Thursday, February 03, 2011
Arguing Angela Onwuachi-Willig's merits to the right audience
My friend and former colleague Angela Onwuachi-Willig is one of the nine finalists for three spots on the Iowa Supreme Court. Over at Concurring Opinions, Kaimipono Wenger provides "[a] few reasons) why [she] should be appointed to the Iowa Supreme Court," but it really reads like "a few reasons why Kaimipono Wenger thinks he would be happy if she is appointed to the Iowa Supreme Court":
Angela is a leading scholar on topics of racial justice and critical race theory. She is the only woman on the shortlist, as well as the only person of color.
In addition, Angela is a longstanding supporter of LGBT rights who has written eloquently in favor of marriage equality and who signed a brief supporting marriage equality in Varnum v. Brien.
Given the backdrop of the current Iowa vacancies — they are the direct result of a homophobic right-wing smear campaign — I am thrilled to see Angela’s name on the shortlist. I can think of no better way to respond to the anti-gay hate machine than to fill a court vacancy with a smart, articulate, energetic Black woman who is committed to LGBT rights — and to a principled and progressive feminist and antiracist legal philosophy as well.
Um . . . this might be the kind of argument to make to someone like Chet Culver, the Democratic governor of Iowa from 2006-2010, who while personally not supporting same-sex marriage, seemed at least to support the Varnum decision and opposed any efforts to amend the state constitution to overturn it.
However, elections matter. Culver lost his bid for re-election to Terry Branstad, a Republican former governor of Iowa from 1982 to 1998. I wasn't in Iowa at the time, but my sense from listening to my former colleagues was that he was kind of a moderate Republican. Branstad is the only audience to whom arguments about Angela Onwuachi-Willig's merits matter.
Is there reason to believe that Branstad would be positively influenced by her support for same-sex marriage -- including her signing the pro-same-sex marriage amicus brief in Varnum? Perhaps not, considering that Branstad said recently, "What the people of Iowa want is an opportunity to vote on marriage defined as one man and one woman."
For similar reasons, I do not think that Branstad will be at all moved to appoint her as a way to respond to those who booted the three Justices for supporting Varnum. Nor does it seem like a good way to advocate for her by noting that she is committed "to LGBT rights — and to a principled and progressive feminist and antiracist legal philosophy." Antiracist legal philosophy? It strikes me that denying any room for reasonable minds, as Professor Wenger does, to disagree on legal issues by characterizing anyone who disagrees as racist is not a persuasive tactic, especially when you're calling out some (not all) of Branstad's supporters -- and hence, in a sense, Branstad -- as racist.
Moreover, while Professor Wenger is free himself to characterize the opposition to the Varnum decision as "a homophobic right-wing smear campaign," the danger is that readers may assume that this accurately describes how Professor Onwuachi-Willig would herself characterize that opposition. Based in general on her scholarly approach and the way that she and I have chatted about various subjects over the years, I do not see her using such inflammatory and imprecise terms.
Indeed, as I will explain shortly, Angela Onwuachi-Willig's legal scholarship -- and indeed, her general legal philosophy -- are far more nuanced and independent than the near-caricature depicted in Professor Wenger's post. Arguing for Branstad to appoint someone who is committed "to a principled and progressive feminist and antiracist legal philosophy" is sort of like arguing to Barack Obama that he should nominate John Yoo to the Supreme Court because Professor Yoo is committed "to a principle of a robust executive with broad, unfettered discretion to best protect the public." I mean, that's an exaggeration, but not too much of one.
Here are my reasons for why I think Governor Branstad should appoint Professor Onwuachi-Willig to the Iowa Supreme Court, based on my having been her colleague and friend for several years:
Personal Qualities: She is smart, hard-working, conscientious, and a delight to have as a colleague, all of which I think are important considerations for a small deliberative body like the Iowa Supreme Court.
Independence: As noted above, Professor Wenger's description of Angela Onwuachi-Willig's views strikes me as something of a distorted caricature, much like those fun house mirrors. One of her articles that garnered a lot of attention is Just Another Brother on the SCT?: What Justice Clarence Thomas Teaches Us About the Influence of Racial Identity, 90 Iowa Law Review 931 (2005), in which she makes the case that Justice Clarence Thomas's conservative legal views are based on a unique, black conservative perspective. Remember that liberals often derided Justice Thomas as a Justice Scalia-clone, or as Scalia's second vote. In this article, Professor Onwuachi-Willig clearly distinguishes herself from that trite -- and inaccurate -- assessment to provide a bold and new way of looking at Justice Thomas:
A review of Justice Thomas's jurisprudence reveals that there is no basis for the claim that Justice Thomas is a “Scalia clone” or “Scalia puppet” and supports the proposition that Justice Thomas has been unfairly subjected to the stereotype of black incompetence. In fact, Justice Thomas has developed his own jurisprudence as a black conservative, directly and indirectly weaving his own “raced” ideologies into his opinions.
In my interactions with Professor Onwuachi-Willig, I haven't always agreed with her conclusions (though I often have). But I've always felt that her conclusions were the product of serious thinking and research. On more than one occasion, she has shown me new ways of thinking about an issue. This independence will be a valuable trait for a Supreme Court Justice.
Judicial Integrity: Presumably, much might be made of her signing the amicus brief in Varnum or her scholarship (particularly as caricatured by Professor Wenger). But I think it is important to keep in mind the difference between being an advocate -- especially as a scholar -- and being a judge. I do not think she would be an activist judge in the mold of, say, the recently thrice-reversed (in one week!) Stephen Reinhardt. This is not to say that one can't divine some inkling of her judicial philosophy from her writings, though Governor Branstad can simply ask her directly about that during his interview of her. The point is that I would use her scholarship primarily to assess her critical thinking and analytical skills, her clarity of writing, and her logical reasoning, all of which are top-notch.
* * *
In short, I think Governor Branstad should focus carefully on Angela Onwuachi-Willig's merits, and not dismiss her based on some inaccurate characterizations (and caricatures). Like most of us, she holds complex and nuanced views on a variety of issues. What is important is that she has the intelligence, work ethic, and integrity to be a Justice on the Iowa Supreme Court.
Thursday, October 06, 2005
Yet Another Baseball Analogy
Professor Bainbridge argues that Harriet Miers is like Crash Davis -- not a bad minor-leaguer, but someone who doesn't belong in the big show. (No word on whether she believes there ought to be a constitutional amendment outlawing Astroturf and the designated hitter). Bainbridge has some good points, but let me suggest a counter-analogy. It's October, and Harriet Miers is the Padres.
The Padres are a perfectly respectable small market team. (I should know -- I live in San Diego, and I read the sports page). They have some decent players, and they won their division. They even finished above .500. Barely.
The Padres -- a perfectly respectable, decent ballclub -- are in the playoffs only because the baseball gods decided to play a joke on the rest of the world. At 82-80, they have the worst record of any team ever to make the playoffs. They were outscored by their opponents over the season, by a total of 42 runs. (That means that over the course of the 160 game season, they scored roughly a quarter run less, per game, than their opponents).
Until the last week of the season, it was an open question whether the Padres would become the first team ever to make the playoffs with a losing record. As it was, they took five of their last six, meaning that at the very least they wouldn't be going to the playoffs with a 78-84 record (which would have been even more of a travesty).
But the fact is that, while at least three objectively better teams sit (Philadelphia with 88 wins, and the Mets and Marlins with 83 each), San Diego is playing baseball in October. Not because they're better than Philly or the Fish -- they aren't. They're playing in October because they had the luck to spend the regular season in an awful division. Even in their awful division -- where every other team had a losing record -- they barely pulled off a winning record. Contrast Philadelphia, playing in a division where no one had a losing record, which still pulled in 88 wins.
Now there is something to be said for division play, for rewarding division leaders, for maintaining geographical rivalries. The system that produced an 82-80 playoff team is not itself irrational. But the result is still frustrating. It's October, and instead of watching objectively better teams on the field, I can watch the Padres. (Not that there's anything wrong with watching the Padres, but they're an objectively less worthy team than many others. There's nothing wrong with the Padres themselves -- it's just that an 82-80 team doesn't belong in the playoffs).
If I had to stretch this analogy, I'd say that John Roberts was the Yankees, or perhaps the Red Sox. Some liked him and some hated him, but there was never any doubt that he was good.
And Harriet Miers is definitely the Padres. Pleasant, likable, nice . . . and also the worst playoff team in history.
Wednesday, October 05, 2005
Taking Takings Seriously
Ben Barros has the goods on three upcoming conferences on takings. They'll be held at Georgetown, William and Mary, and
Justice Souter's house the University of Florida.
And while you're taking a spin around the blogosphere, don't forget to take a break and take a look at the rest of Ben's new property blog -- it definitely takes the cake.
(Cross-posted from Concurring Opinions).
This is just a quick note to mention that I will be concurring with Dan Solove on his new blog, Concurring Opinions. (CO? CCO? CC:Opinions? I think we need a good short handle.) As the securities expert on the blog, I've been hard at work on the blog's registration statement, and I hope that it's enough to pass muster with the SEC.
So don't forget to swing by, read posts, and leave lots of comments telling me that I'm totally wrong about Kelo.
Monday, October 03, 2005
The coolest nominee ever
Friday, September 30, 2005
A Sentence of Celibacy
This just in, via everyone's favorite high-quality news source, Matt Drudge:
No sex. That's part of a sentence imposed on a 17-old-girl by Texas state district judge Lauri Blake.
She's ordered the young drug offender not have sex as long as she is living with her parents and attending school, as a condition of her probation.
Are there constitutional objections here? Perhaps. Is this cruel and unusual punishment? (I can just see the jokes likely to come out of that question. If the ACLU raises such a claim, there will be a race-to-the-bottom by late-night comics, to see who'll be the first to quip "based on my high school experience, no sex at 17 is, alas, not at all unusual.")
Does the state have a legitimate interest here? How much of that interest, if any, comes from the fact that the case deals with a minor? (Could the judge sentence a 25-year-old to no sex?) On the other hand, doesn't the judge have the power to sentence someone to no sex by simply putting her in prison? Does the greater (ability to put in prison) include the lesser (no sex while on probation)?
Perhaps our crim law gurus can weigh in here. In any case, the defendant in the case should probably be counting her blessings. After all, at least she wasn't sentenced to church time. Now that would be cruel and unusual.
Tuesday, September 27, 2005
Thoughts on Employment and a Non-Gun-Ownership Requirement
Another day, another workplace killing. Things aren't getting any better, are they?
Here's a question, perhaps a suggestion: Should companies, as a condition of employment, start requiring workers to sign an agreement of non-gun-ownership? This would require an employee to state that she does not own any guns, and that she will not purchase any guns during her employment. It seems that if an employer required an employee to agree to non-gun-ownership, the likelihood of a workplace killing by that employee would be lessened.
Such a change wouldn't altogther end workplace killings. There's the possibility that the employee would lie on her application, or would simply acquire a gun after being fired and use it to attack her workplace. On the other hand, it is all but certain that there is some population of unstable, disgruntled employees who own guns, and that for some of those employees, their easy access to currently-owned guns is an important enabling factor that facilitates a decision to transfer their anger into actual killing of their co-workers.
Would a requirement of non-gun-ownership be legal or enforceable? I'm not sure. (Do we have any employment law people here?) A while ago, Eugene Volokh blogged about a court upholding a ban on gun ownership by public housing residents -- apparently that kind of restriction on gun ownership is allowed. On the other hand, there is (at least in one state) a self-defense exception to the at-will employment doctrine.
If this kind of provision is legal, then perhaps it is something employers (and their insurers) should start looking into. Is anyone aware of employers who currently have such a policy?
Wednesday, September 21, 2005
One of my colleagues sent out an article this morning via ExpressO. Half an hour later, she had an offer in hand. No gimmicks were involved -- it wasn't previously available on SSRN or online anywhere, and she had no prior connection to the school or the journal making the offer. The journal simply read her piece hot off the presses, and then immediately accepted it. (And yes, I've looked at the e-mails substantiating both the submission and the offer.)
I can say that she did many things right with her piece -- it had a great title, a clean argument, timeliness, and a very reasonable length. But even with those factors in her favor, I can't say that I ever expected her to get an offer in half an hour. After all, she's just barely starting to get the "we have received your article" acknowledgements from most journals. Kudos to the editor who pulled her piece off the printer and read it on the spot. Among the pieces I know of, half an hour from submission to offer is -- by a large margin -- record time.
Not that I'm jealous or anything.
Why Stop with the Third Year -- Let's Do Away with the Whole Thing!
California, Vermont, Virginia and Washington allow law readers to take bar exams after three or four years in apprenticeships registered with the state. Three other states -- New York, Maine and Wyoming -- let non-law school graduates take bar exams if they have a combination of office study and law school experience.
Fewer than 150 aspiring lawyers are getting their legal educations in programs that require no law school whatsoever, according to the bars of the states that allow the practice. By comparison, more than 140,000 students attend law schools approved by the American Bar Association, and thousands more attend schools not approved by the ABA.
Despite some challenges, law readers can achieve big things. Marilyn Skoglund, for instance, sits on the Vermont Supreme Court, and Gary Blasi is a professor at the University of California at Los Angeles.
I knew one person in New York who was apprenticing. It sounded like a tough path, but it worked for this person's life situation.
Is this generally a good idea? A bad idea? Is it just a relic (only 150 people doing it now) that we can tolerate, or one that should be scrapped? Dan S. and Laura's exchange at Legal Affairs (and here) has highlighted the fact that law school means different things to different people. I suspect that differences in goals and perceptions, such as those that have driven Dan S. and Laura's debate so far, would certainly inform responses to the appropriateness and place of apprenticeships.
Tuesday, September 20, 2005
Blogging about money
Daniel Solove spends his days figuring out how to better protect privacy on the Internet.
On the other side of the spectrum, some bloggers are doing all that they can to disseminate their private information on the net. From the New York Times story:
Mr. Wang, who lives in Columbia, Md., pared down his spending on groceries to just $53.98 for the entire month. He cut back on meals at restaurants and nights on the town with his girlfriend. He trimmed his utility bill by making sure the lights were off when he left his apartment. And despite an unexpected dental bill - $50 for the filling of a cavity in his right bottom molar - he managed to come in 28 percent under his monthly budget of $1,755. He put the extra $484.47 into his home-buying account.
How do we know all this? From his financial blog, an online document that manages to be confessional in tone without revealing all that much about his personal life. But it does tell more about his spending, savings and investment habits than many people know about their best friends'.
And how exactly do we contruct a system that protects online privacy as a default rule, but also has the flexibility to allow people to blog publicly about their bank accounts if they wish? That's a good question.
Monday, September 19, 2005
One exception to the Ph.D. rule
Let's set aside for the moment our broader differences on whether a Ph.D. is really required for writing interdisciplinary work -- opinions differ -- and focus on some areas of agreement. For instance, even staunch Ph.D. advocate Brian Leiter seems to concede that some J.D.'s are as qualified to write as some Ph.D.'s.
And which are these explicitly Leiter-approved exceptions to the general rule? Venture below the fold, constant reader, for the surprising answer.
It turns out that, even accepting as true all of Leiter's assertions, we find an exception to the general rule of Ph.D. supremacy, hidden deep within the holy writ:
"A BA in philosophy apparently puts you well ahead of a PhD in political science."
That's the exception, folks. A J.D. can write just as well as a Ph.D., provided that that Ph.D.'s Ph.D. is in political science, while the J.D. earned her B.A. in philosophy.
Now that we've found common ground between warring factions, we may rejoice.
In the mean while, if you've got a moment to spare, don't forget to read my own draft pieces, Taking Political Science Seriously and All I Really Needed to Know about Political Science I Learned in a 30-minute Perusal of the Blackwell Companion.
Friday, September 16, 2005
Death of a Reparationist
A less-known fact is that Bittker was the father of today's reparations movement. His 1973 book The Case for Black Reparations set out the possibility of legal compensation for slavery, and ignited the modern debate about reparations. His book was reissued in 2003. Professor Bittker also contributed an essay, reiterating many of his earlier arguments, to Roy Brooks' book on reparations, When Sorry Isn't Enough.
I am very much indebted to Bittker's work for breaking ground in reparations, since this is now one of my own primary areas of writing. I wrote in 2003 that "one of the first modern legal scholars to argue for reparations was Professor Boris Bittker of the Yale University Law School," and in 2004 that "modern legal reparations literature is generally acknowledged to have begun with professor Boris Bittker's work." Those statements hold equally true today. Professor Bittker will be missed, not just by his tax law colleagues, but by reparations scholars and advocates everywhere.
Teaching Styles: A Non-Scientific Survey
I'd like to take an informal blog survey about how law professors teach. If you don't mind, please weigh in on the survey.*
1. Please state your name and institution, if you feel comfortable doing so.
2. What classes do you teach? (And what is their approximate average size?)
3. How long have you been teaching?
4. As of right now, do you generally use:
a. Socratic method
b. Modified socratic (such as with "pass" options)
c. Purely lecture
e. Lecture and Problems / Lecture with required participation
f. Purely problems
g. Discussion groups
h. Other (please explain)
(If you vary between classes, please elaborate -- "I use socratic in my big evidence class but discussion group in my smaller death penalty class.")
5. Do you use any of the following (and if so, how often):
a. Powerpoint slides.
b. TWEN or other pre-packaged classroom software
c. An official class website (non-TWEN)
d. A blog for class purposes
e. Any other technological tools of interest
6. If you would like to volunteer any other aspects of your teaching style that might be of interest to Prawfsblawg readers (i.e., "I always do a practice exam mid-semester" or "I make students submit a mock brief" or the like), please feel free to add them as well.
*Note for Kate Litvak -- I'm aware that this survey is completely unscientific and is methodologically imperfect. I promise I won't try to extract a model out of it.
Monday, September 12, 2005
Online intimidation -- It's not just for conservatives anymore
Everyone remembers the gruesome "Nuremberg Files" website. The website, which has been shut down and reopened repeatedly, contained the names and addresses of abortion providers. It is believed to have led to the murders of abortion providers.
Gay marriage advocates have stated that they intend to place online the names and addresses of anyone who signs a petition against gay marriage. As reported by the Boston Herald,
A pair of gay activists are raising the stakes in the fight over same-sex marriage, vowing to post on the Internet the name and address of anyone who signs a petition to ban gay marriage and civil unions in Massachusetts.
The pair claim that the site is a "way to open up communication" and to allow people to better choose what businesses to patronize. I suspect that likely uses of the site are going to tend more towards home intimidation and possibly violence against petition signatories. While I don't support this particular petition, I do think that signatories ought to be free to sign this petition (or any other legal petition) without intimidation.
Wednesday, September 07, 2005
FEMA: The F is for Fiasco
As New Orleans Mayor Ray Nagin pleaded on national television for firefighters - his own are exhausted after working around the clock for a week - a battalion of highly trained men and women sat idle Sunday in a muggy Sheraton Hotel conference room in Atlanta. Many of the firefighters, assembled from Utah and throughout the United States by the Federal Emergency Management Agency, thought they were going to be deployed as emergency workers. Instead, they have learned they are going to be community-relations officers for FEMA, shuffled throughout the Gulf Coast region to disseminate fliers and a phone number: 1-800-621-FEMA.
Yes, that's right -- FEMA issued a call for help to firefighters, and firefighters from around the country responded. They're now being assigned to a task that any college student could do. Meanwhile, New Orleans is in desparate need of firefighters. Is community relations really the best use for these highly trained people?
"It's a misallocation of resources. Completely," said the Texas firefighter. "It's just an under-utilization of very talented people," said South Salt Lake Fire Chief Steve Foote.
Tuesday, September 06, 2005
Seven of eight living justices have expressed condolences at the passing of Chief Justice Rehnquist. The reactions vary, but are uniformly positive. Justice Ginsburg refers to Rehnquist as "the fairest, most efficient boss I have ever had"; Justices Stevens, Scalia, and Thomas refer to Rehnquist as a friend; Justice Thomas's statement is particularly personal in tone, expressing the sentiments of both Justice Thomas and his wife, and concluding by stating that "our thoughts and prayers continue to be with his family."
No explanation is given for Justice Souter's absence. I suspect that it's probably due to time constraints. These days, the Justice spends all his time fighting off developers who want to bulldoze his house.
Public versus private responses to Katrina
A sobering post by Kieran Healy (generally not a libertarian type) points out the vast disparity in speed and effectiveness between public and private Katrina responses.
Hyatt Regency Hotels, a private actor, got supplies in to its hotel on Wednesday, and got hotel guests out of the city. Several days and a dozen press conferences later, the government got around to doing the same for Superdome refugees. The distance between the two points: Two tenths of a mile.
As many Crooked Timber commenters are pointing out, roads into New Orleans were not submerged. Relief could have arrived sooner, as the Hyatt example makes clear. It didn't only because of incompetent bureaucracy. This disaster was man-made, not natural. It's time to call for FEMA leaders' heads on a pike.
(That indictment in no way applies to FEMA people on the ground, who were, as far as I can tell, doing everything they could to help out).
Oh, and next time I go out of town, I think I'm going to stay in a Hyatt.
Friday, September 02, 2005
Katrina Transfer Students
The legal academic community seems to be reaching out as best it can to try to help Katrina victims keep from losing a semester of school. Over the past few days, I've seen a number of e-mail discussions about Katrina transfer programs. And the AALS has a page collecting information here: http://www.aals.org/neworleans/schoolsbystate.html .
A great many schools (including my alma mater and my current employer) are on the list. As a legal academic, I'm glad to see that the impulse to respond to this disaster has cut through the red tape that so often accompanies decisions in academia.
Thursday, September 01, 2005
Another sartorial query
Ethan's got the jeans question covered, but surprisingly, no one has asked about hair. Till now.
So far, I've been going with the same conservative part that worked at the law firm. (See the evidence here -- it's not a particularly good picture, but you get the idea). My co-bloggers seem to be going with conservative cuts as well -- see, e.g., Dave and Dan.
I'm wondering if a law prof shouldn't try to shake things up a little. Perhaps a mullet is in order? Dreadlocks, maybe, or the more up-to-date cornrows? A bald pate? A combover? Multiple colors? The possibilities are endless!
Plus, I just read in The Paper of Record that mohawks are officially cute. They're mainstream, too, apparently. (That allows me to add a great new joke to my stand-up routine: "How is a mohawk different from Janice Rogers Brown?")
So where are all the law professors with mohawks? This is a trend just waiting to be set. I suspect that, with enough
peer pressure positive encouragement, we might even be able to convince our venerated blog-master to adopt this (very mainstream!) look.
So come on, readers, and let's offer encouragement. Dan, we think you'd look great in a mohawk. Your students would adore you, and they'd even pay attention in class. Costs can be defrayed -- if you agree to the cut, I'll personally buy you a can of hair spray. I suspect that we can get Dave to buy you one too.
Ten points to any of our readers who can put together a photoshopped picture of Mohawk Dan.
Wednesday, August 31, 2005
Instapundit and the ACLU
Here's one for the annals: Glenn Reynolds (aka Instapundit) made the comment that "demonizing the ACLU is silly" and noting that the ACLU continues to do important work. And in response, a number of rabidly anti-ACLU blogs are now engaging in mass delinking of Instapundit.
Well, I tend to think that the ACLU does a lot of good, too. I don't agree with everything they've ever done, but I'm very glad that they exist. And I think that InstaGlenn is spot-on in his assessment -- the recent trend among conservatives towards demonization of the ACLU is wrongheaded.
But what to do to show that agreement? Well, if the way that one shows disagreement in the blogosphere is by de-linking him, then I suppose that the way to show agreement is by . . . linking him! (How's that for analytical reasoning hard at work?)
We've already got a blogroll link to Instapundit on the sidebar. But just to make clear that the prawfs (or at the very least, this prawf) support his defense of the ACLU, here are a few other links to Instapundit:
Instapundit's collection of Katrina relief organization links (a very useful collection, by the way).
Instapundit on the ACLU, earlier. (The de-linkers must not mave noticed it the first time).
Thursday, August 25, 2005
We're Number Three!
California, my new residence, is the number three state for identity theft, with 122.1 victims per 100,000 people. That's
a more than 1% a more than .1% chance of being an identity theft victim. According to the article, the same states seem to top list after list -- California, Nevada, Arizona, Florida, Texas. Other states with high incidences include New York and Illinois.
I guess that life's not always such a cakewalk here in the blue states, after all.
Thursday, August 11, 2005
Fired for obscene political e-mail
Conservative columnist Michelle Malkin recently posted a few examples of what she described as "profanity-laced moonbat hate mail from Bush Derangement Syndrome sufferers." The e-mails that she posted were quite over-the-top. One of them came from the sender's work e-mail account.
The e-mail, as posted on Malkin's site, reads:
X-Originating-IP: [220.127.116.11] From: "Mitchell, Patrick" Patrick.Mitchell@ogletreedeakins.com To: "'email@example.com'" Subject: Date: Thu, 11 Aug 2005 11:41:22 -0400 X-Mailer: Internet Mail Service (5.5.2657.72)
YOU STINK you nasty CUNT! Eat Shit and DIE bitch!!
Malkin pointed out (and the e-mail also notes) that this came from a sender at the law firm Ogletree and Deakins. Within two hours of her post, the sender of the e-mail had been fired for violation of firm policies. Malkin received an e-mail from the firm's managing partner, stating:
Dear Ms. Malkin, I am the Managing Shareholder of the law firm of Ogletree Deakins with offices located across the country. I was very disturbed to learn today that a legal secretary in our Los Angeles office sent you the vile e-mail referenced on your home page. Such remarks are clearly inappropriate in any context and an e-mail such as this certainly should not have been sent during working time using our firm's equipment. The comments of this employee are not reflective of the views or opinions of the firm and are directly in violation of our e-mail policy. As Managing Shareholder, I wanted to extend to you our apologies and let you know that this serious violation of our firm's work rules has resulted in the discharge of this employee.
Once again, let me offer you our deepest apologies for any discomfort that the referenced e-mail has caused. It will not happen again.
There are many interesting potential issues at play here; however, because of the details of the e-mail in question, I think that they resolve pretty easily in this particular case. Most companies these days have an e-mail policy. I don't know the details of Ogletree Deakins' policy, but it seems likely that, like many policies, it prohibits harrassing or abusive e-mails. Mr. Mitchell's e-mail was very over-the-top, and it is not surprising that it would be found in violation of an e-mail policy.
May Malkin publicize the e-mail? Her e-mail contact page does not contain a written policy on e-mail usage. However, she's the rightful recipient of the e-mail. The sender makes no effort to keep it confidential. And even if he did, it's unclear that she has any duty to do so (particularly given its content). Thus, I don't think that Mr. Mitchell would have much of a case against her for publishing his abusive e-mail, though it seems possible that if some of these factors were changed, the result could differ. (The e-mail was written from a law firm and may include a footer about confidentiality. I don't think that that would apply to this e-mail, however, which has no legally-related content).
Publishing while practicing (II): Time trials and Special Programs
This is the second in a series of posts on the subject of publishing while practicing. (For the first installment, which dealt with finding a Westlaw or Lexis password, click here. For further discussion on that topic at Conglomerate, click here). As many of the commenters noted in the comments to that post, a Westlaw ID is nice, but where on earth does a practitioner find the time to write a law review article?
Here, again, are some of my own thoughts and observations. (As noted in the last post, these are my own thoughts, and I welcome comments from others -- there is no one right way to go about this process.) (Also, I'll skip the obvious tips, like "discipline yourself" and "write smart" and so on).
First, you may want to piggyback off of existing material you've worked on. This may include a student note, a seminar paper, or a research project.
This is not to say that you ought to repackage your student note and try to re-publish it. But if you've already done the research on a particular issue for a note or seminar paper or other project, you can lessen some of your research time needs by doing further writing on that subject.
As a practitioner, you may also write about research you've done in practice. This could also be a useful time saver. However, there are serious potential ethical issues that you should consider before writing about your practice. (These will be addressed in my next post).
Second, you should try to put yourself into article-writing situations that require less time. For example, writing-in-practice is probably not the time to try to put together an exhaustive empirical piece with hundreds of moving parts. Similarly, don't try to write the everything-there-is-to-know article that spans 200 pages. (Not only will it not publish well, it will take you forever. Stay with shorter articles. My two published-in-practice articles ran 70 and 60 pages, respectively). Remember that you have no research assistants to help you, and not a lot of time to spare. Take on projects that you'll be able to do in a reasonable length of time. (If you have an idea for a future lots-of-moving-parts empirical piece, fine -- ultimately, you'll be an academic with more writing support, and will be able to do that one. But put that piece on hold for now and focus on something smaller).
There are two further "tricks" that you can use, one of which I used and one of which I didn't. These are working with co-authors and publishing book reviews. Both of these can cut your needed writing time.
Both options have their potential disadvantages as well. Co-authors can be great -- I had a very good experience co-writing with Dave. But I've also heard horror stories about bad co-author relationships. Also, you shouldn't expect that writing with a co-author will cut your writing time by 50%. In my experience, it's more like a 30% cut (which is still very helpful).
Remember that both co-authoring and book reviewing may open you up to questions about just how much work you did. Not that these questions can't be answered in perfectly acceptable ways, but bear in mind that your intended audience -- legal academics on an appointments committee -- knows perfectly well that these two tricks exist.
There are other options: You can write when you get free time (which happens to most practitioners every now and then, even at the big firms). You can take vacation time to go home and write. (I did this with one article).
Finally, you can take the plunge that I eventually did, and inquire about your firm's part-time policy. I worked part-time at Cravath for a time, and it was tremendously helpful for my writing.
More and more firms are implementing part-time policies. (See, e.g., articles here and here). For an aspiring academic, they can be great, offering a chance to ease the burden of law firm life and the time to write, while keeping the work and (some of) the paycheck.
You should investigate your firm's policy closely before jumping onto this particular bandwagon. There are questions such as whether you will get the same quality of work, and what the firm will expect of you. Going part-time may create issues for promotion (e.g., partnership) down the road. (Many firms explicitly state that part-time work will not affect partnership chances, but others do not make such a promise -- so do your homework and find out what your firm policy is). Of course, if you're sure that you want to eventually become an academic, then you may not worry about damaging your partnership chances. But if you're not sure that you want to leave practice, you should be very careful to research how your career at your firm may be affected by going part-time. Finally, remember that there are other downsides to part-time work -- you'll be paid less than you were before, for example.
Even with the downsides, I think that going part-time makes sense for many people in practice who wish to publish in order to move to academia. The recent widespread adoption of part-time work among firms is is a relatively recent sea change in the legal world, and it's one that aspiring academics should seize on. (Most articles seem to suggest that aspiring academics aren't going part-time in big numbers, and that the driving force behind part-time programs is attorneys who are new parents, particularly mothers.) And bear in mind that many firms' policies are evolving rapidly in this area. if your firm doesn't have a part-time program, it may make sense to (carefully) inquire about whether they've thought about starting one. Or even to start looking around for a firm that does have part-time work available.
That concludes Part II; the last post in this series, to come, will deal with ethical issues.
The Bay Area Center for Voting Research has the results. The most liberal city in the U.S.? Detroit. (New York comes in at #21, and Boston at #24). The most conservative city? Provo, Utah (followed in quick succession by most of Texas).
And the most schizophrenic state? California has four of the top ten most-liberal cities, but also six of the top twenty most-conservative. No other state can come close to that level of internal indecision.
Wednesday, August 10, 2005
Everyone likes to complain about the recent Disney-fication of Times Square. I'm sorry to report that the phenomenon appears to be spreading. It appears that Conglomerate is now being Disney-fied, as all manner of law professors and other unsavory characters converge on the site to discuss the recent Disney opinion. And like Times Square, I must say that I liked Conglomerate a lot better pre-Disneyfication, back when it was nothing but a bunch of strip clubs, peep shows, and drug dealers.
Ahh well. At least I've still got Prawfsblawg. . .
Tuesday, August 09, 2005
Publishing while practicing (I): Questions about resources
While in practice at a "Biglaw" firm, I wrote and published two law review articles. I've been asked by many people, over the course of the past few years, how I was able to publish while practicing. Since this seems to be a topic of some interest, I'm putting up a series of posts about it.
This question is of particular importance for people interested in entering legal academia. To break into the market, one needs publications. But how does one get those publications while in practice? Some aspiring academics leave practice for fellowships like Climenko or Bigelow, and are able to write then. But for many others, fellowships are not an option (for geographical, financial, or other reasons), and so publishing while practicing is the only possible way to break into the market.
I'll preface this post by noting that this post will discuss things that I've learned or observed in my own experience. Many people publish while practicing, and there is certainly more than one way to go about the process. I'll offer my own suggestions, and hope that others weigh in with comments on what worked for them. Also, I'm going to split this topic up into a series of posts. Part I will deal with resources, part II with special programs, and part III with ethical considerations.
Now, without further ado, let's talk about the resources you'll want to acquire to start publishing while practicing.
First, you'll want a good knowledge of how the law review publishing market operates. There are a number of resources available on that front. Eugene Volokh's book is highly regarded. I wrote up my own little discussion of the process a while back, and it is available on the Columbia Law School website. And there are other resources. Go over these, and get a sense of the submission seasons and the expedite process. Get to know Express-O. And so forth. As a practitioner, you'll have many things working against you. Don't let lack of knowledge be one of them.
Second, you'll need to find a way to do legal research. Doing Westlaw and Lexis research on your own budget is prohibitively expensive -- Westlaw charges $500 for a single search sometimes. Depending on your firm, you may be able to run some searches on a general-use account (but be careful with that, and know your limits). After that, it gets dicey. I've known of people who have borrowed ID's from family or friends for research. Also, there are a number of free or less-expensive research options. You should know the local law libraries; you can run searches on sites like findlaw and law.cornell.edu (which has Supreme Court opinions and some lower court opinions); you can hit Hein Online and Loislaw. Finally, you can just run google searches on topics. These fill-ins have their limits. (For example, Hein Online, has most old law review articles, but can't run complex searches like Westlaw. If you already know that you need 2003 Wisc L Rev 1115, you can get it at Hein. But if you want to run a search for articles about jury nullification, you're going to need a full-service database like Westlaw.) Also, if you do get temporary access to a free Lexis or Westlaw ID, use it to do as much research as possible and print up what articles you'll need. (I thought of this after my free orientation Lexis ID expired, alas).
Which brings us, after the stopgaps, to the best solution here (one that I wish I had discovered earlier in my own process) -- talk to your alma mater about getting a permanent Westlaw or Lexis ID for academic use. You're a J.D., and your school has an interest in helping you become an academic. (The person you'll need to talk with will vary by school, and may be a professor or dean or librarian. Check with your contacts and find out who you need to talk with). This is the best route for securing a Westlaw or Lexis ID for use in doing your academic research while in practice.
Third, you should contact your school and find out what kinds of help they may have available. You may be able to get library access, research tools (like the Westlaw ID!), or other help.
That concludes the resources portion of this topic.
Monday, August 08, 2005
How not to write a law review article
Tuesday, August 02, 2005
The obvious loophole
Hillel and Christine are discussing the Manhattan ruling that porn does not violate anti-prostitution laws because you're paying an actor or actress to have sex with someone else, not with you. There are a number of potential issues, such as the director/producer/performer (as Hillel notes) and the strangeness of a contract that negates part of the penal code (Christine's point).
Let me point out another obvious issue -- this exception creates a huge loophole, where all that is required to subvert the law is a willing accomplice.
Let's say that I wish to obtain the services of a prostitute. (Obvious disclaimer: I don't actually want to do this; it's all hypothetical). I can go down and pay my $100, or whatever the going rate may be, to a young lady on Second Avenue. At that point, I run the risk of being arrested for solicitation.
However, I can give that $100 to Dan Markel and ask him to hire the young lady, as a "porn actress," to have sex with me. As long as we produce some record of that act, I can claim that we're porn producers, producing porn for Dan's benefit. (Dan need not ever actually view any tapes that I produce). And the end result is exactly the same -- I pay $100, the $100 goes to the young lady, and she has sex with me.
One possible counter-argument is that it costs money to record events on video. Except that it really doesn't anymore; it is dirt-cheap to produce tapes or computerized recordings of events. A cheap digital camera will do just fine; hell, I can record things on my cell phone! So the expense of video equipment is no barrier.
I don't know if prostitutes and their clients use this defense already. If they don't, I would expect them to start using it soon. The loophole is obvious.
Topical versus generalist blogging
An aside in Doug Berman's post notes that bloggers face the question of how topical to keep their blogs. This is a question that I've thought about somewhat over time. Doug has promised a follow-up, and I don't want to sandbag him on the topic. But I'd like to offer a few of my own observations, which are I think general enough not to preempt further discussion. My own observation is that the legal blogosphere tends to demonstrate that there is no right answer to the question "how topical should I be?"
On the one hand are the strictly topical law blogs. These include How Appealing, Sentencing Law and Policy, and most members of the Paul Caron Legal Blog Empire (name lifted from Leiter). Indeed, the Caron Empire includes an explicit rule of topicality:
What Law Professor Blogs Are Not Our blogs are not a collection of personal ruminations about the Presidential campaign, the war in Iraq, or what the editor had for dinner last night. Neither do our editors offer their personal views on every policy issue in the news or every new court decision. We leave that terrain to the many existing blogs with that mission. Instead, our editors focus their efforts, in both the permanent resources & links and daily news & information, on the scholarly and teaching needs of law professors. Our hope is that law professors will visit the Law Professor Blog in their area (or areas) as part of their daily routine.
On the other side of the topicality spectrum are generalist blogs like Conglomerate, Ribstein, Bainbridge, Volokh, Leiter, and Instapundit. Each of these includes significant doses of off-topic posts -- Gordon Smith posts about cheese or about the Tour de France, Christine Hurt posts about Fantasy Football, Stephen Bainbridge talks about wine, Brian Leiter about politics and poetry, Larry Ribstein about films, and so forth.
The evidence, such as it is, suggests that both models can work pretty well. I enjoy reading many strictly topical blogs, like CrimProf and Sentencing Law and Policy. I also enjoy reading Conglomerate and Volokh and so forth.
I do think that a certain amount of willingness to go off-topic can help establish a blog's identity. We can see this at work in the corporate-law blogosphere. Gordon Smith is the corporate law scholar who likes cheese; Stephen Bainbridge is the corporate law scholar who likes wine; Larry Ribstein is the corporate law scholar who likes movies. Gordon writes about Mormonism and Bainbridge about Catholicism, and Ribstein occasionally about Judaism. The personal elements in the three blogs help them to establish unique identities.
But there is a real danger in going too far down that path. There is a massive universe of personal blogs out in the ether. If the off-topic content on a law blog crosses some threshold -- I don't have any numerical tests, it's purely an "I know it when I see it" thing -- then the law blog may just turn into another blog full of personal ramblings. And in that case, the inclusion of off-topic posts probably ceases to be a helpful branding tool and becomes a serious branding liability.
Tuesday, July 19, 2005
Another blog symposium
The folks over at Conglomerate are hosting a blog symposium to talk about Disney. And what a cast of characters they've assembled:
Sean Griffith of the University of Connecticut School of Law Larry Hamermesh of the Widener University School of Law Lyman Johnson of Washington & Lee University School of Law Larry Ribstein of the University of Illinois College of Law Hillary Sale of the University of Iowa College of Law David Skeel of the University of Pennsylvania Law School Lynn Stout of the UCLA School of Law
Sounds like fun! (And given Larry Ribstein's known penchant for writing about movies, I'm wondering whether he'll be briefly breaking away from the discussion of fiduciary duty to offer a review of Herbie, Fully Loaded).
And incidentally, wouldn't the Disney saga make a heck of a Disney movie? You'd have
Keira Knightley Linsday Lohan whoever-the-eighteen-year-old-flavor-of-the-month-is, an intrepid young financial reporter learning to pronounce the phrase "fiduciary duty" as she covers the case (and uncovers key evidence, of course). You could have Geoffrey Rush as ______ the evil/incompetent executive/director (fill in the blank appropriately depending on your own view of the merits of the case), and Orlando Bloom as the young law clerk who uncovers crucial evidence in the case while falling in love with the beautiful young financial reporter. The suspense . . . the drama . . . the romance! I had better find an agent. Remember, you saw it here first. I suppose I'll have to start my "Best Original Screenplay" speech "I'd like to thank Dan Markel for his blog where I first posted this idea . . ."
Wednesday, July 13, 2005
So it turns out that the Washington branch of NARAL is hosting a "Screw Abstinence" party. And predictably, conservative critics are having a field day with it.
It's moments like this that make me cringe. Is this what liberalism has come to? The heir of Brown, of MLK, of freedom riders, is . . . a "screw abstinence" party? Stop this train, I think we took a wrong turn somewhere back there.
It's one thing to note the real deficiencies in abstinence-only sex education. It's another thing altogether to put on inflammatory events that will only serve to fuel the damning critique that liberal opposition to regulations on sex (including sex ed, abortion, gay rights, and so on) stems entirely from the out-of-control libidos of liberal advocates. (See also this critique by The Stranger).
Sunday, July 10, 2005
We've received word that some readers are having difficulty loading up Prawfsblawg pages in the past week. The complaint is that the main page works fine, but the permalinks take forever to load up. This problem has been affecting at least two Prawfsblawg bloggers as well.
I don't know the exact cause of the problem, but I've stumbled across what seems to be the solution: Clear your internet cache. (That is, in IE, go to Tools/Internet Options, and where it says "Temporary Internet Files" click "Delete Files.") If our experience is any indication, taking that step should solve this annoying, recent technical problem.
Friday, July 08, 2005
Bag Blog Announcement: Conglomerate
Those crazy kids over at Conglomerate have just announced a really cool idea: They're hosting the (First Annual? First Semi-Annual?) Conglomerate Junior Scholars Workshop.
As described in the call for papers:
If you are sending out a scholarly article this fall on a topic that may be interesting to Conglomerate’s readers – such as corporate law, securities, contracts, tax, finance, trade, antitrust or law and economics – we would like to link to your paper and provide a forum for you to receive feedback on your paper before you publish it or present it at a job talk.
For junior scholars writing in those areas, that sounds like a great opportunity. (Too bad that my own nascent securities-law piece is in such embryonic form!) After all, it's a chance to get comments from Conglomerators Christine, Gordon, and Vic, plus exposure to comments from Conglomerate's high-quality readers (Larry Ribstein and Stephen Bainbridge are just a few of the academics who regularly comment on or link to Conglomerate posts).
(Plus, no one will mind if I come to this brown
bag blog in my pajamas.)
I'll be seeing you all at the workshop.
Wednesday, July 06, 2005
Talkleft has an interesting discussion about the dangers of insecure personal home wireless networks. (via CrimProf). She notes that, because internet activity is traceable to IP address, the authorities may first come after owners of insecure networks, who inadvertently allowed criminals to engage in illegal activity (such as downloading child p0rn) by mooching off of their wireless. Ouch!
I vaguely remember setting up my own home wireless network. It was a somewhat lengthy and frustrating experience -- as interactions with computers often are -- and I think that I ended up setting up a network without a password because that's the only way I could get the damn computers to see each other.
In light of Talkleft's comments, I'm going to revisit this situation.
Tuesday, July 05, 2005
Things that make you go "Hmm."
Yesterday and Sunday, I stayed with my family at a Marriott hotel, one of their "Springhill Suites" class hotels (which I had never stayed in before). I booked it through Orbitz.com.
Today, I'm surfing the web at Sports Illustrated (sportsillustrated.cnn.com) and a sidebar ad pops up for Marriott's Springhill Suites. ("Now with larger rooms! Click here to book now!").
Saturday, July 02, 2005
Life (sadly) imitates art
The humor site Scrappleface posted a parody, titled "[Senator] Kennedy Slams Unnamed Supreme Court Nominee." (via Volokh). It starts off:
Sen. Ted Kennedy, D-MA, today criticized President George Bush's as-yet-unnamed replacement for retiring Supreme Court Justice Sandra Day O'Connor as a "brutal, Bible-thumping, right-wing ideologue who hates minorities, women and cocker spaniels." "He or she is clearly outside the mainstream of American values," said Sen. Kennedy.
It's a decent little short-humor piece, playing off of the fact that the left seems at times to be so reflexively anti-Bush that they would already be opposed to a not-yet-existent nominee. That's pretty funny, in a way. But the left would never actually do something so inane, would they?
Friday, July 01, 2005
Over the past months, we've heard that Tom Cruise started dating starlet Katie Holmes. We've heard about (or if we're really unfortunate, seen) Tom jumping on Oprah's couch. We've heard about Eiffel tower engagements and whatnot. Tom-and-Katie has come under repeated criticism, as commenters have wondered whether the relationship is merely a publicity stunt, since the two are both starring in movies in new release.
And now we're seeing numbers: Batman Begins opens with a $50 million weekend and continues strong. War of the Worlds pulls in $34 million on its first day. Alas, it looks like the Tom-and-Katie show was great free publicity for both movies. There is a terrible downside to this: since the model worked, and is eminently copyable, we'll no doubt be seeing copycats for years.
So prepare yourself now, because you'll no doubt soon see every unattached actor with a new movie a few months from release, suddenly finding love with a random actress (also with a new release forthcoming) and jumping on Oprah's couch.
More Thoughts on Internet Vigilantism
Here's a question for Dan Solove and Marcy Peek: What happens when internet vigilantism is combined with the prospect of "outing" a person for hidden faults?
Let's play with the idea a bit.
For example, let's say that a popular religious leader, Pastor Bob, is actually sleeping with his secretary. Mike, someone who dislikes Bob, breaks into Bob's e-mail account one day and discovers this fact. Mike subsequently registers pastorbobissleepingwithhissecretary.com and posts Bob's love letters to his secretary. Readers notice this site and it becomes popular. It gets linked by metafilter, Boing Boing, slashdot, kuro5hin, and Fark.com. Within days, the entire country knows about Pastor Bob's indiscretion. His name becomes a punch line for Jay Leno.
Pastor Bob is fired from his job, his reputation is destroyed, his wife divorces him, he's evicted from his home, and he has to live on the streets, destitute.
Is this actionable? I really, really want to think that it is. (Invasion of privacy? Interference with relationships? Loss of consortium? IIED?)
But now let's change the facts a little, and say that Mike didn't get this information from breaking into Bob's e-mail account, but rather simply by taking a surreptitious picture of Bob and his secretary kissing in the back of a restaurant, where they thought no one would see them. Does that change the analysis any?
To take it further, what if Pastor Bob had a private, pseudonymous blog about his affair (a la Washingtonienne) and Mike simply connected that blog to Pastor Bob, provided evidence that the pseudonymous writer was actually Bob, and let the damage accrue from there?
And finally, does the analysis change if Bob's actions are criminal (he's a child molester) rather than simply damaging if disclosed (he's having an affair)?
I don't know the answers to all of these. But I think that they illustrate some of the difficulties in answering the broader question of "can further (broad) publicization of already-public (but not widespread) information be actionable?"
This time, it's official
Sandra Day O'connor is retiring. From the Supreme Court. CNN story here. Orin Kerr has thoughts at Volokh, here. It will certainly be interesting to watch the development of jurisprudence now in many areas, such as religion and affirmative action, without the Court's most well-known swing vote.
Thursday, June 30, 2005
A Korean woman is now infamous after refusing to clean up her dog's mess on the train. (Via Boing Boing). A quote from the Docuverse story about her:
It began in a subway train with a girl whose dog made a mess on the train floor. When nearby elders told her to clean up the mess, she basically told them to fuck off. A nearby enraged netizen then took pictures of her and posted it, without any masking, on a popular website which started a nationwide witchhunt. Within hours, she was labeled gae-ttong-nyue (dog-shit-girl) and her pictures and parodies were everywhere. Within days, her identity and her past were revealed.
This is disturbing. I'm as in favor of clean subway cars as the next guy. But internet vigilantism raises a host of serious ethical questions. This woman has, at worst, violated a minor municipal ordinance. The resulting huge publicity is probably far in excess of her offense.
However, internet vigilantism is on the rise. Some of it is probably relatively harmless, such as 419-baiting. Other instances, such as the public exposure of "Laura K. Krishna" (later changed to a pseudonym) as a plagiarism-seeking student, are more troubling. Internet vigilantism may seem cute, and it certainly satisfies the tastes of web surfers who are always eager to watch a villian get his comeuppance. But it manifests all of the problems of the classic lynch mob, including lack of appeal, lack of impartial hearing, and a definite possibility of excessive punishment. (Plus, in a world of photoshopped pictures, the possibility of an unjust conviction seems intolerably high).
I suspect that there are a lot more issues relating to the question of internet vigilantism. If only I knew of any experts in, say, privacy, or shaming punishments, who could comment further about this topic . . .
UPDATE: I need to do better pre-emption checks. Dan Solove already posted some great comments on this topic, over at Balkinazation. Dan's comments on the topic are spot-on, as expected. And Marcy Peek, here at Prawfsblawg, has a nice follow-up as well.
Gun control, genocide, Darfur . . . and the Mormon experience
Dave Kopel writes today at Volokh, suggesting that government controls on gun ownership are contributing to human rights abuses in Zimbabwe. He has similarly argued, along with others, that the genocide in places like Darfur is a result of gun control.
Proponents of this sort of argument suggest that if Darfur (Zimbabwe, Rwanda, etc) residents were armed, they would be able to fight back and prevent genocide. Dave Kopel writes in the National Review that "the Darfur genocide — like the genocides in Rwanda, Srebrenica, Cambodia, and so many other nations in the last century — was made possible only by the prior destruction of [the right to bear arms]."
My own cultural history makes me doubtful of Kopel's argument. As I've stated earlier, I'm a Mormon, and my views on modern instances of genocide, like Darfur, are colored by the Mormon experience with armed persecution.
Mormons were heavily persecuted during the 1830s and 1840s. A very condensed history of the persecution (thanks to Nate Oman for helping me get the details right; all errors are mine, not his) goes along these lines:
The church was founded in 1830 in New York state, and quickly came under intense persecution. Mormons were killed and driven out by armed mobs, first from New York and then from Ohio. They fled Ohio for cities in Missouri and Illinois.
The roots of Mormon persecution are complex. The church was growing rapidly due to missionary work, and tended to enter new communities with a large influx of newcomers. Mormons were perceived to pose political and economic threats to other residents because they often voted together.
Mormon beliefs were also controversial -- starting with a belief in a living prophet and new scriptures, and eventually expanding to include beliefs in polygamy and in communal ownership of property. Mormon millenialism was also a factor: Mormons tended to believe that Christ's return was imminent and that He would vent His wrath on the "Gentiles" (as non-Mormons were called) -- a belief that didn't much endear them to the locals. In addition, some of the persecution in some states, such as Missouri, arose from racial strife -- Mormons were abolitionists, and Missourians saw them as a threat to the "peculiar institution." Finally, a good deal of persecution everywhere no doubt stemmed from old-fashioned avarice. Successful persecution meant freedom to seize Mormon land, loot Mormon property, and rape Mormon women, and that goal motivated greedy mobs to attack Mormon settlements.
In any case, the Mormons did not find a safe haven in either Missouri or Illinois. They were instead driven out of both states, within a few years, suffering massive losses of life along the way. Church founder Joseph Smith was imprisoned by complicit government officials and then assassinated by a mob, and other church leaders were imprisoned, attacked, or killed. Across both states, Mormon homes were burned, families killed, women raped, property seized.
And this expulsion took place despite the right to bear arms, which the Mormons used in vain.
The failure of the right to bear arms to protect the Mormons is instructive. The Mormon settlers armed themselves, formed protective militias, and planned defenses. They organized the Nauvoo Legion, which was a powerful local army. At many points in time, the Mormon militias including the Nauvoo Legion outnumbered the anti-Mormon militias in size and armament.
However, the powerful Mormon militias seldom engaged in pitched battle with their foes. This was due to a number of factors. First, church leaders were eager to defuse tensions and avoid a destructive all-out war with the anti-Mormons, so they held their own army in check much of the time. Second, the anti-Mormons were at times successful in allying themselves with state and federal military units, knowing that the Mormons could not attack government troops without suffering unbearable political consequences. (For example, Joseph Smith's assassination was made possible by the collaboration of local officials). In addition, the anti-Mormon raiders sought to avoid direct combat with the Mormon militias, opting instead to ransack unprotected outlying settlements. It was not until 1846, after the Mormon city of Nauvoo was being evacuated, that the militias actually met in battle. (At that time, due to the ongoing Mormon evacuation, the Mormons were badly outnumbered).
And so the Mormons were driven out of their cities in Missouri and Illinois, as thousands perished. The right to bear arms did not enable them to protect their property, their families, or their lives.
Of course, there were instances in which Mormon guns helped some Mormon settlers survive. The threat of the Nauvoo Legion's power helped keep many of the raiders at bay for portions of the evacuation of the city of Nauvoo, for example, which no doubt prevented that retreat from causing an even greater loss of life.
Some settlers were aided by their guns in individual confrontations with anti-Mormons. Famous Mormon gunslinger Porter Rockwell made his name in part by killing anti-Mormon raiders and defending Mormon settlers. Rockwell even, if one rumor is to be believed, tried to assassinate the rabidly anti-Mormon governor of Missouri -- a governor who had issued an "extermination order" stating that "the Mormons are to be driven from the state, or killed" -- and nearly succeeded. (The governor's would-be assassin, who evaded pursuit and was never positively identified, succeeded only in injuring the governor. Rockwell denied being the gunman; his defense was "He's still alive, a'int he?").
Overall, however, the right to bear arms didn't much protect the Mormons. They were only eventually saved by the decisive actions of Brigham Young, who led the survivors out of the United States altogether, to live in unsettled territory in then-northern Mexico.
The Mormon experience makes me wonder about the confident assertions of Kopel and others that a right to bear arms could prevent genocide. Yes, it's possible that a right to bear arms would have saved oppressed groups in Rwanda or Cambodia or Darfur. But I'm doubtful. After all, that right couldn't even save an oppressed minority group right here in America.
Wednesday, June 29, 2005
Would Madison have hated Kelo?
I'm seeing lots of statements online to the effect of "the Founders would have hated the result in Kelo." (See here for one example). I disagree --given the facts of the case, I doubt that James Madison would have batted an eyelash over the result.
James Madison, after all, didn't design a takings clause that protected against state or local action at all. He designed a takings clause that protected against federal action. If the City of New London had passed an ordinance in 1792, taking exactly the same property for exactly the same reasons, it is all but certain that Madison wouldn't have felt that the federal takings clause had any application at all to the case.
Now Madison might not have agreed with the Kelo opinion as applied to federal takings. But then, he might have agreed with that as well. Recall that not even Justice Thomas could find much evidence that Madison felt that "public use" should be construed narrowly.
If anything, Madison would probably wonder why courts today give the clause as much bite as they do. Madison's clause didn't protect against government regulations (that didn't come along until Mahon). And, as noted above, it didn't protect against state actions. Today, courts enforce the clause against both state actions and regulatory takings, giving property vastly greater protection than it enjoyed in 1792.
The takings clause as interpreted today -- including Kelo -- protects property quite a bit more than the takings clause did as interpreted in 1792. If Madison were shocked about takings jurisprudence, post-Kelo, his shock would probably stem from the vastly expanded property protection that the takings clause -- yes, post-Kelo -- gives property owners.
The Heir of King George
I suppose that what disgusts me most about the ludicrous Logan Clements proposal (and its equally ludicrous warm welcome in the legal blogosphere) is that the Founders of this country were appalled by the abuses of the crown in retaliating against jurors and judges who gave unpopular decisions. One of the crimes of King George, as laid out in the Declaration of Independence, was his trampling of the judiciary. "He has made Judges dependent on his Will alone, for the tenure of their Offices, and the amount and payment of their salaries."
And so, to prevent such abuses in the nascent nation, the Framers of the Constitution set out to create a political structure where judges would not be subject to retaliation. They went to great lengths to establish an independent judiciary that could rule on cases in accordance with the law and without fear of retaliation. And they succeeded.
And now some yahoo in California thinks it would be a good idea to scrap that system and return to the era in which judges live in fear of retaliation for their rulings. Logan Clements might as well be spitting on the Framers' graves. He is the moral and intellectual heir of King George.
(Equally disturbing, the legal blogosphere seems completely unfazed -- even eager -- at the prospect of trading in judicial independence for a mess of pottage.)
An unlikely dialogue
It's not every day that law students upstage law professors online. But a recent blog discussion is following exactly that pattern. In one corner of the ring is George
Washington Mason law professor Todd Zywicki. In the other corner is mild-mannered (?) Yale law student Will Baude. So far, the fight has been no contest, with every point going decisively in Will Baude's favor.
It helps that Zywicki probably picked the wrong fight. He criticized a New York Times editorial for the statement that "as with so much else, the founders, who came up with the idea of a clear wall of separation between church and state, had it right." Zywicki wrote "no one seriously believes that it was the founders who 'came up with the idea of a clear wall between church and state' do they?"
Zywicki's major problem, however, is the factual record. As Baude and others rightly noted, the phrase "wall of separation between church and state" comes directly from the pen of Thomas Jefferson.
Confronted with that fact, Zywicki tried to beat a hasty retreat, suggesting that his real argument was that a wall of separation was not "what the founders in general understood the Establishment Clause to mean." And to Zywicki's credit, that point is almost certainly much more defensible. However, it's not Zywicki's original assertion. And Will Baude, like a shark after blood, pounced on the retreating Todd Zywicki, noting that -- whatever the merits of Zywicki's revised assertion --
That's not actually what Zywicki's post purported to be about-- the question was who "Came up with" the wall metaphor. The answer is that Jefferson came up with it, Chief Justice Waite adopted it in the 1870s, and Hugo Black dragged it into the sunlight for its modern revival. The New York Times is right on the specific point.
Other commenters are intervening and suggesting alternate tacks, such as emphasis on the Times' questionable pluralization. Those may prove enough to salvage a bit of respect for Zywicki. But so far, he has been decisively outmatched in this argument by his law student foe. (And Dan, Hillel, Dave -- remind me not to pick a fight with Will Baude!)
An inconsistency that's not inconsistent
Over at Volokh, David Bernstein criticizes plaintiffs' attorney Barry Nace for a perceived inconsistency. Bernstein writes that Nace defended a malpractice lawsuit by arguing, inter alia, that he
wasn't liable to the client because 'courts soundly and uniformly reject the notion that Bendectin causes birth defects.' Two years later, Nace told the New York Times that he still believes that Bendectin causes birth defects. I guess he forgot to tell his lawyer.
Bernstein suggests that Nace's two statements -- that courts reject Benedictin cases, and that Nace believes that Benedictin causes birth defects -- are inconsistent. (Hence the snarky "I guess he forgot to tell his lawyer"). But Bernstein is missing the obvious. The two statements "courts think X" and "I personally believe not-X" are in no way inconsistent. It's puzzling how Bernstein could even confuse these two arguments.
Indeed, the very New York Times article to which Bernstein links makes clear that Nace's personal views differ from his legal opinion on the legal merits of the cases. (For a malpractice suit, it's the legal merits that matter). The article quotes Nace as saying "this is the safest drug in terms of litigation" and that the Benedictin litigation is "hopeless." It later quotes Nace saying "In my mind, there is no question that Bendectin causes birth defects." (emphasis added). Sounds pretty consistent to me.
Of course, there will always be room for disagreement on the merits of the Benedictin cases. But Bernstein seems quite wrong to suggest that Nace's two statements are inconsistent, when they are in fact very easy to reconcile. And it seems unwarranted to suggest that Nace "forgot to tell his lawyer" about his personal views.
(Can you imagine that conversation? Nace: "By the way, I personally think that Benedictin causes birth defects. Does that change this summary judgment motion any?" Lawyer: "Nope." Nace: "Didn't think so. Just checking.")
Monday, June 27, 2005
Outrage and surprise
Will Baude suggests that I'm "disappointed and surprised by the outrage that Kelo has engendered in the blogosphere." I hope that my post didn't convey that idea. What disappointed me was not outrage; I think it's quite all right to be outraged or angry over Kelo.
What disappointed me was that so many legal academics seemed to be surprised about Kelo. Surprised! The outcome in Kelo was widely expected and was in line with longstanding precedent. No legal academic should have been surprised by the result.
Being surprised by Kelo is like being surprised when a Democratic presidential candidate wins New York, or a Republican candidate wins Texas. It's like being surprised when Michael Jordan wins a basketball championship.
Of course, just because legal academics shouldn't have been surprised doesn't mean that they should all support Kelo. The decision is certainly open to criticism on any number of grounds. But surprise? No matter how much I may dislike Michael Jordan, it still strains my credibility if I express surprise when Michael Jordan wins.
[Edit, five minutes after posting: I tried to get too cutesy at the end of this post and compare Kelo to Casey. But one review, the comparison doesn't really hold up that well, so I've cut it out.]
Wednesday, June 08, 2005
Dangerous book lists revisited
So, you didn't like Human Events' list of the ten most dangerous books? Never fear -- liberals have struck back with their own list! Yes, Kevin Drum has compiled a list of the real ten most harmful books, including entries from Rand, Hayek, and the czarist secret police.
So there you have it -- handy little ten-books-to-avoid lists for both sides of the political spectrum. (Or if you prefer, call it a neat little Amazon.com shopping-list for your political enemies.)
Meanwhile, all this list-making sounds like fun. I'm wondering how we can get involved. The ten most dreary law review articles? No good -- don't want to have to sort through thousands of submissions. The ten most incomprehensible judicial opinions? Even worse.
How about the ten most useless top ten lists? Ahh, now we're getting somewhere.
Tuesday, June 07, 2005
Discrimination by Religious Organizations
Over at Lessig, Ian Ayres discusses how he and others* have tried to respond to their church's policy of not marrying same-sex couples. Ayres notes that "the Bishop in short order called us on the carpet saying that Canon law did not allow same-sex marriage. He forbade us from ending the discrimination by religiously marrying same-sex couples."
Ayres discusses his impulse to "warn people" about the Episcopal church's policy, and his initial thought -- never carried through -- to sign a statement reading "I acknowledge that I am choosing to associate with a church that discriminates on the basis of sexual orientation."
I can understand Ayres's impulse. However, I'm uncomfortable with the way that Ayres's analysis seems to treat the relationship with a church like any other relationship with an organization.
I'm not convinced that it makes sense to treat religious organizations the same as other entities, such as employers, retailers, or government agencies. And I think that it's quite disingenuous for liberal academics to act as if there is no difference between religious and other organizations. (Ayres' post falls somewhat into this category, and I've seen the point argued more strongly elsewhere).
The fact is that for many Americans, religious organizations are not simply another type of private actor or organization. Rather, they are a means of interacting with a divine being. They are a link to God.
This can lead to some important ways in which discrimination by religious organizations is viewed differently by members of those organizations than discrimination by other entities.
The first major difference is that religious organizations probably have much more captive audiences. Because they often claim unique connections to the divine, religious organizations may not be, for their believers, as susceptible to substitution as other organizations. If I disagree with the social policies of Coca-cola, I can drink Pepsi instead of Coke. If I disagree with the social policies of my employer, I may be able to get another job. But if I'm convinced that the only way to please God is through adherence to a particular religion, I cannot simply replace that religion with a substitute entity. I may have some limited forum-shopping available, such as switching parishes or congregations or synagogues, but if I'm convinced that some particular faith -- Mormonism or Episcopalianism or Orthodox Judaism or whatever else -- is required for my spiritual well-being, I can't simply decide to switch faiths.
A second major difference is that many religious organizations base their stated policies on their interpretation of God's will. Thus, policies of religious organizations may be much less susceptible to change than similar policies would be in other groups. If Coca-Cola or IBM or General Motors has a policy with which its customers disagree, they can lobby against that policy, confident that it comes from no higher original source than the Board of Directors of the company.
There may be much less practical ability to change church policies. If a particular policy is viewed as established by a reading of the Bible, or by revelation from God, members may be severely constrained in their ability to say "this policy ought to change."
Of course, not every church is based on ecclesiastical principles of this sort. The ability of any church member to suggest change undoubtedly varies from denomination to denomination and from locale to locale. However, the ability of any particular church member or members to seek change on broad social issues like marriage is almost certain to involve complicated questions in areas such as ecclesiology and scriptural hermeneutics and exegesis, that will differ significantly between denominations.
The combination of these two factors -- the relatively low substitutability of religious belief sets and the relative constraints on member action that may be imposed by differing ecclesiastical structures and beliefs -- means that the problem of discrimination by religious organizations may be both unusually sensitive and unusually resistant to member pressures.
Of course, there may still be good reasons to seek social changes from within religious organizations. But any such efforts must start from a point that recognizes, rather than avoids, the distinctive nature of religious organizations.
*UPDATE: A reader points out that Ayres's reference to "Jennifer" is actually ambiguous as used in his post -- it is not clear whether he refers to his co-blogger and partner Jennifer Gerarda Brown, or to Ayres's sister who he mentions earlier in his post. Since the name is ambiguous, I've changed my original sentence (I had originally assumed he was talking about his partner). (Back to Top)
Monday, June 06, 2005
More on Sex-Offender Covenants and Race
Co-guest-blogger Christine asks what happens when a neighborhood requires restrictive covenants that ban sex offenders.
There are all sorts of interesting property questions -- for example, what happens when the property owner dies intestate, and the property would pass to a sex offender under the intestacy law? But one likely consequence of such a restriction is that the neighborhood is going to be whiter. As Dan Filler notes, the "sex offender" label is disproportionately placed on African-Americans, sometimes for actual sex offenses and sometimes for various convictions that have little to do with sex crime. The result is that any law or ordinance singling out registered "sex offenders" will have a disproportionate impact on Blacks.
Meanwhile, a recent Volokh.com post relates to Filler's other take-home point -- that the media sensationalizes kidnappings and sexual crimes against white girls and young women. Orin Kerr notes the media frenzy over yet another (apparently) kidnapped, photogenic, white young woman, writing:
I am often amazed at how brazen the [media] can be in selecting what types of missing persons reports it selects as leading stories, especially on websites and TV. The missing person is almost always young; always a woman; always white; and always attractive. . . a person who followed the [media] uncritically might think that the only missing people in America are young attractive white women.
As shown by Filler, it is precisely that kind of sensational narrative -- young white women kidnapped by strangers -- that leads to public pressure to crack down on sex offenders. Meanwhile, most sex offenses are not stranger kidnappings or rapes, and most people who are categorized as sex offenders are not stranger rapists or kidnappers. While each state's laws differ, the burdens of the "sex offender" label tend to fall mostly on Blacks.
Filler's argument could not be more timely, because (as Christine notes) these kinds of laws are going to spread quickly, if they are found to be constitutional. For example, the city of Miami Beach recently enacted an ordinance that is designed to have a similar effect.
One likely result will be negative externalities -- sex offenders forced out of Miami Beach and Lubbock will have to go somewhere, and so other communities may suffer from higher concentrations of sex offenders. Another likely result is the creation of whiter neighborhoods.
Is that, by itself, potentially violative of Shelley v. Kramer? I don't know that it is. But the racially disproportionate effect of sex-offender property restrictions may prove to be one way that they could be attacked.
(By the way, Filler's piece is at 89 Iowa L Rev 1535 (2004), and the SSRN version is available here.)
Friday, June 03, 2005
Professor-Student Blogging at L&EN
While I'm on the subject of Gordon's blogs, I would be very remiss not to highlight the unusual structure of one of his blogs -- Law and Entrepreneurship News -- particularly because I think that that blog offers a unique and very exciting new model for professor-student collaboration.
L&EN is a hybrid of sorts, part journal-like in character and part blog-like. Wisconsin law students who want to participate are each assigned a category -- "Small Business" or "Venture Capital" or "Bankruptcy", for example. So Nick Infusino is the Small Business editor, Marjorie Sterne is the Patents editor, Gerry Torres is the Tax editor, and so forth. The categories are originally set up by Gordon, who supervises the blog.
From there, the blog is essentially turned over to the student editors, whose job is to post when they see a case or article that touches on their topic. A Business Week article or two on small businesses? Nick points them out in a post. A recent case dealing with patent issues? Marjorie posts about it. And so forth.
At the end of the semester, the blog itself has several months of frequent posts on a range of entrepreneurship-related topics. And the student editors have become mini-experts of a sort on their topics, since they've been reading news articles and cases on their topics and blogging about them regularly.
It seems like a great way to get students involved, and a very exciting method to foster student-professor collaboration. It also may be the first new use of the unique strengths of blogging as a medium in the teaching of law. (Prior to seeing Gordon's blog, I wasn't sure at all that blogging as a medium had anything to offer in student-professor interactions that other electronic media, like message boards, didn't already offer.)
Having watched it in action, I'm now a big fan of Gordon's collaborative blogging model. Once I get my feet under me as a professor, I fully intend to
steal franchise :) Gordon's idea and set up something similar.
L&EN is pretty close to brand-new, and I suspect that Gordon may tinker with the model slightly to work out any kinks that came up the first year. I'll be keeping an eye out, because I think I've seen the future -- and it's called professor-student blogging.