Saturday, March 01, 2014
Waldron v. Seidman, and the obligations of officials and the rest of us
"Never Mind the Constitution." That's the awesome title of this characteristically sharp and learned essay by Jeremy Waldron, reviewing in the HLR Mike Seidman's new book, On Constitutional Disobedience. Seidman's got a cheeky and funny short reply to Waldron, entitled, appropriately enough, "Why Jeremy Waldron Really Agrees With Me." I wonder if Seidman's Response will continue the apparent trend of the personal title for scholarship, e.g., Why Jack Balkin is Disgusting. If Susan Crawford's Response in the Harv. L. Rev. Forum to the review of her book by Chris Yoo is any indication, I suspect at most we can use these few data points only to identify a trend in favor of the "meta" title and not make broader generalizations just yet.
Moving past the title to something like the merits, I'll confess I'm pretty skeptical toward the general thrust of Seidman's argument (as characterized by Waldron and as evidenced in his NYT oped from last year). He is, as Waldron notes, basically a philosophical anarchist and that's a position I find largely untenable under particular conditions of a reasonable well-working liberal democracy. (Importantly, some of Waldron's work on political obligation was what led me down that path but little of Waldron's work on that subject figures into his review of Seidman.) One last mildly interesting thing to note is that Seidman's embrace of philosophical anarchism and his export of it to constitutional theory basically coincides with the thrust of Abner Greene's recent book, Against Obligation. There are differences between them, some of which are discussed here (review of Seidman by Greene) and here (review of Greene by Seidman). For those interested in these overlapping and important projects, the BU Law Review published a symposium on these two books last year, and you can find the contributions here, which I'm looking forward to exploring further, since, full disclosure, I am writing dreaming up something inspired by these various works on the moral and political obligations of prison or other corrections officials as a distinct class of officials).
Thanks to Dan and the rest of the Prawfs folks for having me as a guest blogger during March. I'm an assistant professor at the University of North Dakota School of Law and am currently doing a semester-long visitorship at New England Law | Boston. I teach criminal procedure, sentencing, constitutional law II, and First Amendment, and write at the intersection of First Amendment and criminal law, specifically "group" or "membership" crime, with an occassional dash of national security. You can find some of my representative work here, here, and, currently making its way through the spring submissions season, here.
Some of the issues that particularly interest me, and that I hope to explore during this guest blogging stint include: the role of the law professor in the "new" law school milieu of practice readiness, etc.; the role of the law professor as public intellectual, as Nicholas Kristof has recently discussed; and the abiding importance of scholarship for teaching and society, and how it can be understood and contextualized. Maybe I'll get to these, and maybe other events will unfold.
Friday, February 28, 2014
As March approaches, I just wanted to take a moment to thank our February guests, some of whom will linger as they get some remaining thoughts off their desk, and also to welcome our band of visitors for March: Erik Gerding from Colorado (with a new book to promote!), Steven Morrison from U North Dakota, Mehrsa Baradaran from Georgia, and David Han from Pepperdine. Thank you all for being part of the conversation and community here!
Thursday, February 27, 2014
Blog Post as Community
I generally experience PrawfsBlawg and othe law prof blogs the old-fashioned way -- checking out the site by clicking on the link from my "favorites" bar. The disadvantage of reading blogs this way is that you're always drawn to what's on top; you may miss something interesting that's percolating below.
Prawfs is fortunate to have a couple of blog post "communities" that have developed here, thanks to Dan and Sarah. This one -- on law review placement activity -- has over 400 comments. This one, a clearinghouse for law school hiring market questions, has over 1500 comments. I imagine participants in these communities only visiting these posts -- or at least, visiting these posts separately from the rest of the blog -- and checking in on the latest news. Most participants are anonymous, although some have handles that make their comments recognizable within the collective. Even with the anonymity, there are conversations that take place across time. There are news and opinions -- points and counterpoints and counter-counterpoints. These posts are communities which spring up each year at a certain time, like Brigadoon, and then gradually disappear, only to come to life again the following year.
These communities remind me a bit of urbanbaby, the website where anonymous posters address a wide variety of issues related to childhood. No one knows who is talking to whom, but there are distinct personalities, strong views, and collective wisdom. You may not be able to trust any one poster, but if you get enough of the same reply, and it makes sense, you can probably run with the advice. I can't vouch for urbanbaby now, as I haven't visited in some time, and it's not in the zeitgeist like it was in the mid-aughts. (Here are some NYT and NYMag articles about it.) But as a young parent, I used to call it the oracle, because you could put in almost any question and get a set of thoughtful, clever, and, yes, snarky replies. I think it shows that under the right conditions, you can have a sizeable, anonymous, online community that shares information and feels like a place you want to visit.
And if you want to check out some AALS hiring market poetry, click here and scroll down.
Wednesday, February 19, 2014
The myth of the trial penalty?
Every now and then, I like to spotlight some articles that unsettle the conventional wisdom, particularly in criminal law. Add this one to the file. Almost every teacher of criminal procedure is aware of the idea of the "trial penalty," which conveys the sense that defendants who exercise their right to a trial will invariably get a worse result if convicted than if they plea bargain. The leverage prosecutors have in exploiting the trial penalty dynamic was described by my friend Rich Oppel in a front page NYT story he wrote a few years back.
Comes now (or relatively recently at least) David Abrams from Penn with an article that slays the sacred cow of the trial penalty by providing, you know, data. And the data is the best kind of data because inasmuch as it's true, it is SURPRISING data. Specifically, Abrams argues that based on the study he performed (which originally appeared in JELS and now appears in a more accessible form in Duquesne Law Review), the data supports the view that in fact there's a trial discount not a trial penalty. Fascinating stuff. Abrams offers some suggestions for what might explain this surprise: possibly a salience/availability bias on the part of the lawyers who remember the long penalties imposed after dramatic trials. Regardless of what explains the conventional wisdom, the competing claims should be ventilated in virtually every crim pro adjudication course.
Since this empirical stuff is far outside my bailiwick, I wonder if those who are in the know have a view about how Abrams' research intersects with the Anderson and Heaton study in the YLJ, which argued that public defenders get better results in murder cases than court appointed defense counsel, or Bellin's critique of that YLJ study here. Anderson and Heaton basically argue that public defenders get better results because they get their clients to plea bargain more frequently than court appointed counsel and that explains the outcome. As I recall dimly, that conclusion may have been true for the murder cases but the study didn't purport to make the claim that PDs were better across the board and maybe that's consistent with Abrams' views too. It would be odd (wouldn't it?) if comparatively fewer murder cases involve a trial penalty while the many other cases do not and in fact show a trial discount. Granted, these studies took place in different cities, etc., so I am also wondering if the various studies can be reconciled. Thoughts?
Tuesday, February 04, 2014
Happy Anniversary, Mirror of Justice (and Facebook)!
It's not just Facebook celebrating today, but also our friends at Mirror of Justice, who are celebrating their 10th anniversary!! (For those keeping score, Prawfs will turn 9 in April.)
Here's a taste of what's happened and what's to come. As Rick says, "In the coming days, the MOJ bloggers will be putting up "anniversary" reflections, so stay tuned. And, in the meantime, thanks to all those -- we have had more than 3 million visits over the years -- who have made MOJ a part of their surfing routines."
Saturday, February 01, 2014
Redyip's return: Angsting Thread Spring 2014 edition
So I understand Redyip is still waking up from his dogmatic winter slumber but the commenters on the prior thread are clamoring for him to brush his teeth and be on his way, so if you are an author or law review editor and want to share information about your submission experience to the law reviews, this is the place to do it. Feel free to use the comments to share your information (and gripes or praise) about which law reviews have turned over, which ones haven't yet, and where you've heard from, and where you've not, and what you'd like Redyip to bring you for Purim, etc. It's the semi-annual angsting thread for the law review submission season. Have at it. And do it reasonably nicely, pretty please.
If you're interested in asking Redyip questions, BDG might come out of the woodwork too to conduct an interview. Here's the last installation of back and forth.
Update: link to final page of comments here.
Happy February! I'm delighted to welcome Daria Roithmayr from USC (who will be blogging about her new book I hope!), as well as Randy Kozel from Notre Dame and Jordy Singer from NESL. Welcome (back)!
Many thanks also and as always to Nancy Leong and Ann Marie Marciarille for their contributions to the conversation in January. We look forward to seeing you back soon!
Thursday, January 09, 2014
A Plea for Stories...
This post is on behalf of a friend who's interested in writing a law school-based novel. (I swear it's not me; most people who know me know that I endure fiction as well as I do cats.)
In the wake of all of the media attention on law schools, a Prawf has decided that it’s time for this generation’s epic law school novel. This Prawf has no interest in writing another Paper Chase (too mean), 1L (too narcissistic) or Legally Blonde (too ditzy). No, this Prawf wants to tell a tale about what law school’s really like – the good, the bad, and the ugly.
AuthorPrawf is seeking your assistance and wants to hear from you about the following questions:
1) What was your very best experience in law school? It could be the time you got an A on an exam you thought you’d bombed, or the time you answered a question in class that no one else got, or the guest speaker who motivated you, or the great locker assignment you had 3L year. The sky’s the limit! The more specific, the better. If you can tell a vivid story, you get five gold stars.
2) What was your very worst experience in law school? Was it getting humiliated in class? Getting beat in the first round of moot court? Getting kicked out of your study group? The more specific, the better. If you can tell a vivid story, you get five gold stars.
3) Do you have any really funny stories of stuff that happened to you in law school?
4) As a law prawf, what is the most amusing story you have to tell about an interaction with a student? Do you have an email string or anything you can share?
5) As a law prawf, have you ever dealt with an honor code issue? Can you share details? (Obviously, many facts would be changed to protect both the innocent and the guilty.)
If you are willing to share, AuthorPrawf will gladly give you credit in the book. AuthorPrawf will also pick the very best story shared and offer a reading at your school after publication – AuthorPrawf will even pay travel expenses. Law prawfs in Malibu, Boulder, Miami, and other awesome destinations, please apply.
This could be a really fun thread, so please post your stories here if you’d like. If your law school experience was so humiliating that you just can’t post it (even anonymously among friends), email AuthorPrawf at firstname.lastname@example.org. AuthorPrawf is a law prawf and a lawyer and promises to hold all stories in strict confidence unless permission is given to use them in the book (with names and identifying details changed).
Friday, January 03, 2014
Rotations and AALS Sundry
Happy new year everyone! It's a snowy day here in Manhattan, but the AALS conference is still slated to unfold this morning.
A few minor programming announcements. First, domestically here at Prawfs, I'm delighted to both welcome back Ann Marciarille (MO) and Nancy Leong (DU) to the conversation here and to express thanks to Miriam Baer (BLS) for staying along for the ride in January. Greetings and welcome back!
Also, Eric Posner is now officially unhinged-- he is doing some awesome blogging over at his new website, Ericposner.com. Needless to say, I am hoping that Eric will abandon his solo blog and instead join our ranks here at PrawfsBlawg, where there's a larger and more passionate market for his posts observing, among other things, the graphical relationship between pomposity and the social value of legal scholarship. Eric, by way of this public invitation, let me reassure you that you can cross-post your graphs and apercus.
Even more importantly, with respect to the NYC law prof world, let's talk about boozing and schmoozing. Tonight is the annual Prawfs/Concurring Opinions Happy Hour. It will take place at the Bridges Bar in the NY Hilton, where the AALS conference is taking place, and the fun will begin around 930 and continue until all the cats are dead.
Second, in addition to the typical foofaraw happening at the Hilton, the Fed Soc is hosting its free shadow faculty conference (schedule here). I'll be there later this afternoon to present a 7 minute version of my paper with Howard Wasserman and Michael McCann called, Catalyzing Fans.
Third, since I'm on the executive committee for the Scholarship Section of AALS, I want to alert readers to the very cool panel we've put together, starring, among others, Prawfs' very own Matt Bodie. Here's the info:
Many law professors publish exclusively or primarily in law reviews. Others make different choices and author books, write essays, draft amicus briefs, prepare comment letters to regulators, or blog. Some do a combination of the above. Panelists will discuss why they have chosen to disseminate their ideas outside of the conventional law review format. Why write a book? What kind of scholarship is more appropriate for a book as opposed to a series of articles? When should one try to draft an amicus brief, or prepare a comment letter to a regulator? The panel will be asked to discuss choices they have made in deciding how they disseminate their ideas and try to influence lawyers, colleagues, policy-makers and others.
The panel includes:
Speaker: Douglas A. Berman, The Ohio State University, Michael E. Moritz College of Law
Speaker: Matthew T. Bodie, Saint Louis University School of Law
Monday, December 30, 2013
Prawfs/Co-Op Happy Hour Details
For those of you wandering into NYC the next few days for AALS, here's the critical news: the annual Prawfs/Co-Op Happy Hour will be this Friday at 930pm until midnight (at least) at the Hilton "Bridges" Bar. See you then and there, and please pass it on! As you'll see from Yelp, we're apparently prioritizing location and big pours in our selection of venue.
In the meantime, greetings and hugs for the New Year from Tel Aviv. See many of you soon, I hope.
Friday, December 20, 2013
Great news to share
Though I don't typically traffic in such information when it's done so ably by friends on other blogs, I'm delighted to announce (from the CDG airport) that two close friends of the Prawfs community were recently appointed to important decanal positions at major law schools.
First, my former co-author and friend, Jennifer M. Collins, was selected to be the dean of the SMU Dedman School of Law in Dallas, TX. You can read more about it here.
Second, another friend, and fellow Canadian, Austen Parrish, was selected to be the new dean at Indiana - Bloomington's Maurer Law school. Austen had previously been interim dean at Southwestern and in an earlier part of our career, we had the chance to break bread in glorious Vancouver at UBC, along with Trevor Morrison. Trevor's already set the trail for BC-niks heading up important law schools, and you can see his sharp assesssment of Austen at the bottom of this law porn press release over here.
Monday, December 09, 2013
Prawfsfest! XI is about to start. Big thanks to Pepperdine and Michael Helfand
I'm so excited to announce that Prawfsfest! XI is about to start this morning. We used to run two of these a year, and then took a hiatus, but thanks to the efforts of Michael Helfand, we are reviving it and I'm delighted to publicly trumpet and thank our wonderful hosts in Malibu. We've been hearing lots of apologies by people about the weather, which is unseasonably cold, but unless these apologies are statements of regretful agency as opposed to "I'm sorry you're suffering" then I'm pretty sure I don't want to hear them anymore:-)
In any event, here's the schedule for today and tomorrow's program.
Prawfsfest XI | December 8th – 10th, 2013
24255 Pacific Coast Highway, Malibu, CA 90263
Monday, December 9
8:30 AM Gather in Villa Graziadio Executive Center lobby to drive to Law School
8:40 AM Breakfast at Law School | Seminar Room 1
9:00 AM Jack Chin (UC Davis): “Unconstitutional, But Reasonable? Race, Reasonableness, and Considering Whren’s Dicta”
10:00 AM Garrick Pursley (Florida State): “The Thin Constitutional Structure”
11:00 AM Break & Refreshments
11:15 AM Victoria Schwartz (Pepperdine): “Analogizing Privacy?”
*NOTE: Participants can choose one of the two options below for the lunch break:
12:15 PM Lunch on-site | Dean’s Conference Room or
12:30 PM Faculty Workshop Presentation by Dan Markel | Seminar Room 4
2:00 PM Eric Miller (Loyola LA): “Permissions and Discretions”
3:00 PM Break & Refreshments
3:15 PM Robin Effron (Brooklyn): “Ex-Ante Discovery”
4:15 PM Return to Villa Graziadio Executive Center for spare time
7:00 PM Gather in Villa Graziadio Executive Center lobby to drive to dinner
7:30 PM Drive to Dinner at Duke’s Malibu | 21150 Pacific Coast Highway, Malibu | 310.317.0777
Tuesday, December 10
8:45 AM Gather in Grazadio Executive Center lobby to drive to Law School
9:00 AM Breakfast at Law School | Seminar Room 1
9:15 AM David Han (Pepperdine): “Flexible Remedies in Speech-Tort Jurisprudence”
10:15 AM Margaret Ryznar (Indiana): “Child Support Obligations of High-Income Parents”
11:15 AM Break & Refreshments
11:30 AM Dan Markel (Florida State): “Luck or Law: The Constitutional Remedy for the Right Against Indeterminate Sentencing”
12:30 PM Lunch on-site | Dean’s Conference Room
2:00 PM Michael Helfand (Pepperdine): “Enforcing Co-Religionist Commerce”
3:00 PM Refreshments and Conclusion
Thursday, December 05, 2013
Interested in Developing As a Legal Scholar? (A note from Prof Chris Lund)
At the January 2014 AALS meeting in New York, the Section on New Law Professors is set to host a panel entitled, “Developing as a Legal Scholar: Thoughts for New Law Professors.” We’ve put together an impressive group of scholars—Jennifer Arlen (NYU), Sarah Cleveland (Columbia), Doug Laycock (Virginia), and Angela Onwuachi-Willig(Iowa)—who will join together for a roundtable discussion of how they became so awesome. They will focus on matters of vital importance to our membership (i.e., new law professors). Topics will include how they weigh the various components of their jobs, how they balance work and family commitments, how they evaluate scholarship both within and outside their fields, and how they decide on which scholarly projects to pursue.
If you’re interested—and why wouldn’t you be interested?—please come. The panel is Saturday, January 4th, 2014, running from 4:00 PM to 5:45 PM. Put it on your calendar.
But here’s something else. The Section wants input from Prawfsblawg readers! You all probably have questions about growing as a legal scholar that you’d like the panelists to answer. Put them in the comments section to this post. During the discussion and during the Q&A, I’ll find ways of slipping in your questions (only the good ones, of course, but I have a broad notion of “good”).
(Chair, Section on New Law Professors)
Here, btw, is the full panel description:
Saturday, January 4th, 2014
4:00 - 5:45 PM
 AALS SECTION ON NEW LAW PROFESSORS
Developing as a Legal Scholar: Thoughts for New Law Professors
Moderator: Christopher C. Lund, Wayne State University Law School
Speakers: Jennifer H. Arlen, New York University School of Law
Sarah H. Cleveland, Columbia University School of Law
Douglas Laycock, University of Virginia School of Law
Angela Onwuachi-Willig, University of Iowa Law School
This panel brings together a number of prominent academics for a roundtable discussion of how they developed into legal scholars. With an eye toward aiding law professors new to the academy, the panelists will discuss things like how they weigh the various components of their jobs, how they balance work and family commitments, how they evaluate scholarship both within and outside their fields, and how they decide on scholarly projects to pursue.
Monday, December 02, 2013
Happy to be here!
Hi there Prawf readers,
As always, it is nice to return to the Prawfs fold. As some of you may know, my interests lie in the intersection of criminal and corporate law. I teach Criminal Law, Criminal Procedure, Corporations, and a White Collar Crime seminar. I write about corporate compliance and what might generally be referred to as criminal law and economics. Recently, I have become interested in the connection between fraud and two overlapping topics, "temporal inconsistency" and the study of "willpower lapses." Over the years, several scholars, most notably Dan's colleague at FSU, Manuel Utset, have asked: what implications does temporal inconsistency have for criminal law enforcement and punishment? How should our understanding of temporal inconsistency alter the mix of criminal and civil statutes, regulation and enforcement activity that we rely upon to reduce socially undesirable conduct? Recently, I along with several other scholars had the great opportunity to offer some thoughts on this topic in comments that the Virginia Journal of Criminal Law solicited for a volume featuring Utset's work. After completing my own contribution, I decided to write a separate article exploring temporal inconsistency's implications for the corporation's internal compliance function. That paper, Confronting the Two Faces of Corporate Fraud, will appear in the Florida Law Review in early 2014. I'll post and talk about the paper later this month.
Meanwhile, in addition to writing my exam, winding down my classes (last week of teaching) and grading, I plan to blog this month on major developments in the white collar crime world. To that end, it is impossible not to be fascinated by Michael Steinberg's insider trading trial, which seems to be moving along smoothly (at least from the prosecution's perspective) for now. More on that tomorrow - I've got to head home now and light some candles. Happy holidays!
Rotations and Sundry
I've been delinquent on many things of late, but let me just pop in for a moment to:
a) wish everyone a happy Chanukah and belated warm wishes for Thanksgiving
b) welcome Miriam Baer from Brooklyn Law School, who will be visiting us here at Prawfs for the next month (at least). Miriam's been a regular guest here, and I'm delighted to publicly congratulate her and fellow Prawfs guest, Robin Effron, on being voted tenure by her colleagues recently--knowing them both well, I can say that the achievement was both richly deserved and overdetermined;
c) welcome back Bill Araiza and Darren Rosenblum who joined us in November and who will linger for a while, I hope;
d) thank our friends at Pepperdine (particularly Michael Helfand) for hosting the upcoming Prawfsfest!, which is being revived after a year hiatus;
e) signal that, in deference to longstanding tradition, there will be a AALS happy hour and I'll share information as it is acquired; and ...
f) inform readers that I'll be putting the schedule for guest bloggers together over the coming weeks and if you're a prawf -- or wish to recommend someone you know (who is a prawf ) -- and would like to come do a month long stint between January and June 2014, you should let me know at your soonest convenience. Thanks!
Friday, November 01, 2013
Maybe I missed it but i haven't seen too much interest in our corner of the world about this interesting piece from the Nation (I know, I don't often link to it!). Anyway, curious for people's reactions about what are the optimal level of disclosures for legal academics. I realize Larry Lessig's got a disclosures page. Should we all have one of those if we ever make a dime off outside income? Would it include a requirement to disclose even ghost-writing briefs for law firms, etc? Or are we worried only about the corruption of our public identity, and not the private sale of what little talents we have to offer?
Monday, October 14, 2013
In praise of student-assembled reading lists for law school seminars
I am using this space to promote and praise a law school teaching technique that I keep using to good effect in my "hot topic" seminars. Starting this week, the students in my Marijuana Law, Policy and Reform seminar are "taking over" the class and classroom by selecting topics of special interest to them and assembling readings to provide the basis for our classroom discussions of these topics. I am posting these student-assembled readings over at Marijuana Law, Policy and Reform, and the first set of readings covers tax issues.
I had students assemble readings for a death penalty seminar to great effect a few years ago, and I was moved by the first collection assembled in my marijuana seminar to do this post of praise. I am finding, yet again, that law students are consistently able to find lots of on-line, user-friendly readings on law and policy topics (and, wonderfully, often draw on primary materials other than SCOTUS cases and on secondary materials other than law review articles).Cross-posted at SL&P
Monday, October 07, 2013
HLR has more women. Discuss.
The Crimson has a story reporting that since the Harvard Law Review adopted a gender consideration for its discretionary slots, the review has almost doubled the number of female admittees to its membership. See here (reporting that women went from 9 to 17 out of roughly 45 people admitted for this year).
Those six of you who have followed this issue with some interest over the years may remember that both Justice Kagan (in her former decanal role) and Professor Carol Steiker (a former President of HLR herself) opposed adding gender to the list of considerations that would figure into the "discretionary" slots. Their stated concern was that it would cast doubt on the accomplishments of those women (including themselves?) who got onto HLR through the "blind" means (writing competition or grades-inflected scores of writing competition). Of course, this is the same rationale often thrown against affirmative action measures for visible minorities, so one wonders a) do they oppose the use of AA for race/ethnicity or other considerations? and b) if not, what are the distinguishing features are of race/ethnicity versus gender? Is it some kind of critical mass theory to the effect that women have without benefit of affirmative action policies still formed roughly 25% of the law review membership? I confess I'm puzzled by these reactions and not entirely sure what I would do if I were in a decision-making capacity on the HLR. Helping or inspiring people to Lean In during law school doesn't seem nearly so sufficient, though it does seem necessary. Am I wrong?
Anyway, here are some other relevant sources: a story on the HLR internal study a decade ago and some of the more recent coverage on Shatter the Ceiling, a project meant to facilitate female achievement at the Law School.
Sunday, September 22, 2013
FSU Law Review Exclusive Period Begins for Fall 2013The Florida State University Law Review will be conducting exclusive fall article reviews over the next few weeks. Any article submitted to this exclusive review between now and October 1st will be evaluated by October 8th. By submitting the article you agree to accept an offer for publication should one be extended. Any articles accepted through this review will be published in our fourth issue, which is slated for publication in summer of 2014.
If you have an article you would like to submit, please e-mail Sean Armil a copy of the article and your CV at email@example.com with the subject line "Exclusive Fall Article Review." We look forward to reading your submissions.
Monday, September 02, 2013
Happy Labor Day all!
I've been off the box the last few days with my boys at St. George's Island so forgive me for not having posted this earlier, but let me welcome three new voices to the conversation this month: Margaret Ryznar (Indy U--Indianopolis), Colin Starger (U-Baltimore), Mark Roark (Savannah). Let me also thank our August guests, some of whom will linger a little while.
Hope the transition into the academic year (and for those observing, the Jewish new year this week) is a sweet and healthy one, filled with love and laughter, passion and peace.
Wednesday, August 28, 2013
Chris Edley stepping down: refuah shlemah!
Haven't heard much news about this, so thought I'd share it. My former ad law professor, Chris ("Hugs and Kisses, the Agency") Edley is stepping down from the deanship of Berkeley Law after 9 years. Chris has some medical issues related to cancer that I hope resolve themselves quickly and completely (he seems as cheerful and optimistic as ever from the press release here). Gillian Lester will be the interim dean and Berkeley will be added to the list of schools undergoing a dean search this year. If they're smart, they'll surely consider/hire the object of my abiding bromance :-)
In the meantime, join me in warm wishes for a speedy and complete recovery to Chris and his family.
Tuesday, August 06, 2013
The Angsting Thread (Fall 2013 Submission Cycle Edition)
Friends, I have it on good authority that Redyip is not yet visible but he is making preparations for his journey this autumn. You know what that means. Feel free to use the comments to share your information (and gripes or praise) about which law reviews have turned over, which ones haven't yet, and where you've heard from, and where you've not, and what you'd like Santa to bring you this coming Xmas, etc. It's the semi-annual angsting thread for the law review submission season. Have at it. And do it reasonably nicely, pretty please.Oh, one last thing: if you're bored while waiting for him to fly, Redyip whispered to me that y'all should feel free to read and send comments on this little paper.
Thursday, August 01, 2013
Intro from New Guest Blogger Seema Mohapatra and SEALS Roundtable on Reproductive Rights and Class
I am excited to be here this month at Prawfs. Thanks to Dan for giving me this opportunity to convert from avid Prawfs reader to guest blogger. A brief intro: I teach Torts, Health Law, and Business Organizations at Barry University Dwayne O. Andreas School of Law in Orlando, Florida. I am currently working on a project on the importance of trust in the public health regulation of tobacco, and I just completed an article on reproductive justice in oncofertility, both of which I plan to blog about this month. My prior work has focused on various areas of biotechnology and how they intersect with race, gender, class, and ethics. I am looking forward to a dialogue on some of these issues this month.
I also had to plug my session at SEALS this weekend, and I encourage those of you who will be in Palm Beach to consider attending the Roundtable, organized by Rachel Rebouche and Naomi Cahn, on “The Intersection of Reproductive Rights and Class,” which will take place at 3 pm on Sunday August 4th. First, Susan Appleton, June Carbone, Naomi Cahn, Jody Madeira, April Cherry, and I will be discussing issues related to class, inequality, and assisted reproductive technologies. Then, Rachel Rebouche, Jeffrey Parness, Elizabeth Sepper, and Mary Ziegler will be talking about topics related to reproduction, parentage, and inequality. It should be a fascinating, interactive session -- and yes, worth leaving the beach for!
Happy August 1st! That means it's almost a holiday in the motherland, and I'll soon be eating Ontario tomatoes, apple pie, and sweet corn in a couple weeks. Yum.
With the new month, we have some rotations to announce as usual. Joining us for the first time are Veronica Root (Notre Dame) and Seema Mohapatra (Barry Law). And returning to the conversation are Kurt Lash (Illinois); Brian Galle (BC Law); and, for an extended visit about which she'll tell us in her posts, Robin Effron (Brooklyn LS).
Welcome all of you. And many thanks to our great July visitors. We hope to see you very soon!
Friday, July 26, 2013
Michelle Meyer en fuego (updated twice!)
I have deep affection for TNR (though I find the new regime prone to putting out more fluffy stuff in the magazine). What's more, I also like a lot of what I've read of Richard Thompson Ford's work before. But this non-correction correction is pretty embarrassing. Richard Thompson Ford's piece on the Zimmerman verdict was marred by some critical errors and inferences on the facts, which were brought to the editors' attention (and possibly his?), and I would think all the parties involved would want a real correction and not, as Michelle puts it ably, a correction that works a "double-down" on misleading information in a charged matter.
Oy, it just gets worse (again Jonathan H. Adler is on the case): "The article has been revised again. Now the statement reads: “Zimmerman was an edgy basket case with a gun who had called the police 46 times in 15 months.” This is still inaccurate, as the calls were made over several years, not 15 months. Moreover, the additional corrections are not noted in the editor’s note at the bottom."
Update 2: TNR editors have largely come to their senses. They have now further corrected the false facts entirely and acknowledged the stream of errors in the latest version, but they still leave in Ford's pejorative claims that Zimmerman was an "edgy basketcase," when the whole basis for that claim in the original sentence has been undermined. Maybe I'm wrong but a neighborhood watch guy who calls 46 times over 8 years is not, on those facts alone, enough to make him an "edgy basketcase." You'd have to be relying on other evidence, presumably from something else besides the night Trayvon Martin was unfortunately killed, to reach that inference.
Friday, July 05, 2013
Justice Kagan for Emperor
(She indicated that she reads Scotusblog, Volokh Conspiracy, and How Appealing, and some other things, including things law professors write. I take that as code for her devotion to reading Prawfsblawg too. So in case she's reading, hope you're enjoying your summer, Madame Justice.)
Yes, I heart Elena.
Wednesday, July 03, 2013
Welcome: Obscure FootnotesObscure Footnotes is a new prose blog by the author of Supreme Court Haiku.
Delinquent by Reason of Poverty
Many thanks to Dan et al. for welcoming me into the fold. By way of introduction, I've had a somewhat unorthodox route to legal academia, having practiced as a public defender for a decade (on both the state and federal levels), then starting on the clinical track here at the University of North Carolina at Chapel Hill in 2004, only to switch to tenure track and (gratefully) receive tenure last year. I'm currently serving as interim director of clinical programs, adding a variety of administrative duties to my plate. As a result, my perspectives on legal education, scholarship, and related matters may be different than some. I hope to touch on these topics during the month, but mostly I'll be exploring the issues that I'm particularly passionate about -- juvenile justice policy and reform, indigent criminal defense, and the criminalization of poverty. About a year ago I started my own blog focusing on these areas, which you may check out here.
For now, I'll introduce a question that I've been struggling with ever since I first started practicing in juvenile delinquency court nearly ten years ago -- why is it that most of the children in the juvenile justice system are poor? Why are they nearly all from families that are living at or below the poverty level? As a parent of adolescents, I know that it is surely not because kids from low-income families are the only ones who violate the law, as my own (relatively well-behaved) daughters have committed many of the same types of very minor assaults, larcenies, and disorderly conduct offenses that have led to my young clients being criminally charged, ending up with delinquency records and (sometimes) detained. I also have come to conclude, based both on my own practice experiences as well as longitudinal studies of children exposed to juvenile court, that when kids are processed through the system, the impact is not benign -- even when the disposition is arguably beneficial. Instead, the research shows that these children have higher rates of recidivism and are stigmatized in the process. In addition, potential negative consequences of juvenile delinquency adjudications may be seen in such areas as housing, employment, immigration and higher education as well as enhanced penalties for future offenses.Although much has been written (both in legal scholarship and the popular press) about the disproportionate representation of children of color in the juvenile and criminal justice systems, very little has been said about the disproportionate representation of poor children. While few juvenile courts formally keep track of the income-level of a youth's family, jurisdictions that do have confirmed that nearly sixty percent were either on public assistance or had annual incomes of less than $20K. Another twenty percent had incomes of less than $30K. In my practice, I've had the opportunity to experience this first-hand, as one of the counties in which I practice has an overwhelming majority of children who are black and brown in its juvenile courtroom, while the other has a more significant population of white juveniles. While the numbers show that children of color are disproportionately represented in both judicial districts, they also reveal that the common denominator across the board is socioeconomic status, not race or ethnicity.
In a law review article that came out in 2012 (and in several op-eds and other commentary I've published since then), I attempted to answer the question why. Why is it that poor children are arrested, charged and prosecuted at higher rates than children of means? Why are fewer poor children diverted from the juvenile court system than wealthy children? Why does the standard of proof at trial often seem to depend on the socioeconomic level of the child's family? Why do so many poor children violate the terms and conditions of their court-imposed probation? Why are so few middle- and upper-class kids sent to detention? The short answer is that the traditional focus of juvenile court on the needs of destitute youth (something I call, "needs-based delinquency") is a phenomenon that continues to be perpetuated through the structure and culture of the modern juvenile court and that the most common points of entry into the delinquency system (the child welfare system, public schools, retail stores, and neighborhood police) target poor children rather than ones of means. The long answer is contained (at least in part) in this first article, which will be elaborated upon in subsequent work, including a new piece focusing on the juvenile court intake process that I'll discuss in another post.
I welcome your comments.
Monday, July 01, 2013
Rotations and Happy Canada Day
July 1 is a special day for us--at least me, Paul, Glenn Cohen, Rob Howse and the innumerable Canadians stalking this website with some frequency. It's the day we celebrate the birthday of the country we have left with some degree of trepidation and glee.
It's also the start of the new month, and so we welcome a few new voices to this conversation. Joining us for the first time is Tamar Birckhead (UNC); Gregg Macey (Brooklyn Law); Frederick Vars (U of Ala.); and Jonathan Witmer-Rich (Cleveland-State). Josh Douglas (UKY) and Jack Chin (UCDavis) seem to be in the mix too, and you can expect an elongated stay from Will Baude, and a slightly longer stay from some of the other June guests who are just catching their breath from last week's SCOTUS action.
So, welcome, new friends. I am delinquently putting together the schedule for the balance of 2013 now, so please email me if you're a prawf who wants to return (or join) the rotation. Thanks!
Thursday, June 27, 2013
Off the Rails?!
"The conservative justices really are very, very conservative. I had up until now pooh-poohed liberal constitutional law professors and journalists who argued that the court had gone off the rails. Mea culpa."
Posner fils, for the win.
Friday, June 21, 2013
Calibrating Progress in the Economy of Prestige? Do Prawfs Have Adequate Awards?
The culture of prestige-mongering is one in which many of us participate, wittingly or not. Now comes an email from the provost of FSU stating that FSU is planning on trying to incentivize and reward achievements in various disciplines through various raises, etc. From what I can tell, the school seems to be inclined to follow the National Research Council's list of awards, available in spreadsheet form here.
I took a peek at the Humanities and Social Sciences spreadsheets and saw only a few things that would be of interest to conventional law profs. If you were to write the provost, what would you suggest as awards or achievements that belong on those spread sheets for law profs? FWIW, I am not here endorsing the economy of prestige but just want to marginally improve its plausibility viz prawfs. So please forbear from generalized kvetching about status anxiety. For purposes of this post, indulge it. And if you're having trouble brainstorming a list of awards and prizes (as I am), what should be done about it and who should do it?
A first offer: Law and Society has a bunch of prizes, and AALS has its scholarly paper award for young folks. What else belongs? Stanford-Yale invitations? ACS or Fed Soc Bator Prizes? LAPA fellowships at Princeton?
Wednesday, June 19, 2013
Do legal blogs still matter?Al Brophy asks the question at Faculty Lounge. Answer there or here (or both).
Tuesday, June 18, 2013
Libel Law, Linking, and "Scam"
Although I'm a little late to the party in writing about Redmond v. Gawker Media, I thought I'd highlight it here because, though lamentably unpublished , the decision has interesting implications for online libel cases, even though the court that decided it seems to have misunderstood the Supreme Court's decision in Milkovich v. Lorain Journal.
Redmond involved claims against "new media" company Gawker Media based on an article on its tech blog Gizmodo titled Smoke and Mirrors: The Greatest Scam in Tech. The article criticized a new tech "startup," calling it " just the latest in a string of seemingly failed tech startups that spans back about two decades, all conceived, helmed and seemingly driven into the ground by one man: Scott Redmond." The article further suggested that Redmond, the CEO of the new company, used “technobabble” to promote products that were not “technologically feasible” and that his “ventures rarely—if ever—work.” In other words, the article implied, and the title of the blog post stated explicitly, that Redmond’s business model was a “scam.” Redmond complained to Gizmodo in a lengthy and detailed email, and Gizmodo posted Redmond's email on the site. Regardless, Redmond sued Gawker and the authors of the post for libel and false light. Defendants filed a motion to strike under Califonia’s anti-SLAPP statute. The trial court granted the motion, and the California appellate court affirmed.
Unsurprisingly, the appellate court found that the Gizmodo article concerned an “issue of public interest,” as defined by the anti-SLAPP statute, because Redmond actively sought publicity for his company. The court described “the Gizmodo article [as] a warning to a segment of the public—consumers and investors in the tech company—that [Redmond's] claims about his latest technology were not credible.” This part of the decision is entirely non-controversial, and the court's interpretation of "public interest" is consistent with the goal of anti-SLAPP laws to prevent libel suits from being used to chill speech on matters of significant public interest.
More controversial is the court's determination that Gizmodo's use of the term “scam” was not defamatory (and thus Redmond could not show a probability of prevailing). The court noted that “’scam’ means different things to different people and is used to describe a wide range of conduct;” while the court's assertion is correct, surely at least one of the "different things" that "scam" can mean is defamatory. [For a similar statement, see McCabe v. Rattiner, 814 F.2d 839, 842 (1st Cir. 1987) ]. While the term "scam" is usually hyberbole or name-calling, in some contexts the term acts as an accusation of criminal fraud, especially when accompanied by assertions of deliberate deception for personal gain. However, the court found that "scam" was not defamatory as used in the Gizmodo article, relying heavily on the fact that the authors gave links to “evidence” about the fates of Redmond's prior companies and his method of marketing his new one. The court concluded that the statement that Redmond's company was a “scam” was “incapable of being proven true or false.”
It is clear that the court's categorization of the statements about Redmond as “opinion rather than fact” relied on online context--both the conventions of the blog and its linguistic style. The court asserted that the article contained only statements of opinion because it was “completely transparent,” revealing all the “sources upon which the authors rel[ied] for their conclusions” and containing “active links to many of the original sources.” Technology-enabled transparency, according to the court, “put [readers] in a position to draw their own conclusions about [the CEO] and his ventures.” The court also stressed the blog's “casual first-person style." The authors of the article, according to the court, made “little pretense of objectivity,” thereby putting “reasonable reader[s]” on notice that they were reading “subjective opinions.”
As attractive as this reasoning is, especially to free speech advocates and technophiles, one should read the Redmond decision with caution because it almost certainly overgeneralizes about the types of "opinion" that are constitutionally protected. The Supreme Court's 1990 decision in Milkovich v. Lorain Journal clearly and forcefully indicates that a statement is not constitutionally protected simply because a reader would understand it to reflect the author's subjective point of view. Instead, the Milkovich Court held that a purported "opinion" can harm reputation just as much as explicit factual assertions, at least when it implies the existence of defamatory objective facts. Hence, the Court declared that the statement "In my opinion Jones is a liar" can be just as damaging to the reputation of Jones as the statement "Jones is a liar," because readers may assume unstated defamatory facts underlie the supposedly "subjective" opinion. Moreover, even if the author states the underlying facts on which the conclusion is based, the statement can still be defamatory if the underlying facts are incorrect or incomplete, or if the author draws erroneous conclusions from them. The Court therefore rejected the proposition that defamatory statements should be protected as long as it is clear they reflect the authors' point of view, or as long as they accurately state the facts on which they are based. [This analysis is freely borrowed from this article at pp. 924-25, full citations are included there.]
Posted by Lyrissa Lidsky on June 18, 2013 at 03:24 PM in Blogging, Constitutional thoughts, First Amendment, Information and Technology, Lyrissa Lidsky, Torts, Web/Tech, Weblogs | Permalink | Comments (2) | TrackBack
Friday, June 14, 2013
Signing Off, Thanks, and Call for Applications for Petrie-Flom Fellowship
Thanks to the Prawfs' gang for letting me blog this past month. Thanks also to the commentators for their insights. There was a nice symmetry in that I started this stint with the oral argument discussion of my brief for Eric Lander in the Myriad gene patent case, and the decision came yesterday along the lines we urged the court to follow. I will sign off by mentioning that my Center at Harvard, the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, has just opened our call for academic fellows for the 2014-2015 year. Here is the call:
PURPOSE: The Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics is an interdisciplinary research program at Harvard Law School dedicated to scholarly research at the intersection of law and health policy, including issues of health care financing and market regulation, biomedical research and innovation, and bioethics. The Academic Fellowship is a postdoctoral program specifically designed to identify, cultivate, and promote promising scholars early in their careers. Fellows are selected from among recent graduates, young academics, and mid-career practitioners who are committed to spending two years at the Center pursuing publishable research that is likely to make a significant contribution to the field of health law policy, medical innovation policy, or bioethics. Our prior fellows have found employment as law professors at institutions such as Harvard, UC Berkeley, BU, UCLA, Cornell, the University of Illinois, and the University of Arizona. More information on the Center can be found at: http://www.law.harvard.edu/programs/petrie-flom/.
PROGRAM: Petrie-Flom Academic Fellowships are full-time, two-year residential appointments starting in the summer of 2014. Fellows devote their full time to scholarly activities in furtherance of their individual research agendas. The Center does not impose teaching obligations on fellows, although fellows have often taught a seminar on the subject of their research in the Spring of their second year. In addition to pursuing their research and writing, fellows are expected to attend and participate in research workshops on health law, bioethics, and biotechnology, and other events designated by the Center. Fellows are also expected to help plan and execute a small number of events in their field of expertise during their fellowship, and to present their research in at least one of a variety of forums, including academic seminars, speaker panels, or conferences. The Center also relies on fellows to provide opportunities for interested students to consult with them about their areas of research, and to directly mentor our Student Fellows. Finally, fellows are expected to blog periodically (about twice per month) on our collaborative blog, Bill of Health: http://blogs.law.harvard.edu/billofhealth/
STIPEND AND BENEFITS: Fellows have access to a wide range of resources offered by Harvard University. The Center provides each fellow with a private office, a research budget, options for health insurance, and a stipend of $5,000 per month.ELIGIBILITY: By the start of the fellowship term, applicants must hold an advanced degree in a discipline that they intend to apply to issues falling under the Center’s umbrella. The Center particularly encourages applications from those who intend to pursue careers as tenure-track law professors, but will consider any applicant who demonstrates an interest and ability to produce outstanding scholarship at the intersection of law and health policy, bioethics, or biotechnology during the term of the fellowship.
Thursday, June 06, 2013
If You Don't Like Prisons That Much, Then Why "Let Judges Be Judges?"
One of my ongoing concerns about many in the academy's infatuation with individualized sentencing and the preservation of substantial judicial discretion when it comes to sentencing is that there is a tendency to obscure what judicial discretion will do. Lots of folks complain about how structured sentencing (particularly in the Fed system) means that prosecutors now run the show and that judges are less powerful than they were (or would be) in indeterminate (fully discretionary) sentencing regimes. Lots of these academic voices, however, are pretty lefty/libertarian/pro-defendant/anti-mass incarceration (pick one or more of these). The problem as I see it is that the presence of substantial judicial sentencing power will often lead to stiffer sentences, not more lenient ones. That's because prosecutors and defense lawyers often bargain away charges, facts, etc, and by not sharing the existence of those facts/charges, the sentencing judges are left to defer to the deals struck by the insider repeat players. But when judges have concerns that these deals are being struck in a way that's anti-retributive or bad for public safety, they often want to have the information that would allow them to impose LONGER sentences. In sum, I bet that the more judicial discretion there is, and the more information judges have, the longer the sentences will be.
This is, of course, an empirical hypothesis, and happily, there is some good empirical support for the proposition I'm noting. Kevin Reitz wrote a fantastically important and understudied piece in the Texas Law Review showing, among other things, that states with indeterminate sentencing have among the highest rates of incarceration.
But anecdotally, you need a good story to see this dynamic, and Doug Berman's Sentencing blog has the story you need to see this. As the story goes, Judge Stephanie Rose on the fed bench in Iowa is excoriating the federal prosecutor's office for not disclosing more information about defendants that would lead to stiffer sentences. To my mind, this is an illuminating example of a much larger problem. Normatively, of course, indeterminate/discretionary sentencing doesn't have to lead to higher punishment levels necessarily, but it shouldn't be suprising that the contingent forces tend to work in that way.
--One last note. I've been watching The West Wing on Netflix while working out for the last few weeks, and I noticed that, at one point in one of the episodes, late Season 1 or early Season 2, Aaron Sorkin/Jed Bartlet seemed to think that empowering judges with substantial sentencing discretion was an obviously attractive thing to do from the liberal political perspective of the Bartlet presidency. I found this, um, unconvincing, notwithstanding my general intoxication with the show.
Monday, June 03, 2013
Happy June 3d. Because of LSA and other obligations, I'm a bit late in posting this, but I wanted to thank our May contributors and welcome our friends who will be joining us for June.
Please welcome Addie Rolnick (UNLV); Eduardo Penalver (U of Chicago); Jeff Lipshaw (Suffolk); Darrin Rosenblum (Pace); Will Baude (Stanford); and Cynthia Godsoe (Brooklyn).
Some of our guests from May may linger a few days but let's hope we see them around here again soon.
Finally, on the heels of a terrific weekend of intellectual exchange, let me offer a public word of thanks to my partner in crime, Carissa Hessick, for bearing the brunt of the work in organizing a really great gathering of folks for our 5th Annual Shadow Crim Prof Conference at LSA. Thanks Carissa!
P.S., as you may know, we're also hosting a series of intermittent posts from John Pfaff and Doug Berman, and they deserve to be acknowledged and thanked for their excellent contributions.
Wednesday, May 01, 2013
Happy May Day all!
For our new month, I'm delighted to welcome a band of new but familiar voices to the conversation this month: Jack Chin (Davis), Nancy Leong (Denver), Jake Linford (FSU), Glenn Cohen (Harvard); Jessie Hill (Case Western); Michael Helfand (Pepperdine), and here for the first time, Lisa Tucker McElroy (Drexel).
Some of our April guests may still be lingering, but please join me in thanking them for all their contributions. We look forward to seeing you again soon, and we're glad you could celebrate our 8th Anniversary with us this month.
Mark your calendars for Law and Society, which is coming up in Boston at the end of May. We'll be having our annual Prawfs and friends Happy Hour on Saturday, June 1, at 9pm, location to be announced.
Tuesday, April 23, 2013
"The Blogger as Public Intellectual": A fun conversation with Paul Horwitz
Notre Dame's Institute for Advanced Study is hosting this week an interesting conference on "public intellectuals" and, this morning, the featured paper was from our own Paul Horwitz, whose topic was "The Blogger as Public Intellectual." (For one blogospheric reaction to his presentation, go here.) Paul was, as per usual, interesting and thoughtful, and I hope he'll post his paper, or a summary of it, soon.
I was the "commenter" (or "commentator"?) who followed Paul and I spent most of my time talking about and reflecting on my experience with my "other" blog, "Mirror of Justice." And, here's some of what I said:
What “stand outs” in my mind, about the “Mirror of Justice” effort – in addition to its relatively distinctive subject-matter – is that it is both a “group” blog and one whose contributors disagree strongly about a lot of pretty important things . . .
Our hope, when we started – and when we very deliberately assembled Catholic law professors from a variety of disciplines and from across the political spectrum – was the same one that University admissions officials cite when they do their work, namely, that the diversity would enrich the conversations that took place. It did, and it has . . . but we’ve also fought a lot . . . Our arguments are, almost always, fairly regarded as “fights among friends”, but they happen “in front of” strangers, which is a bit unsettling (at least for me). They flare up and are resolved “in public” – the sharp elbows are thrown, and the sincere apologies extended, “in public.”
And so, over the years, I’ve come to think of our role less in terms of “providing for the world a coherent Catholic legal theory”, and also less in terms of contributing to (or imposing on) the world various pieces of “public intellectualism.” Instead, . . . I’ve tended to think about what we do more in terms of “modelling.”
It seems to me that what we provide, or offer (or fail to provide or offer) to readers is not so much the discrete work product of a dozen “public intellectuals” as a conversation – an illustration or example – that is, depending on the day, more or less edifying and productive. When I’m blogging now (and this was not always true), I’m thinking not so much of “my own” readership, the way I might if I were a regular columnist for the Washington Post, as I am of my students, and my fellow bloggers’ students, who might be thinking hard about what it means to have a vocation in the law and to aspire to integrate that vocation with one’s religious faith and traditions.
Whether we on the blog are talking or arguing about the election, or immigration reform, or the philosophical anthropology underlying and animating the law of torts, I find myself these days thinking less about the importance of persuading as about the “way the conversation is going.” Don’t get me wrong: My fellow bloggers and I have views (often strong views) and we all want, I am sure, for those who disagree with us to yield to our superior arguments. (We’re lawyers, after all.) Still, and without being too polly-annish or precious, I have found myself in recent years more focused on the community-building and community-maintenance dimension of my blogging than on its evangelical or propagandizing aspects.
I hope no one thought or thinks that my point was that MOJ is somehow more of a "community" than is Prawfs or other group blogs -- that's not it. It was, instead, just that my own experiences over there have, over the years, prompted me to think differently about the blog's "mission" and about what I'm doing over there, and maybe over here, too ("albeit in a boring way until recently"). I have to admit, I worry more about the times I fall (well) short in terms of the "modelling" thing than I do about whether or not X reader changes his or her mind after reading my 143rd post on the ministerial exception!
Monday, April 22, 2013
Comments: Spam and not-Spam
Not exactly sure why, but a bunch of legit comments are being caught in our spam filter, and if I can figure out why, it's because a lot of them have a url in the text of the comment. My advice to you is that if you need/want to include a URL in your comment, and you're finding that your comment is getting caught up in our spam filter, then drop me a note and I'll try to get the comment up. Perhaps unsurprisingly, given our dislike of anon comments, we will prioritize signed comments, as we do generally. Thanks and sorry for the inconvenience. Happy Earth Day.
Monday, April 08, 2013
Belated congrats are in order to fellow canuck, Trevor Morrison, who blogged here during our first year, and is soon to be dean at NYU Law, the home of many other distinguished Canadians hiding in the US. I suppose one could say that this appointment makes Trevor either, um, the most distinguished or unluckiest person in the long line of Prawfs alumni. Viewed through the wandering eyes of POTUS, however, it's clear Trevor is "by far, the best looking dean... It’s true! C’mon."
Monday, April 01, 2013
Rotations and Anniversary
Happy April 1st.
The new month brings us new guests, and this month I'm excited to welcome back a band of veterans: Michael Risch (Villanova); Adam Kolber (Brooklyn); Andy Spalding (Richmond); Geoff Rapp (Toledo); and Chad Oldfather (Marquette). In the meantime, please join me in thanking our March friends, some of whom will be lingering as they get a few remaining posts off their desk.
I hope everyone has had a happy spring break, Passover, Easter, or otherwise appropriate transitional holiday.
I'm also thrilled to note that this week marks the onset of the 8th Anniversary of PrawfsBlawg, aka prawfs.com. Sheee--it, well, how did that happen? Well, it couldn't have happened without the fantastic contributions of the permaprawfs, the guests, and the commenters who make this space a special blend of challenging and inviting, at least most of the time :-) Thanks for playing along with us.
Saturday, March 09, 2013
For K PrawfsAs you may have seen, the Washington Law Review is preparing to host a print symposium in December 2013 on the new contracts book, Contracts in the Real World: Stories of Popular Contracts and Why They Matter, by Prof. Lawrence A. Cunningham of GWU. Before the symposium, participants are interested in learning from contracts professors around the country. The purpose of this survey is to gather information about the material being taught in contracts classes, and the advantages and/or deficiencies of the approaches taken by current contracts textbooks. If you're a K prawf, please take the WLR online survey by April 15.
The comments section at The Faculty Lounge is awash in comments accusing several prominent law bloggers of working together to "out" people who comment anonymously or pseudonymously on TFL and other blogs. (The brouhaha is broader than that, actually, but I'm not going to repeat what appears to be a sordid mess).
I'm interested in a narrower point (one also raised by regular Prawfs reader Bruce Boyden in TFL comments): A few comments over there have suggested that these bloggers have done something unlawful in passing along and/or using email addresses and other information to identify the unknown commenters. Is that right? Is it unlawful for the administrator of a noncommercial blog to disclose the identities of anonymous/pseudoymous commenters, when that disclosure is for noncommercial purposes? And if so, what source(s) make it unlawful? One suggestion was FTC regulations; but can the FTC regulate non-commercial speech?
Please note: I am asking this because I genuinely want to know; I hope anyone who actually has an answer will respond to the question in that spirit, without tangents about how ignorant or evil I am because I teach in a law school.
Update, March 11: The permanent TFL bloggers posted a statement on the blog asserting that none of them has ever disclosed identifying information about a commenter to any third party and that none of them has any basis to believe that any guest blogger has disclosed such information. I would hope that this would be the end of this kerfuffle (as Bruce called it at Madisonian), since it responds directly to the question several commenters had put to Dan. But at least some of the early comments suggest some people are not fully satisfied. Actually, the run of comments in the first several hours shows a small cadre of loud commenters who are unsatisfied. Oh, well. The denial of a conspiracy ought always to be taken for the strongest evidence of a conspiracy.
Tuesday, March 05, 2013
It's official. Being a Markel(l) is a BFOQ at FSU.
As Brian noted over at his blog, Florida State now has Judge Bruce Markell joining our law faculty come this summer. With myself and Dave Markell already, our new addition ensures (so far as I know) that we have a monopoly on the legal academics named Markel(l). While we all pronounce it the same way, we have no reason to think we're actually related. Still, prior to extending Judge Markell an offer, we considered making the offer conditional on Bruce adding a 3d L to his last name, but we decided to go crazy and let him keep it as is.
Given that we have a small faculty of about 30 folks, it's a bit weird admittedly. But as I understand it, there are 3 Kelly type last names at Notre Dame and 3 Kennedy's at HLS. And of course, there are 3 Weinribs at U of Toronto (but they're all related). Anyone know of other nominal clusters?
Friday, March 01, 2013
Happy March 1!
With the new month, it's time for us to say au revoir to our excellent February guests and welcome our new voices for March. Joining us will be a great group of returning friends of the blog: Doug Berman (OSU, sentencing guru); Lior Strahilevitz (Chicago); Debbie Borman (Northwestern); Michael Waterstone (Loyola LS-LA) and Emily Gold Waldman from Pace. Welcome to you all!
Saturday, February 23, 2013
Scholarship and Indemnity Clauses by the Law Reviews
I'm on the AALS Scholarship Section exec board for some reason, and in that capacity, I recently rec'd a great email from Donald Tobin, the associate dean for faculty at Ohio State Law, who writes on an important but frequently neglected issue: indemnity clauses in law review agreements. Specifically, he wrote the following:
I think there is a growing and real problem with law reviews requiring authors to sign indemnity clauses. These clauses require authors to indemnify the journal and university from any costs associated with lawsuits, including, in some cases, costs associated with frivolous cases. The problem with these types of clauses is that they impact the most vulnerable of our faculty and also those writing in controversial areas including human rights, minority rights, equality, etc. I have just finished trying to help one of my faculty members negotiate one of these releases. We came across the following problems:
1) While Universities will defend faculty members who are sued based on their scholarship, many Universities will not indemnify other institutions. For example, the State of Ohio prohibits its institutions from indemnifying other institutions.
2) Insurance protection does not work. I looked at whether the faculty member could purchase insurance through AAUP. The insurance company indicated that it would defend the faculty member, but would not make payments under an indemnity clause.
3) The faculty member is thus stuck. We are placing the burden on the people least able to bear it. From the university to the faculty member and the faculty member has no means of protecting herself.
4) Journals sometimes say, Don't worry; suits are unlikely. But if the suits were so unlikely...why shouldn't journals bear that risk?
5) Journals might also say: the author has the most control to determine if they are committing a tort. But there is no protection for frivolous suits or for suits generated for political reasons.
6) These indemnity clauses, I am led to believe, were standard. I did not think that was the case but I have a list of a number of top journals that had similar clauses.
7) Finally, I was told that the AALS model agreement had an indemnity clause – and it does. So we as an institution are contributing to this mess.
To me, this is what institutions do. They protect academic freedom and they should shoulder the burden of dealing with frivolous suits. They should not then seek payment from an author. It might be different if the author did something wrong – like plagiarized – but the idea that in general authors are on the hook seems very wrong to me. As an institution we should either discourage these types of provisions or we should obtain some type of group insurance that either authors or institutions can buy for protection. When I spoke about this at AALS, most people were unaware of these provisions and there is some indication that even as lawyers we just sign these things, but they pose a real problem for some of our most vulnerable colleagues. Here is a link to a model agreement containing an indemnity clause: http://www.aals.org/deansmemos/98-24.html
The AALS agreement is better than the one my faculty member was asked to sign because it at least doesn’t put the author on the hook for frivolous claims, but it still requires an author to pay the judgment and attorney’s fees.
Thanks for that Donald. So, what is to be done? A collective response by the associate deans for scholarship at the top law schools or even better, more generally, would be helpful. Of course, indemnity clauses are just one obnoxious aspect of law review agreements. Copyright assignments are typically the other!
Thursday, February 14, 2013
Curbing Our Enthusiasm: Do We Need Conservative Chaperones at the Progressive Party?
My friend Peter Berkowitz, a scholar at Stanford’s Hoover Institution, has written a self-help book for conservatives. In Constitutional Conservativism, just published by Hoover’s own press, Berkowitz argues that conservatives can regain coherence and relevance as a political force through repositioning themselves as the voice of moderation and restraint in public life. But, rightly, Berkowitz insists that conservatives need first to moderate themselves in order to claim justly that they can counterbalance the supposed excesses of progressivism. Thus, to stake the territory of moderation, conservatives must abandon “the attempt to dismantle or even substantially roll back the welfare and regulatory state” and “refrain from attempting to use the federal government to enforce the traditional understanding of sex, marriage, and family.”
This may seem like just another pitch that the Republican Party ought to recapture the political center. But Berkowitz grounds his argument in a conception of conservativism (and progressivism) that he finds, above all, in Edmund Burke. He may well overestimate the extent to which Burke’s attack on the fanaticism of the French revolutionaries can be applied to American progressives. But in rather anti-Burkean fashion, Berkowitz tells American conservatives that they need to get a theory before they can get moderation, whereas Burke himself tended to identify political theory with political immoderation. Of course, Burke was theorizing in his very attack on theory, and awareness of this paradox permeates the fine, illuminating treatment of Burke’s ideas in Constitutional Conservativism.
According to Berkowitz, the moderation taught by Burke consists in an awareness of the human costs and risks involved in violently breaking with tradition, of seeking perfection rather than reasonable improvement in laws and society, and of being unwilling to tolerate compromise, error and even an element of abuse and injustice in political life. But to be true to his own objection to the universalism of theory (and Berkowitz notes this) Burke has to admit that there are times and places where only sweeping change or radical upheaval can establish or re-establish a healthy polity (“as a last resort”). Is it possible that the New Deal and the Sixties (where the standard conservative narratives most liken American progressives to Burke’s Jacobins) were two such moments of necessary transformative politics? And transformative politics inevitably gives rise to hopes that cannot fully be satisfied, to expectations that will be not met. As Tocqueville observed, “the generation that witnesses the end of a great revolution is always anxious, discontented and sad.” Was the retrenchment represented by Reaganism in the US built so much on a conservative legacy of political moderation as on the exploitation, in various ways, of post-Sixties depression or disappointment? The question is whether and how one distinguishes political moderation from mere disillusionment with political idealism.
Berkowitz, who, cautions against viewing compromise as an end in itself, does not want to dispense with political idealism. He is only against conservative political idealism. While admirable as personal values or social norms, respect for private property, free enterprise, the traditional family, piety etc., are nevertheless not themselves suitable as political ideals. It is just that they are useful if not indispensable for checking or moderating progressive political idealism when it veers too far in the direction of overbearing governmental bureaucracy or secular social engineering. In sum, conservatives are valuable because they know too much of a good thing when they see it. And that means that progressivism is, in fine, a good thing.
But is it correct that we progressives need conservatives as our chaperones? Though reviled by conservatives, were not FDR and more recently Ted Kennedy masters of compromise and coalition-building, knowing when to push forward and when to back off? And what of Bill Clinton? The jury is out but I venture Obama will prove no slouch either as a practitioner of prudent progressivism.
As for theory, there is a strong case that the progressive Montesquieu is a sounder source of political moderation for progressives than any conservative thinker. This suggestion is supported by Berkowitz’s own turn in his argument from Edmund Burke to the framers. Those (according to Berkowitz) consummate practitioners and expounders of political moderation were also, and especially the greatest of them, revolutionaries—establishing, in most un-Burkean fashion, a constitutional order on the rights of man and the abstract principles of self-government.
And they were students of Montesquieu. As noted, Berkowitz has difficulty articulating any independent political ideal or value for which moderation stands-he is constantly presenting it as a negative principle of necessary constraint or limitation on excess. But Montesquieu’s grounding of political moderation in gentleness and unprejudiced understanding does connect moderation to a positive conception of human goodness. I venture that Montesquieu comes closer to the spirit of Berkowitz’s idea (and to Peter as I know him as a person, I might add) than Burke’s idealization of the actual, which, as Leo Strauss very perceptively noted in Natural Right and History, points toward that fateful replacement of G-d by History on which the worst excesses of left and right in the last century were built.
Wednesday, February 13, 2013
The Angsting Thread (Law Review Edition, Spring 2013)
Friends, the time has come when Redyip is visible. You know what that means. Feel free to use the comments to share your information (and gripes or praise) about which law reviews have turned over, which ones haven't yet, and where you've heard from, and where you've not, and what you'd like Santa to bring you this coming Xmas, etc. It's the semi-annual angsting thread for the law review submission season. Have at it. And do it reasonably nicely, pretty please. Maybe Redyip will even tweet a little this spring.
Update: here is a link to the last page of comments.
Friday, February 01, 2013
With the new month, I'm thrilled to welcome for the first time a few new voices to our conversation here: Josh Douglas (Kentucky), Eric Miller (SLU), and Michelle Zakarin (Touro). I'm also pleased to welcome back our alums: Giovanna Shay (WNE); Bill Araiza (Brooklyn); Michael Mannheimer (NKU).
Please join me also in thanking our January guests for their great contributions. A couple may linger as they get their last posts off over the next few days.