Wednesday, September 14, 2016
The Possible Relationship Between Course Design and the Curve
Like just about every law school out there, our school periodically reviews its grading policies. I was involved in such a review last year and at some point, the following question occurred to me: why is the curve is mostly confined to higher education? In other words, why are K-12 students usually graded on their performance alone (rather than their relative performance) but college and grad students more often graded on a curve? I don’t know the answer to this question, but I’m willing to hazard an educated guess. I think the curve is mostly confined to higher education because higher education, unlike primary and secondary education, tends to allow its teachers significant discretion in choosing course content. I’m not arguing that such discretion is good or bad; I’m simply just suggesting that, where such discretion exists, we are more likely to see the curve.
More after the jump.
Involuntary collegiate "do not resuscitate" orders
In an earlier post, I sought to analogize from Enron's collapse to the recent failure of ITT Tech, a for-profit chain of colleges. I highlighted a number of similarities, including that both were former darlings of Wall Street and both were accused of fraud. I then pointed out that Enron sought to reorganize some of its operations in a chapter 11 bankruptcy proceeding but that there is virtually no chance that ITT Tech will attempt something similar. The reason I suggested that reorganization was off-the-table for ITT Tech is because colleges and universities immediately and permanently lose access to Title IV funds (the federal student loan and grant programs) if they file for bankruptcy. So, while legally possible for a college to seek to reorganize, most colleges would find it is practically impossible to do so (Morris Brown, notwithstanding).
One commenter noted that my earlier post suggested that the common link between Enron and ITT Tech was fraud, but that I had ignored the major difference between the two entities: the sources of capital available to each entity. While Enron's ability to reorganize depended on the availability of private capital, ITT Tech's ability to reorganize was doomed only because federal student financial aid would no longer be available. The question was thus implicitly posed: why should ITT Tech (and other financially distressed, for-profit college chains) continue to enjoy access to federal support?
State v. Dharun Ravi: The Appeal
In my last post, I summarized some of the basic facts of the Tyler Clementi/Dharun Ravi story. After he was convicted on all counts, Mr. Ravi appealed his convictions. He made various arguments, but his appeal was given an enormous boost by the 2015 New Jersey Supreme Court decision in State v. Pomianek, 221 N.J. 66 (2015), which declared unconstitutional a key statute upon which Mr. Ravi's conviction was based.
N.J.S.A 2C:16-1(a)(3) states:
A person is guilty of the crime of bias intimidation if he commits, attempts to commit, conspires with another to commit, or threatens the immediate commission of [certain specified] offense[s] ... under circumstances that caused any victim of the underlying offense to be intimidated and the victim, considering the manner in which the offense was committed, reasonably believed either that (a) the offense was committed with a purpose to intimidate the victim or any person or entity in whose welfare the victim is interested because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity, or (b) the victim or the victim's property was selected to be the target of the offense because of the victim's race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity (emphasis added).
This provision was the basis for 4 of the 15 counts in the State's case against Mr. Ravi (Ravi, 2-4). Related evidence also permeated the prosecution's case, including counsel's moving closing statement (45-48). But on March 17, 2015, in Pomianek, the New Jersey Supreme Court declared the provision unconstitutional: it was void for vagueness in violation of the Fourteenth Amendment.
Pomianek involved several workers at the Gloucester Township Department of Public Works. The defendants, all white, and the victim, a person of color, were assigned to an old garage that Public Works used for storage. Inside that garage was a large metal cage that could be padlocked closed. The workers had been "horsing around" in the garage, including in and near the cage. As part of a ruse, one of the defendants approached the victim and told him that their supervisor needed some supplies from the cage. Once the victim was inside, the defendant closed the cage door and locked it. A number of workers started laughing, and one of the defendants said, "Oh, you see, you throw a banana in the cage and he goes right in, which triggered more laughter among the men." The victim felt there were racial overtones to this statement. Another worker unlocked the cage door within 3 to 5 minutes. The victim testified that he felt "humiliated and embarrassed." After the victim was released, the defendant was heard saying, "You all right, buddy? We were just joking around."
The defendants in Pomianek were charged, among other things, with bias intimidation in violation of 2c:16-1(a)(3). The jury convicted them on those counts because, considering the racist overtones of the "banana" comment, the victim could reasonably believe that the act was committed on the basis of race.
The problem with this provision was that unlike every other bias crime statute in the country, this law was based on the state of mind of the victim, not the intent of the defendant. The New Jersey Supreme Court concluded that this violated the Fourteenth Amendment. A core element of due process is that a law must clearly define forbidden conduct so that individuals can tailor their behavior to conform with the law. Section (1)(a)(3) did not do that. By hinging guilt on what is going on in the victim's mind as opposed to the defendant's mind, the statute does not put a "reasonably intelligent person on notice when he is crossing a proscribed line."
Based on Pomianek, any part of Mr. Ravi's conviction based exclusively on (a)(1)(3) was void as a matter of law. But, according to the Appellate Division, evidence of Tyler's perception of the events was a "pillar" of the prosecution's case (41). It came up often, including in the closing statement. In fact, it came up so often that it "render[ed] any attempt to salvage the convictions under the remaining charges futile." It therefore was "unreasonable to expect a rational juror to remain unaffected by this evidence" (6). Evidence of Tyler's state of mind was prejudicial and not harmless beyond a reasonable doubt. As such, the court overturned Mr. Ravi's conviction in its entirety.
I am not so easily convinced. The Fourteenth Amendment does not protect people from punishment enhancement based on their indifference and willful ignorance to the plight of their victims. "Bias" should be understood as more than just stating, "I hate gays." But let's assume that Pomianek is correctly decided. The statute was poorly worded; the trial judge noted that. And it is hard to imagine convicting someone of a bias crime without any evidence of bias. There was, however, a lot of evidence that Dharun Ravi existed in a contributed to a culture of homophobia that discriminated against Tyler and devalued his life in the eyes of others. I will discuss this point in my next post.
Though we were all shocked by Tyler's suicide, it is not clear that turning to the criminal law is always the right answer. The New Jersey legislature had good intentions: it wanted to recognize that the pain of the victim, the monstrosity of the attacker, and the social context in which attacks occur matter. But maybe those considerations are best left for tort law. Clearly, evidence of the gravity of the harm and the homophobic context of Mr. Ravi's conduct could be important in a civil case against him.
Stay tuned for more!
Tuesday, September 13, 2016
Learning from Some Great Educators--President Freeman Hraboski
One of the things I learned on the way to getting a Ph.D. in higher education is that very little research on how college and graduate students learn ever makes its way into law schools. And almost no one does large scale, generalizable research on law school learning—probably because there isn’t any money to fund it. In law, at best, we now have schools studying their own students retrospectively to identify factors that might correlate with bar success or high grades--but these studies tell us nothing about what we could be doing differently or better in the classroom. And yet law schools are changing how we teach.
My neighbor up the road, Prof. Deborah Merritt of the Ohio State University Moritz College of Law, recently proposed some explanations for the slight rise in MBE scores after a period of steady decline, one of which was "improved preparation." And by that she didn't just mean direct bar preparation but changes in teaching methods that involved more feed-back and more frequent assessment. This change is an example of using research on effective learning done in other areas of higher education and applying it to law.
To start the discussion, I'd like to share the work of a visionary educator, Dr. Freeman Hraboski, President of University of Maryland, Baltimore County whose institution sends more African American men to medical school than any other college in the country. This TED talk reflects how he is using the research generated by one of the most generously funded topics in education today, increasing the number of students who succeed in STEM fields. See here, here, and more accessibly, here. This is antithetical to many STEM fields which pride themselves in weeding out, not encouraging, students. There may well be some things for us to learn as well.
House subcommittee hearing on complete diversity
The House Judiciary Committee/Subcommittee on the Constitution and Civil Justice held a hearing (includes video) Tuesday on whether to eliminate the requirement of complete diversity in the basic jurisdiction statute. Witnesses were attorney Charles Cooper, Joanna Shepherd (Emory), and Ronald Welch (Dean, Baltimore). (H/T: Jim Pfander and Patricia Moore). Both Cooper and Shepherd argued for adopting minimal diversity as the statutory standard, Cooper for constitutional reasons (that do not hold up to the prevailing doctrine or theory) and Shepherd because it would have only a minimal effect on the federal docket that could be minimized by filling judicial vacancies or ratcheting up the amount-in-controversy requirement (which has not moved in more than 20 years).
The paradox of expanding the jurisdiction of the federal courts in this way (largely for defendants seeking to remove) is that the goal is to take advantage of the merits-based and procedural narrowing of access to the federal courts (via Twiqbal, limits on discovery, etc.) against the plaintiffs. In other, moving to minimal diversity would open the courthouse doors in order to slam them shut.
The proposal will not go anywhere, not least of all because federal district judges, who were not heard from here, hate diversity jurisdiction. Nevertheless, it is interesting to see how the shifting political positions with respect to federal jurisdiction, particularly in these state-law cases, in which the supposed Republican commitment to federalism would require deference to state power and state institutions.
Two additional points, as I think of them. First, Cooper's testimony recasts diversity as a measure for protecting interstate commerce generally, as opposed to protecting outsiders who cross state lines. So recast, diversity becomes about anti-corporate bias writ large, since corporations are the ones seeking to "be" everywhere at once. Second, I wonder what Cooper would make of the Hulk Hogan/Gawker case, where the big conservative money was Peter Thiel and Hogan, but minimal diversity would have allowed Gawker to remove and likely to win before a smarter federal judge more willing to respect the First Amendment.
Monday, September 12, 2016
"Freedom Of, For, From, and In Religion: Differing Dimensions of a Common Right?"
This past weekend, I attended a fascinating, rich conference at St. Hughes College, Oxford, that was organized by the International Consortium for Law and Religion Studies (ICLARS). The theme was "Freedom Of/For/From/In Religion: Differing Dimensions of a Common Right?" (more info here). Here's the conference blurb:
Freedom of religion or belief (FoRB), once considered to be the “first” freedom, has become a controversial right. In particular, the practical possibility of implementing FoRB in impartial ways are increasingly questioned. Critics argue that FoRB cannot deliver what it promises: an equal share of freedom for people of different or no religion. Further, it is claimed that the right of FoRB, as it is regulated in international and constitutional law, is intrinsically biased because it reflects its Western and Christian origins.
Part of the problem is due to the fact that FoRB is a complex notion, including different dimensions that require careful consideration. Freedom of religion or belief, as a right recognized for every human being, is the first dimension, but not the only one. Freedom from religion, that is the right to live one’s life without being compelled to perform religious acts, is another and freedom for religion, which concerns the institutional side of this right (what was once called “libertas ecclesiae”) is a third dimension that demands consideration. Finally, freedom in religion concerns the rights that the faithful (and sometimes not so faithful) are entitled to enjoy within their religious communities.
Besides the fact that the conference gave me an excuse to re-visit some of my favorite pubs from my undergraduate days, it was rewarding and fascinating to hear papers, and hear about experiences and impressions, from scholars, lawyers, and activists from outside North America and Europe. Doing so puts some things in perspective, both because others were dealing with very different issues (e.g., bans on conversions and proselytism) and because they were dealing with similar issues (e.g., religious exemptions) but in different ways. I also thought the "four pronouns" device suggested in the theme was really insightful and provocative. (My own paper was called "Freedom For Religion: (Yet) Another View of the Cathedral." Not exactly original, I know . . . .) Hats off to Cole Durham, Brett Scharffs, and Donlu Thayer, of BYU, for organizing an excellent event.
One of the best things I've ever read about 9/11
I'm not a student of the events of 9/11. Like a lot of people, my knowledge comes mainly from reading newspapers and magazines and watching a documentary or two. But there is one thing that I read back in 2005 that has stuck with me ever since. It was an article in Harper's by Rebecca Solnit titled "The Uses of Disaster." (Here, but behind a paywall.) The article, and the book that grew out of the article, describes the incredible, beautiful communities that spontaneously form in the wake of many disasters. Without prompting from government or other authority, strangers simply start caring for each other. "You hungry? Well just sit yourself down then. I'm serving." "No, I won't hear it. You're sleeping here tonight. And I don't care how long you stay." "How 'bout I drive to your uncle to Detroit? The airports will be closed for days and he'll be safer there." Disasters, it seems, shock us out of our daily routine and somehow turn us into wonderful people.
The part of the Solnit article that captured this best for me was a quote from somebody describing New York life in the days after 9/11: "Nobody went to work and everybody talked to strangers." Solnit labels this "the most succinct description of an anarchic paradise that I've ever heard." I'm not sure I share Solnit's anarchist views, but I too see the scene as paradise. Day after day, I sit at my desk and do my job. It's the best job in the world for me, but I don't talk to strangers much. And when I do, I often talk about law. Talking to strangers would be good for me, and I suspect, most of us.
Of course, no one wants a disaster to happen just so they can experience this type of paradise. And that's not Solnit's point, either. Her point is that disasters, when they do occur, are something akin to the "clear all formatting" command in Microsoft Word. When the formatting of the daily grind is swept away, what do we find? We find that our natural disposition is to care, give, share, help, listen, hug, love. I'm sure some evolutionary biologists out there could explain these behaviors as community, and thus self, preservation. That may be entirely true, but it doesn't change how wonderful it is to see it happen.
University of Michigan Law School Society of Fellows
This new program might be of interest to Prawfs readers:
The University of Michigan Law School, in connection with the longstanding Michigan Society of Fellows (MSOF), now welcomes applications for a highly competitive interdisciplinary fellowship for aspiring legal academics (whether currently completing a degree, conducting postgraduate research, clerking, practicing, teaching, or otherwise engaged in law related activity). The application deadline is Tuesday, September 27, 2016, 1:00 PM EDT.
The Michigan Society of Fellows selects 8 fellows from over 900 applicants nationwide to join the Society, and to affiliate as a junior (non-tenure track) member of the faculty with one of the University’s departments or professional schools (including the University of Michigan Law School). The fellowship is offered for a term of three years (to begin in September 2017), although fellows affiliated with the Law School may go on the academic job market during the fall of their second fellowship year.
The fellowship provides a unique opportunity for aspiring academics to develop and produce high level scholarship in a supportive and intellectually challenging environment within the Society, the Law School, and the wider University community. Fellows will also begin to develop their teaching skills in a substantive area of the law while availing themselves, as desired, of Michigan’s pioneering Center for Research and Learning on Teaching. The strong focus of the fellowship is on research and the production of significant scholarship. Teaching obligations are minimal. The fellowship comes with a stipend of $55,000 per year plus participation in the University’s benefits programs. It is supported by the Ford Foundation, the Horace H. and Mary Rackham Funds, and the Andrew W. Mellon Foundation.
- See more at: https://chroniclevitae.com/jobs/0000329437-01#sthash.stt8P1HL.dpuf
Should financial unstable colleges be required to post surety bonds?
The New York Times posted an editorial last Thursday calling for more vigorous federal regulation of for-profit colleges and arguing that without federal oversight these college chains have been free "to prey on veterans, minorities and the poor by saddling students with crushing debt and giving them worthless degrees in return." This editorial focuses on ITT Technical Institute ("ITT"), which was also the focus of my prior blog post. The Times describes a litany of abuses by ITT, including (i) targeting desperate potential students, (ii) spending more on recruiting students than on teaching them, (iii) allegedly pushing students to take high-risk loans, (iv) allegedly concealing material financial information from investors and committing fraud, and (v) misstating its job-placements results.
The editorial ends with two recommendations. First, the Times called upon the U.S. Department of Education (the "ED") to "adopt and vigorously enforce recently proposed rules that shield the taxpayers from loss when a school is forced to close." Second, the Times suggests that for-profit college chains should be forced to "put aside money for debt relief for students" once these chains "show signs of financial instability — like being sued by federal entities or state attorneys general or failing to meet requirements for receiving federal aid." While I support the vigorous protection of vulnerable populations, I worry about the Times' recommendations. Isn't requiring financially unstable colleges to post surety bonds likely to harm some students even as it protects others?
State v. Dharun Ravi: What Happened?
On September 9, the Appellate Division of the Superior Court of New Jersey released its opinion in State v. Dharun Ravi. Dharun Ravi, of course, was the roommate of Tyler Clementi, a young Rutgers student who, after Mr. Ravi and his friends spied on him during an intimate encounter with another man, committed suicide on September 22, 2010. The court overturned all of Mr. Ravi's convictions.
To refresh our memories, here's what happened. (All numbers in parentheses refer to the page numbers in the Appellate Division's decision).
Tyler and Mr. Ravi were roommates at Rutgers University. Shortly after being notified that Tyler would be Mr. Ravi's roommate, one of Mr. Ravi's friends found out that someone using Tyler's email address had posted on a forum for gay people (7). So, Mr. Ravi came into college with at least an inkling that his roommate was gay. Tyler, however, was not open about his sexuality. Tyler was still in the closet.
On two occasions in September 2010, Tyler asked for some time in the room by himself (10). He had met a man using a gay social networking platform and invited him to his room (24). Mr. Ravi left. On the first occasion, which took place on Sept. 19, Mr. Ravi actually came back into the room within a few minutes and appeared to "shuffle some papers" on his desk. It turned out he was also adjusting the position of his webcam to face Tyler's bed. Mr. Ravi then used his technical skills to have his video chat platform automatically accept all calls. This allowed anyone who called him to see through his webcam. On both Sept. 19 and Sept. 21, Mr. Ravi tweeted out several comments about Tyler being gay, that he asked to be alone in their room, and that he was hooking up with another man (12). He encouraged others to call his account and watch (18). Mr. Ravi and quite a few of his friends watched live video of Tyler and another man "making out" on Sept. 19 (11). They tried to do so again on Sept. 21.
By reading some of Mr. Ravi's public tweets, Tyler found out that Mr. Ravi had invaded his privacy and made him the subject of others' prying eyes without his consent. Tyler then complained to his resident advisor and asked for either a private room or a different roommate (26-27). On Sept. 22, Tyler's RA notified Mr. Ravi about Tyler's request for a new room and explained Tyler's allegation that Mr. Ravi had invaded his privacy (29). At 8:46 PM that evening, Mr. Ravi wrote Tyler a text that (sort of) apologized (29-30). Shortly thereafter, Tyler, who had already left campus, used his cellphone to write on his Facebook page: "I'm going to jump off the GW Bridge. Sorry." Moments later, he did so (30).
On April 20, 2011, a grand jury returned indictments against Mr. Ravi for invasion of privacy, bias intimidation, witness tampering, and hindering apprehension or prosecution. On March 16, 2012, the jury convicted Mr. Ravi on all counts. After denying a motion for a new trial, the trial judge sentenced Mr. Ravi to 3 years probation, dependent on serving 30 days in jail (4). Mr. Ravi also had to complete 300 hours of community service, attend counseling on cyberbullying and diversity, and pay $10,000 (which was to be dedicated to helping victims of bias crimes) (5).
September 2010 was a difficult month for the LGBT community. Tyler was just one of 10 gay adolescent boys to commit suicide. Billy Lucas, 15, died on Sept. 9. Cody Barker, 17, died on Sept. 13. Seth Walsh, 13, died on Sept. 19. Asher Brown, 13, died on Sept. 23. Harrison Brown, 15, died on Sept. 25. Raymond Chase, 19, died on Sept. 29. Felix Sacco, 17, died on Sept. 29. And Caleb Nolt, 14, died on Sept. 30.
Tyler's death brought extensive media attention to the problems of suicide in the LGBTQ communities and antigay bullying. Celebrities, including Ellen Degeneres and Anderson Cooper, spoke out about both issues. Antigay bullying is indeed an epidemic facing our schools and our communities. But it is worth asking: Was Tyler a victim of "cyberbullying"? In one sense, it doesn't matter. Tyler's story brought much needed attention to a problem that needs to be addressed, and his parents have joined the fight against bullying and cyberbullying in the years since his death.
But definitions are important. There are a host of definitions of “cyberharassment” or “cyberbullying” milling around. And imprecise and inconsistent definitions frustrate our ability to understand, talk about, and solve the problem. Danielle Keats Citron, author of Hate Crimes in Cyberspace and the leading cyberharassment scholar, defines cyberharassment generally as repeated online expression that intentionally targets a particular person and causes the targeted individual substantial emotional distress and/or the fear of bodily harm. There are five core elements to that definition: repetition, use of digital technology, intent to target, targeting, and substantiality of harm.
Cyberbullying is a subcategory of cyberharassment that includes all five of those elements but is focused squarely on youth-to-youth behavior. It can be understood as repeated online expression that is intended to cause substantial harm by one youth or group of youths targeting another with an observed or perceived power imbalance. This definition retains those five factors and adds two important elements: youth and power imbalance, the latter of which is actually common in many forms of cyberharassment. The asymmetry of power, which could be based on identity (i.e., a member of the majority attacking a member of a traditionally marginalized and discriminated minority), draws the line between schoolyard teasing and bullying. It should come as no surprise, then, that young members of the LGBTQ community are uniquely susceptible to bullying and its tragic consequences. They are bullied because they deviate from the norm and because antigay bullying is either tacitly or explicitly condoned by antigay bigotry and homophobia in society at large. This definition of cyberbullying captures the worst online aggressive behavior while excluding the otherwise mean, hateful, and distasteful speech that free speech norms tend to tolerate. Cyberbullying is, at bottom, cyberharassment involving youth. And it is an epidemic affecting our schools.
Although Tyler was targeted because of his sexual orientation and Mr. Ravi's behavior caused Tyler to experience substantial emotional distress, it is not clear that what happened to Tyler involved repeated behavior that rises to the level of a course of conduct. However, I am not sure that matters at all. Mr. Ravi was not accused of violating an anti-bullying law; he was accused of invading Tyler's privacy, which is exactly what he did.
With this background, I would like to use several forthcoming posts to explore several theories and questions about the Appellate Division's decision in State v. Dharun Ravi. Stay tuned for the next post!
Sunday, September 11, 2016
I am intrigued by the new ABC show Designated Survivor (long trailer after the jump, premiere on Wednesday, 9/21), which shows the HUD Secretary (played by Keifer Sutherland, wearing a Cornell hoodie and glasses to show that he is an egghead and no Jack Bauer) becoming acting president (not president) when the Capitol is destroyed by a terrorist attack during the State of the Union address.
I am curious where the show goes. It would be interesting to see the process of reconstituting a government, especially Congress. It also would be interesting to see the process of the executive trying to do anything without a legislature (as opposed to a legislature that just will not do its job). I am not particularly interested watching a revenge fantasy a la 24 (this gut-reaction preview suggests it feints in the latter direction at times). Nor The West Wing without political legitimacy, a basic political drama.
Instead, I hope the show recognizes, and plays, the uniqueness of the premise. This is more than a political drama or even a political drama about an individual thrust into circumstances for which he may not be prepared and having to grow into the job (think Harry Truman). This is that, but in a last-gasp, no-alternative situation, in which our basic governmental structure is gone or has to be recreated on the fly. I hope the show embraces that.
Around the 1:35 mark in the trailer, Sutherland is talking with a speechwriter played by Kal Penn. As the scene is shown here, Sutherland asks whether Penn thinks he should step down, Penn says "I do," and Sutherland responds that he may be right, but for the moment he is all they have. It is a good line, designed to show Sutherland's steely resolve to rise to the occasion. But the conversation undermines the show's premise or the intelligence of its characters. That is a conversation you have when there is a choice ("Sorry, A, but B would be a better president). Who does Penn want Sutherland to step down in favor of? Or who does Penn believe Sutherland could step down in favor of? He is literally the only person on the planet legally authorized to wield the executive Power of the United States. Anyone else acting as president would do so contrary to law (put aside whether we would accept and retroactively ratify such actions). Sutherland's "For now, I'm all you've got" drives the point home. But the head WH speechwriter, someone who presumably knows something about how the government works, already should know that.
Plus, the situation allows for depictions of genuine political intrigue that at least merit discussion, rather than ginned-up stories of Machiavellian chiefs of staff. Suppose one member of the House (not the Speaker) survived the attack, declared himself elected as Speaker by a majority vote of one member, and tried to argue that he had prior authority to act as president (raising some quorum concerns that have never been resolved). Or suppose the duly elected Speaker of a reconstituted House insists he has prior entitlement. Section 19(d)(2) (providing, in a convoluted fashion, that a cabinet member acting as president cannot be supplanted by a legislative officer acting as president) seems to resolve that, but this is all new ground and arguments always can be made. The show also could depict the holes commentators and advocates (including me) have identified in the succession statute, especially post-9/11: The absence of a mechanism to quickly reconstitute the House; the need for a special presidential election when an unknown, inexperienced, lower-level cabinet secretary (who may have been fired that morning) takes the executive power. But I doubt this creates enough drama compared with Jack-Bauer-in-glasses-and-a-Cornell-hoodie.
Finally, I never looked into the designated survivor practices when I was writing about this, so I was not aware of a paradox, in terms of political legitimacy. The highest cabinet officer ever to be the designated survivor has been the Attorney General on three occasions (John Ashcroft, Alberto Gonzales, and Eric Holder), which is fourth on the cabinet list. Secretaries of State, Treasury, and Defense are never designated, even though they are the highest-profile and most likely to have political, and even presidential, experience (of the last four Secretaries of State, two had run for president and one was a top military official who everyone had wanted to run for president) that would be important in the event of a catastrophe.
Anyway, I look forward to beginning to watch this. I hope they do something good with it.
Saturday, September 10, 2016
What To Expect This Month
Hi, Prawfs! It's such a privilege to be back here blawging this month. For those who don't know me, my name is Ari Waldman. I'm an associate professor at New York Law School. I research and write about online social interaction, including legal, sociological, and ethical issues related to data privacy, online disclosure, social media, and cyberharassment. I have a couple of ongoing projects that I'm pretty keen on: one is a book project on how we can use trust among individuals to help us define expectations of privacy and the other is a study on how, if at all, norms about privacy trickle down from executives to the engineers, programmers, and designers creating data-hungry products.
Some of my posts this month will be about those two ongoing projects. But most of them will be about the recent decision by the Appellate Division of the Superior Court of New Jersey in State v. Dharun Ravi, the Tyler Clementi case. Full disclosure: I am a member of the Board of Trustees of the Tyler Clementi Foundation, a family foundation started by Tyler's parents. Its mission is to combat online and offline bullying. I am also the Founder & Director of the Tyler Clementi Institute for CyberSafety, a program at New York Law School that includes, among other things, the first ever law school clinic dedicated exclusively to representing victims of online harassment. Neither these roles will have any effect on my thoughts on the case. I wasn't involved in any aspect of the criminal case.
Thanks for reading this month! Stay tuned ...
Here we are at the beginning of another school year, and once again I am trying to come up with metaphors that help the 1Ls understand that the law is not a thing, but a language in which we convert narratives in the real world into a series of logical propositions that churn out a legal conclusion.
Walking the dog this morning, I decided on "Artichoke IRAC." It is my means of explaining that there is a difference between mere issue-spotting, on one hand, and developing a legal theory in which many issues may be embedded, on the other. Inevitably when I'm grading an exam, a student who has drunk the naive IRAC Kool-Aid will organize the answer to a question in which I have embedded perhaps twenty issues into a vastly incomplete four paragraph answer, beginning with ISSUE and identifying one of them, stating one RULE, and so on. And this has the effect of earning the student minimal points, if any.
Today's discussion (the third hour of my first unit in Contracts) will be the legal analysis of a little play-acting in which Student A goes into a restaurant, orders a meal, eats it, and leaves without paying the owner (Student B) for the meal or leaving a tip for the waiter (Student C). We will start the discussion of developing legal theories and defenses in the cases of B v. A and C v. A.
"Artichoke" or "Big" IRAC is the overarching theory of the case. I ask Student B: Now that you feel aggrieved, what is the legal theory that you will employ to make things right? The artichoke here is the contract, and the overarching theory - the RULE in Big IRAC - is that B needs to establish per Restatement 2d of Contracts § 1 that there was indeed a promise or set of promises for which the law provides a remedy or for which performance of the promise is a duty.
Friday, September 09, 2016
Commitment to furthering social change
A friend at another law school shared the following (the story is made anonymous, and non-gender-specific, for the benefit of all parties):
My friend wrote an empirical article, concluding that the data did not support removing military commanders from the courts-martial system in sexual assault cases. She/he submitted it to a law-and-social-policy/social-change journal at a t20 school. The journal rejected it, writing the following: "Our editors felt that your piece provided interesting data analysis; however, we do not feel that your framing of the issue and your ultimate conclusion align with our journal's commitment to furthering social change."
This is a staggering thing for an academic journal to say out loud, even if many people believe such biases exist in publication decisions, in law and other disciplines. It is more staggering for an empirical article. If editors disagree with an author's conclusions in a normative or theoretical piece and reject it on that basis, that is troubling, although separating evaluations of quality from agreement with the conclusion is a difficult intellectual exercise. To reject an article because the conclusions from the empirical data do not "align" with a commitment to "furthering social change"--while not questioning or challenging either the data or the data analysis--is nakedly anti-intellectual. Not to mention counter-productive: If you are committed to furthering social change in the area of military sexual assault, wouldn't you want to rely on data that helps identify the best solution to the problem and directs you away from solutions (pulling commanders from the process) that will not resolve the problem? (This problem is not limited to law, but extends to the hard sciences).
JOTWELL: Thornburg on Gilles on class actions and low-income litigants
The new Courts Law essay comes from Elizabeth Thornburg (SMU), reviewing Myriam Gilles' Class Warafre: The Disappearance of Low-Income Litigants from the Civil Docket (Emory L.J.), which explores the disparate effects of restrictions on aggregate litigation on low-income litigants.
A Take on Domnarski's Posner Bio
The really quick take is that I largely agree with Peter Conti-Brown's review. But perhaps a little more content than that is okay.
Like many ardent fans and sometime critics of Richard Posner, I was very excited by and had huge hopes for Richard Domnarski's Posner biography, which is now available. And I was equally dismayed when the physical book arrived on my doorstep. Quantity is not quality, God knows. But the book on first appearance struck me as very thin for a life that is packed with such intellectual ferment and set in such interesting times. A doorstop is not a classic by virtue of being big, but some subjects require more than a pamphlet. The structure of the book, on which more below, struck me as exacerbating the problems caused by the book's brevity. And the index is incredibly, and surprisingly, inadequate, both too small and too arbitrary. One may be somewhat charitable toward the author about this, at least if one has ever prepared one's own index. But the fact remains that someone--the author or the press, or both--released an academic biography into the world more or less lacking what I consider an obvious and necessary appurtenance.
I warmed up to the book considerably on reading it, in many respects. And, more or less like Conti-Brown, I think the best part of the book is its first two chapters--not incidentally its most traditionally biographical chapters. Posner's writing is unusually available and accessible. Of course a description and assessment of it must form much of the meat of the book. But learning about Posner the man, or about the interaction between the man and his work or the man and his times, would be something relatively new, Larissa MacFarquhar's New Yorker profile aside. And Posner gave Domnarski access to his archive and especially his correspondence, which provides many of the most interesting, human, and seemingly revealing moments in the book. More--much more--of that would have been great, but Domnarski makes very good use of it.
Thursday, September 08, 2016
Enron & ITT Tech
In the late 1990s, the energy company Enron was regarded as "a new-economy maverick" that was able to up-end the energy sector's traditional business model. As a result, it quickly became a Wall Street darling and was soon "one of the nation's ten largest companies." By November 2001, Enron's fates had changed. It was revealed that Enron had been using special purpose entities to hide bad debt and toxic assets from its investors and creditors. This tactic--along with "deceptive bookkeeping" and its executives' criminal actions--swiftly caused the company's collapse. The company's collapse left tens of thousands of employees without jobs, wiped out ~$70 billion of its investors equity, and roiled the financial markets. Within a month, Enron filed a voluntary petition for bankruptcy.
In the late 1990s, the prospect of an Enron bankruptcy would have been unthinkable. But by late 2001, bankruptcy was the best path forward for preserving value for the company's creditors. Indeed, more than $14.6 billion was returned to creditors through Enron's chapter 11 bankruptcy case, an amount that exceeded early estimates by more than 225%. Most notably, Enron's chapter 11 bankruptcy filing allowed the company the opportunity to reorganize its business under a new name for the benefit of the company's creditors and employees.
Wednesday, September 07, 2016
Watching a Tragedy Unfold—the Spread of the Zika Virus and some teachable material about Federalism
While it’s considered sensationalistic in public health circles to make an analogy to AIDS every time a new virus emerges, the FDA’s recommendation that we begin screening all blood donations for Zika raises that question on its own. So far, there is no effective treatment or vaccine.
Congress has the power to authorize funding to develop both, but they also have the power to stand by and watch. Starting with a vote last February, Congress has refused to authorize the $1.1 Billion that the CDC and the Department of Health & Human Services (and other Agencies) need to develop a vaccine, treatment, and prevent strategies. Congressional dysfunction is hardly a surprise. Nor should it be a surprise that the latest pretext is that Planned Parenthood may be involved in what is so far the only effective way of preventing pre-natal infection, contraception.
Could it be that we will look back at Congress’ failure to fund a Federal response to the Zika virus as another tragically lost opportunity? Is Zika really that bad? Well, the WHO released new guidelines today that although couched in terms intended to reassure, are no better than a placebo. It’s couched as helpful, but Zika isn’t like some kind of soil contamination that can be avoided by cordoning off a few blocks in a major city. Not only are the mosquitos quite good at hitching rides, it is clear that the virus can be transmitted through bodily fluids and, very much so, from mothers to their unborn children. And, as both the CDC and WHO well know, advice to avoid pregnancy is not realistic. By some estimates, over 45% of pregnancies in the US are unplanned and there’s no reason to think the number is significantly lower anywhere else.
As is almost always the case in a time of public health crisis, there are balance of power lessons to learn.
The President of the United States does not have direct power to protect the public’s health—that authority rests in the individual States under the Police Powers Doctrine. But he could act alone to combat Zika if he were willing to declare it a threat to national security. The CDC has compiled a very helpful document outlining these powers, but as explained, in presidential transition memo the consequences to the rule of law in using them are enormous. And in retrospect almost never justified.
Last Call for Nominations for Annual Award for Best Untenured Article on the Law of Federal Jurisdiction
The AALS Section on Federal Courts is pleased to announce the fifth annual award for the best article on the law of federal jurisdiction by a full-time, untenured faculty member at an AALS member or affiliate school -- and to solicit nominations (including self-nominations) for the prize to be awarded at the 2017 AALS Annual Meeting in San Francisco, CA.
The purpose of the award program is to recognize outstanding scholarship in the field of federal courts by untenured faculty members. To that end, eligible articles are those specifically in the field of Federal Courts that were published by a recognized journal during the twelve-month period ending on September 1, 2016 (date of actual publication determines eligibility). Eligible authors are those who, at the close of nominations (i.e., as of September 15, 2016), are untenured, full-time faculty members at AALS member or affiliate schools, and have not previously won the award.
Nominations (and questions about the award) should be directed to Prof. Bradford Clark at George Washington University Law School (firstname.lastname@example.org). Without exception, allnominations must be received by 11:59 p.m. (EDT) on September 15, 2016. Nominations will be reviewed by a prize committee comprised of Professors Curtis Bradley (Duke), Bradford Clark (George Washington), Tara Leigh Grove (William & Mary), Gillian Metzger (Columbia), and Caleb Nelson (Virginia), with the result announced at the Federal Courts section program at the 2017 AALS Annual Meeting.
Reality, Experience, Video and the Law
A recent article in the New York Times (here) caught my attention. The article tells the story of John Lewis, who plead guilty to killing a police officer that interrupted Lewis’ armed robbery of a Dunkin’ Donuts. A key issue in penalty portion of the case was whether Lewis acted with premeditation. He argued that he did not; he simply panicked when he saw the cop on the scene and shot him. The state, on the other hand, argued that the murder was premeditated.
A key piece of evidence for both sides was the store's videotape of the crime. The videotape showed Lewis shooting the officer within 2 seconds of seeing him—which allows (but does not require) the conclusion that the killing was not premeditated. But would your view change if you watched the video in slow motion? That’s exactly what the state did in this case. Lewis opposed the slow motion replay, arguing that it would prejudice him because it would make it look like he had more time to think through his actions. Lewis argued the point all the way to the Pennsylvania Supreme Court, where he lost. The court held that the video was more probative than prejudicial. A short news story is here.
My first thought on this issue was: if the state has the right to play the tape in slow motion, does Lewis have the right to play it in fast motion? He wouldn’t actually want to do this, of course, because it would suggest that he was trying to obscure something. But why? Why aren't we assuming that the prosecutor is trying to obscure something by playing it too slow? I guess the answer here is comes down to our general appreciation for slow motion. We tend to think that slow motion, generally speaking, helps us better assess what actually happened. Slow motion replay is a big part of many sports, for example. In those contexts, we seem to think that slow motion helps us “get it right.” So why not use slow motion in the courtroom?
Tuesday, September 06, 2016
Assigning videos for class?
This semester, I'm teaching a seminar on consumer financial law. It's my first time teaching this topic and my first time teaching a paper-based seminar. Adam Levitin was gracious enough to let my class use a draft version of his textbook. And both Adam and Susan Block-Lieb, who also uses his casebook, shared some of their notes and slides with me. Yet, I still spend an enormous amount of time preparing for this class. After all, while it's relatively easy to figure out what I want students to learn, it's much more challenging to figure out how best to present the material so that they will learn it.
Some folks who teach consumer law have made use of a series of medium-length videos by John Oliver. I've been thinking of doing so too. I'm also considering assigning a ~40 min film called Spent. My gut reaction is that it's likely to be more effective than assigning additional reading, if purely for the novelty of it. The only variety I had in assignments when I was a student was being asked to read books vs. law review articles vs. cases.
But, in addition to highlighting these resources through this post, I'm also curious for feedback. While I've assigned podcasts, I've never assigned movies. Do folks have any experience in doing so? Is it well received by students? Do you find videos to be more (or less) effective than assigning reading?
Letters to the powers that be
I am a junior (untenured) assistant professor at Howard University School of Law. Although I do not (yet?) self-identify as a public intellectual, I do produce scholarship that seeks to critically study and reflect upon problems in society and that proposes solutions for those problems. It seems that the very act of seeking to affect the public discourse makes me a public intellectual (at least according to Wikipedia).
I've found myself reflecting on my status recently because I've been offered several opportunities to sign letters that seek to influence rules being promulgated by the Consumer Financial Protection Bureau. See, e.g., this letter. My gut reaction is usually a bit of self-doubt. Do I really know enough about all sides of the issue to weigh in? Have I thought about the problem long enough and adequately reflected on the appropriate solutions? In addition, I wrestle with how much time to devote to getting up to speed on the issue covered by the letter.
I assume that others have much more experience in this area than I do. As such, I'm curious what other folks think about signing (or drafting) such letters. What factors affect your decision to either draft such letters in the first instance or to sign ones that come across your desk? How much time do you invest in making sure that the comment letter you sign is as perfect as it can be? Put differently, do you treat these letters like a blog post or a law review article? Finally, did you think differently about these issues when you were untenured? Should you have?
Thanks for sharing your thoughts!
Too politically charged?
The Second Circuit last week decided Sokolow v. PLO, holding that a federal court in the United States lacked personal jurisdiction over the PLO and Palestinian Authority in an action brought by a number of U.S. citizens and their family members, arising from some terrorist attacks in Israel. The case contains good analysis of both the new general-jurisdiction analysis after Daimler and the new effects test after Walden.
This would be the type of case I would use for a subject essay on personal jurisdiction in Civ Pro. But is the underlying subject matter too hot and too controversial? Will people who feel strongly about either (or both) sides of this debate find the subject too painful, hurtful, etc.? Will I be seen as insensitive to one (or both sides)? Is this likely to get a reaction similar to the First Amendment exam question about whether Michael Brown's stepfather could be successfully prosecuted for incitement?
As I think I have written before, I like using real-world cases/problems for exams and essays. And I like questions that force students to look past their political preferences to see and explore the legal issues in a case--one's political views about Israel and the Israel-Palestine conflict should be irrelevant to whether the PLO is "essentially at home" in New York. But in this case, am I asking for trouble?
Monday, September 05, 2016
Blowin' Down the Road
I had good intentions to post a few more times, but Hurricane Hermine had other plans. And so it goes. But I'm glad that Prawfs provided a platform for my live-blogging experiment from the Intellectual Property Scholars Conference at Stanford. I hoped for a bigger turnout, but a few dedicated souls shared some wonderful summaries of fascinating scholarship. Perhaps I'll try again next year. If you have clever ideas to encourage more scholars attending multi-track conferences to live-blog or tweet the panels they attend, please share your ideas in the comments.
In the meantime, I'm thankful that Hermine only landed a glancing blow on funky Tallahassee, and that family, friends, and community members made the experience bearable. Hermine may spend more time in the North Atlantic, so I hope my northern colleagues stay safe.
Until next time!
Sunday, September 04, 2016
Disentangling Correlation from Causation in Addressing the Contemporary Challenges of the Law School Curriculum
The disconnect between the actual curriculum of law schools in the United States meeting the ABA Standards for Accredidation and the multiple calls to reform that curriculum in order to create “practice ready” lawyers and increase bar passage is national in its scope and has led to considerable tension both in and out of the academy. I wrote this piece , Not Your Parents' Law School, last February to put the balance of classroom and experiential learning in context, but the on-going calls to increase bar passage, lower costs, cut a year out of the curriculum, and increase hands-0n skills instruction continue to create a climate of considerable dissonence. If that wasn't hard enough, we are trying to address these issues in an environment where everyone involved has not just their own opinion, but their own facts. Baskin Robbins wouldn't launch a new flavor based on evidence equal to the paucity of reproducible research that supports either the claims about the scope of legal academe's problems or the proposals for solving them.
Over the next weeks I will highlight the facts in dispute and address this disconnection and dissonance in a way that questions correlative explanations of low bar passage and decreases in employment opportunities. By the end of the month, I hope some readers will feel comfortable wondering whether we are putting too much emphasis on simple correlation and will be asking questions about what legal academe, and any other interested party, can do to first accurately describe the problem, then identify causative factors, and finally develop evidence based (and assessable) strategies to mitigate it. (Spoilers, it’s going to involve the help of experts who do math).
Equally, I look forward to sharing sources that can shed light on the question of why the increase in skills instruction hasn’t resulted in an increase in employer satisfaction. Spoilers, the last point will involve reading an excellent piece by Dean Wendy Collins Purdue of the University of Richmond School of Law that discusses this employer dissatisfaction as global.
And I'm still going to write about Zika.
Friday, September 02, 2016
Pierre Schlag and the Catharsis of "Why?"
This is a repost of something from several weeks ago on The Legal Whiteboard.
Pierre Schlag, with whom I’ve maintained a friendly correspondence for a number of years, was kind enough to pass along a draft of his article The Law Review Article and his new novel American Absurd: A Work of Fiction (Bowen Press, 2016).
I may be the last person others would expect to appreciate critiques with CLS or post-modern or absurdist perspectives. When I was a senior in high school, my honors English project was a paean to rationality, structured as a Gemara-like commentary on Rabindranath Tagore’s poem Where the Mind is Without Fear. That was the idealism of a seventeen year old. With the limited maturity I’ve been able to achieve in the ensuing forty-five years, I’ve come to believe that any reasonable view of reason entails understanding its limits. (That is an underlying theme of my book Routledge will be publishing next year: Beyond Legal Reasoning: A Critique of Pure Lawyering.)
Here’s what I appreciate so much about Pierre’s work.
Which Part of the Constitution Prohibits Wrongful Detention?
If a cop fabricates evidence against you, and you’re held in jail for 47 days, have you suffered a constitutional violation? Believe it or not, that’s an open question—or as I’ll explain, a partially-open question. And it’s also a question that the Supreme Court will answer in Manuel v. City of Joliet, which will be argued at the outset of the Court’s term in October.
A quick squib on the facts: Elijah Manuel was a passenger in a car driven by his brother in Joliet, Illinois. The cops pulled the car over, pulled Manuel out of the car and seized a bottle of pills in his pocket. (The cops also allegedly used excessive force during the stop, but that’s not at issue in the S.Ct. appeal.) The officers field tested the pills and said that they contained ecstasy. The thing was, the pills did not contain ecstasy; the field test came back negative for a controlled substance. The officers arrested him anyway and stuck to their story that the pills contained ecstasy. When they got back to the station, the officers gave the pills to a technician who tested them again. Like the field test, this test showed nothing unlawful about the pills. And also like the first test, the technician lied about the results. So Manuel sat in jail. Forty seven days later, after his attorney requested a copy of the lab report and the fraud was discovered, Manuel was released.
Manuel brought a § 1983 suit against the officers. Sounds like a good suit, right? I mean, there’s gotta be claim in there somewhere, doesn’t there? Maybe not.
Another Upside of Being an Academic: Chronic Illness
I haven't been blogging much lately. That's not unusual: it's been true for the past two or so years. Some of it has to do with exhaustion factors associated with blogging itself. (That gives me an opening to promote this upcoming collection edited by Michael Desch of Notre Dame, Public Intellectuals in the Global Arena: Professors or Pundits?, in which I have a slightly dyspeptic chapter on bloggers as public intellectuals.) The other reason is that I have been generally sick the past two years and had ankle replacement surgery this summer--a pleasant bookend to my last summer, which featured fusion surgery on my other ankle. I will say as a quick side-note that although it's relatively early, both surgeries appear to have gone very well and I'm looking forward to brighter days.
Chronically-ill-academic pieces are kind of a genre at this point, and I've written here before on living with chronic pain and illness. Given that one of the reasons I'm blogging less is my dislike of repetition, I won't rehash (entirely--in looking back over this post I see I did limp over some well-trodden ground), although the subject, having consumed a big part of my life and energy for the past two years, is of understandable if selfish interest to me. I did want to apologize for being absent here, though, especially given how much of the burden has been shouldered by Howard and our guest bloggers, and felt somewhat compelled to say something about why I was absent. And given that my skill set as a blogger, such as it is, involves saying professionally imprudent things, but at such length that no one notices, I thought I'd add two points--one mildly contrarian, the other mildly "rude"--that I haven't seen made much of in the law professor posts I've seen on the subject of academics and chronic pain or illness.
Thursday, September 01, 2016
What to expect this month
Since my modest reputation doesn't usually precede me by very far, please let me introduce myself a bit. I am starting my third year as an assistant professor at Howard University School of Law, where I teach contracts, consumer financial law, bankruptcy and commercial law classes. I write primarily about bankruptcy issues. This month, I intend to primarily blog about the business of higher education. To get a flavor of what I intend to write about, you can check out my earlier blog posts and my forthcoming article on the topic. But I also intend to use this platform to highlight interesting scholarship by other commercial law/bankruptcy folks and to note interesting developments in the consumer law or contracts law spaces.
Thanks to everyone at Prawfs for having me this month! I'm excited to contribute to the community, instead of just obsessing over the submission angsting threads.
Thanks to our August guests, who may be sticking around for a few more days.
And welcome to our September guests--Matthew Bruckner (Howard), Jennifer Bard (Dean at Cincinnati), Jeffrey Lipshaw (Suffolk), Jack Preis (Richmond), and Ari Waldman (New York Law).
Wednesday, August 31, 2016
Bard Signing In
Let me start my third visit to Prawfs Blog with warm thanks to Howard Wasserman and to my fellow bloggers for the work they have done keeping this forum going. As the public information about Professor Markel’s murder becomes increasingly lurid, I’d rather focus on his work than on the circumstances of his tragic death. And from the beginning his work on this blog was to provide legal academics a forum to talk to each-other about matters of interest to them—whether it was highlighting a new study, commenting on a case or talking about legal academe.
As a brief self introduction, I’m starting my second year as the very proud dean of the absolutely amazing University of Cincinnati College of Law. Every day I hear something about what one of our faculty, alumni, staff or students are doing and I’m proud to have a role in sustaining the framework that allows these things to happen at our historic law school. So I’m going to talk about legal education. But as an engaged health law academic specializing in ethical issues in public health, the unchecked spread of Zika in the United States is also going to be a topic of discussion. Thank you for having me. It is a real honor to be included.
Posted by Jennifer Bard on August 31, 2016 at 09:37 PM in Article Spotlight, Blogging, Culture, Current Affairs, Dan Markel, Howard Wasserman, Information and Technology, Life of Law Schools, Lipshaw | Permalink
Goodbye and Some Things to Watch
A month passes surprisingly quickly! I'm grateful to have had the opportunity to join Prawfs as a guest blogger and for the people that have reached out because of the posts. I'm also leaving with tremendous respect for folks like Howard that keep blogging year round.
After the jump, I flag two interesting business law areas that I plan to watch in the year ahead for interesting classroom material and potential scholarship ideas. In one area, changing technology and business practices may stress existing legal systems. In the other, new enforcement programs may change business culture.
Tuesday, August 30, 2016
Now we know where John Roberts got the umpire analogy
Go to the 2:15 mark (start of the second chorus)
Guerilla Guides to Law Teaching
Guerilla Guides to Law Teaching is a new web-based course resource for incorporating social movements into law-school classes. It is produced by Amna Akbar (Ohio State), Sameer Ashar (UC-Irvine), Bill Quigley (Loyola-NO), and Jocelyn Simonson (Brooklyn). Here are the Four Principles for using this material in teaching.
Blinding and Bias in Law Hiring
This debate has turned into a larger one about trying to improve respect and even reduce bias in the classroom and has led to some really interesting conversations. Without fail, my male colleagues are shocked when I tell them that I routinely introduce myself as Professor Baughman and am in turn called “Shima.” They could never imagine a student not thinking their first name was professor even when they first started teaching. Even Volokh’s post acknowledges that though he asks students to call him Eugene, they don’t take him up on this offer. Could this possibly be because he's a white male (and also really famous)?
I actually remember wishing early on in teaching that I was white, much older, and a man. I still wish this sometimes when I speak at certain events. Obviously, I can’t do anything about that in teaching and presenting and luckily it has not presented a big obstacle in my career. But part of that is because at least some of what helps us achieve our success is done in a blind manner.
We receive our grades in law school blindly. The bar is graded blindly. And even now as a professor, my articles are submitted and judged (at least to some law reviews) presumably blindly (I say presumably because there is always a lot of doubt that the schools that claim blind judging of law review articles are truly doing this (fully) in a blind manner. I’m not entering that fray today).
But still a lot of what we do as lawyers and law professors is not done in a blind manner. I’ve written about this blinding issue with Sunita Sah and Chris Robertson in the context of prosecutors. We believe prosecutors should be blinded to the race of victims and defendants at the initial charging decision (before they actually meet defendant). Blinding has caught on in other fields. Just a few examples in our article: doctors blind the race of patients because that has biased their treatment in clinical experiments. Musicians often audition behind a screen so they are solely judged by their music and not their appearance—or gender or race. And so on. In our article we discuss the fact that in some tech job searches, companies have blinded the resumes from the reviewer to try to avoid any implicit bias in hiring. Why go through this trouble? Well, studies have demonstrated that we all have bias and even being aware of, or trained against this bias, does not help (and can in some contexts actually make it worse). I would argue, that whenever possible, we should at least consider blinding in decisionmaking.
Recently I spoke at a diversity panel hosted by a large law firm in Salt Lake City. The discussion centered around how we could create more diversity and reduce bias in hiring at big firms. But it is a live issue in legal academia, which is something more present on my mind since I am on the Appointments Committee at Utah. Obviously there is a lot that can be done on this front. One suggestion I brought up that I haven’t heard discussed is—what about blinding the initial screening committee at a firm or among an appointments committee to the names of the individuals applying (or other information that indicates their race or gender)? Could that possibly reduce bias? Could it avoid the famous resume bias documented in studies or even bias documented in hiring research assistants (where women and minorities with similar resumes received less offers? Or could it backfire because at least at some law schools (like ours) or firms, they are hoping for gender and racial diversity and look for these cues on resumes (Black Student Union, Women’s Law Forum, or simple race indicators on FAR forms.)? Is there any way to use blinding in legal hiring that would help decrease bias and increase diversity?
I do not have much to say about NFL (non-starting) quarterback Colin Kaepernick's decision to not stand for the national anthem, since those who read this space know that I support his right to do this, without equivocation. I am heartened to see the NFL and the 49ers are, thus far, allowing his protests--although see the parenthetical in the first sentence. We have come some distance from 1968 and even 1996, when the NBA suspended Mahmoud Abdul-Rauf for one game for refusing to stand.
As for the criticisms, it is more of the same--"you're rich and successful athlete, so you have nothing to complain about." (so one can engage in political expression only when it furthers one's own self-interest?); "the flag is special and you disrespect those who served in the military" (considered and rejected twice by SCOTUS, including by the sainted Justice Scalia); "find another way to do it" (why should someone be forced to sacrifice their best forum?)
Finally, it is beyond laughable that Donald Trump is running for President on an explicit platform that the country is circling the drain, especially for African-Americans, but that an African-American who protests because of the same belief should leave the country. So does that mean that if America does suck, your choices are 1) run for President, 2) leave, or 3) shut up and vote for Donald Trump? That is an odd vision of free speech. But not a surprising one, given the source.
The Night of Conclusion
I was a guest on New York Magazine's Vulture TV Podcast (begins at 30:00 mark) discussing the finale of The Night Of. Some additional comments (with spoilers) after the jump.
Monday, August 29, 2016
The Missing Million Dollar Man
Financial self-regulatory organizations play an important role in investor protection. Like other institutions, they also have governance scandals. When Richard Grasso served as the head of the New York Stock Exchange from 1995 to 2003, he somehow managed to secure a eye-popping $140 million in special retirement compensation even though the NYSE was, at that time, a non-profit. Observers speculated that Grasso may have secured such a large payday for himself in part because of his influence over selecting his own compensation committee:
Many of the directors of the NYSE (including members of the Compensation Committee) were subject to regulation by Mr. Grasso himself, as chairman and CEO of the NYSE. During the periods relevant to the litigation, Mr. Grasso was authorized to appoint the members of the Compensation Committee (subject to board approval) and to select one of the members as the chairperson of the committee (the selection of the committee chairperson did not require board approval).
Given this history of governance problems at financial self-regulatory organizations, the SEC should vigilantly monitor this area. Unfortunately, that isn't what has happened. In 2012, the Government Accountability Office released a report finding that the SEC had “conducted limited or no oversight of . . . FINRA’s . . . governance and executive compensation.” FINRA itself does not disclose much information about the backgrounds of its public governors. In many instances it simply lists them as "retired."
In my last post, I shared how Robert W. Scully, one of FINRA's public governors, recently disappeared from FINRA's website and annual report. This former public governor now serves as a director on UBS's board (a large financial institution with brokerage businesses regulated by FINRA). Because the case of FINRA's mysterious disappearing public governor piqued my interest, I reached out to Sarah Haan, my favorite corporate election expert and figured a few more things out.
Saturday, August 27, 2016
Defining terms and the U of C letter
Some of the problem surrounding the U of C letter is that we do not or cannot agree on terms. A commenter on my prior post on this argues that we are conflating content warnings with trigger warnings, because much of what we warn about is not actually "triggering" for trauma victims. An interesting point. Although i wonder if, at some level, we are quibbling semantics--the point comes to whether we must warn about something and whether that warning comes with some form of opt-out.
At Balkinization, Mark Graber posts a letter from a music professor at the University of Georgia (who happens to share his last name) arguing that intellectual safe spaces are essential to allow students to "speak, write, listen, challenge, and learn." But the letter defines safe spaces as ones in which students can present their ideas--even wrong or half-baked ones--without fear of reprisal from colleagues or professors. I agree with this conception. Of course, that is not what "safe space" has come to mean on campus and, at least I do not believe, it was not the conception the U of C letter was challenging or the conception that has been at the heart of most campus speech disputes.
Friday, August 26, 2016
Selecting the Public's Representatives in the Financial Regulatory Process
Financial regulations issued and enforced by the Financial Industry Regulatory Authority (FINRA) affect the public by setting the level of investor protection available. If things go awry, FINRA regulation also governs the rights the public has in industry-controlled arbitration.
Structurally, FINRA is a quasi-governmental organization that allows the industry to regulate itself under supervision from the SEC. While the industry elects a substantial number of FINRA's board members, its bylaws also call for the majority of the board to be "public" governors. The board's nominating committee, which includes industry-elected members, selects the "public" representatives.
This picking process has resulted in some surprising choices for public representatives. I took a close look at the current board and discovered some interesting things. According to one version of FINRA's annual report, Robert W. Scully served as one of the "public" board members as of June 15, 2016. In May 2016 he was elected to serve on the board of UBS--a major financial services firm. It struck me as odd that a public representative would concurrently serve on a financial service's firm's board. Interestingly, the contents of FINRA's previously issued annual report recently changed to omit Mr. Scully's name. His name was also scrubbed from FINRA's website. I am not aware of any information about when Mr. Scully actually stopped serving as a public representative on FINRA's board or when any discussions about joining the UBS board began. It may be that he promptly resigned as soon as he began to discuss joining UBS's board.
Susan Antilla at The Street reached out to FINRA for comment about the industry connections of FINRA's public board members. In her evaluation, the reality is that a majority of FINRA's board appears to have very close industry connections:
But by my count, only eight represent the public -- the result, in part, of the wide berth Finra allows for recent retirees from the finance industry to fill pubic seats. So if you're wondering why things don't always turn out so well for Mom and Pop when they entrust money to a broker, you might ponder the balance of power on Finra's board.
Is there a better way to pick public representatives? I give my idea after the jump.
Thursday, August 25, 2016
More on the University Chicago letter
First, as I said in a comment on Rick's post, I always have understood trigger warnings as featuring an opt-out on top of the warning: "This is what this material is like and if you need to absent yourself from this material, you may." Consider this example of a content warning, from Angus Johnston, a history prof CUNY who took to Twitter to criticize UC:
The University of Chicago letter regarding "free exchange of ideas"
You can see here (and all over the interwebs) a letter from the Dean of Students at the University of Chicago to that university's incoming first-year students. I wonder, have any law schools sent similar letters (or, letters covering the same issues) to incoming first-year law students? Should they? If so, what should they say?
For my own part, I do talk to students in Criminal Law, at several points during the semester, about the fact that the cases and materials we'll be reading do sometimes involve very difficult facts and that the materials and the questions they raise could very well be, for a variety of reasons, painful to read. I urge respectful conversation and argument, but also invite students to speak with me if they have any concerns about talking in class about particular materials or about attending class on a particular day. This kind of thing doesn't strike me as a "trigger warning," but maybe I'm misunderstanding what is meant, in the Chicago letter or generally, by that term.
A Clearinghouse for Questions, 2016-2017
In this comment thread to this post, you can ask questions about the law teaching market, and professors or others can weigh in.
Both questions and answers can be anonymous, but I will delete pure nastiness, irrelevance, and misinformation. If you see something that you know to be wrong, please feel free to let me know via email, sarah*dot*lawsky*at*law*dot*northwestern*dot*edu.
We have a different thread in which candidates or professors can report callbacks, offers, and acceptances. That thread should be used only for information relevant to hiring, not for questions or comments on the process. This is the thread for questions.
Here is a link to the last page of comments.
Originally posted August 25, 2016.
Law School Hiring, 2016-2017, Thread One
Those on the market are invited to leave comments on this thread regarding whether they have received:
(a) a first round interview at a school (including the subject areas the school mentioned, if any, as being of particular interest, and whether the interview offer was accepted);
(b) a callback from a law school and/or accepted it; or
(c) an offer from a law school and/or accepted it; feel free to also leave details about the offer, including teaching load, research leave, etc. A school listed as "offer accepted" may have made more than one offer and may still have some slots open.
Law professors may also choose to provide information that is relevant to the entry-level market.
Four miscellaneous things:
1. If you don't want your contact information displayed, enter email@example.com or something like that as an email address.
2. There is a separate thread, "A Clearinghouse for Questions," for general questions or comments about the teaching market. Please do not use the thread below for general questions or comments. (Such comments will be deleted, not out of hostility or in a judgy way, just to keep this thread focused.)
4. Finally, in each of the previous years, someone who is on the market has volunteered to aggregate the information on a spreadsheet. If you would like to volunteer, please contact me directly at sarah *dot* lawsky *at* law *dot* northwestern *dot* edu, and I will get you set up.
Update: No aggregator this year; instead, anyone can edit the spreadsheet. It is available here:
Here is a link to the last page of comments.
Update: You can also add your information via this Google form, which was created by someone on the market this year.
Originally posted August 25, 2016; updated September 1, 2016, to add spreadsheet, and September 16, 2016, to add the link to the Google form.
Wednesday, August 24, 2016
Sound Symbolism, Trademarks, and Consumer Experience
A recent tweet from Ed Timberlake brought a new study to my attention. According to the authors of the study, beer tastes better when paired with the right music. (It also works with chocolate, among other foods). Possible applications include pairing a six-pack of beer with an mp3 for a curated listening experience.
This connection between hearing and taste reminded me of another line of research I recently mined for my article, Are Trademarks Ever Fanciful? (105 Georgetown L.J., forthcoming 2017). Trademark law presumes that when a word is coined for use as a trademark (like XEROX for photocopiers or SWIFFER for dust mops) the word can't carry any product signifying meaning, so it must be inherently source signifying. That presumption about coined words is not entirely true. In fact, there is a significant body of research into sound symbolism that indicates many sounds carry meaning independent of the words to which they belong. This is true for consonants and vowels, and true even if the word at issue is a nonsense word (like XEROX or SWIFFER).
Courts haven't realized that sounds convey meaning in this way. This is unsurprising because most consumers don't realize it either. But marketers know, and they spend a significant amount of time trying to craft marks that take advantage of sound symbols. In light of this research, the presumption that a fanciful (coined) mark is entitled to instant and broad protection may require some rethinking.
I'm excited to hear your observations about sound symbols and trademarks, or your favorite food/beverage and music pairings, in the comments below.
Hear, hear--Blogging Edition
Update: One more on where blogs have gone over their fifteen years of life.
Tuesday, August 23, 2016
Inside the agency class action
A quick flag for a new article from Michael Sant’Ambrogio (Michigan State) & past-guest Adam Zimmerman (Loyola-LA), Inside the Agency Class Action. This piece builds on some posts Adam wrote here, as well as some reports by the Administrative Conference of the US that Sergio Campos wrote about for JOTWELL.
University of Alabama School of Law: Hiring Notices
We have several potential openings at the University of Alabama School of Law this year, in both the "doctrinal" and "clinical" areas, and my colleagues have asked me to post notices for them. Here goes:
1) THE UNIVERSITY OF ALABAMA SCHOOL OF LAW seeks to fill entry-level/junior-lateral tenure-track positions for the 2017-2018 academic year. Candidates must have outstanding academic credentials, including a J.D. from an accredited law school or an equivalent degree (such as a Ph.D. in a related field). Entry-level candidates should demonstrate potential for strong teaching and scholarship; junior-lateral candidates should have an established record of excellent teaching and distinguished scholarship. Although positions are not necessarily limited by subject, applications from those who study and teach commercial law (including contracts and sales) or torts (including products liability) are especially welcome; business law, family law, and insurance law are also areas of interest. We welcome applications from candidates who approach scholarship from a variety of perspectives and methods (including quantitative or qualitative empiricism, formal mode ling, or historical or philosophical analysis). The University of Alabama embraces diversity in its faculty, students, and staff, and we welcome applications from those who would add to the diversity of our academic community. Salary, benefits, and research support will be nationally competitive. All applications are confidential to the extent permitted by state and federal law, and interested applicants should apply at facultyjobs.ua.edu; the positions remain open until filled. Questions should be directed to Professor Heather Elliott, Chair of the Faculty Appointments Committee (firstname.lastname@example.org). The University of Alabama is an Equal Employment/Equal Educational Opportunity Institution. All qualified applicants will receive consideration for employment without regard to race, color, religion, national origin, sex, sexual orientation, gender identity, gender expression, age, genetic information, disability, or protected veteran status, and will not be discriminated against because of their protected status. Applicants to and employees of this institution are protected under federal law from discrimination on several bases. Follow this link to find out more: “EEO is the Law” www1.eeoc.gov/employers/upload/eeoc_self_print_poster.pdf.
2) Assistant/Associate Professor--Director Elder Law Clinic:
The Night Of (Updated)
I have been enjoying HBO's The Night Of, despite my general distaste for legal fiction. The acting and writing have been great and the show has presented a unique tone.
Some comments (with spoilers, for those of you who are not caught up) after the jump.
Monday, August 22, 2016
Research Assistants and Comment Letters
In the best case scenario, both faculty and students benefit from research assistant positions. From the faculty perspective, I want to take on a research assistant if it will allow me to accomplish more than I would alone. If I could do the work by myself in less time, an assistant may be more of a burden than a benefit. From the student's perspective, the relationship also needs to yield some benefit, perhaps a letter of recommendation or a more polished writing sample than they would have produced otherwise. Finding the right assistant and mix of tasks to delegate makes the process work.
Putting a research assistant in charge of drafting a short comment letter under their own name on pending agency rule-making has worked well for me and allowed the assistant to get some genuine ownership over a project. Because the comment letter will be publicly filed, the assistant has a strong interest in producing quality work and researching the area. It also creates a unique writing sample that gives the student something to talk about when searching for a position. On some occasions, students have reported that their interviews focused around their comment letter. It may also help get students in the door by allowing them to demonstrate genuine interest in an area. After talking about how we've used comment letters in the past at the Transactional Law Conference, Nicole Iannarone and I put together a small piece talking about our experiences working with students on comment letters. Of course, it's not always roses. If an assistant isn't up to the task, you've got to spike the project to prevent them from filing a bad letter.
Supporting a research assistant through comment letter process yields some benefits for faculty as well. It helps to set the tone for what good work should look like. The assistant may also work harder for you on other projects that don't advance their career in the same way because you've taken some time to invest in a project that helps them. Plus, it keeps your eye on the other comment letters being filed and may give you insights you wouldn't have had otherwise. When you ask them to look at related issues to support your research, the project has built some foundation to allow them to do better work. On the whole, I've had good experiences with it. Are there other projects that work well to generate the same kind of engagement?