Friday, June 03, 2005

A positive review of PrawfsBlawg

Wisconsin Lawprof and cheese-monger extraordinaire Gordon Smith (who blogs at Conglomerate, Law & Entrepreneurship, and at Times and Seasons, where I'm one of his co-bloggers) has posted some interesting thoughts on "blogging synergies."  He writes that synergy between co-bloggers can really help a group blog to establish itself, in a way the the whole becomes greater than the sum of the parts

I think Gordon's on to something.  Blogging synergies allow co-bloggers to build off of each other's strengths and to explore more thoroughly their common interests.  Plus, a good group blog brings together the separate (but overlapping) communities of people interested in the subjects discussed by each of the different contributors, and that interaction creates its own synergy.  And finally, a good group blog can avoid one of blogging's biggest pitfalls -- dead time -- by having enough contributors to consistently keep good material flowing.

Gordon also has some kind words for us Prawfsblawgers in particular, writing

It's been entertaining for me to watch Prawfsblawg organize. At first, the posts seemed like a wholly random collection of thoughts, most about law schools and law teaching. As time has passed, the bloggers over there have been refining their blogging styles and converging on a more consistent style. Moreover, they have expanded their topical repertoire, and they now post on all sorts of legal issues while retaining an affinity for topics relating to law schools and law teaching. My sense from looking at the long list of guest bloggers is that they are still figuring out the ultimate direction of the blog, but they are in the process of creating a really good product.

Thanks for the kind words, Gordon!  I've enjoyed Prawfsblawging so far as well, and like you, I have the sense that the blog is cohering into something distinct and recognizable.  Hopefully the future will see the development of this voice, as well as bringing added synergies that make the blog even better.

Posted by Kaimi Wenger on June 3, 2005 at 01:45 PM in Deliberation and voices, Kaimi Wenger | Permalink | Comments (0) | TrackBack

Wednesday, June 01, 2005

Guilty as Charged. See ya in Church.

CNN reports that Judge Caperton in Kentucky is sentencing some drug and alcohol offenders to . . . church time?  The ACLU is opposed, of course.

I don't know enough about the particular case to argue one way or the other.  In general, I think that sentences to church time raise some serious red flags, and present quite a bit of potential for abuse.

But I'm wondering about scenarios in which there is a good reason to offer alternative church sentences.  Say that you're a judge in a small town in Kentucky or Alabama or West Virginia, and you've got a batch of DUI's and drug-possession cases.  Your town doesn't have a strong network of social service agencies, but it does have a strong local church which runs a highly regarded, historically effective 12-step program for addicts and alcoholics.

Is it wrong to offer some of these convicts the option of going to the local church 12-step program instead of jail time? 

On the broader level, what should the judge do in cases where it looks like there is a genuine rehabilitation benefit to be gained from channeling some convicted people to a religious organization that has an effective social network that will help them overcome their problems?  Is the judge's only option "sorry, I've got to send you all to the slammer"?  On the one hand, there are fairness issues for prisoners who do not wish to attend church services.  On the other hand, there could be a real loss in rehabilitation for prisoners who would be willing to work with the social programs operated by a church.

(And just to reiterate -- I don't know enough about the Judge Caperton sentences to know whether they meet this pattern, and I'm naturally suspicious of coerced church attendance.  It's usually bad.  But it strikes me that there are cases where it might be a net benefit to society -- how do we handle these?). 

Posted by Kaimi Wenger on June 1, 2005 at 11:51 AM in Criminal Law, Kaimi Wenger, Odd World, Religion | Permalink | Comments (1) | TrackBack

Tuesday, May 31, 2005

Jews in Mormon Theology

I'm the token Mormon guest-blogger here at Prawfsblawg and I regularly blog on Mormon topics at Times and Seasons.  One of my co-bloggers at T & S, political scientist Russell Arben Fox, recently posted a discussion of the place of Jews in Mormon theology, which I thought might be of interest to some of our readers here (especially since many Prawfsblawg's readers are Jewish). 

Russell's take is that the Mormon view of Jews is a bit conflicted.  On the one hand, Mormons, like all Christians, believe that faith in Jesus is necessary for eventual salvation.  And Mormon belief could be characterized as quasi-supersessionist in nature -- in general, Mormons believe that God's covenants with Israel have been extended to righteous gentiles who accept the gospel of Jesus Christ (without, however, implying that the covenant was revoked with Israel, which would correspond to the stronger supersessionist beliefs held by some Christian groups). 

On the other hand, Mormon prophets and Mormon scriptures emphasize the importance of the Jewish people in God's plan.  And Mormon beliefs are quite Zionist in nature, emphasizing that God will bring the Jews back to the Holy Land.  Mormon leader Orson Hyde was sent to the Holy Land, soon after the church was formed, to offer prayers to dedicate the land for the gathering of the Jews; and many Mormons believe that the creation of the state of Israel is in accordance with God's plans.  Thus, the Jews hold a special place in Mormon belief.

I won't do further violence to Russell's lengthy post by further summarizing and editorializing it here.  But I do recommend his post, which goes into further detail on many of the topics I've briefly mentioned.

Posted by Kaimi Wenger on May 31, 2005 at 02:37 PM in Kaimi Wenger, Religion | Permalink | Comments (0) | TrackBack

The Next Supreme Court Nominee

Over at Debate Club, they've been wondering if any nominees could command unanimous support.  No agreement so far.  Volokh conspirators have chipped in helpfully, first suggesting John Roberts, but then realizing that he would likely face strong Democratic opposition.  Meanwhile, Talkleft thinks that Ted Olson is likely to be the next candidate.

All this speculation leads me to a point that I've argued before (and that I've seen others argue before as well):

The best possible candidate for the next Supreme Court opening (assuming that it's a Bush appointment) is Richard Posner.

Let's start by suggesting that the best candidate is one who will be widely accepted.  Bush may (or may not) have the political capital to force through a controversial candidate.  But it is probably best for everyone if he goes with a less controversial candidate, one who is (to use a phrase mentioned at Debate Club) "approved by conservatives, lauded by moderates, and acceptable to liberals." 

In addition to meeting those political requirements, a strong candidate omust be one who fares well in the measurements that will be used in evaluating nominees.  These will include a judge's intelligence, understanding of law, prudence, ability to work with other judges, independence, and willingness to subordinate individual preferences to the rule of law. 

Judge Posner is examplary in nearly every category.  He is recognized as one of the greatest legal minds of his generation.  He has been instrumental in the widespread use of economic principles in legal scholarship and in court decisions.  He has also written extensively about jurisprudence and about substantive law in dozens of areas ranging from employment law to antitrust to torts, and everything in between.

Judge Posner's independence from any political thrall is unquestioned.  There is no doubt that he calls the cases as he sees them.  One may disagree with individual judgments -- I often disagree with his conclusions -- but his opinions are always articulate and well-reasoned.  And on the critical question of "will this judge simply vote along party lines?", the answer is a resounding "no."  Whatever one says about Judge Posner, he cannot be accused of simply voting a straight Republican ticket. 

On the one hand, Judge Posner's jurisprudence and scholarship is often quite conservative in tone.  He has argued that Title VII is inefficient; he has defended monopolies and criticized anti-monopoly laws; he has roundly critiqued former President Clinton for dishonesty.  He regularly speaks in venues like the American Enterprise Institute. 

However, Posner's conservatism has always included a healthy dose of independence.  He refused to join the textualist-originalist ranks in the field of interpretation, instead offering an influential "tank commander cut off from radio communication" model that affords broad independence to judges.  He has argued, with the left, against intellectual property restrictions like the DMCA. 

Posner's independence is evident from his blogosphere presence as well.  Posner blogs with "Nobel"-winning economist Gary Becker, and has also blogged with Larry Lessig and with Brian Leiter.  If that's not a broad coalition, the term has no meaning.

Posner's scholarship is extensive, and he does not avoid controversial topics.  This  means that everyone can find something in his scholarship with which to disagree.  I often find myself in disagreement with Posner's conclusions.  But his conclusions are never sloppy or ill-thought, and never seem dishonest.  He says what's on his mind, after thinking it through.  And he typically says it well. 

There are three potential bumps in the road for a Posner nomination:  age, liberals, and conservatives.

Age may come into play.  Judge Posner is not a young man.  However, he is still, by all reports, sharp as a tack.  I don't see age stopping a Posner nomination.  (It may factor in, however, since conservatives will see a Posner nomination as providing less bang for the buck -- they will want to get 20 or 25 years out of this nomination, and Posner may, realistically, be more in the 10-15 year category). 

Liberal opposition may materialize.  And let's be frank:  Because Judge Posner has written a lot of things, it will be easy to find something to use against him.  The infamous baby-selling article, for instance, is likely to come up. 

But will liberal opposition keep Posner off the Court?  Probably not. 

First, Posner is likely to be overwhelmingly supported (as McConnell was) by his fellow legal academics.  Will Democrats really stand in the way of a Posner nomination when Posner's colleague (and politically connected liberal law professor) Cass Sunstein can, on the drop of a hat, produce a letter signed by hundreds of legal academics of all political stripes, supporting a Posner nomination?  Not likely.

Second, Democrats know that Bush has a dozen hatchet men who he could nominate, and a Posner nomination is decidedly not a hatchet man nomination.  Yes, he'll often vote with the court's conservatives.  But he'll also break from them on some important issues.  He'll likely become a key moderate-conservative vote on the court.  That's not such a bad outcome for Democrats.

For precisely that reason, conservatives may oppose the nomination.  The interest groups on the right don't want a moderate-conservative, they want a yes-man who will rubber-stamp their agenda.  And they may feel that, with Republicans in power, they deserve such a nominee.

However, I don't know that they'll be able to stop a Posner nomination, either.  First, Bush and Rove have a pretty good control on party machinery (much better than the Democrats have) and can exert muscle to bring wayward elements into line.

Second, Judge Posner brings a lot to the table for conservatives.  With his mind and pen, he will be authoring lots of important opinions, and they will be mostly conservative in tone.  He will frame issues in important ways.  Conservatives could do a lot worse than putting one of the premier theorist judges of our time onto the Supreme Court and letting him write careful, lucid, well-reasoned opinions that will still be cited 100 years from now.  He could become the conservative Brandeis, who was important as Court participant but equally (perhaps more) important for the concepts that he trumpeted from the platform of the Court. 

And of course, Bush has a key weapon with which to beat any reluctant groups into submission -- the truth.  "This is the greatest jurist of our time," he can say.  "How can you oppose him?  Such opposition could only be based on crass politics."

And he'll be right.

A Posner nomination would give Bush indelible proof that his nominations are not about politics, but about appointing the best person for the job.  Law school faculties and the judciary would support the nomination overwhelmingly -- how could they not?  And Bush would gain vast political capital as Posner sailed through the confirmation process.  It's the choice of a uniter, not a divider, and it would go a long way towards rehabilitating Bush's once-important image as a moderate, "compassionate conservative."

Perhaps it's not a political reality.  Very few of the media's "short lists" (such as this one) even mention Posner.  If he's not on Bush's short list -- at the top of it -- it would be a shame.  Judge Posner is clearly the right man for the next Supreme Court nomination. 

Update from Dan Markel: Welcome Instapundit readers.  PrawfsBlawg has been up and running for about two months now, and it's a forum where legal academics (both current and rising) discuss law and life.  Some other recent posts you might enjoy while you're here include: reflections on leaving legal practice; pictures and thoughts on HinJew weddings; the comedy of the new Blue Book; this post on what Star Wars can teach legal theorists; this post on Israeli tourism and the evacuation from Gaza; and these posts on why the Bar Exam should be abolished.  Since we're still new, please bookmark us and if you like our 'zine, tell your friends about us.  Welcome again to PrawfsBlawg (home of raw law prof blogging).

Posted by Kaimi Wenger on May 31, 2005 at 02:30 PM in Kaimi Wenger, Law and Politics | Permalink | Comments (28) | TrackBack

Wednesday, May 25, 2005

From the Department of Needlessly Inflammatory Comparisons, Division

Comes now a post by Volokh conspirator Dave Kopel, which begins:

In 1924, after Lenin's death, the Communist Party of the Soviet Union introduced the concept of " socialism in one country." Recognizing that the hoped-for Communist revolutions elsewhere in Europe would not take place, the Soviet Communists set about building their version of "socialism," and then adding other nations to their "socialist" sphere of hegemony whenever possible. Today, many international gun prohibition advocates have recognized that, even though world-wide gun prohibition is not achievable in the near future, gun prohibition can be advanced in individual nations.

This is shocking news, of course:  Modern gun control proponents want to work incrementally.  This is outrageous because the Communist Party also once worked incrementally.  Such (shocking!) similarity is apparently more than enough justification for tying together these two entities -- one of which invokes strong negative connotations -- within the same paragraph.

The comparison is gratuitous.  There is no discussion of the merits of Communist incrementalist strategy or of any partcular similarities between Communist incrementalist strategies and gun-control incrementalist strategies.  There is no mention of the numerous relevant disparities between the groups.  Perhaps most importantly, there is no hint at all that every political group on the face of the planet uses incrementalist strategies at various times.  This is the equivalent of saying "Lenin used pen and paper, and so does Handgun Control, Inc."  It's an incredibly irresponsible comparison, and frankly, I'm surprised that Eugene Volokh, who is normally a stickler for fair argument standards, is putting up with it.  My guess is that he simply didn't notice it.

Eugene, of course, is well-known for his use of "substitute in another party's name" hypotheticals to illustrate unfair arguments.  I can't claim the same dexterity with the form that Eugene regularly displays, but I think that even my own less agile attempt at this kind of adaptation makes clear the extent of the problem:

When he was in charge of Fascist Italy, Musolini used to meet with his followers and rile them up.  This was an important Fascist tactic.  Today, the NRA meets with its members and riles them up. 

Is that really a fair comparison? 

And if not, then what on earth are Lenin and the Communist Party doing at the beginning of Kopel's post?

Posted by Kaimi Wenger on May 25, 2005 at 10:19 PM in Deliberation and voices, Kaimi Wenger | Permalink | Comments (4) | TrackBack

Frankfurter Spectacular, and other Gastronomic Monstrosities

So, 30-year-old Weight Watchers recipes are, it turns out, extremely bizarre and easy to mock.  And also apparently (at least on the surface) unaffected by analysis of health or fat content or other things that might make sense on a Weight Watcher's recipe.

And did I mention that they're bizarre? Fish tacos?  "All you need is toast and quotation marks!"  Frankfurter spectacular?  Damn.  (I wonder if future generations will have this much fun at the expense of the Atkins diet.  I'm thinking that they will). 

As silly as these recipes are, I wonder if there's not a subversive kind of weight-loss scheme going on here.  Make the food so repulsive that no one will want to eat it . . . and voila, you're losing weight!

Posted by Kaimi Wenger on May 25, 2005 at 04:31 PM in Kaimi Wenger, Odd World | Permalink | Comments (2) | TrackBack

Monday, May 23, 2005

Who's that sitting next to you on the Greyhound?

Amazingly, it may just be an unescorted convict en route from one prison to another.  (Hat tip:  CrimProf).  Not surprisingly, convicts such as drug dealer and gang member Dwayne Fitzen are taking this opportunity to escape, as detailed in the news story above.  Even worse, I suspect it's just a matter of time before one of these unescorted prisoners harms a fellow passenger. 

This sounds like an incredibly wrongheaded policy.  Local officials may save a few dollars, but they outsource tremendous cost to the U.S. Marshalls who have to hunt down the escapees.  Meanwhile, society suffers from the prisoner escapes.

Hopefully, with publicity, this practice will change.

Posted by Kaimi Wenger on May 23, 2005 at 02:03 PM in Criminal Law, Kaimi Wenger | Permalink | Comments (0) | TrackBack

Which of your law school classes have been relevant to your practice?

Since we're talking about law schools, let's hop to another oft-discussed topic.  How relevant is law school to your practice? 

I'd like to get comments from some of our readers, and find out:

a.  What kind of law they practice, and how long they've practiced.

b.  How much of their law school training has been relevant to their practice.

c.  How much of their own practice is based on their law school training.

d.  Which classes they use always, often, sometimes, occasionally, or never.  We'll define often as 2-4 times a week, sometimes as 1-4 times a month, occasionally as once every 2 to 6 months. 

e.  What class might law school have offered that would be relevant to their practice.

Here are my own results:

a.  My practice is about 80% securities regulation, and also includes a little bit of general corporate work, and work on general tort, antitrust, and trusts & estates matters.  I've been in practice for three years.

b.  About 20% of my law school training has been relevant to my practice.

c.  About 10-15% of my practice is based on what I learned in law school.

d.  Classes as they relate to  my job:
Classes I use always:  None.
Classes I use often:  None
Classes I use sometimes:  Civil procedure, Securities Regulation, Corporations, Legal Writing
Classes I use occasionally:  Torts, Contracts, Tax, Trusts & Estates, Antitrust.
Classes I use never:  The rest (incl. Con Law, Crim Law, Evidence, Property, seminars, etc.)

e.  Most useful possible class:  A real "Procedure for practitioners" class that covered discovery issues in depth (including privilege, relevance, and objections), subpoenas, depositions (including class, merits, 30(b)(6), third-party, etc) and interrogatories, pretrial schedules and motions, and general motion-practice-for-dummies topics (discovery, stays, scheduling, 12(b)(6), summary judgment, protective orders, settlement, basic strategy of a brief, and so forth). 

I could have used that class, pretty much every single day for the past three years. 

Posted by Kaimi Wenger on May 23, 2005 at 11:11 AM in Kaimi Wenger, Life of Law Schools | Permalink | Comments (10) | TrackBack

Friday, May 20, 2005

Thoughts on Nate's thoughts on the Harvard Law Review selection process

In a comment over at Conglomerate, Nate Oman discusses the Harvard Law Review selection process.  It's quite lengthy and involves various stages of review, including a faculty read and a vote by the entire membership of the review.

As Nate notes, the process is more or less an open secret.  And as he also notes, Harvard "would pass-up pieces with exploding offers from other journals -- Columbia was particularly fond of this device -- when it would require that we short circuit our process." I'm happy that all of my reads at Columbia were not in vain, and I'm glad that our exploding offer-like policy was useful in keeping pieces with us. 

Columbia doesn't actually give exploding offers, but it's pretty close.  If Columbia makes an offer following a request for expedited review, the author has one hour to decide whether to accept the offer.  This is essentially enough time to hang up and check with Yale and see if they're meeting right now on your piece and can give you an answer within the next hour. 

I suspect that CLR's process was largely designed as a defense mechanism against Harvard.  After all, one major effect is almost entirely to prevent shopping up to Harvard.  This limits the universe of journals-that-we-might-get-shopped-up-to to Yale (Columbia's policy also makes life difficult for Yale, but not impossible).  (I don't think that there's much if any incentive to shop to Stanford or Chicago, since it's unclear that they're a step up from Columbia). 

And as a Harvard-blocker, the policy seems to be working.  Way to go, CLR! 

(Questions I'm pondering -- at what point will HLR have to give in to market pressure?  Does anyone else employ such a slow process?  Is this only feasible at a journal with a lockdown hold on the #1 position?)

Posted by Kaimi Wenger on May 20, 2005 at 02:52 PM in Kaimi Wenger, Life of Law Schools | Permalink | Comments (17) | TrackBack

Online Professor Ratings

I have a few friends in academia, and was a bit surprised to learn that they've been profiled at the online rating site .  No embarrassing results so far, but it's still potentially disconcerting to a professor, to know that students will be discussing her online, anonymously, and giving her ratings from 1 to 5 in categories like "Easiness," "Helpfulness," "Clarity" and even "Looks"!

The site doesn't seem to have caught on much with law students.  I checked my own alma mater and found just a handful of ratings under "Law."  But I suspect that this or a similar ratings site will become important to law students some time in the next few years. 

This change is probably for the worse.  On the one hand, such sites provide some information to students.  They may may reward professors who spend time and energy trying to teach well and to mentor students.  And in an ideal world, they might even shame some bad professors into teaching better. 

On the other hand, existing sites seem very susceptible to abuse.  A student with a grudge could leave dozens of bad rankings; a friend (or the professor herself) could stack the good rankings.  As US News shows us, any rankings system that can be gamed, will be gamed.  And so it seems likely that the most publicly available ratings metric -- web rankings -- will also be, for the foreseeable future, the least reliable. 

Posted by Kaimi Wenger on May 20, 2005 at 02:45 PM in Kaimi Wenger, Life of Law Schools | Permalink | Comments (7) | TrackBack

Sociologist discusses the value of student evaluations

Drawing on some of the literature, blogging sociologist Brayden King examines the value of student evaluations.  His thoughts:  Evaluations aren't worth much.  Apparently, two of the biggest indicators of positive student evaluations are course easiness and instructor sexiness. 

I'm out of luck in one of those two areas, so I guess I'd better start making my courses easier.  I'll start by removing some of those annoying cases.  And statutes.  Who needs to learn about the '34 Act in a Securities Reg class, anyway?  I'll teach the easiest Securities course on the planet, and revel in my positive evaluations!

Well, either that, or start hitting the gym more regularly . . .

Posted by Kaimi Wenger on May 20, 2005 at 12:01 PM in Kaimi Wenger, Life of Law Schools | Permalink | Comments (8) | TrackBack

Thursday, May 19, 2005

Properly American Political Tests

AA links to a British political test.  Let me point out for those patriotic souls who would like to see their politics arranged on a nice, neat little grid -- but want it done in American rather than British terms -- that there are similar tests available at and at .

I promise, these other tests are just as useless as the test AA linked.  And they're all pretty good in their role as kinda-fun time wasters.  The British test has better graphics, though.

Posted by Kaimi Wenger on May 19, 2005 at 06:06 PM in Kaimi Wenger, Law and Politics, Odd World | Permalink | Comments (1) | TrackBack

More about Law Professor Blogging

After posting earlier today on blogging and academia, I noticed that Larry Ribstein makes a similar point, and adds some useful observations:

[With] blawgs and SSRN . . . we see not only the published articles, but the thoughts and ideas along the way, and have a chance to gain from them.  SSRN, by providing a repository for drafts, enables a kind of dialogue.  I expect that these devices, or whatever they evolve into, become more important in measuring law schools and individual faculty.

I think he's on to something.  I consider myself someone who spends time reading and thinking about legal scholarship.  But to date I've only produced a limited number of published articles.  The vast majority of my reading and thinking stays below the threshold of article publication.  Thus, as a legal academic, I'm a bit of a cypher.  Will I produce scholarship?  Schools must use their best guess.

The information gap stems from the difference between private and public forums for legal discourse.  I have had countless e-mail and lunch discussions with other legal academics.  I keep up with listservs.  These outlets have many advantages.  But by and large, there has existed a firewall between private and public discussion.  Public discussion means law review articles.  It is infrequent, controlled, polished, and widely available.  Private discussion is found in e-mails or hallway conversations or lunch conversations.  It is frequent, ad hoc, unpolished, and almost completely unavailable. 

I think it's widely accepted that private discussion correlates strongly with public discussion.  I don't write a law review piece in a vacuum; I write it after discussing the topic at length with colleagues and friends.  Thus, it may be that if I can show that I'm engaging in private discussion, others will assume that I'm also going to at some point be producing results in the traditional public sphere of law reviews. 

Of course, there is a such thing as too much of a good thing.  If I spend all day blogging instead of working on my class prep or my law review piece, then blogging may be harming my progress as an academic.

But to the extent that the blog merely transcribes (perhaps with some additional thoughts) my everyday musings as I deal with interesting areas of law, it's a valuable sign that I'm thinking about the right things, and perhaps that I'm likely to be producing traditional scholarship on those topics in the future.

(And of course, sometimes blogging leads directly to traditional legal scholarship).

Posted by Kaimi Wenger on May 19, 2005 at 04:03 PM in Kaimi Wenger, Life of Law Schools | Permalink | Comments (0) | TrackBack

Blogging and Academics

Gordon Smith has some interesting thoughts on blogging as a law professor.  He writes

I have come to view blogging as an integral part of the process by which I stay on top of recent developments and think through emerging legal issues. Moreover, writing about those issues is a form of public service that I hope has value to those who read here. In short, blogging has become part of my job description, not just a sideline pursuit.

Well, so far my own blogging hasn't been 100% on-topic.  It's been a combination of work-helpful posts, work-tangential posts, and just-for-fun posts.  But I find that blogging keeps me thinking about interesting legal issues, and that can't be a bad thing.  Plus, I've made contacts through blogging, and the academic importance of making contacts cannot be understated. 

So I think I agree with Gordon.  For me, blogging isn't really a hobby like model-airplane-building.  Rather, it has become a channel of communication for interacting with other people interested in legal academia.  It's not the only channel, of course, but it's a serious channel nonetheless.

Posted by Kaimi Wenger on May 19, 2005 at 11:51 AM in Kaimi Wenger, Life of Law Schools | Permalink | Comments (1) | TrackBack

Tuesday, May 17, 2005

Quick note on the wine decision

Apropos the recent wine-shipping decision, I just wanted to point out that this is an area of law where it is extremely important to adopt a Sunsteinian approach.  That is, this kind of jurisprudence must be dealt with . . .

. . . one case at a time.

Posted by Kaimi Wenger on May 17, 2005 at 05:45 PM in Kaimi Wenger, Law and Politics | Permalink | Comments (2) | TrackBack

Giving 'Em the Finger, Part IV: Property Issues

This is the fourth and final post on the finger incident.  (See prior posts here, here, and here). 

The property law issues stem from one important question -- what is the property status of the finger?

The finger is an accidentally given item.  It is important to both the employee (who wishes to reattach it) and the customer (who wishes to retain it for suit). 

The customer bought and paid for the custard, which contained the finger.  The customer did not want the finger and viewed it as a harmful item.

It is certainly possible for title to be passed through sale.  However, title to valuable objects probably won't pass through inadvertent sale of this sort.  For example, if the employee had accidentally dropped his diamond ring into the custard, title to the ring would not pass through sale. 

This does not mean that the customer could never retain the property.  If the customer swallowed the diamond ring and suffered an injury from it, he might be justified in keeping the ring as evidence, even though ultimate title to the ring, as jewelry, remained with the employee. 

A second question is whether the customer has a property right to destroy the finger.  That is, if he went home, and found the finger there, would he be allowed to simply throw it away?  He probably would.  If he has a right to destroy the finger, how can we talk about limits to his rights to dispose of it? 

Even if the customer would normally have no property right in the finger, he may argue that he was given the finger by the store.  Thus, perhaps the customer is an innocent third-party recipient of valuable stolen property -- akin to innocent recipients of stolen Nazi art.

There are problems with retention of the finger, however.  The finger is a body part of the employee.  Does the customer believe that he has the right to treat it in any way he wishes?  What if he wants to use the finger to clone a child?  Does the employee have a right to prevent that?  (See also the recent Illinois case where a man alleged that his lover kept his sperm, after oral sex, and used it to impregnate herself.  The court found no theft in that case, since the sperm was freely given). 

What if he wants to cultivate cells from the finger to find a new medicine?  Is the employee's right in his fingertip any different than the rights asserted (unsuccessfully, at least in one state) in Moore v. Regents? 

Perhaps the employee's best claim is against the store.  They gave away his finger, despite uncertainty about its property status and uncertainty on whether he would be likely to get it back. 


(Note:  I was hoping to discuss criminal and ethical issues too, but I've found that my own lack of expertise in those areas prevents me from putting together good draft posts on those topics.  But by all means, feel free to discuss those issues as well, if you find them interesting.)

Posted by Kaimi Wenger on May 17, 2005 at 04:33 PM in Current Affairs, Kaimi Wenger, Legal Theory | Permalink | Comments (0) | TrackBack

Thursday, May 12, 2005

A Partial Concurrence

Over at the new NRO judicial-matters blog (so many things with which to disagree, now in one handy place!), Rick Garnett has put up an interesting post on the debate over judicial nominees.  Rick's point:  Let's get to the merits.

I do disagree with some of the substantive assertions in Rick's post.  I think that a pretty good case can be made, for example, for the idea that Janice Rogers Brown's views are indeed outside the mainstream (in part because, as I previously blogged, she has said as much herself!).

But on Rick's broader point -- that we should move beyond labels and to concrete cases and statements -- I agree completely.  I don't think it's helpful when politicians label every Bush nominee an "extremist," or every Clinton appointment an "activist."  I think it's dreadfully misguided to pretend that the judicial views of McConnell are identical to those of Brown, Pickering, Thomas or Scalia, for example.  And of course, it's equally wrongheaded to assert that Ginsburg, Souter, Breyer, or other more liberal judges have identical "activist" views.  Lowering the debate to the level of buzzwords and soundbites does us all a disservice. 

I've never been a fan of the use of the term "activist," which is routinely used by conservative politicians to demonize liberal judges with whom they disagree.  Unfortunately, the adoption of that simple term has been a very successful move politically, and now at least some people on the left seem eager to replicate the tactic by branding all Republican nominees as "extremists."  Yech.

Rick has the right idea:  Let's drop the sound-bite labels and talk about the merits.  So here's my proposal for conservatives (and liberals) everywhere:  I'll (we'll) drop "extremist."  You drop "activist."  And let's try to act like reasonable people and focus on the particulars of individual cases and statements as they relate to particular candidates. 

Posted by Kaimi Wenger on May 12, 2005 at 05:45 PM in Kaimi Wenger, Law and Politics | Permalink | Comments (2) | TrackBack

Polygamy and Property

An interesting article by Mary Campbell, from a few years back, suggests that anti-polygamy laws were ultimately concerned with protecting an equitable distribution of mens' property rights in women.  The article is at 13 Yale J.L. & Feminism 29 (2001). 

Campbell writes:

According to Congress, polygamy and democracy could never coexist because there simply were not enough women. . . . [A]s Representative Lyon of New York argued, "[it] has been demonstrated clearly by all political economists . . . that one man is just enough for one woman . . . that there should be no monopoly of the fair sex." For Congress, polygamy threatened democracy because it led to an unequal allocation of women. Strassberg might be correct in arguing that monogamy promotes the personal and political growth of women, but such concerns did not occupy Congress at the time. Rather, compulsory monogamy sought to prevent Mormon men from "fill[ing] their houses with the blooming beauties of the North, and the witching women of the South . . . ." Or, in the language of the Peay court, from absconding with their chattel. "With the same propriety might a man who steals a horse ask how he can act in regard to other men's horses and not lay himself liable to conviction for larceny. To tell him that he must simply cease stealing would not be at all satisfactory to him."  The polygamy acts mandated monogamy in order to prevent stealing. . . .  The federal government viewed both polygamy and monogamy as a means of distributing women between men; it simply preferred the monogamous allocation.

Campbell's thesis cuts against arguments made by Sally Gordon, Maura Strassberg, and others.  While some modern feminist scholars have argued that anti-polygamy laws were a correct response to against an oppressive patriarchal practice, Campbell argues that the laws were instead just inteded to protect the right kinds of patriarchy. 

I don't think that Campbell's arguments are a perfect explanation of anti-polygamy laws.  My friend Nate Oman has critiqued Campbell on empirical grounds.  As for me, I'm inclined to think that anti-polygamy laws sprang from a number of intellectual and political seeds.  Sally Gordon's focus on religious motivation seems like a good description of a major driving force.  But a part of Campbell's argument resonates with me, and I think that at least some actors may have been motivated by the women-as-property concerns that Campbell elucidates.  (It's pretty hard not to get that sense from the Peay case, for instance). 

Posted by Kaimi Wenger on May 12, 2005 at 04:53 PM in Kaimi Wenger, Religion | Permalink | Comments (0) | TrackBack

Giving 'Em the Finger, Part III: Tort Issues

This is the third in a series of posts on the finger incident.  (See the first post here).  This post will focus on tort issues, which are fascinating.  There are three major actors who we will be discussing:  The company, employee, and customer.

The first question:  Has the company committed a tort?  The answer is almost certainly yes.  By serving a finger in custard, the company is breaching its duty to the customer.  There is a products liability claim, and maybe an IIED (intentional infliction of emotional distress, for our three non-lawyer readers) claim.

An interesting question is whether this could be considered battery.  Is the placement of a finger an unwanted touching?  On the one hand (no pun intended), it is physical contact with the body part of another.

On the other hand, I'm reluctant to call this battery.  As a general matter, an object may be used to batter, but only if connected to a person.  If I hit Dan with a baseball bat, that action is battery.  If I serve Dan a custard with a baseball bat in it, he might be able to sue for other things, but I don't think that I've battered him.  And the detached finger seems like such an object.

A second question is whether the employee has committed a tort.  It's not clear that the employee would be liable for a products liability claim.  The battery claim is also possible, but I remain unconvinced. 

In addition, there may be duty issues attaching to the employee.  Does the employee owe a duty to customer?  Maybe.  (And, was the employee's act negligent?  I would say it probably was -- it's not normal to serve finger-containing custard.)

Finally, has the customer committed a tort?

Here, there are a few possibilities.  In particular, battery and IIED seem like intriguing possibilities.

Is the retention of the finger an unwanted touching?  It's certainly a novel claim.  For a battery claim against the customer, the detached object isn't an issue -- the customer is using his contiguous body to do the touching.  The problem, however, is that the touched part is detached. 

Do I have a right to protect against the touching of my possessions, when they aren't on my contiguous person?  If Dan touches my baseball bat after I set it down, can I accuse him of battery?  I'm not convinced.

What about conversion, then?  Ahh, here we run into Moore v. Regents, which I'll discuss in the property section (infra).  It seems possible to bring a conversion claim, but it's also novel.

(Other little odds-and-ends -- 1.  What about false imprisonment?  Hmm, unlikely.  2.  Can the customer assert self-defense?  He was just battering back at the finger that battered him first?  Also unlikely, I think).

But the biggest problem with any tort claim against the customer is going to have to be duty.  Does the customer owe a duty to the employee?  And if so, what duty is it?  This seems awfully like the Kitty Genovese case.  Absent a duty, people may legally refuse to aid others.  We may not like it when they do so, but there's no tort liability absent a duty. 

Did the customer at any point assume a duty?  Did he assume a duty on going into the store?  No.  The fact is, he could stand by and watch as employee has a heart attack and dies, and he would have no duty to dial 911.

Did he assume a duty by starting a resuce, and have a duty not to make it worse?  Not really.  He never started to aid the employee.  In fact, he would be perfectly within his rights, had he gone home and found the finger there, to simply throw it in the trash. 

The bottom line is that there is no tort liability for the customer, because he has no duty to the employee.

Posted by Kaimi Wenger on May 12, 2005 at 12:42 AM in Current Affairs, Kaimi Wenger | Permalink | Comments (4) | TrackBack

Tuesday, May 10, 2005

More on Religion and Discrimination

Rick Garnett has posted part of an interesting exchange on the topic, over at Mirror of Justice.

Posted by Kaimi Wenger on May 10, 2005 at 01:56 PM in Kaimi Wenger, Legal Theory, Religion | Permalink | Comments (0) | TrackBack

Monday, May 09, 2005

Giving 'Em the Finger, Part II: Evidence Issues

This is the second in a series of posts on the finger incident.  (See the prior post here).  This (brief) post will focus on the evidence issues.

The question that comes up is:  "what are my rights to hold on to evidence, when that act (i.e., the retention of evidence) will harm another?"

At the outset, it's clear that some sorts of seizures of evidence are permissible, even though they have a negative effect on a party.  Thus, we may want to permit the government to seize assets or computers that were used in a suspected conspiracy, even if those may also be needed for the business to run.  This power has limits, of course. 

An interesting analogy might be if a diabetic used her insulin-shot needles to commit a crime.  At that point, the needles are both important evidence, and also something that she needs for her own health. 

I don't know how the evidentiary issues might resolve in the finger case.  It's not really my area, but I thought it would be helpful to at least suggest some of the issues here, before moving on to areas that I'm more knowledgeable with (such as tort law).  I'm sure that I'm missing things here -- perhaps others can suggest ways that these kinds of issues are generally resolved.

Posted by Kaimi Wenger on May 9, 2005 at 02:37 PM in Current Affairs, Kaimi Wenger | Permalink | Comments (0) | TrackBack

Simon Reversed

As a law clerk to Judge Jack Weinstein, I worked on the Simon II case, where the court certified a nationwide, punitive-damages only, limited fund class.  I thought that Simon was a great way to approach the issue, and I thought that the court's reasoning was persuasive.  (Of course, I may be biased, since I helped draft it).

The Second Circuit apparently disagreed with my assessment; just last Friday, the court of appeals reversed the class certification decision

The Second Circuit's opinion can be read here

Posted by Kaimi Wenger on May 9, 2005 at 01:28 PM in Current Affairs, Kaimi Wenger | Permalink | Comments (0) | TrackBack

Lloyd Cutler

Influential and well-respected attorney Lloyd Cutler has passed away.  Michael Froomkin, who worked briefly with Cutler, has posted a nice tribute.

Posted by Kaimi Wenger on May 9, 2005 at 01:07 PM in Current Affairs, Kaimi Wenger | Permalink | TrackBack

Giving 'Em the Finger, Part I: Strategy Considerations

You may have seen by now the case of the finger-in-custard.  A customer bought custard which contained the newly severed finger of a worker in the back of the store.  The store manager asked for the customer to return the finger, and the customer refused.

This incident raises issues in a number of areas of law, including evidence, tort, property, criminal law, and ethics.  I'll address some of those issues in a set of future posts.  This initial post will focus on decisionmaking by the customer and his attorney.  Or:  You are an attorney, sitting at your office.  Customer calls you and says "I just found a finger in my custard!"  How do you advise him?

At this point, there are basically two choices.  Your client can return the finger within a period of hours, or hang on to it.  Each has potential advantages and disadvantages.

Keeping the Finger keeps an important piece of evidence in your client's hands.  (This may be particularly important given the environment following the recent Wendy's finger incident, where the store has attacked the accuser and accused her of fabricating the incident). 

In addition, keeping the finger allows your client to have it tested for disease.  This is important, since your client wants to know whether he may potentially be exposed to AIDS or herpes or tuberculosis from ingestion of custard containing the body parts of another person. 

The downside of keeping the finger is that it potentially opens up your client to tort or criminal law claims, which will be discussed in a future post.  Also, it may make your client look less sympathetic before any jury.

Giving back the finger may weaken your chain of evidence.  It also will make it harder to test for diseases.  On the other hand, giving back the finger insulates your client from any tort or criminal liability that may arise from keeping the finger. 

Given the two choices, is it a valid choice to keep the finger?  Yes.  An attorney could reasonably believe that the exposure to unknown (to be discussed) criminal and tort liability is outweighed by the gain of keeping the evidence at hand, and having it available for testing.

Is there a third way?  Various commenters have suggested that it might be possible to have the parties sign affidavits, thus preserving the evidence.  That seems like a decent option.

However, that option is not a silver bullet.  First, I think it's an open question whether an affifdavit is as good of evidence as the actual finger.  (There are advantages to having the finger, which is unambiguous).  Also, the affidavit route still prevents your client from having the finger tested for disease. 

So even given the option of a third route, it's still a valid choice to hang on to the finger.  It depends on how you, as a lawyer, weigh the evidentiary and testing value of retaining the finger against the potential liability in keeping it. 

Coming up, in Part II:  Evidentiary Issues.

Posted by Kaimi Wenger on May 9, 2005 at 11:09 AM in Current Affairs, Kaimi Wenger | Permalink | Comments (2) | TrackBack

The Bluebook is a Harsh Mistress

Now, from the Footnotes-Only-an-Editor-Could-Love Department, comes this. 

It's footnote 11 from Bell and Parchomovsky's great new property piece.  And it reads, in its entirety:


See id.  (

To perhaps a greater extent than even the legal scholars, modern economists assume that property consists of an ad hoc collection of rights in resources. Indeed, there is a tendency among economists to use the term property ‘to describe virtually every device—public or private, common-law or regulatory, contractual or governmental, formal or informal—by which divergences between private and social costs or benefits are reduced.

(citations omitted)).


Yes, the entire paren is a blockquote.  The open and close parenthesis are not block-quoted, however, and neither is the (citation omitted).  The result looks pretty silly.  (The length of the quoted text, by the way, is 66 words, or 17 past the limit of 49 which normally triggers block-quotes.)

Now I understand the need for uniformity.  But this case strikes me as a prime example of a case when an exception to the rule makes more sense than strict adherence.  And I must say, I think that the footnote would look much better as:

See id.  ("To perhaps a greater extent than even the legal scholars, modern economists assume that property consists of an ad hoc collection of rights in resources. Indeed, there is a tendency among economists to use the term property ‘to describe virtually every device—public or private, common-law or regulatory, contractual or governmental, formal or informal—by which divergences between private and social costs or benefits are reduced." (citations omitted)).

Posted by Kaimi Wenger on May 9, 2005 at 10:30 AM in Kaimi Wenger, Life of Law Schools | Permalink | Comments (4) | TrackBack

Friday, May 06, 2005

Isn't this Kind of Obvious?

A suicide bomber in Iraq attacked a group of police recruits.  Yet again.

At the time of the Erbil attack, more than 300 people were at a recruitment center to apply for police jobs that had been widely advertised, said Karim Zingari, Erbil's interior minister. . . . The bomber was standing among the recruits when he set off his explosives, said an official with the Kurdistan Democratic Party, whose headquarters is nearby.

This is not exactly a surprise.  We're hearing about attacks against police recruits on a weekly basis.  Apparently, they all sort of stand around in lines or big groups as they wait, and they are thus vulnerable to attack.

Isn't there a better way to recruit police in Iraq? 

How about a few ideas:

1.  Get some of those little cordons-on-a-pole that you see at airline ticket counters and whatnot.  Cordon off a few waiting areas.  Have a cop pat people down before they are allowed inside the cordon. 

2.  For those still outside waiting, cordon off several single-file lines.  Keep people from clumping together like fans at Yankee Stadium, because that seems to be inviting casualties.

3.  Break up the recruiting process.  Have people with last names A-G come down at 10 am, people with last names H-R come at 2, and people with last names S-Z come at 4.  Stop drawing those crowds of 300 that are prime targets for the wackos.

I don't know if any of these particular solutions would work, and there are doubtless other improvements that could be made.  (Feel free to suggest any in comments).  But something needs to be done, one way or another.  It's clear that the current police recruiting system is an invitation to terrorist mayhem. 

Posted by Kaimi Wenger on May 6, 2005 at 02:48 PM in Current Affairs, Kaimi Wenger | Permalink | Comments (0) | TrackBack


This Observer article details the scandalous failure of the British criminal justice system to protect or vindicate rape victims.  (Hat tip to CrimProf).  Among the problems are massive budgetary problems for police rape prosecution units, resulting in lost evidence and mishandled witnesses, as well as erroneous public perceptions that women often "cry wolf" about false rapes.  As a result, only one in twenty rape prosections results in conviction. 

I'm not a criminal justice hardliner myself, and I recognize that defendants' rights must be protected as well.  The Observer's article, however, seems to indicate that the British system is seriously broken right now, and is practically incapable of protecting and vindicating the wrongs endured by rape victims. 

Posted by Kaimi Wenger on May 6, 2005 at 01:37 PM in Criminal Law, Kaimi Wenger | Permalink | Comments (0) | TrackBack

Authenticity as Branding

Gordon Smith has interesting thoughts on the Creative Commons, BzzAgent, advertising, and authenticity as a form of branding. 

Posted by Kaimi Wenger on May 6, 2005 at 10:57 AM in Information and Technology, Kaimi Wenger | Permalink | Comments (0) | TrackBack

Wednesday, May 04, 2005

So, the Pope, a Rabbi, and a Supreme Court Justice walk into a bar . . .

Yep, they're discussing funny judicial opinions over at Volokh

Funny, of course, being a relative thing.  None of the opinions discussed are rolling-in-the-aisles funny; Jay Leno and Conan O'Brien have about as much to fear from Antonin Scalia as they do from Laura Bush.  But legal writing being what it usually is, we'll take what we can get. 

One side note -- per Volokh's rules, that thread is limited to Supreme Court cases.  Thus, no one could cite Bradshaw v. Unity Marine Corp, which includes such lines as:

Before proceeding further, the Court notes that this case involves two extremely likable lawyers, who have together delivered some of the most amateurish pleadings ever to cross the hallowed causeway into Galveston, an effort which leads the Court to surmise but one plausible explanation. Both attorneys have obviously entered into a secret pact — complete with hats, handshakes and cryptic words — to draft their pleadings entirely in crayon on the back sides of gravy-stained paper place mats, in the hope that the Court would be so charmed by their child-like efforts that their utter dearth of legal authorities in their briefing would go unnoticed. Whatever actually occurred, the Court is now faced with the daunting task of deciphering their submissions.

With Big Chief tablet readied, thick black pencil in hand, and a devil-may-care laugh in the face of death, life on the razor's edge sense of exhilaration, the Court begins.

Well, we're not so persnickety over here.  So please feel free to use the comments to point out any other gems of humor in district, circuit, or state court opinions that we really ought to see.

Posted by Kaimi Wenger on May 4, 2005 at 06:59 PM in Kaimi Wenger, Odd World | Permalink | Comments (5) | TrackBack

A sensible suggestion on SOX

There is room for reasonable disagreement on whether many of the changes made by Sarbanes-Oxley are positive or negative.  But whatever one thinks of the changes, one thing is clear -- they are big.  They have created and will continue to create broad effects, some of which may not have been originally envisioned by anyone. 

Thus, I think Professor Bainbridge is quite sensible when he suggests that:  "it's time for the regulators to step back, take a deep breath, let the dust settle, and see how things shake out before piling on new regulations and interpretations."

Posted by Kaimi Wenger on May 4, 2005 at 12:02 PM in Current Affairs, Kaimi Wenger | Permalink | Comments (0) | TrackBack

Tuesday, May 03, 2005

Truth stranger than fiction

This has to be one of the stranger law enforcement stories I've read.  Ohio police wanted to bust a strip club for liquor license abuses -- fair enough. 

And so they (1)  asked their student intern to go undercover as a stripper.  She agreed.  Then, they (2) sent cops to observe her stripping over a three month period, as well as checking the internet to see her strip there as well.  (Talk about a complicated ploy to get the intern naked!)  And (3) they did all of this while having their intern use the valid driver's license and SSN of another Ohio woman, who knew nothing about the scheme, and who was horrified to learn that she's now on record as a stripper. 

I'm not a crim law person, but this whole arrangement strikes me as troubling.  First, I'm dubious about the idea of recruiting the 22-year-old, college student intern as a stripper.  Letting a group of older, almost certainly predominantly male cops find an undercover position for their intern that requires her to strip regularly as they "observe" -- that strikes me as the kind of arrangement that's fraught with potential for abuse. 

Second, the use of the second woman's identity is particularly disturbing.  The second woman, Haley Dawson, knew nothing of the plan and it is unclear from the news accounts how the police obtained her driver's license and SSN. 

Dawson's father told the news reporter that he thinks that what the police did was identity theft, and that characterization looks awfully accurate to me.  However, there is apparently a law-enforcement loophole in Ohio's identity theft statute, which might cover this kind of use. 

The incident -- in particular, the identity-theft portion -- has unified many people who are normally political foes.  The police are being roundly criticized on Free Republic message boards as well as ACLU-friendly blogs.  Hopefully the outrage will be enough to convince law enforcement not to use such dubious tactics. 

Posted by Kaimi Wenger on May 3, 2005 at 03:36 PM in Criminal Law, Kaimi Wenger | Permalink | Comments (1) | TrackBack

Debating the Constitution in Exile

Over at Legal Affairs, there is a debate this week between Cass Sunstein and Randy Barnett about the Constitution in Exile movement/theory (if it exists).  It's sure to be an interesting read.

Update by Dan: The exchange between Cass and Randy is turning quite pointed.  This should be near the top of your wasting time at the office reads.

Posted by Kaimi Wenger on May 3, 2005 at 02:37 PM in Kaimi Wenger, Law and Politics | Permalink | Comments (5) | TrackBack

Monday, May 02, 2005

Ranking Law Reviews: Non-Flagship Journals

There's this rite that we legal academics do, sometimes in the fall and sometimes in the spring.  We send out our sacrifices to our gods and demigods; sometimes they are appeased, and sometimes they are angry and cast down thunderbolts.  Yes, I'm talking about law review submissions. 

It's a process I've gone through myself a few times, and I've also been of counsel to various friends and colleagues submitting papers to the law review gods.  And we always end up spending a lot of time discussing rankings.  That is, "I've got offers from Review X and Review Y.  Which do I take?"

This question is thorny enough dealing with just flagship reviews.  How exactly does one quantify the difference, if any, between E. Carolina L. Rev. and W. Carolina L. Rev.?  But with non-flagship journals, it gets positively gordian.  So I'd like to turn the question over to the Prawfsblawg's readership and see what people think.

I'm wondering how others view non-flagship journals on the pecking order?  How does Harv. J. L. & Pottery compare to E Carolina L Rev?  Which is likely to be higher quality on the editing side?  (Do the top students at a lower ranked school outperform the middle students at a top school?  Or vice versa?). 

And which type of journal looks better on one's CV?  I realize that it's likely to be highly fact-dependent, but are there general rules that govern the outcome? 

Comments are welcome; if you want to make them anonymous, so as not to offend the gods, by all means do so.

Posted by Kaimi Wenger on May 2, 2005 at 01:25 PM in Kaimi Wenger, Life of Law Schools | Permalink | Comments (3) | TrackBack

Saturday, April 30, 2005

Treasure Trove

Did you ever think you would hear those words outside of property class?  (Every time I hear treasure trove it makes me think of my own property law final, where the concept showed up as a major component in one of three questions.  Afterwards, I heard some students complaining to each other about being ambushed by the topic -- they apparently felt that it was unjust to put so much weight on such a minor topic).

Well, treasure troves do still matter, it turns out.  Four Massachusetts men have been charged with theft and related charges for removing decades-old money that they found stored in a barn.  And as Jack Chin points out on CrimProf, these men may be able to rely on the concept of treasure trove in their defense:  "A landowner is said not to be in constructive possession of 'treasure trove,' which has been defined as gold, silver, bullion, or those metals' paper representatives, concealed for safekeeping, possessory rights to which exist in the finder." 

Posted by Kaimi Wenger on April 30, 2005 at 07:00 PM in Kaimi Wenger, Legal Theory | Permalink | Comments (0) | TrackBack

Step away from the Burrito!

One of the stranger stories you're likely to hear this week.

Posted by Kaimi Wenger on April 30, 2005 at 08:24 AM in Kaimi Wenger, Odd World | Permalink | Comments (0) | TrackBack

Thursday, April 28, 2005

If you've seen this girl . . .

. . . please call the number on the poster.

(This girl is not believed to be a victim of a crime, but is considered a material witness in a child pornography case involving over 200 photos of abuse of another preteen girl). 

Now let's ask a few follow up questions.  When should police release photos like this onto the internet?  Some of the problems with this kind of tactic are discussed in this grim LA Times article, where police note that the perpetrators may be willing to kill the victims in some cases.  Disclosure of victim identity thus requires resources in place for "immediate rescue." 

Ugliness all around.  I'm quite glad that someone tracks down the evil men who abuse children and photograph it.  And I'm also quite glad that that job is not mine. 

Posted by Kaimi Wenger on April 28, 2005 at 05:26 PM in Criminal Law, Kaimi Wenger | Permalink | Comments (3) | TrackBack

Wednesday, April 27, 2005

What about Brennan?

I'm not particularly convinced by the arguments laid out by Professor Bainbridge and others, to the effect that an abortion litmus test (and we'll assume for the moment that one is being used) -- or in other words, asking a candidate's beliefs on Roe (and opposing candidates who would overturn Roe) -- is anti-Catholic.

After all, there have been a total of four Catholic Justices who have addressed the topic of Roe v. Wade. 

Two of the four have consistently argued that Roe ought to be overturned.

One of the four (Brennan) joined the Roe majority opinion.

And one of the four (Kennedy) authored the Casey opinion, affirming that abortion is protected by the Constitution. 

Doesn't seem like a unified stance against abortion to me.

Now if Bainbridge's argument is "any litmus test would keep out Catholics whose views I like, such as Scalia and Thomas, while letting in Catholics whose views I don't like, such as Brennan and Kennedy" -- well, that may indeed be the case.  An abortion litmus test, if applied, would keep out some Catholics, and allow in others.  After all, Catholics, like members of most groups, are divided over the issue of abortion. 

Professor Bainbridge may be recognizing this, when he asserts that the group being discriminated against is "devout Catholics."  But even that seems overbroad.  For one, while I'm not Catholic myself (and perhaps my outsider opinion is incorrect), I'm not convinced that Professor Bainbridge can accurately assess a particular Catholic's devoutness based on her beliefs on the legal status of abortion.  (Would Bainbridge question the devoutness of Mario Cuomo, for example?).  Secondly, I'm suspicious of any rhetorical move that defines "devout Catholics" as "pro-life Catholics" because that seems to create a tautology.  "Does a litmus test for pro-life beliefs keep out pro-lifers?"  Of course it does. 

But this distorts the fact that there are many Catholics who are less strongly in favor of legal restriction on abortion, and whose service would not be barred at all by this test.  And that group includes, as noted above, fully half of the Catholic Justices who have ever ruled on the issue.

Posted by Kaimi Wenger on April 27, 2005 at 10:23 PM in Kaimi Wenger, Law and Politics | Permalink | Comments (6) | TrackBack

New Miami Beach Sex Offender Laws

Also via Crimprof, I noticed the issue of the new Miami Beach laws which will effectively ban sex offenders from moving into the city.  (There's a newspaper discussion here).

My first thought was "I wonder what Dan Filler thinks of this?"  Filler has argued that sex offender laws are often constructed through a narrative about white children being abducted by strangers for sexual abuse.  In fact, the brunt of these statutes falls on African-Americans who are registered as sex offenders, many for convictions unrelated to sexual abuse of strangers.  I suspect that the Miami Beach law will have similar effects, skewed along racial lines and only loosely related to the perceived problem it sets out to address.

Filler's piece is at 89 Iowa L Rev 1535 (2004), and the SSRN version is available here

Posted by Kaimi Wenger on April 27, 2005 at 03:54 PM in Criminal Law, Kaimi Wenger | Permalink | Comments (10) | TrackBack

Article Spotlight: Bell and Parchomovsky's Theory of Property

Gideon Parchomovsky (Penn) and Avi Bell (Fordham/Bar-Ilan) are among the most exciting property law scholars writing today.  They've previously co-authored some very interesting articles on the Takings Clause, at 87 VA L. REV. 277 (2001) and 111 YALE L. J. 547 (2001).  They've also written, individually and together, on several other topics, property-related, and non-property-related, and their articles are always well done. 

So it's no surprise that their latest, A Theory of Property, 90 Cornell L. Rev. 531, is very good.  In their new article, Bell and Parchomovsky survey the somewhat scattered theoretical discussion of property, and then set out a framework for analyzing property theories.  From there, they set out and defend a "value theory of property," which is, they propose, the conceptual linchpin that allows for the discussion of property as a theoretically coherent field of law.

The article is available online here, and is highly recommended.

Posted by Kaimi Wenger on April 27, 2005 at 12:59 PM in Article Spotlight, Kaimi Wenger | Permalink | Comments (0) | TrackBack

On Being a Happy Lawyer

It's not new, but it's something that every practicing lawyer should take a few minutes to read:  Patrick Schiltz's article On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession.

Posted by Kaimi Wenger on April 27, 2005 at 08:33 AM in Article Spotlight, Kaimi Wenger | Permalink | Comments (8) | TrackBack

Tuesday, April 26, 2005

The Uneasy Case for the US News Law School Rankings

Everybody loves to bash the US News rankings.  Especially Brian Leiter.  There is evidence that schools "game the system."  There are absurd results -- precipitous drops for University of Washington and University of Kansas.  There was even that dark time when the rankings placed NYU above Columbia -- sacrilege by any standards, and irrefutable proof of flawed methodology.  But even with all of its warts -- and they are many -- the US News list serves a valuable purpose.  It's cheap, accessible, and easily digestible, and it's right more often than not.  And frankly, it would be pretty ridiculous to expect much more from a $3.50 magazine.  With U.S. News, the reader gets exactly what she pays for. 

First, let's talk price.  The cover price of U.S. News and World Reports is $3.50 per issue.  Like many news magazines, it's often sold at a huge discount.  In fact, through the magazine's own website, it's as simple as a click to subscribe to it for about 50 cents an issue. 

And the reality is that 50 cents doesn't buy a whole lot.  Thus, U.S. News is not a scholarly journal.  Like the other news magazines, it specializes in taking complex national and global issues and boiling them down into 3-page stories with lots of glossy photos. 

In fact, you're not even really paying 50 cents.  After all, in its "Best Graduate Schools" issue, US News is also assessing business schools, medical schools, engineering schools.  Plus it's running its usual array of little stories about national events, health, the Middle East, etc. 

So in the end, you are paying about ten cents for US News's opinion of law schools.  And your ten cents won't buy you a double-blind, gold-plated, Brian-Leiter-stamp-of-approval study.  It just won't.  You pay your ten cents to US News, and you get the tabloid version.

Now, a corollary is that no sane person should base the decision about where to go to law school solely on US News.  That would be like reading their one-page blurb on some new cancer treatment, and immediately signing up for that treatment.  You just wouldn't do it.  You would talk to your doctor first, get some opinions, and so forth. 

On the other hand, tabloids have their uses.  Like I said earlier, they're easily digestible, and some of them are mostly right, and they serve as a good starting point.  (They're an awful lot like the Drudge Report, in fact).  And so, you put down your ten cents for the tabloid.  You read about the new cancer treatment, and maybe it piques your curiosity, and you follow up and ask your doctor about it.  And you proceed, not based on the tabloid, but based on what your doctor says.

US News law school rankings serve exactly that same purpose.  And it's useful, and necessary.  After all, it may be hard for legal academics to recall that knowledge of top law schools is not universal, and so to excoriate US News for its shallowness.  But the fact is that knowledge about law schools is often not accessible, and the ten-cent version is a great starting point.

And I can say this as someone who used US News as a starting point.

I worked hard in undergrad, took Honors classes, wrote a thesis.  I also didn't know the first thing about law schools.  I didn't really know many attorneys; I didn't have any family members who were attorneys; I'm the first from my family to attend law school.  And if you had asked me to pick out top law schools, I wouldn't have known where to start.  I probably would have picked a few Ivies, and Stanford; I'm certain I wouldn't have picked Michigan, NYU, Chicago, Virginia.  It just wasn't within my limited sphere of learning.

And there were a number of rankings available.  I quickly found some -- the Princeton Review is widely available, and so is US News, and so are some others.  The differences were immediately visible.  I don't recall all of the details, but as I recall, Princeton Review ranked Yale #1 and Virginia #2.  (That outfit hasn't gotten any better -- check out the latest rankings, which lists the schools with the "best faculty" as Washington & Lee, BU, and Kentucky.  Inconceivable.)  Many others were equally problematic.

And then there was US News.  As I did my research, US News looked more and more like a good assessment.  I concluded that Princeton was wrong to list Virginia as #2.  I concluded that, by and large, the US News list looked pretty accurate.  I used it as a starting point, and I drew up a list of schools that I wanted to investigate further.  I investigate these schools further, of course.  I read other material, and I made some decisions, and I sent out my applications.  And I think I did pretty well.

Since then, as I've become more immersed in legal academia, I've had moments where I've chuckled at a particular US News ranking.  But is it generally accurate? My impression as an applicant was that it was very helpful.  And I don't think I've changed my views all that much.

Compare the US News list to Leiter's list.  Leiter's top 5 (6, actually) are all accounted for within the first 6 spots of the US News list.  In the top 15 (16, actually, because of ties), there is a single school on Leiter's list not on the US News list, USC.  Skip down to the top 18, and again every school listed in the Leiter 18 is accounted for in the US News 18.

There are differences, to be sure.  US News lists Texas as 15th, while Leiter ranks it 8th; US News ranks Northwestern 10th while Leiter ranks it 14th.  But on a whole, the US News list seems to have gotten most of its data right.  It's not without individual anomalies -- see, e.g., Washington and Kansas.  It's also not without manipulability.  (But any ranking system is subject to manipulation; indeed, schools interested in improving their score in Leiter's own survey could try to manipulate the data by mass sending out lists of faculty publications to other leading law faculty who may be considered likely candidates for inclusion in Leiter's data pool).  But it's clear that the US News list is quite similar to Leiter's.  And the other tabloids are not, not even close.

As I've suggested earlier, I think that a 90% or 80% hit rate, is more than acceptable for a general-interest newsmag like US News.  Cheap access to a mostly-right chart is a good thing; US News is more of a positive force than not.  And yes, the list has flaws.  But let's face it -- if a law student is using US News as a sole data point for decisionmaking, then she has bigger problems than US News' methodology.  She is being spectacularly negligent in doing her homework.

Therefore, assume that every competent law student does more than simply say "Northwestern is #10 US News?  That decides it!"  Assume that all competent law students are doing their homework; some of them using US News as a starting point -- and hey, it's a hell of a lot better than some other starting points available  (e.g., Princeton Review) -- but all ultimately doing serious reading and research of schools.

Now that we remove the red herring of US News sending poor unwitting law students to their doom, we see that this is a non-issue.  The only person who takes US News seriously as a final arbiter is your aunt Hilda, who gets her magazine and then proudly tells her friends that her nephew is going to Columbia, and "they're the #5 law school in the country!"  (The dean at your law school knows this too, and she knows that sometimes Aunt Hilda pays the tuition bill, which is why she sometimes remarks about rankings.  But that's all her remarks mean -- they aren't directed at practitioners or academics, but at Aunt Hildas).

Could the US News rankings be improved?  Of course they could.  But even as is, are they providing a useful benefit to the general public?  Yes, they are. 

And certainly worth every penny of the ten cents you'll pay for them.

Posted by Kaimi Wenger on April 26, 2005 at 11:23 AM in Kaimi Wenger, Life of Law Schools | Permalink | Comments (6) | TrackBack

Monday, April 25, 2005

What casebooks do you use?

I'm a 0th (zero-th) year law professor, and I'm looking at case books.  I'm getting them by the cart from publishers.  This is kind of nice, but at some point I have to decide what actually to use.

I'm teaching Wills and Securities Regs this fall, and Bus Orgs and something-else in the spring.  Does anyone (student or professor) have any recommendations on case books in those areas?  And any substantive commentary is also very welcome.  (You know, "I use book X because it has lots of modern cases, but I do wish it would have more doctrinal discussion" kind of comments). 


Posted by Kaimi Wenger on April 25, 2005 at 04:45 AM in Kaimi Wenger, Life of Law Schools | Permalink | Comments (5) | TrackBack

Thursday, April 21, 2005

Leiter on which law schools produce professors

Brian Leiter posts an informative chart showing where recently hired law professors went to law school.  Not surprisingly, Harvard and Yale clock in at numbers 1 and 2; my own alma mater (Columbia) is tied with Stanford for the number 3 slot, which isn't so bad.  And Leiter is of course correct that the school that is most unexpected is Kansas, which placed four graduates in legal academia over the past two years.  They're obviously doing something right over there.  (I happen to know one of the KU grads, my former co-worker Stephan Padfield, who has a quick mind along with a very friendly demeanor.  Congrats, Stephan!)

Posted by Kaimi Wenger on April 21, 2005 at 06:11 PM in Kaimi Wenger, Life of Law Schools | Permalink | Comments (2) | TrackBack

Judicial Memos and Real Injustice -- A Hypothetical

The world (or at least, small portions of the blogosphere) is shocked at the revelations of Blackmun's papers.  Legal Affairs has its exposé; bloggers weigh in on either side (see, e.g., here, here, here, here, here).  But on the whole, the charges -- Justice Blackmun let his clerks do too much of the work for him -- are pretty blasé.  Let's take a moment to discuss a much more interesting hypothetical:  What would happen if a Supreme Court Justice's private memoranda showed an egregious miscarriage of justice in one or more cases?

For example, imagine that a future Justice X's papers are published and that they reveal egregiously unjust bases for decisions.  Let's posit that there are memos, from the Justice X to his clerk, that state:

"Another habeas?  I hate those.  They're all brought by Blacks anyway, and I think that all Blacks are criminals.  Write me an order denying it."

"The plaintiff's attorney sure looks great in that black skirt.  Plus, she flirts with me when I see her around the court.  Write me an opinion in favor of plaintiffs."

"I just talked to my buddy who's the CEO of XYZ Corp.  He said that upholding the lower court in Smith would have a bad effect on the economy.  Write me an opinion reversing Smith."

"I'm tired of dealing with these cases.  I'll tell you what -- everything with an odd-numbered docket, just deny.  That will make life easier around here."

Of course, this is not to say that any of these sorts of shenanigans actually take place on the Court.  And if they did, one hopes that other Court observers would realize the problem, and it would be addressed sooner rather than later.  But let's assume that our Justice X's problems do go unnoticed, until after his death and the publication of his papers.  What then?  What are the res judicata and stare decisis effects of Justice X's decisions?

I suspect that the result would depend very much on the individual cases.  For example, perhaps a habeas applicant who could show that Justice X denied his habeas petition because of overt racial prejudice could be entitled to a new hearing.  (But this raises a lot of questions itself.  Are judicial memos admissible evidence?  What do they show?  What if it's harmless error?  What if it's someone who was executed?  What if it's an alien who was deported?  Can the alien reenter the country now?)

Denial of cert is a whole lot trickier.  Perhaps Justice X originally denied cert because he didn't like African Americans, or because he wanted to clear his docket and so he ordered all odd-numbered cert petitions summarily denied.  But it's not at all certain that cert would have been granted in any individual case, even absent the wrongful factors.  (Perhaps the correct remedy would be a de novo cert decision, which could itself be a denial if appropriate).  There is the added question of who exactly can hear a claim of wrongful denial of cert. 

Still trickier would be cases in which Justice X participated, and which have led to further case law development.  For example, say that Justice X voted with the majority in an important 5-4 criminal procedure case -- a case like Miranda or Apprendi or Booker, leading to broad changes in procedures.  If the other four Justices participated in the decision in good faith, should the case nevertheless be considered suspect if it can be shown that Justice X's vote was due to wrongful reasons?  And if so, what is the proper remedy?  A rehearing?  A new decision?  A new circuit split and eventual de novo resolution of the issue?  And what happens to cases that are further developments of the original case -- the Ring to an Apprendi, so to speak -- are they also suspect?  What if Justice X did not himself constitute the decisive vote in some of those cases?  And finally, how much Casey-style deference ought to be given to decisions, even if they were wrongly decided by at least one Justice?

Is there law on this?  (I suspect that there is probably some case law dealing with problems at the lower court level; I don't know that case law is, and I'm also not sure to what extent, if any, it would translate to the Supreme Court).  It's a fun issue to play with. 

And it does show one thing -- however bad people may think Justice Blackmun's memos were, they could have been much, much worse.

Posted by Kaimi Wenger on April 21, 2005 at 03:27 PM in Kaimi Wenger, Law and Politics | Permalink | Comments (3) | TrackBack