable narrative.
That said, I'm also grateful to Rick for pointing me to this critical review of Gregory's book by Mark Lilla. Lilla writes that the book is part of a trend toward "The Road Not Taken" narratives, all nostalgic about the medieval Christian world, among Catholic thinkers. "Gregory would have us believe that he is writing conventional history," Lilla writes. "But the deeper you delve into this book, the more you begin to feel that you are watching a shadow-puppet play on the wall of some Vatican cave. A straightforward history of the post–Reformation West written from an explicitly Catholic standpoint would have been a welcome addition to our understanding of the period and of ourselves. Instead, Gregory has offered up a sly crypto-Catholic travel brochure for The Road Not Taken." Gregory's book, he says wittily, is the product of "an inverted Whiggism—a Whiggism for depressives."
Rick himself is not entirely taken with Lilla's review. I'm more sympathetic to it. As I said, I sincerely like and learned from the book. But I did get the sense that Gregory's book would not suffer--might even benefit--if the reader simply skipped the last ten to fifteen pages of each chapter. I feel sure that Gregory would not have written the book but for those sections; but I also think those sections are the most questionable parts of the book. Certainly they make the slyness of the preceding materials more apparent. Still, I encourage you to read the book--and the review--for yourselves. Whether you agree with its narrative or not, it's still fascinating, highly readable (I will forgive much from an author who mentions the Insane Clown Posse in the introduction to a book about the historical consequences of the Reformation), and full of interesting details and synthesis.
Thursday, September 27, 2012
"The Many Paths to Neutrality"
This essay introduces a volume, First Amendment Stories, which the authors edited and to
which a number of distinguished scholars contributed. The authors reflect on the
tendency of First Amendment law to abstract away from specifics, and note that
free-speech and religious-liberty law and doctrines generally aim for a certain
kind of “neutrality”; in the interest of hitting that target, some
considerations that are salient to ordinary common sense are deemed not to
count. But, how is this neutrality possible? How does it ever happen that people
embrace it? What specific contexts lead courts to abstract away from both
specificity and context, to adopt positions that are neutral toward, say,
theological truth and the viewpoint of speech? Is this move – this striving –
toward neutrality justified, or justifiable? This question, the authors believe,
runs through this volume and its chapters.
It turns out that, like “equality,” neutrality has a conventional meaning, one that, in many ways, can
obscure the term’s contested, complicated, and multiple meanings. When it is not
used merely to suggest a kind of serene nonjudgmentalism, the invocation of
neutrality in conversations about law and politics is typically a shorthand
gesture toward the generally understood value of removing some issues from
political consideration, together with the arguments in favor of this removal.
Such linguistic conventions are useful. The vague term “neutrality” may either
introduce substantive argument or serve as a meaningful slogan in the many
contexts in which it is difficult to develop arguments in a careful, systematic
way. “Neutrality,” though, is a fluid term, as this volume’s several stories
illustrate. It must take its shape from its container, the specific arguments in
favor of withdrawing this or that substantive issue from politics.
Fuller on teaching law
As a kind of side-project, I thought it would be fun to go through some of the papers of Lon Fuller. I recently came across a fragment of an old piece of his from 1950 titled, "On Teaching Law," in the Stanford Law Review. The paper (probably delivered as a talk) is of course dated at several points. But it's interesting nonetheless for its reflections on the problems of legal education at another moment in time. Here's a fragment:
Herein lies a dilemma for student and teacher. The good student really wants contradictory things from his legal education. He wants the thrill of exploring a wilderness and he wants to know where he stands every foot of the way. He wants a subject matter sufficiently malleable so that he can feel that he himself may help to shape it, so that he can have a sense of creative participation in defining and formulating it. At the same time he wants that subject so staked off and nailed down that he will feel no uneasiness in its presence and experience no fear that it may suddenly assume unfamiliar forms before his eyes.
No teacher is skillful enough to satisfy these incompatible demands. I don't think he should try. Rather he should help the student to understand himself, should help him to see that he wants (and very naturally and properly wants) inconsistent things of his legal education. Much frustration will be avoided if the student realizes that an unresolved antinomy runs through his education, and that this antinomy cannot be resolved so long as men want of life, as they do of the preparation for life called education, both security and adventure.
I just returned from the Lauterpacht Centre for International Law (Cambridge, UK), where the American Society of International Law and the European Society of International Law's International Legal Theory Interest groups jointly sponsored, with the support of Rechtskulturen of the Wissenschaftskolleg zu Berlin, a fascinating workshop devoted to transatlantic legal theory. The keynote address was given by Philip Allott, one of the leading international lawyers of his generation. I was particularly struck by a comparison he made between United States and European legal minds.
According to Allott, in the United States, "law is what judges do--law is social engineering--law is politics by other means--law is self-government--law justifies itself--the identity of a human being is primarily social (paradoxical in 'the land of the free')."
In Europe, "law is a substantial reality--law is a hierarchy--law is a transformed product of politics--the general will is not the will of all--law is ultimately justified by what is beyond law--the social identity of the individual is secondary (paradoxical in the land of absolutism, totalitarianism, bureaucratic hegemonism)."
Is this a fair assessment of how we approach law in the United States? If it is, was this always the case? Or, is this a function of the turn towards legal realism?
Over the summer, Dan and I wrote a short piece for The Atlantic arguing for the creation of "Fan Action Committees," through which fans could collect and give money to free agent players to lure them to join fans' favorite team. We currently are working, along with Michael McCann, on a longer version of the piece.
As even non sports fans probably know, this week's Monday Night Football game between Green Bay and Seattle ended on a touchdown on the final play of the game, in what most people outside Seattle believe was one of the worst calls, and worst-handled calls, in NFL history.* Several Green Bay players took to Twitter to express their dispelasure, notably offensive linement T.J. Lang, who tweeted ""Fine me and use the money to pay the regular refs." Shortly after that, a fan posted on the site Indiegogo (the page has been taken down, unfortunately) encouraging fans to send money to Lang to help him pay the fine that most believed was inevitable, as the NFL routinely fines players, coaches, and executives who criticize officiating. As it turned out, the league announced it would not impose fines for any comments related to Monday's game, no doubt a concession to the egregiousness of the mistake.
Still, this is our FAC idea in action--fans paying money as a show of fandom and of support for their favorite players. Although we primarily discussed the idea only in the context of free agency, this shows that fans may support players through money for a number of difference reasons in a number of different contexts. And it shows that fans instinctively understand this as a legitimate way to express support for their favorite players and teams.
See, scholarship can have a practical effect.
* Which, it turns out, will be the last call ever by the replacement referees, at least in this labor dispute.
My cavalcade of fall book notices continues with a superb collection. Modern Pluralism: Anglo-American Debates Since 1880 is a collection edited and introduced by Mark Bevir and published by Cambridge University Press. As Bevir notes in his introduction, the book "trac[es] the history of pluralism" from the late nineteenth century to today "and thereby enrich[es] our understanding of the nature of pluralism and its contribution to current policies." It describes and devotes sections to each of the "three main traditions of modern pluralism," which are distinguished somewhat differently and more clearly than they often are in the legal literature: "the liberal constitutional tradition, the radical socialist tradition, and the empirical tradition."
Those of us in the legal academy (all ten or so of us) who are interested in reexamining and, to some extent, reviving interest in the British pluralists of the late nineteenth and early twentieth century, such as Laski, Maitland, Figgis, and Cole (and their German forebear and influence, Gierke)--a phenomenon that seems to rise and fall like clockwork every generation or so--will find special interest in the first four chapters. I am particularly taken by Jacob Levy's paper, "From liberal constitutionalism to pluralism," which seeks to place the British pluralists in a liberal rather than a non- or anti-liberal context, a move that he says is made "oddly infrequently." Levy, like some legal scholars I know, "remain[s] convinced that the pluralists made real intellectual progress, and have something to teach us still as we struggle with questions about freedom of association, the limits of the state model of absolute sovereignty, and the relations among individuals, intermediate groups, and the state." In an age of cases like Christian Legal Society, Citizens United, Hosanna-Tabor, and Fisher, there are plenty of reasons for legal scholars to find this material interesting and valuable. And if Levy's argument helps create room for conventional modern liberals and fans of the British pluralists to break bread together, all the better.
I'm still dipping into the book, but the whole thing looks very worthwhile. It is expensive--priced for institutional purchase at some $90 for a 250-page collection--but well worth having your library order. Enjoy!
Wednesday, September 26, 2012
Promising Regs, but Lousy Court Access
David Kaiser and Lovisa Stannow of Just Detention International have published an article in the October 11th edition of the New York Review of Books entitled Prison Rape: Obama's Program to Stop It. The piece is an overview of the regulations released by the DOJ earlier this year pursuant to the Prison Rape Elimination Act (PREA), along with a reminder of the horrors that prompted passage of the law. Kaiser and Stannow, the Chairperson and Executive Director, respectively, of Just Detention International (JDI), an organization that was a moving force in PREA's enactment, are optimistic that the regulations will "reduce the incidence of prisoner rape dramatically" and "make American detention facilities better run, more humane, and safer places in general." This is welcome news, because they also write that 209,400 incarcerated people in the United States are sexually abused each year. The authors give the DOJ high marks for its drafting of the PREA standards, writing that "[a] close look at these standards . . . shows that the Justice Department was not trying to creat legal loopholes or built-in excuses for failure." They estimate that such standards could reduce the incidence of prison rape by 50% or more.
Kaiser and Stannow acknowledge that PREA did not create an office within the DOJ charged with enforcing the statute, and that the major enforcement mechanism for state and local correctional facilities is the loss of a portion of the state's federal funding for prisons. Since local jails receive little federal support, they may not stand to lose much funding if they fail to implement the regs. Nonetheless, Kaiser and Stannow remain sanguine about PREA's possible impact. They write that "jails also have good reasons to comply with the standards," reasoning that "inmates have been increasingly successful at bringing lawsuits against the agencies and facilities in which they were sexually abused."
This is where the authors, in their optimism, might gloss over some of the continuing barriers to prisoners' court access. Although it is true that there have been high-profile cases and damages awards in custodial sexual abuse cases, there remain many obstacles to bringing prisoners' claims to courts. Foremost among these is the Prison Litigation Reform Act (PLRA), which Margo Schlanger and I wrote about here.
The PLRA is not the only obstacle. On Tuesday, the Supreme Court granted certiorari in Millbrook v. United States, to decide the scope of immunity for the United States under the Federal Tort Claims Act in a case alleging that federal correctional officers at USP Lewisburg sexually assaulted a prisoner. The Third Circuit affirmed the district court's grant of summary judgment to the civil defendant, and denied the prisoner's motion for appointment of counsel. It reasoned that the U.S. is not liable for the intentional torts of its law enforcement officers unless they occur in the course of a search, seizure, or arrest. The SCOTUS granted cert to answer the question: "Whether 28 U.S.C. ss 1346(b) and 2680 (h) waive the sovereign immunity of the U.S. for the intentional torts of prison guards when they are acting within the scope of their employment but are not exercising authority to 'execute searches, to seize evidence, or to make arrests for violations of Federal law.'"
We'll see what happens in Millbrook, but it illustrates some of the continuing barriers to prisoners' court access, and, ultimately, to full implementation of PREA.
Tuesday, September 25, 2012
Research DiagnosisDyslexisia: When you attempt a Westlaw Next search in Lexis Classic.
How Much Taxpayer Money for Legal Education and Scholarship?
We law professors like to think of ourselves as public intellectuals, opining on various issues, and others sometimes treat us that way. So here's a question of federal budget priorities: how much money should taxpayers be spending on legal education and scholarship?
Right now, hundreds of millions of taxpayer dollars -- more likely billions -- is funding legal education and scholarship. You can think of it as coming from today's taxpayers directly to law schools, or think of it the way our budget rules do: that the government is making money today from loans, through interest payments and fees, but tomorrow's taxpayers will be on the hook 20-25 years out when the debt is forgiven through IBR. If taxpayer money for education was devoted to future lawyers serving unmet legal needs, it might be justified. But most of it isn't.
And the massive imbalance between the supply of new law graduates and the demand for them -- projected to continue until at least 2020 -- makes the expenditures difficult to justify on education grounds. The Bureau of Labor Statistics estimates that there will be 218,800 new jobs for lawyers between 20120 and 2020. This includes part-time and contract work. Meanwhile, a recent estimate done by Professor Deborah Merritt indicates that more than 426,000 law graduates will come onto the market during that time.
But now that taxpayers are the ones supporting legal scholarship (at least produced at all law schools below the top 10 or so), I actually think the case is stronger for such support. Legal education has considerable room for improvement, but legal scholarship gets a bad rap. More and deeper knowledge about our legal system is a "public good" worth supporting. (More in a future post) The question, of course, is how much is worth supporting, given competing budget priorities and a growing deficit.
Death Row Inmates Oppose Prop 34 - But You Should Support It
This morning's fascinating story on the Chron brings us unexpected commentary about Prop 34: The voices of death row inmates themselves. And, as Bob Egelko tells us, they oppose the proposition.
Counterintuitive? Not really. Here goes:
It's not that they want to die, attorney Robert Bryan said. They just want to hang on to the possibility of proving that they're innocent, or at least that they were wrongly convicted. That would require state funding for lawyers and investigators - funding that Proposition 34 would eliminate for many Death Row inmates after the first round of appeals.
Bryan has represented several condemned prisoners in California as well as Mumia Abu-Jamal, the radical activist and commentator whose death sentence for the murder of a Philadelphia policeman was recently reduced to life in prison. The attorney said California inmates have told him they'd prefer the current law, with its prospect of lethal injection, to one that would reduce their appellate rights.
"Many of them say, 'I'd rather gamble and have the death penalty dangling there but be able to fight to right a wrong,' " Bryan said.
. . .
Attorney Natasha Minsker, the Yes on 34 campaign manager, said the initiative would place now-condemned inmates "in the same position as every prisoner convicted of a serious felony in California," with the same right to go to court.
They would no longer automatically get state-funded lawyers for habeas corpus claims, Minsker said. The main purpose of those lawyers now is "to save a person's life" from a wrongful execution, but that task would disappear if Prop. 34 passed, she said.
No one has polled Death Row inmates on Prop. 34. But an organization called the Campaign to End the Death Penalty sent letters to 220 condemned prisoners in California and received about 50 replies, all but three of them against the ballot measure, said Lily Mae Hughes, the group's director.
A few thoughts on this:
1. If anything, death row inmates' opposition to the proposition strengthens the position of those who support it for reasons of financial prudence. What the inmates want is the hope of receiving quality litigation, which is exactly the expensive good that proposition backers, particularly those of the libertarian persuasion, seek to eliminate.
2. Wouldn't the world be a better place if we worried about EVERYONE's innocence, not just that of capital inmates? I imagine after Prop 34 passes we will have to retool habeas resources in a serious way to improve litigation on behalf of lifers. And the next frontier is life without parole.
3. My pal Billy Minshall and I exchanged thoughts on this, and he speculated that, had anyone polled recently freed slaves in 1863 about abolition, we might have been surprised at the outcome. It's very difficult to imagine a more fair world when you've been making the most out of a horrifyingly unjust reality.
Props to David Takacs and Billy Minshall for alerting me to this first thing in the morning. Cross-posted to California Correctional Crisis.
Fall is a great season for law books, and I have a bunch to recommend, but I thought I'd start with two of them. By way of background, when I was in my first year of law school, I was just coming out of journalism and felt somewhat disconnected from what I was studying at first. What changed was coming across a large number of relatively contemporary (ie., 20th century) biographies and histories in the dark and lonely sub-basement of the Columbia law library, where I was purportedly studying. They helped put a narrative frame on the law for me and gave me a way in to the tradition and its conflicts. I've been attracted to those kinds of biographically based intellectual histories of the law ever since.
A book has just come out that would have greatly appealed to the young me, and still does: James Hackney's Legal Intellectuals in Conversation: Reflections on the Construction of Contemporary American Legal Theory. It consists of a series of transcripts of well-conducted interviews with some of the leading figures in the field of legal theory in roughly the 1970s and 1980s, including Duncan Kennedy, Richard Posner, Catharine MacKinnon, Patricia Williams, Bruce Ackerman, and Jules Coleman. It is about their ideas, of course, but it's also about their backgrounds, influences, and intellectual and interpersonal conflicts. It situates them incredibly well and is a tremendously entertaining read, every bit as exciting as the title would suggest. One strong note in the book, which is certainly part of the interviewer/author's perspective but emerges as well from the interviewees, is the sense that there were grand arguments afoot in those days about legal theory, and that the modern age by contrast features much less conflict but also much less ferment. I must say in particular that while I'm not terribly familiar with Jules Coleman's work, alas, his interview is terrific and contains some strongly personal grace notes. The book is well worth checking out.
I also am surprised that more attention has not yet been paid to another forthcoming book that would have been another pleasure to encounter in the sub-basement of my youth. In December, Oxford University Press will publish Reason and Imagination: The Selected Correspondence of Learned Hand, edited by Constance Jordan with an introduction by Ronald Dworkin. The book, says the press,
offers a unique sampling of the correspondence between Hand and a stellar array of intellectual and legal giants, including Justice Oliver Wendell Holmes, Theodore Roosevelt, Walter Lippmann, Felix Frankfurter, Bernard Berenson, and many other prominent political and philosophical thinkers. The letters--many of which have never been published before--cover almost half a century, often taking the form of brief essays on current events, usually seen through the prism of their historical moment. They reflect Hand's engagement with the issues of the day, ranging from the aftermath of World War I and the League of Nations, the effects of the Depression in the United States, the rise of fascism and the outbreak of World War II, McCarthyism, and the Supreme Court's decisions on segregation, among many other topics. Equally important, the letters showcase decades of penetrating and original thought on the major themes of American jurisprudence, particularly key interpretations of the First, Fifth, and Fourteenth Amendments, and will thus be invaluable to those interested in legal issues.
I can't wait for this one either. Christmas shoppers, take note!
Monday, September 24, 2012
As NASCAR goes, so goes America?
Two years ago, I wrote about a poll showing the general politcal breakdown of sports fans. It found that sports fans overall leaned Republican, with NASCAR fans among the strongest Republican supporters (along with fans of golf and college football). Zogby just published a poll showing Obama with a lead among self-identified NASCAR fans (admittedly small sample size of only about 200 out of an overall sample of 800).
Artists and Culture in the Digital Age
First, a note of congratulations to my friend and regular Prawfs contributor Glenn Cohen, whose series of posts on Personhood in these pages last year was selected by The Post as among the best legal blogging around. Congrats Glenn and PrawfsBlawg!
Returning to our regularly scheduled programming...
I am in the midst of an ethnographic study on the emergence of culture and cultural artifacts in the digital age. My findings and conclusions will make an appearance in my dissertation, where I will argue for a sociology of IP law on the Internet and in the physical world. In any event, while I am always on the hunt for past research on how artists create (any recommendations are most welcome!), I thought I would share one typical story with the Prawfs community.
Kirk is a fashion designer who stepped into digital design when one of his clients asked him to design a website and iPhone and iPad app for a fashion venture. At the time, he had no digital design skills, just a series of MFAs, a ton of fashion design experience, and a moderately successful career creating "looks" for Hollywood stars and starlets. "Clothing comes naturally to me. I see what people are wearing, usually hate it, but learn from it. For example, you're sitting here in a JCrew oxford, a bowtie, jeans (but if I had to guess, they're Paul Smith or John Varvatos or something like that), and top-siders that look like they belonged to your dad. You have a casual elegence, and I love it. But, I would redesign your shirt, your pants."
How, I asked. "Not sure yet." But, then, how do you know they need a redesign. "It's hard to say. Creativity can't be folded into a box. You are too subject to the fashions you see around you. I see what's around me and move beyond it. Much like, I imagine, you do as a law professor. You don't just read what a really smart guy had to say and rewrite it, do you? You read it, learn from it, and write something beyond it, above it, over it, whatever. Next time you go shopping, try to do that with your clothes."
Before that comment, I had never appreciated how much our chosen career involves making pieces of art, themselves elements of culture and parts of history (we hope...). All creation -- from Kirk's new iPad apps to Glenn's writings on "Personhood" to my forthcoming dissertation -- are sociological in that they are products of the environment, encumbrances, and society in which we live, work, and laugh. Marx said that. So did Weber and Durkheim. So did Aristotle. Much of the rest of my career will involve proving this in real and concrete ways to lawyers and legal academics.
Consider, for example, the arena of intellectual property. If sociologists are right, then "users" and "creators" are not separate categories of persons. The notion that users can graduate to creators misunderstands Kirk's point (and that of almost every other subject in my ethnographic study). Users are creators; creators are users. And, they are both at all times and they are all subject to the context in which they use and create.
Duncan Watts proved this in his Music Lab experiment when he chose approximately 40 unknown songs and asked thousands of people to listen, share, and download. When he divided most of those participants into different worlds such that only members of a given world could see the downloads and shares of other members of their worlds, he found that each world liked different songs: the most popular downloaded song was different in each, as was the hierarchy of popularity. Popularity was subject to the social network ranking them. I argue that this model of creativity and this model of market creation differs from the models underlying our intellectual property regimes. With more time in the coming months (if/when I am honored with the chance to return to the Prawfs community), I will develop this theory more completely.
Who Pays Our Salaries?
Like most people, I try not to think too hard or often about my life. It's a pretty good one, but reflection is a dangerous enterprise. Sometimes, though, I like to take stock. But I'm having trouble figuring out the answer to the most basic question about how I make my living: who pays my salary?
Most of the funding for most law schools today comes from student tuition. The students, though, pay very little of that tuition in "real time." It comes from the federal government in the form of loans, and has to eventually be paid back. Now in the good old days -- call it 2006 -- it was easy to say: "OK, today's students are paying me for their education because they're taking loans out now that they'll pay back once they have decent-paying jobs as lawyers."
But at least three things have happened that make this no longer true, as has been well-documented by others:
So most recent law graduates, for now and the foreseeable future, will be on IBR soon, if they aren't already. Their loan payments will be capped, but as a result, they won't even be keeping up with the interest accruing on the loan. These payments will provide the gov't some additional revenue in the short-term, but in 20-25 years, there's going to be a debt on Uncle Sam's books for each student for hundreds of thousands of dollars of principal and unpaid interest. When that gets "forgiven," it just means the cost gets transferred to the taxpayers, adding to the deficit.
Which means my best answer is that taxpayers in the 2030s and 2040s mostly pay the salaries of me and my fellow law professors. What do you think?
Sunday, September 23, 2012
No Emergency Contraception under Conscience Act in Illinois
The 4th District Appellate Court supports pharmacists rights not to dispense. Read the opinion here:
Saturday, September 22, 2012
New Green Bag and Journal of Law issues
I've pasted links and TOC's after the jump.
Volume 15, Number 4 (Summer 2012)
To the Bag
Edward L. Carter & Edward E. Adams, Justice Owen J. Roberts on 1937
Erwin Chemerinsky, It’s Now the John Roberts Court
John P. Elwood & Eric A. White, What Were They Thinking: The Supreme Court in Revue, October Term 2011
Kyle Graham, Who Shot Charles Summers?
Sally Pei et al., A Pronouncing Dictionary of the Supreme Court of the United States
From the Bag
John Marshall, Atlas to Marshall’s Life of Washington
Alfred L. Brophy, Multivariate Analysis Through Narrative History
Andrew Frape & Cattleya Concepcion, The Supreme Court of Canada, Brick by Brick
The Journal of Law: A Periodical Laboratory of Legal Scholarship
Volume 2, Number 2 (2012), containing issues of:
• The Post
Opening Remarks: In Search of Helpful Legal Scholarship, Part 2: Shall We Dance, Ross E. Davies
A Famous Book About Famous Books: Men and Books Famous in the Law, by Frederick Hicks, by Robert C. Berring
Frederick Hicks: The Man Behind Men and Books, by Stacy Etheredge
Men and Books Famous in the Law, Preface, by Frederick C. Hicks
Men and Books Famous in the Law, Introduction, by Harlan F. Stone
Men and Books Famous in the Law, Chapter I: The Human Appeal of Law Books, by Frederick C. Hicks
Book Review: Men and Books Famous in the Law, by Henry deForest Baldwin
Book Review: Men and Books Famous in the Law, by William Edward McCurdy
Journal of Legal Metrics
Introduction, by Adam Aft & Craig D. Rust
Take This Job and Count It, by Kyle P. McEntee & Derek M. Tokaz
A Medical Liability Toolkit, Including ADR, by Michael I. Krauss
Introduction, by Anna Ivey
Larry Ribstein, RIP, ProfessorBainbridge.com, Dec. 24, 2011, by Stephen Bainbridge
Personhood, PrawfsBlawg, Oct. 31-Nov.3, 2011, by Glenn Cohen
Debate on Antitrust Scrutiny of Google, ACSblog, Oct. 3-7, 2011, by Benjamin G. Edelman & Joshua D. Wright
Court of Appeals Prop 8 Ruling: Treating Marriage as a License, Not a Sacrament, Gender & Sexuality Law Blog, Feb. 8, 2012, by Katherine Franke
Clarity About Super PACS, Independent Money and Citizens United, Election Law Blog, Jan. 10, 2012, by Samuel Issacharoff
Nonlegal Arguments for Upholding the Individual Mandate, The Volokh Conspiracy, May 21, 2012, by Ilya Somin
The Disconnect Between What People Say and Do About Privacy, Concurring Opinions, Feb. 8, 2012, by Joseph Turow
Friday, September 21, 2012
promoveatur ut amoveaturis the Latin phrase for the act or intent of kicking upstairs -- or promoting for the purpose of getting rid. The occasional truth of the phrase may resonate with some of you serving (like me) on appointments this season, with regard to both entry and lateral markets. Occasionally, it seems, we must discount the sentiments of those at the home institution of a potential hire.
Newt Gingrich and Pat Nolan Endorse Resentencing of Juveniles doing Life Without Parole!
Wow! Talk about narrow coalitions! First we get Pat Robertson's enthusiastic support of marijuana legalization, and now this: Newt Gingrich and Pat Nolan offering support for Senate Bill 9, which would allow for resentencing youth who have been sentenced to life imprisonment without parole. Their op-ed in the U-T San Diego explains:
You might expect that these LWOP sentences are limited to the “worst of the worst,” but that is not the case. A young teen can be a bit player in a crime, e.g., act as a lookout while his buddies go in to steal beer from a convenience store. None of them is armed, and there is no plan for violence. Then it all goes haywire. The clerk pulls a gun, and one of the kids tries to grab it away. In the struggle that ensues, the gun goes off and the clerk dies.
Under California’s “felony murder” rule, every person involved in that crime, no matter how minor their role, is equally guilty of murder, even if they did not plan or expect a murder to occur. According to the fiction of our law, the lookout is as much to blame as the person who pulled the trigger. About 45 percent of the inmates serving LWOP for a teenage crime were not the person who caused the death. Yet they will die in prison of old age, with no chance for release.
But should these youngsters die in prison for something they did when they were so young? Wouldn’t it be better to re-evaluate them after serving a long stretch in prison and consider whether they have matured and improved themselves?
We are conservative Republicans, and we believe that some people are so dangerous that we must separate them from our communities. That is what prisons are for. But sometimes we overuse our institutions. California’s teen LWOP is an overuse of incarceration. It denies the reality that young people often change for the better. And it denies hope to those sentenced under it.
This op-ed joins a long stream of previous statements from conservative politicians who express a willingness to deviate from the traditionally tough-on-crime stance on the right. And notably, while there is a savings strand here, there is also text about compassion and humaneness. Good stuff.
Cross-posted to California Correctional Crisis.
Teaching (Off-Line) in Real Time
This year at Western New England (WNE) I am co-teaching an independent study tutorial on the same-sex marriage cases in which petitions for certiorari are currently pending at the SCOTUS. In addition to the Prop 8 case, Perry v. Brown (captioned Hollingsworth v. Perry in th SCOTUS), there are currently four cases challenging the Defense of Marriage Act (DOMA) in which cert petitions are pending at the Court -- two cases from the Second Circuit, one from the First Circuit, and one from the Ninth Circuit. (This scotusblog post by Lyle Denniston provides an overview of the cases, including in its total three cert petitions from the First Circuit case). Our WNE group will meet three times this semester, and, if certiorari is granted, three times next semester to track the progress of these cases.
At our first meeting, in mid-September, we discussed the opinion in the First Circuit case, as well as SCOTUS certiorari procedure. We plan to read some of the cert stage filings at our next meeting, in mid-October. By that time, we may well know the fate of these cert petitions. (The AP reported this week that Justice Ginsburg told a University of Colorado audience that it was "most likely" that the Court would consider these issues "toward the end of the current term.") If certiorari is granted, we plan to read merits briefs and pre-argument commentary, and continue on through the life cycle of the case(s).
I think there are some real pedagogical advantages to teaching this way, in real time. Here's what's so great about it: 1) We read legal documents other than published appellate opinions. In many law school classes, students read a court's opinion after the litigation has concluded, but, in this tutorial, we're reading a variety of pleadings; 2) We discuss procedure and substance in tandem. Rules regarding the cert process, for example, or cert before judgment, which is sought in some of these cases, are more interesting when discussed in conjunction with a case you're following; 3) Obviously, we're discussing current events, which makes the class all the more timely and compelling. There is lots of great commentary and analysis to read, including this week a piece by Emily Bazelon at Slate, and an online symposium at scotusblog, featuring, inter alia, this piece by Bill Eskridge; and 4) While reading briefs and listening to audio of oral argument (available from some Courts of Appeals as well as from the SCOTUS), we can talk about lawyering technique in addition to doctrine; and 5) The uncertainty of the situation gives students a more real-world view of litigation. While appellate opinions may give the impression that the result was always a fait accompli, our students in the tutorial read the briefs on both sides and watch the process unfold.
Although last year's ACA argument might have been a high-water mark of SCOTUS-watching, there will be plenty of action this term too at the High Court.
The Simpsons "love" Mitt Romney
Take a quick look at this obviously fantastic election-related clip from "The Simpsons":
Romney's horse may have totally "choked in the Olympics," but at least Homer gets outsourced to China with "a steady job." Too bad "Stupid" Flanders is there next to him. Romney "has a house in your state" and the "government paid him taxes the last five years." But, it's ok. After all, Romney "did invent Obamacare."
Homer didn't have an ID when he arrived to vote, so the Rich Texan (a Republican stooge in most episodes) wanted to stop him from voting, that is, until he learned that Homer was white, middle aged, relatively uneducated, and gets his news from TV screens at gas stations. The Rich Texan, though, gives us the best line: "Stopping all Americans from voting is for the protection of all Americans."
Governor Romney may think 47% of us are "takers" and dependent on the government and not worth caring about, but although all that is great fodder for politics and the media, the real tragedies of this election are those brazen attempts to suppress voter turnout in traditionally Democratic locations and among traditional Democratic constituencies. In Ohio, the Republican state leadership tried to end early voting in just the Democratic counties; in Indiana, the state is taking away voting locations in urban areas and adding them in rural ones. On the other hand, states like New York and California are allowing people to register to vote online and making it easier for people to find their voting centers and get to them.
Homer was lucky. Too many voters may not be.
"Keep America Weird": One way to think about the HHS mandate . . .
William Mattox writes, in USA Today, that for reasons similar to those that (rightly) make Austin residents eager to "Keep Austin Weird", we should oppose policies like the HHS mandate that have the effect, even if not the aim, of standardizing and homogenizing the sometimes-"weird" institutions and associations of civil society:
I worry that Obama's health care plan is doing to Catholics what those cookie-cutter national chains were threatening to do to Austin's bohemians: Rob them of their distinctive identity. Of their unique character. Of their freedom to be authentic.
Yes, I know Obama's contraception mandate provides an exception for Catholic churches. But it offers no such relief to those running Catholic schools, hospitals and charities who want to live out their faith (and follow their church's teachings) on more than just Sundays. In essence, the Obama administration's message to these Catholics, despite a cosmetic compromise, is akin to telling Austin's bohemians that they can dress like hipsters on the weekends so long as they behave like corporate shills Monday through Friday. . . .
Well, my thirteen-year-old daughter certainly thinks I'm weird . . . I guess there are worse things!
Thursday, September 20, 2012
Sorkin better in PSAs?
Fresh off my post decrying how bad Aaron Sorkin shows have become (or, in retrospect, always were), comes this story about using The West Wing to teach about democracy. Hillary Clinton told a story about the speaker of the lower house of Burma's parliament telling her that, in an effort to learn how to be a democratic body, they had taken to watching old segments of the show (Clinton did not agree that was the best way to do it).
Cast members also have taken to doing political PSAs and educational spots, in character and in full Sorkin Mode. The most recent one is for Bridget Mary McCormack, a law professor at Michigan (and the sister of a former castmember) who is running for the Michigan Supreme Court; the spot also tries to educate voters about the non-partisan sections of the ballots, including judicial elections. The earlier one is by Funny or Die and is a mock PSA (sorry, unable to embed) about the benefits of walking and looking for a way to inform people about the benefits of walking.
It's all prettty funny (especially in its self-awareness: "Hey, how about a TV show showing people walking?" "Nah") and quite enjoyable, at least in short bursts. Maybe politics are different.
Teachers Strike follow-up: The Anti-bands Line-up
I can imagine many uses for this guy's protest technique.
Wednesday, September 19, 2012
The One Year Anniversary of the End of "Don't Ask, Don't Tell"
Yesterday, I had the opportunity to attend the Servicemembers' Legal Defense Network's (SLDN) party on the Intrepid to celebrate the first anniversary of the repeal of "Don't Ask, Don't Tell" (DADT). Many of the usual suspects were there: Admiral Mike Mullen, the retired Chair of the Joint Chiefs of Staff who championed open service; Major Margaret Witt and Colonel Victor Fehrenbach, the officers who successfully challenged DADT in federal court; Eric Alva, the first American injured in the latest war in Iraq; Captain Stephen Snyder-Hill, the openly gay soldier who was booed at a Republican debate months ago and has since gotten married; Joseph Rocha, the repeal activist and young sailor who suffered abuse at the hands of his commander and colleagues in his elite explosive detection unit; City Council Speaker Christine Quinn;MSNBC anchor Thomas Roberts
Admiral Mullen spoke at the VIP reception, reminding us that gay service members are just as honorable and brave as their heterosexual peers, and was honored during the official program. The former congressman and veteran Patrick Murphy, the author of the Repeal Act in the House, worked the room and expressed genuine humility and satisfaction that he had the honor to play a role in ending such odious discrimination.
I spent the evening with some friends, catching up with colleagues at my old law firm (I am proud that Winston & StrawnLLP was a supporting sponsor of the event), and asking random people the following question: How does the repeal ofDADT impact progress on other gay rights issues like the marriage, employment discrimination, and DOMA? My sample was too small and too biased to constitute a reliable study (many people declined to respond, the attendees were overwhelmingly white and male), but it gives us an indication of the personal and political meaning of the end of DADT'swork.A member of the Marines said the end of DADT "meant the world to" him. His friend, a civilian who admitted he "never even considered spending one second in the military," nevertheless felt "proud" that his friend could finally be "an equal member of the Marines." A sailor in uniform said, "The end of DADT is the beginning of the end for everything else. If we can fight and die for our country, it's hard to justify discriminating against us." Another young man in our little circle disagreed, arguing that "there's a lot more to do, even in the military. We shouldn't get complacent." The two men started a civil discussion about it as I walked away.
Three women in uniform agreed that repeal was "the greatest moment of [their] lives." When I asked about discrimination faced by women, they demurred. But a veteran standing nearby followed up: "Sure, there's discrimination. There probably always be. But, you don't understand. DADT wasn't just any old discrimination. It forced you to lie about who you are. It compromised your honor and made you sick to your stomach. It told you that who you are is somehow wrong. How would you feel if someone told you that every hour of every day?" A well-dressed young man came over and said, "And, that's how gays feel in most of this country anyway. We can't marry, we can be fired for who we are."
Many civilian commentators repeated this theme and others expressed feelings of satisfaction; phrases like "the sky didn't fall" came up more than a few times. Most military commentators were simply happy. You could sense that a collective weight had been lifted from the room, that, for the first time, freedom is at hand and more is on the horizon. Men in uniform abounded, no longer worried about being identified as gay. Still, there was a hint of uncertainty: many refused to give their names, others shied away from the bright yellow name tag the indicated PRESS.
So, what, if anything, does this tell us? First, many people declined to answer the question, focusing instead on their happiness at the end of DADT and desire to celebrate a great victory. I can't blame them. Second, the end of DADT is not the end of the story. Some service members may be worried about harassment and more subtle discrimination, or they may not be the kind of men and women who want to be in the spotlight. I can understand that.
But, we cannot deny that the end of sexual orientation discrimination in the military can be persuasive in the fights to end other antigay discrimination. As one VIP attendee noted, it is hard to justify discrimination against people who are fighting and dying for their country with honor. The argument goes further: The conclusions Judge Phillips made in Log Cabin Republicans v. United States, the federal challenge to DADT that declared the entire law unconstitutional, and the statements from congressmen and senators are indicators of official judicial and legislative opinions on the merit of any kind of discrimination against gays. That is, we now have court records and legislative history to prove that discrimination on the basis of sexual orientation is pointless, ridiculous, and disgusting. The end of DADT will advance the cause of marriage recognition: openly gay service members will want to enjoy the right to marry, in uniform and on base; it will force us to confront the denial of federal benefits to the legally married spouses of gay service members; it will be incontrovertible proof that treating gays equally is not only not harmful but also part of our constitutional tradition.
Tuesday, September 18, 2012
It seems to me that we should be more bothered than we seem to be
by this ("Man Linked to Film in Protests is Questioned", NYT Sept. 15, 2012):
One of the men behind the anti-Muslim film trailer on YouTube that has set off violent protests at Western embassies across the Middle East was taken in for questioning by federal probation officers early Saturday morning, law enforcement officials said. . .
I am not making (only) the skunk-in-the-garden-party observation that the blogs of and read by law professors would be reacting differently to this picture if John Ashcroft were the Attorney General or George Bush were the President (though, I feel confident, they would be). That is what it is. That said, I think that the impulse to focus law-enforcement resources on this "film"-maker, and arguments like these, in The Los Angeles Times ("Does 'Innocence of Muslims' Meet the Free Speech Test"), could reveal a troubling wobbliness.
To be clear: I am open to arguments that recent decisions about crush videos, offensive funeral protests, violent video games, and lying about medals illustrate a free-speech regime that is perhaps in need of some re-calibration, and I agree with those who say that, sometimes, that regime discounts or undercounts the real harms that result from offensive speech. I agree also that it is an abuse of the freedom of speech to gratuitously insult (as opposed to thoughtfully criticize) the religious beliefs of others.
Still . . . a violent heckler's veto is still a heckler's veto, and I am inclined to think that there is little, if any, room for such a veto in the approach that a constitutional democracy takes to the regulation of even offensive and ignorant "politcal" expression. Thoughts?
What I Told the Aspiring Law Professors
It was absolutely great to be at ASU for the Aspiring Law Professors conference this past weekend. My hosts were terrific and it was wonderful to meet the aspiring lawprofs and the faculty members from near and far who came to help out with the conference. Given the interest in the aspiring law professor thread here and the fact that not everybody went or could go, I thought I'd add a few words of summary from my talk.
By way of preface, the audience was roughly divided between those with strong conventional qualifications (which I took as a given, while noting that I'd be perfectly happy if law schools adopted other qualifications besides the usual ones) who are already in or about to enter the job market, and lawyers with some interest in learning about the job market but who may not have conventionally attractive qualifications. It's difficult to speak to both groups! One wants to be supportive but not falsely encouraging. Again without agreeing with the usual measures and qualifications, it seems true to me from my experience on hiring committees that the idea that an applicant is competing with several hundred other applicants is somewhat false; a first cut at the first distribution results in rejections for a substantial number, and more serious consideration of many fewer applicants. That's good news for the conventionally qualified, but should give great pause to those who don't have those qualifications but apply anyway. Given the time and money they put into the process, it's important for them to learn about the process up front and to think hard about whether to go forward anyway. That doesn't mean people with unconventional qualifications can't get jobs: I did, despite some unconventional aspects to my resume, and so did one of my main hosts at the conference. But it's important not to go into things blind (which I take it was one of the primary, and saluatary, reasons for the conference itself). Some of those candidates may want to reconsider altogether, while others may want to think about how they can retool their qualifications and writing before entering the market.
Having said that, one of the main themes of my talk was the idea of "vocation." I take the idea of a vocation as a law professor very seriously, and I think that one who has a genuine vocation and some good reason to think they might succeed at it shouldn't throw it away lightly. To that end, I pointed out--and I'm not sure whether this was a good thing for the keynote speaker at a conference for aspiring law professors!--that I ended up having to go on the market three times. Some of that has to do with the vicissitudes of given years and hiring needs and so on, and some has to do with personal vicissitudes: the first year I was on the market, the conference came three weeks after back surgery, I was in a brace and drugged up, and I'm sure my interviews showed it. It also had to do, frankly, with not being quite ready. My job talk was not where it should have been and I wasn't as ready to talk about my work and my agenda as I should have been. I would have been better off waiting another year. My broader point, though, was that while people need to think strongly about whether they really have a vocation and qualifications, if they do they should not give up too readily, and should take some sustenance from knowing that others have succeeded on the market despite initial failure.
My talk obviously covered a good deal of general advice about the application process, the meat market interview, and the job-talk. I won't reiterate all of that except to add that I emphasized the importance of fit with a particular school and its location. I argued that just having canned knowledge about a school based on brochures etc., while nice, isn't enough. Among other things, that information can be misleading: if you say to a committee, "I really, really want to come to your school because of your Center for X," it might turn out that that Center really consists of a single professor and that the school has no real interest in hiring more people in that field. It is also the case that many people come through schools like mine (Alabama) with questions about living in that area that either 1) end up asking the equivalent of, "How much New York is your location?" or 2) come off like anthropologists investigating the quaint custom of the natives. I argued that more important than getting a few facts straight about the school is asking that school what it considers its foundational strengths, where it is hoping to go, and how you can help. A similar attitude toward living somewhere new works as well. In short, you should imagine yourself making a life there, and ask how you can make it a better one, both for yourself and the school. Personally, I don't mind interviewing talented people who might be poached by lateral offers; to the contrary, I like it. But I do mind interviewees who make it clear they have little long-term interest in being at your school and view it as a short-term resting place; I want people who are going to be committed to the institution as long as they're there, who will make sure that any personal glories they enjoy redound to the benefit of their school as long as they're there, and who will think and speak kindly about the place once they leave. The other broad thing I said about the market is that committees are looking for prospects who are, in a sense, already tenure-ready: not in the sense that they could or should get tenure tomorrow, but in the sense that they are already confident about where they're going, and it's evident that they won't stop working once they get tenure. I also couldn't help referring the audience to Martha Nussbaum's great piece Cooking for a Job, which points out the ways in which the law hiring process rewards glibness over thoughtfulness, and urging them to keep it in mind, at least for when they're hiring themselves.
The last part of the talk returned to the matter of vocation. For me, at least, the sense of vocation means that one ought not only consider the pleasures of working in the legal academy, which are great, but also its duties. That means, at the least: 1) thinking about your students and what you can and should be doing for them, both in terms of teaching and in terms of job-hunting; 2) as a corollary to the last point, it means that even though you may have come to your school from some distant place, such as New Haven, you have an obligation to learn about the local legal market and its needs, rather than just assuming that your job is to send the top one percent of your class to big firms in New York or DC; 3) thinking about your school and how you can make it better, and not just getting wrapped up in your own work; that includes an obligation to speak up about local law school reform issues even if you're still untenured; 4) thinking about the larger profession(s), both the legal academic profession and the legal profession itself; that means that you have an individual duty to think about "law school crisis" or "scam" issues and to address them, both at your own school and in the broader environment; and 5) thinking about what you can do, once you're a professor, to pay back your debt to the many people who helped you get your job, by spotting, encouraging, and helping promising and talented academics or potential academics.
I'm not sure talking about these duties will help anyone get a job, although I suspect interviewees will get more and more questions this and next year about "law school crisis" issues. But I doubt I would have agreed to give the talk if I hadn't had an opportunity to talk about these issues. I take the idea of vocation, and the duties attached to it, very seriously. Although this is changing with the rise of JD/Ph.D's and VAPs, many entrants to the legal academic profession haven't had much of a chance yet to think about what it means to be a teacher or scholar and what duties go along with it. Once they put their heads down and start chasing tenure, it may be years before they look up again and think about these matters. I think it's important to think about those duties--especially the duty to think about one's students, and about the profession(s) as a whole--and take them seriously, right from the start.
Again, it was a complete pleasure to be at the conference and to meet some new people. I wish them luck in whatever path they take and I'm happy to hear from them via email or comments.
Civ Pro, Fed Courts, and figuring out what goes where
Two commenters on Trey's post on Erie sugget that the weeds of the doctrine belong in Fed Courts rather than Civ Pro, especially in light of the general reduction of Civ Pro to four hours. The problem is that there are other subjects besides Erie that potentially could go in either course. And, of course, Fed Courts is usually only three hours (at least at my place), so there is only so much that can be moved to Fed Courts without overloading that class. Plus, as Steve has written, there are competing theories of what Fed Courts should be, which naturally affects what gets covered; I structure my Fed Courts class as I do precisely because it flows from my own four-hour Civ Pro class.. Finally, I have the benefit of also teaching Civil Rights, which really is an advanced Fed Courts class, into which I can move some topics. But Civil Rights is not a hugely subscribed course (certainly compared with the other two), so there is the risk that not enough students will get some material.
The point is, any coverage decision in Civi Pro has a downstream effect. It seems to me that these are the "movable" topics that could go in any of the three classes: 1) "Advanced" Federal Question Jurisdiction (embedded federal issues, private rights of action, etc.); 2) Erie; 3) Appealability (both to the courts of appeals and to SCOTUS); 4) Habeas (post-conviction and national security); 5) Eleventh Amendment; 6) Abstention; and 7) Probably others that I'm forgetting.
My choice as been to keep Erie in Civ Pro, move Federal Question and Appealability to Fed Courts, move Eleventh Amendment to Civil Rights (beyond a 30-minute lecture on it in Fed Courts), and largely skip Habeas (beyond a quick overview on the way to teaching Heck v. Humphrey). I cover Absention in both Fed Courts and Civil Rights, with a narrower focus in the latter. Of these, I am rethinking putting the Eleventh Amendment back into Fed Courts (while also covering a narrower version in Civil Rights), provided I can figure out what to remove in its place.
Strike a Pose
I would like to discuss the Chicago Teachers Union strike with the caveats that I neither teach labor law nor have children in the Chicago Public Schools. Some of you do and have one or the other or both, however, and may have both a legal and a personal opinion. My information is derived both from the news reports and from my life experience having a retired CTU parent. It is also widely reported that since the negotiations are confidential no one in the public really knows what is going on in contract discussions.
Something about the strike that I have been hearing in the past few days bothers me is this notion that the CTU is striking not just over their own contract terms, but for "symbolic" purposes, as an objection to the "privatization" of education, primarily in the form of City's investment in and approval of charter schools. I am concerned about the concept of keeping 350,0000 children out of school for symbolic purposes. (As an aside, I believe the Chicago Police Department worked without a union approved contract for more than four years during a prior administration). The CTU characterizes the mayor as a bully. Without arguing against that characterization of the Chicago mayor, is the CTU not also engaging in bullying? Does this sort of strike fulfill a proper labor purpose?
Monday, September 17, 2012
Grand Jury: "Ripped From the Headlines"
I'm teaching Criminal Procedure: Adjudication this semester, and last week we talked about the Grand Jury. Of course, I planned a discussion of common criticisms of the grand jury and proposals for reform. Just a few days before class I read this article in the New York Times, describing a case in which a Bronx grand jury refused to indict Luis Solivan on the charge of assaulting a police officer after watching a home-made video of police conduct during his arrest. That incident is now the subject of a civil suit by Mr. Solivan alleging police brutality. The case provided an example of the grand jury arguably acting as a voice of the community, a role similar to what Prof. Adriaan Lanni has described in her writings on "community justice." It provided an excellent complement to our discussion of reforms suggested by Prof. Roger Fairfax in his piece Grand Jury Innovation: Toward a Functional Makeover of the Ancient Bulwark of Liberty. It also got us thinking about the possibilities for technology (citizen-made video and audio recordings) to bring about a remaking of the grand jury's historic role, furthering the project that Fairfax has described as "Grand Jury 2.0." I'm now excited to read the book of essays by that name that Prof. Fairfax has edited, particularly the one by Prof. Lanni describing the concept of a "neighborhood grand jury."
Unexpected phone solicitations
This morning, I received a telephone solicitation from the DNC--as we were getting ready to leave for synagogue. I don't know; if there were any secular organization that would be particularly aware that today is a Jewish high holy day, I would have expected it to be the Democratic Party.
The Erie Doctrine--What does it mean to you?
As I am just a few weeks away from putting my civil procedure first years through the Erie right of passage, my thoughts have been on what Erie means. Just the other day, Harlan Cohen posted a fabulous new piece on "International Law's Erie Moment." I too have tried to peer into Erie hoping to construct some relevance for transnational litigation. As part of that research, it occurred to me that Erie is perhaps a Rorschach test. Do we look at the case and see what we want to see--federalism, positivism, a remonstrance against forum shopping, etc. Surprisingly, even though the continuing relevance for Erie to scholars is plain, it is less certain for practitioners, who rarely face an unguided Erie question. In light of this, I wanted to pose two questions:
First, is Erie a Rorschach test? If so, what do you see it as?
Second, what do you tell your students when they ask about Erie's continuing relevance? Is it just theoretical/historical or practical?
Solve fiscal woes by taxing the Church?
Paul Caron calls attention to a WaPo article suggesting that some are considering the Roman Catholic Church -- you know, the one with all the fancy art and deep "coffers" (See Garnett & Carr, "Drop Coffers," in The Green Bag) -- as a source of funds in fiscal-cliff times. I have my doubts about the Post writer's characterization of the Church as "one of the last untouched sources of wealth" (the Dissolution of the Monasteries, anyone?), but it's an interesting and timely question. If governments need money, why should they (a) spend money (through various subsidies and supports) on Church matters and (b) forego extracting money from (i.e., extend exeptions to) the Church?
We could think about this, I guess, just in terms of the overall costs and benefits to the relevant political community from current subsidies-and-exemptions practices. Or, we could ask, at a more theoretical level, whether there are good reasons (having to do with things other than budgets) for changing those practices.
At First Things, Leroy Huizinga has some thoughts about the story. He writes:
. . . Why shouldn’t churches be taxed, in general? One reason has to do with preserving a healthy separation of Church and State. If Churches can be taxed, then the government can get into the business of running them (or crushing them) through tax policy, like it does most everything else. Another reason is that private institutions like churches contribute to the common good both as charitable institutions directly serving people through its various programs and also as space as a community mediating between individual and the State. A third reason is more practical: Churches generally do a better job administering social programs than government does (which, one suspects, grates government functionaries). A fourth reason applicable to Europe in particular: The reason most people bother visiting Europe and spending significant tourist dollars there is the legacy of beauty produced by Europe’s Christian heritage. . . .
Of course, one knows why government wishes to control religion, going back at least to Hobbes. Religious institutions have often been the only entities effective in challenging State power, reminding rulers that there is a higher law than their whims and will, that they too stand under the judgment of God and nature. . . .
This last point is, for me, a powerful one, but it does invite this response: Perhaps (as many Americans have thought over the years) churches' ability to effective "challeng[e] state power" is undermined by subsidies and Erastian co-option? (I tend to think exemptions raise different questions, and that "separation" points toward, rather than away from, at least some exemptions.)
In the United States, it strikes me that private institutions of higher education might prove, to some, an analogously attractive source of fiscal relief? We'll see. . .
Qualitative Study in Law and Society
I think it was Karl Marx in "The German Ideology" who said that ideas should be explained from "material practice," not the other way around, in one of his not-so-veiled direct attacks on Kantian metaphysics and the abstract rational self that had characterized young Kantians and young Hegelians in Germany. The study of those "material practice[s]" is what sociologists do, but too often -- especially after "Freakonomics" and Malcolm Gladwell's successful popularization of quantitative sociological study -- some types of sociological analysis get a bad rap and, sometimes, unjustly so. Consider, for example, a much maligned design of socio-historical research, the narrative, and what lawyers and legal academics can learn from it.
I am not suggesting that narrative does not deserve its critics. The notion that we can understand events simply by putting them in chronological order is laughable. Otherwise, we would imply causation where there is only temporal order. But, narrative -- the study of how a single thing becomes an event of social importance -- can be a place to begin our study and can shed light on the rational or perverse incentives of laws that govern culture.
The robust sociological literature on lynching in the American South from 1880 to 1930 includes a fair amount of narrative analysis. In 1993, the sociologist Larry Griffin published a piece in the American Journal of Sociology that, among other things, traced the narrative history of how one dispute became a lynching in a particularly bloody county in a particularly bloody time in the Deep South. He never suggested that a step-by-step temporal approach -- a botched sale of moonshine, a black seller, a disagreement over the price, a drunk white customer, a physical altercation, an allegedly willfully blind sheriff, a posse gathering, a manhunt, a tip off from a rival black moonshiner, capture, attack, murder, and a revenge killing -- tells the whole story, but, at a minimum, it gives us a better picture of "what is a lynching" than simply saying that there is a general correlation between a drop in the real price of cotton and an increase in lynchings (Beck & Tolnay 1991).
In my dissertation, I study the flow of culture -- music, pictures, memes, jokes -- on the Internet and argue that the copyright regime governing the flow of the proprietary parts of that culture should reflect a more accurate sociological understanding of the creation and flow of cultural artifacts. In one section that, admittedly, I have yet to write, I will tell the story of how a thing becomes a meme online. Media reports tend to be satisfied with saying that Susan Boyle's "Britain's Got Talent" video "went viral" or that Texts from Hillary (http://textsfromhillaryclinton.tumblr.com) "went viral" shortly after two DC staffers saw an amazing picture of the secretary of state working on her blackberry. Things don't just "go viral" much in the same way that artists don't just magically conjure cultural products from the tips of their fingers. In fact, how something goes from a single incident of creative expression (whether derivative or not) can point us to areas of further study and paint a better picture of the creation of culture in the physical world and online.
This not only matters to Internet marketers, but also to those of us thinking about a copyright regime for the Internet Age. I am about to submit a National Science Foundation grant application to study the role of users in the spread and creation of culture online. Stay tuned...
Saturday, September 15, 2012
Orwell on writingSlate's weekend feature of Longform writing today includes George Orwell's Why I Write. One of my senior colleagues always recommends that new scholars read this.
Is Blowing the Whistle on Stop and Frisk an Offense?
Yesterday saw an interesting form of public action in Harlem, organized by the Stop Mass Incarceration Network: Protesters used whistles to symbolically "blow the whistle" on arbitrary, discriminatory stop-and-frisk practices. But here's an interesting twist:
Organizers of the protest say the initiative has already moved beyond just symbolism, residents areactually blowing their SMIN-issued orange and yellow whistles when they see someone getting harassed by the police.
"Everything that we've seen up until today has shown that people will absolutely blow the whistle," Will Reese, one of the initiative's organizers, says. "We've seen dozen of examples of it."This reminds me a little bit of Machsom Watch, an organization of Israeli women who stand at barriers, admonishing soldiers who treat Palestinian passers-through with brutality or cruelty. But in the context of protesting urban police practices, I wonder: Could this form of awareness-raising, police-shaming protest lead to the stop-and-frisk, or eventual arrest, of the whistleblowers themselves?
Friday, September 14, 2012
Bar Review, the Other OneSo my students have been regaling me with stories with their experiences and observations after the Thursday night "Bar Review." If you don't have this event at your school, students gather each Thursday night at a different bar and . . . well, among other things, drink. And it sounds like one after-burn is that Friday classes are given the short shrift in attendance and participation. Drinking on college campuses is widely reported and problematic - but I don't think we hear as much about it at the law school level. I'm interested in your comments and observations if you have this event at your law school and whether you feel that it impacts either your students work or your Friday (or other day) classroom.
Thursday, September 13, 2012
Plug for rage-editing plug-inMy students submitted their first written assignments this week. Occasionally the first submission is followed by a bit of freak-out and a flurry of emails from students explaining aspects of their assignment after the fact or checking on whether something is "wrong" or "right" based on subsequent conversations both in and out of the classroom. Onc student who had follow-up emails approached me today and said that he really wasn't freaking out, and that he hoped he didn't sound that way, but that he hadn't used tonecheck in his email. "Tonecheck," I asked? He explained that it is a plug in for email that checks the tone of your email to ensure that it is not out of line. He used it in all of his communication at a government agency. I'm thinking there are many other settings in which this plug-in tool can be very useful and thought I'd share the tip.
A family of ducks! Family of what? Ducks!
For those of you who have ever read Make Way for Ducklings to your kids:
Aspiring Law Professors ConferenceI'm looking forward to seeing those who will be attending this conference. Just a note to let you know that I looked hard at the questions you sent me in response to my earlier post about this, and will try to address as many of them as I can, although not always in full detail. For my sins, I've also read through the many, many comments and questions at the Prawfs "Clearinghouse" post, and I've tried to keep those in mind too, although, boy, I encourage folks to relax a little, at least once they get to the meat market itself. (Not that I don't understand the anxiety; I just want to make sure people stay healthy, too.) If you have particular questions you'd like me to answer, please don't hesitate to email me and let me know in the next day or two. And if you're a professor out there with particular advice you think is very important, same thing. I hope I get to meet all of you, shy as I am, but I hope you won't be shy about saying hello or corresponding. And remember, it's a dry heat.
Wednesday, September 12, 2012
Baby on (white)boardThis dust-up over an anthropology professor at American University who nursed her infant during (ironically) a "Sex, Gender, Culture" class should resonate with recent Prawfs conversations over breastfeeding and bringing our kids to school/class. Not much I want to add, other than to highlight one comment in the Slate post: The irony of the student insisting that he was distracted by the professor breastfeeding, while he is posting messages to Twitter and Facebook.
Pelican Bay Inmates Reach Agreement to End Racial Hostilities in CA Institutions
Yeah - you read it right. What follows is the press release:
The statement calls for the cessation of all hostilities between groups to commence October 10, 2012, in all California prisons and county jails. “This means that from this date on, all racial group hostilities need to be at an end,” the statement says. It also calls on prisoners throughout the state to set aside their differences and use diplomatic means to settle their disputes. The Short Corridor Collective states, “If personal issues arise between individuals, people need to do all they can to exhaust all diplomatic means to settle such disputes; do not allow personal, individual issues to escalate into racial group issues.” In the past, California prisoners have attempted to collaborate with the Department of Corrections to bring an end to the hostilities, but CDCR has been largely unresponsive to prisoners’ requests. The statement warns prisoners that they expect prison officials to attempt to undermine this agreement.
“My long-time experience in urban peace issues, gang truces, prevention and intervention, is that when gang leaders and prisoners take full stock of the violence, and how they can contribute to the peace, such peace will be strong, lasting, and deep. I honor this effort as expressed in this statement,” says Luis J. Rodriguez, renowned violence intervention worker and award-winning author of Always Running: La Vida Loca, Gang Days in L.A. Rodriguez has helped broker gang truces throughout the US as well as in other parts of the world. This spring, Rodriguez was involved in a historic truce between gangs in El Salvador leading to a 70% drop in violence in that country. According to Rodriguez, “What is needed now—and where most peace efforts fail—is the meaningful and long-lasting support of society and government, in the form of prison reform, training, education, drug and mental health treatment and proper health care. We need an end to repressive measures that only feed into the violence and traumas.”
Azadeh Zohrabi of the Prisoner Hunger Strike Solidarity Coalition sees the agreement as a positive development that stems from last year’s hunger strikes. “While living through some of the worst conditions imaginable, the authors of this statement continue to work for change,” states Zohrabi. “While the prison administration drags its feet on even the most basic reforms, these guys are trying to build peace throughout the system. That says a lot their humanity and hope.” Advocates and the Short Corridor Collective are eager to spread the word as far and wide as possible and implement peace plans throughout California’s prisons and jails. “We must all hold strong to our mutual agreement from this point on and focus our time, attention, and energy on mutual causes beneficial to all of us [i.e., prisoners], and our best interests,” says the Collective. “The reality is that collectively, we are an empowered, mighty force, that can positively change this entire corrupt system into a system that actually benefits prisoners, and thereby, the public as a whole.”
The PBSP-SHU Short Corridor Collective has strongly requested that its statement be read and referred to in whole. It can be found here.
If this agreement will be respected by inmates in all CA institutions, it's a major, major breakthrough. Interracial violence is often seen as a ubiquitous fact of life within walls. It also speaks volumes about the impact that the Pelican Bay hunger strike has had on organizing inmates, who are realizing that in order to end solitary confinement and debriefing they need to fight a common enemy, rather than each other. This is huge, and might hopefully bring CDCR to discard extreme incarceration practices if they cannot be justified as gang violence prevention measures.
cross-published to California Correctional Crisis.
Class Action against DePaul Law DismissedFor those of us following the employment stats class action cases against multiple law schools, DePaul is out. Order is not yet available online, apparently, but I have access to the pdf. If you would like a copy, please email me.
Teaching the First Amendment in CanadaCalling all first amendment and freedom of speech authors and experts: a law prof friend in Canada needs a recommendation for a good text book. Tell me what you wrote or what you like (or both) and why.
Are All Legal Ethics Professors Worthless Idiots?
I ask this question not because I think it's true--I abhor generalizations like this (for the most part)--but because Paul Campos either couldn't pass up what he thought was a nice witticism, regardless of whether it is true or false, or he believes it to be an accurate statement.
Disclosure: I teach legal profession, although I mostly don't write in the area. I don't think whether I'm an idiot or not is related to that fact.
Tuesday, September 11, 2012
PREA: Vehicle for Change?
Gabriel Arkles, Acting Assistant Professor of Lawyering at NYU, recently shared with me his work-in-progress regarding implementation of the Prison Rape Elimination Act of 2003 (PREA). PREA mandated that the DOJ promulgate regulations to eliminate prison sexual violence, and the DOJ issued those regulations in May of this year. The regulations were a product of recommendations from the National Prison Rape Elimination Commission (NPREC), followed by additional notice-and-comment periods and revisions at the DOJ. States must certify compliance with these regulations or risk losing a portion of their federal funding for prisons; corrections systems are subject to independent audits every three years (28 C.F.R. s 115.401 et seq.).
The final version of the regulations contains numerous significant provisions including a ground-breaking rule that decisions regarding where to house a transgender prisoner should be made on a case-by-case basis, taking into consideration each prisoner's views about his or her own safety, (28 C.F.R. s 115.42(c) and (e)). Other important provisions mandate that facilities eliminate cross-gender pat-searches of adult women prisoners absent exigent circumstances (28 C.F.R. s 115.15(b)), and require that screening devices take account of the vulnerabilities of LGBT prisoners (28 C.F.R. s 115.41(d)(7)), who face a heightened risk of sexual assault.
Gabriel's project considers issues and challenges in implementing PREA, and also queries whether reform of such a vast incarceration system is possible. It put me in mind of Hadar's post last week about the mammoth task of providing health care for California's aging prison population.
I see PREA as a fascinating case study of administrative rule-making in the unevenly bureaucratized carceral world. In my 2009 article Ad Law Incarcerated, I described the contribution of LGBT rights organizations to the NPREC process. Like the NPREC proposed draft rules, the definitional section of the final PREA rules possesses great educative potential, containing terms such as "intersex," "gender nonconforming," and "transgender."
I share concerns voiced by Gabriel in his draft regarding obstacles to implementation of PREA and possible unintended consequences of the statute and rules. I look forward to following Gabriel's work in this area and also to hearing from others who are studying PREA implementation.
Going through 11-year-old e-mails . . .
I kept, in a folder -- never thinking, I'm sure, that e-mail would still be around in 11 years -- some correspondence among friends exchanged as Sept. 11, 2001 unfolded. Yeats and Auden made multiple appearances, as did this one, in particular:
I sit in one of the dives
On Fifty-second Street
Uncertain and afraid
As the clever hopes expire
Of a low dishonest decade;
Waves of anger and fear
Circulate over the bright
And darkened lands of the earth,
Obsessing our private lives;
The unmentionable odour of death
Offends the September night
W. H. Auden, September 1, 1939.
That afternoon -- I'll never forget how amazed I was that it all came together so quickly, and smoothly -- about 6,000 members of the Notre Dame community celebrated Mass on the South Quad.
It's strange, for me, to remember what a beautiful day that awful day was.