Wednesday, May 15, 2013
Rationing Legal Services
In the last few years at both the federal and state level there have been deep cuts to providing legal assistance to the poor. This only only makes more pressing and manifest a sad reality: there is and always will be persistent scarcity in the availability of both criminal and civil legal assistance. Given this persistent scarcity, my new article, Rationing Legal Services just published in the peer-reviewed Journal of Legal Analysis, examines how existing Legal Service Providers (LSPs), both civil and criminal, should ration their services when they cannot help everyone.
To illustrate the difficulty these issues involve, consider two types of LSPs, the Public Defender Service and Connecticut Legal Services (CLS), that I discuss in greater depth in the paper. Should the Public Defender Service favor offenders under the age of twenty-five years instead of those older than fifty-five years? Should other public defenders offices with death eligible offenses favor those facing the death penalty over those facing life sentences? Should providers favor clients they think can make actual innocence claims over those who cannot? How should CLS prioritize its civil cases and clients? Should it favor clients with cases better suited for impact litigation over those that fall in the direct service category? Should either institution prioritize those with the most need? Or, should they allocate by lottery?
I begin by looking at how three real-world LSPs currently rationi(PDS, CLS, and the Harvard Legal Aid Bureau). Then, in trying to answer these questions I draw on a developing literature in bioethics on the rationing of medical goods (organ, ICU beds, vaccine doses, etc) and show how the analogy can help us develop better rationing systems. I discuss six possible families of ‘simple’ rationing principles: first-come-first-serve, lottery, priority to the worst-off, age-weighting, best outcomes, and instrumental forms of allocation and the ethical complexities with several variants of each. While I ultimately tip my hand on my views of each of these sub-principles, my primary aim is to enrich the discourse on rationing legal services by showing LSPs and legal scholars that they must make a decision as to each of these issues, even if it is not the decision I would reach.
I also examine places where the analogy potentially breaks down. First, I examine how bringing in dignitary or participatory values complicates the allocation decision, drawing in particular on Jerry Mashaw’s work on Due Process values. Second, I ask whether it makes a difference that, in some cases, individuals who receive legal assistance will end up succeeding in cases where they do not “deserve” to win. I also examine whether the nature of legal services as “adversarial goods”, the allocation of which increases costs for those on the other side of the “v.”, should make a difference. Third, I relax the assumption that funding streams and lawyer satisfaction are independent of the rationing principles selected, and examine how that changes the picture. Finally, I respond to a potential objection that I have not left sufficient room for LSP institutional self-definition.
Posted by Ivan Cohen on May 15, 2013 at 02:57 PM in Article Spotlight, Civil Procedure, Law and Politics, Legal Theory, Life of Law Schools, Peer-Reviewed Journals | Permalink | Comments (2) | TrackBack (0)
Buy "The Business of Baby!"I almost missed it, but you might enjoy, from this weekend's New York Times Book Review, this review by Annie Murphy Paul of "The Business of Baby," a book by the capitalist journalist Jennifer Margulis.
JOTWELL: Coleman on Hoffman on federal rulemakingThe latest essay for JOTWELL's Courts Law is by Brooke Coleman (Seattle), reviewing Lonny Hoffman's Rulemaking in the Age of Twombly and Iqbal (forthcoming, U.C. Davis Law Review).
A Jot on "Balkan Ghosts"The latest con law "jot" from Jotwell: Pat Gudridge on Reva Siegel, balkanization, and equal protection. Enjoy!
The Getting (Criminal Law) Scholarship into Courts Project: Litigate This
I'm involved in a new project designed to connect practicing criminal lawyers with useful legal scholarship. I am very excited about it, because, contrary to some, I think law review articles are frequently relevant to legal issues decided by courts. Every month, a committee of practicing and academic lawyers will identify a set of articles about issues practitioners might want to raise in their cases, and the NACDL will circulate them. Here's the first batch, featured in the NACDL magazine, The Champion, which includes papers by Deborah Denno, Glenn Reynolds & John Steakley, and Deborah Tuerkheimer.
The premise is that practitioners do not have time to read law review articles systematically because, many articles, even in the criminal area, will be distant from the kinds of claims and arguments cognizable in court. The result is that lawyers may never see law review articles that could be sources of ideas, cases, and authority. We hope and believe there will be an appetite for innovative, ready-to-litigate articles. We invite all Prawfs readers to nominate recent articles written by themselves or others which might be of interest to lawyers litigating cases (contact Andrew Ferguson at aferguson -at- udc.edu).
My view is that the generally low visibility of articles is unfortunate for both professors and practitioners.
Freedom of the Church Without Romance
I'm happy to share my latest draft paper, Freedom of the Church Without Romance. It was written for a symposium at the University of San Diego's law school called "Freedom of the Church in the Modern Era," and I must say that the articles coming out of that symposium, mine excepted, are very strong and will constitute excellent resources for those interested in the increasingly popular subjects of "freedom of the church," religious institutional autonomy, the ministerial exception, and related themes. Some of them are available for download here, and see also these pieces.
Every scholar has articles they're more or less proud of for one reason or another, and I'm quite proud of this one, for two reasons: (1) it takes an idea I have championed and associated myself with and subjects it to critical analysis, rather than simply defending it one more time; and (2) it makes the important (I think) point that church-state legal scholars ought to do much more with the substantial literature on the economics of religion. I hope others enjoy it, and I welcome comments. Here's the abstract:
This Article is part of a symposium issue titled "Freedom of the Church in the Modern Era." Freedom of the church, roughly, connotes the independent nature or sovereignty of the church. The most dramatic moment in its development was the eleventh century Investiture Controversy, with its confrontation between Pope Gregory VII and Emperor Henry IV at Canossa, but it has a long prior and subsequent history. Recently, with the renewed scholarly interest in the institutional rights of churches and religious organizations and the Supreme Court's decision affirming the "ministerial exception" doctrine in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC,the idea of "freedom of the church" has taken on new champions--and critics.
This Article, from an author who has written supportively about freedom of the church and/or religious institutionalism in prior work, takes a deliberately unromantic look at freedom of the church. It evaluates it through two useful disciplinary lenses: history, and the economics of religion.
Both historical and economic analysis of the concept of"freedom of the church" suggest the following conclusions: (1) The concept should be treated carefully and with a full awareness of its mixed history, without undue romanticism on the part of its champions--or a confident conclusion on the part of its critics that it is no longer necessary. (2) Whatever the concept of "freedom of the church" means today, the present version is decidedly diminished and chastened, a shadow of the medieval version. Supporters of freedom of the church should welcome that fact. Freedom of the church persists, and may have continuing value, precisely because it has become so domesticated. (3) There are solid historical and economic grounds for some form of freedom of the church or religious institutional autonomy. In particular, religion's status as a credence good, whose value and reliability is certified by religious agents such as ministers, strongly suggests that state interference with religious employment relations can be dangerous to a church's well-being and long-term survival. (4) The history and economics of religion also teach us something about the optimal conditions for freedom of the church--the conditions under which it is likely to do the most good and the least harm. In particular, they suggest that champions of freedom of the church ought to welcome religious pluralism and a strong non-establishment regime.
The Article closes with some speculation about why there has been a recent revival of interest in freedom of the church, including the possibility that its resurgence, even if it is fully justified, also involves an element of rent-seeking by religious institutions.
There are two broader underlying suggestions as well. First, there are good reasons to support some version of freedom of the church, but it deserves a more critical and nuanced examination by friends and adversaries alike. Second, legal scholars writing on church-state issues have paid far too little attention to the literature on the economics of religion.
Two Moving TestimoniesHere are links to two recent powerful pieces of personal testimony, both dimly but only dimly law-related. The first is this moving letter-cum-tribute between law professor Charles Barzun and his illustrious grandfather, Jacques Barzun. The second, even more powerfully personal, is this piece by lawyer Tony Nitti, about suffering and recovering from a brain aneurysm, in which he observes and explains why, "when recovering from a life-threatening ailment, the real challenge often doesn’t begin until the healing is complete." Both are well worth reading.
Tuesday, May 14, 2013
Dean Wu and Judge Chin Reenact Vincent Chin Trial
May is Asian Pacific American Heritage Month, so it is appropriate to share this reenactment of the trial of the men who killed Vincent Chin in 1982. The killing was a transformative event in the history of APAs, and UC Hastings Chancelor & Dean Frank Wu and Second Circuit Judge Denny Chin have presented this trial reenactment in a number of venues. It is quite amazing, in my opinion.
Oh, the Cases You'll Know
The faculty at Osgoode Hall Law School offer Seussian encouragement--sort of. (H/T: My colleague Jan OseiTutu)
Is a broadcast to everyone private under the Copyright Act?
For the final post in my extended visit here, I want to focus on another example in my series of discussions about formalism vs. policy in copyright. Today’s case is WNET v. Aereo, which allowed continued operation of a creative television streaming service. As I’ll discuss below, the case pretty clearly complies with the statutory scheme, much to the relief of those who believe content is overprotected and that new digital distribution methods should be allowed. This time, the policy opposition is best demonstrated by Judge Chin’s dissent in the case.
In the end, though, the case shows what all of the cases I’ve discussed show: copyright was not really developed with digital content storage and streaming in mind. While some rules fit nicely, others seem like creaky old constructs that can barely hold the weight of the future. The result is a set of highly formalistic rules that lead to services purposely designed inefficiently to either follow or avoid the letter of the law. This problem is not going to get any better with time, though my own guess hope is that the pressure will cause providers to create some better solutions that leave everyone better off.
The inevitably phoney textualism of "express" preemption doctrine
Few probably waited with eager anticipation for the SCOTUS to hand down Dan's City Used Cars, Inc. v. Pelkey. To federalism aficionados, however, the opinion illustrates the threadbare quality of the textualist ritual when applied to so-called express preemption cases. The problem is that, for the vast majority of "express" preemption clauses, text does no substantial work: The meaning of the preemption clause generally resides in an opaque prepositional phrase -- "with respect to," "relating to," "based on, "of," etc. -- connecting a noun denoting some category of state law with some noun denoting some category of federally protected activities. Being semantically vacuous, these prepositional phrases cannot really resolve the question of whether a federal statute spares or squashes a state law. Having a textualist axe to grind, however, the Court must pretend to scrape some meaning out of this empty bowl before one goes on to the real business of discerning the unwritten statutory purpose. The result is exegetical hand-waving that distracts the Court from devoting serious attention to the unwritten theory of national interests that is doing the real work in the decision.
Dan's City Used Cars provides a simultaneously entertaining and disheartening illustration of the futility of this semantic exercise.
Monday, May 13, 2013
I am looking for a source to support following proposition:
A prohibition on some conduct is justified, even if the prohibited conduct and harm does not arise that often, so long as having the prohibition does not impose new/additional costs that exceed any benefits.
Does anyone have suggestions?
Mike Wallace interviews Justice Douglas on free expression (1958)If, like me, you need excuses throughout the day to take short breaks from grading, this video -- an interview by Mike Wallace of Justice Douglas (about expression, speech, censorship, and "our freedoms" more generally) from May of 1958 -- is an intriguing watch. It was basically about his The Right of the People.
McGeveran on Continuous AssessmentAt CoOp, William McGeveran had a post last week on continuous assessment, rather than the traditional hundred percent final, in law school. It didn't receive much by way of reaction or commentary. Given a recent discussion here, perhaps that's for the best, because McGeveran, with candor but not indifference, notes some glitches in shifting from one approach to the other. (He's not alone in this. This is my second year of giving a midterm in con law and my first year of making it graded, and I'm still working out the kinks. My other courses already feature different kinds of continuous assessment.) But I think he's doing the right thing and that the pedagogical justifications for a single, all-in final are very, very poor. I hope more people will read and comment on his post. I will add that, as McGeveran notes, law schools themselves often structure their calendar and operations in a way that makes it difficult to move to continuous assessment, and that this is something law schools ought to act on.
Honoring Judge Jane Roth
Last Friday, the Third Circuit unveiled a portrait of Judge Jane R. Roth, which also doubled as a clerk reunion (which I, unfortunately, missed on account of travel SNAFUs at Miami's airport Friday morning). Judge Roth was appointed to the District of Delaware in 1985, elevated to the Third Circuit in 1991, and took Senior status in 2006. I clerked for her in 2000-01.
In the exchange of emails that lead up to the event, I was struck by the number of former clerks who went into teaching--by my count (and I apologize if I missed anyone--I am going by "edu" email addresses), there are 13 law professors (including GuestPrawfs Chad Oldfather and Miriam Baer), one anthropology professor who teaches in both a law school and Anthro department, and one professor of medicine. Judge Roth has had 78 total clerks (including the three clerking for her right now), so that means 75 former clerks, 15 of whom (20 %) went into teaching. This struck me as a lot, although I could be wrong. Judge Roth was never a full-time academic, so she is not necessarily a judge whom a clerk with clear academic aspirations would target (beyond being incredibly smart and a great judge). We talk a lot about feeder judges to SCOTUS; it would be interesting to identify feeder judges to the academy, particularly by separating out those judges whose clerks go on to teach without stopping off at SCOTUS (so we are not conflating SCOTUS feeders with academy feeders).
The run-up to the ceremony also reminded me that my fascination with the jurisdiction/merits divide was, if not born, certainly nurtured during this clerkship. One of my favorite cases of that tern was Powell v. Ridge, which arose out of a lawsuit alleging that the state system for funding education violated Title VI. Several state legislators intervened as defendants, then asserted legislative immunity from having to respond to discovery; when the district court denied immunity, the legislators sought to immediately appeal under the collateral order doctrine. The majority held there was no appellate jurisdiction because the immunity the legislators were asserting did not exist. Judge Roth concurred in the judgment, agreeing that the asserted immunity did not exist, but insisting (sound familiar?) that this went not to the court's appellate jurisdiction, but to the substance of the asserted defense. Instead, she argued, we had appellate jurisdiction because the asserted immunity was "legislative" (which is immediately appealable under the C/O/D), but the district court was right to reject the immunity.Update: I received an email from one of Judge Roth's 2024-15 clerks, who hopes to go into academia. He said his teaching aspirations came up during his interview with the judge and she talked about the number of clerks who have gone into teaching. So she is aware of the trend and uses it as a selling point for the clerkship.
Sunstein on Albert Hirschman
In the new New York Review of Books, Cass Sunstein has a very enjoyable essay on Albert Hirschman, jumping off of a recent biography. Hirschman's classic book Exit, Voice and Loyalty is well known to legal scholars, with some 870 cites in the Westlaw legal periodical database (including a good new piece by Heather Gerken in the Duke Law Journal). Indeed, I assume many of the authors who cite it have actually read the book! But Sunstein usefully shines a spotlight on other major works by Hirschman, which seem like natural reads for legal scholars but have gotten less attention from them. (In particular, Shifting Involvements, which has 54 cites, and The Rhetoric of Reaction, "a study of the reactionary’s tool kit, identifying the standard objections to any and all proposals for reform," a subject of central concern to much reform-oriented legal scholarship, which has only 84 cites.)
I found the following passage from Sunstein's celebratory essay especially valuable:
Hirschman was a great believer in doubt—he never doubted it—and he certainly doubted his own convictions. At a conference designed to celebrate the thirtieth anniversary of his first book, who else would take the opportunity to show that one of his own central arguments was wrong? Who else would publish an essay in The American Economic Review exploring the “overproduction of opinionated opinion,” questioning the value of having strong opinions, and emphasizing the importance of doubting one’s opinions and even one’s tastes? . . . [Hirschman suggested] that doubt could be a source not of paralysis and death but of creativity and self-renewal. One of his last books, published when he was about eighty, is called A Propensity to Self-Subversion. In the title essay, Hirschman celebrates skepticism about his own theories and ideas, and he captures not only the insight but also the pleasure, even the joy, that can come from learning that one had it wrong.
This sounds, alas, like the exact opposite of the behavior and incentives of junior legal scholars (and too many senior scholars) today, as well as the law review editors to whom they often cater. I've complained here before about the apparent rise of excessive novelty claims in recent legal scholarship, including articles published in many leading law reviews, which in turn will only encourage that trend. Too many articles today claim, on dubious grounds, to be the "first" or "only" paper to consider some issue or make some argument. Combine that with the frequency of "unified theory" approaches in legal scholarship and the general overconfidence that prevails in the field, and you get a lot of hubris. Some of this is surely strategic; I've heard privately from various scholars who acknowledge that their articles and abstracts overclaim but swear they'll cut out those claims by the time the article has been accepted and moved into the editing process, a move I find questionable as an ethical matter and one they don't always follow through on anyway. But much of the hubris is genuine, and even when it's not it's still there in the articles and may leach into the writer's thinking.
It's possible that this is just a particular phase in the life-cycle of these scholars, just a function of brash youth and careerism, and that they will think better of it when they get older and wiser. Having built their careers on an insistence that they have offered a "new" and/or general theory, however, I fear that these scholars will only get older, not wiser, and that they will be boxed in by their earlier claims and by the trend in legal scholarship that they helped to encourage and benefited from. How many of them will come back to the work that launched them and consider whether it was wrong? If they do, will those sober second thoughts be prominently published, or noticed at all?
As a personal note, I should add that I have been guilty too, not so much of overclaiming as of providing sweeping general theories and approaches. And yet, the most fun I've had in my work recently has been on two pieces. One gives a more positive assessment to the use of equality in law and religion doctrine, about which I've been skeptical before. The other is a clinical and critical examination of "freedom of the church," of which I've written quite positively in several articles. Any idea worth championing is surely worth going back and reconsidering critically. Indeed, I would think a serious scholar has a positive obligation to reconsider and sometimes disclaim his own past work. I worry that the pace, structure, and incentives of legal scholarship don't much encourage this. Perhaps Ross Davies could start yet another legal journal, this one called "The Journal of Law and Second Thoughts."
The Tragedy of Religious Freedom: Available Now
I'm pleased to announce that my new book, The Tragedy of Religious Freedom, is now available for purchase from Amazon (official publication date is June 1). Here is Harvard University Press's page for it. The book is specifically about the First Amendment religion clauses but it also involves more general questions about the relationship of legal theory and legal practice, and the tasks that legal scholars set for themselves. I hope that it will appeal to folks interested in those rangier questions as well as to readers with particular interests in religious freedom and conflicts among civil rights.
Here are the blurbs on the jacket:
“The Tragedy of Religious Freedom is a first-rate contribution to the law-and-religion conversation. This conversation—how to think about, and how to effectively protect in law, religious freedom in a constitutional democracy—is a lively and timely one, and DeGirolami is an impressive participant.”—Richard W. Garnett, Notre Dame Law School
“A sophisticated and thoughtful book, which offers fresh insights on a central question of religious liberty.”—Philip Hamburger, author of Separation of Church and State
Sunday, May 12, 2013
Marty Redish and A Jurisdictional Perspective on New York Times
The latest issue of the Northwestern Law Review contains the Martin H. Redish Festshcrift, a symposium celebrating Marty's 40 years on the Northwestern faculty and 40 years of influential scholaship in Civ Pro, Fed Courts, and First Amendment. The live symposium last March featured top scholars in all three areas, as well as a panel of Marty's former students who have gone (or are thinking about going) into law teaching.
My contribution, A Jurisdictional Perspective on New York Times v. Sullivan, explores the subject-matter jurisdiction controversies that affected how New York Times was litigated and, in a sense, how it was decided. I am glad I finally got to write this piece, both as a fitting tribute to Marty and in anticipation of Sullivan's 50th anniversary next year.
Here is the abstract:
New York Times v. Sullivan, arguably the Supreme Court’s most significant First Amendment decision, marks its fiftieth anniversary next year. Often overlooked in discussions of the case’s impact on the freedom of speech and freedom of the press is that it arose from a complex puzzle of constitutional, statutory, and judge-made jurisdictional and procedural rules. These kept the case in hostile Alabama state courts for four years and a half-million-dollar judgment before the Times and its civil-rights-leader co-defendants finally could avail themselves of the structural protections of federal court and Article III judges. The case’s outcome and the particular First Amendment rules it established are a product of this jurisdictional and procedural background.
Martin H. Redish has produced a lengthy record of influential and cutting-edge scholarship on civil procedure, federal jurisdiction, and the First Amendment, and has been a sharp and unforgiving critic of many of the jurisdictional rules that kept the case out of federal court for so long. It is appropriate to recognize Redish’s scholarly legacy by examining this landmark case, which sits at the intersection of his three scholarly pursuits and demonstrates why many of his arguments and criticisms are precisely correct.
A Mother's Day Essay In Praise of Pioneers
Most strongly held views of parenthood make heroically unrealistic assumptions about what parents ought to know about parenting. This obligation for omniscience spans familiar divisions among parenting reformers. Regardless of whether they favor Tiger Moms or children’s self-esteem, parenting advocates today agree that parents know – or ought to know – how their parenting decisions will affect their kids. Parenting handbooks abound, each promoting diametrically opposed views of what parents must do to assure their child’s well-being. As Ann Hulbert has argued in Raising America: Experts, Parents, and a Century of Advice About Children, however, these books’ popularity has always been rooted more in current political and cultural fashions than in any rigorous data or method. Pick a book, any book -- Chua or Spock or Rousseau or Ferber – and you can rest assured that your choice will not contradict – or be confirmed by - any solid social science. Your book instead will likely reflect what you and your social set would have done anyway. To paraphrase Marx, the parenting handbooks are pure super-structure, one's personal untheorized prejudices, base. Parenting theories are just comforting nightlights to reassure new parents who do not like facing up to the reality that raising a kid is a shot in the dark.
Keeping in mind our fundamental ignorance about what makes kids do well, I would like, on this Mother’s Day, to celebrate parenting pioneers who had no such comforting illusions to cling to. In particular – naturally – I want to praise my own Mom, and other working moms from her generation.
My parents had their first child in 1961 and their last in 1970 – a decade in which social norms about women’s roles in the workplace were just beginning to shift. They did not have any movement to join or role models to follow on Twitter. In particular, if you were a smart, public-spirited, and hard-working young female lawyer in 1960 who wanted to make a difference in the public sphere, there was no comforting nightlight, no camp to which you could attach yourself to delude yourself with the false hope that you knew what you were doing. Nowadays the lines are well-defined, the factions each have their battle cries that have gone viral – demands that one get tigerish or instead get in that Park Slope helicopter and hover, forego having it all or instead lean in. Back in the early 1960s, there was pretty much just Dr. Spock inducing female guilt in a "Mad Men" world.
Only after the last of our two daughters departed for college this Fall could I sit back and reflect on what a daring and scary decision it must have been for Mom to undertake to raise four children while pursuing a demanding legal and governmental career. Maria and I counted as a working couple – but working as two professors was nothing compared to the work that my parents undertook.
Thursday, May 09, 2013
Journal of Law, volume 3, number 1
Volume 3, Number 1 (2013) (available here)
Available at, by Ross E. Davies
JOURNAL OF LEGAL METRICS
Web 2.0 Citations in the Federal Courts, by Adam Aft, Tom Cummins & Joshua Cumby
Appellate Review II – October Term 2011, by Tom Cummins & Adam Aft
Top 10 Law School Home Pages of 2012, by Roger V. Skalbeck & Matt Zimmerman
Supreme Court Sluggers: Samuel A. Alito of the Philadelphia Phillies and Marvin Miller of the MLBPA, by Ross E. Davies
Introduction, by Anna Ivey
The Secret “Kill List” and the President, The Volokh Conspiracy, May 29, 2012, by Kenneth Anderson
Are You Ready for Some . . . Research? Uncertain Diagnoses, Research Data Privacy, & Preference Heterogeneity, The Faculty Lounge, Feb. 3, 2013, by Michelle N. Meyer
Debate on the Treaty Power, The Volokh Conspiracy, Jan. 13-Feb. 3, 2013, by Nick Rosenkranz, Eugene Kontorovich, Rick Pildes & Ilya Somin
The Decision to Uphold the Mandate as Tax Represents a Gestalt Shift in Constitutional Law, Legal Theory Blog, June 28, 2012, by Lawrence Solum
Asian-Americans, Affirmative Action, and Fisher v. Texas, The Volokh Conspiracy, May 31, 2012, by Ilya Somin
Law Schools Suffer Loss in Lawsuits, Balkinization, Sept. 19, 2012, by Brian Tamanaha
Interview with Brian Dalton about Above the Law’s New Rankings
You’ve no doubt heard about the new Above the Law Top 50 Law School Rankings. But have we really had the chance to scrutinize them to death? ATL itself has done the job for us, to some extent, with self-criticism here and here. But perhaps you still have questions? We here at Prawfs did, and ATL’s rankings guru Brian Dalton was kind enough to answer them. Brian is a graduate of Middlebury College and Fordham Law. He joined ATL’s parent organization Breaking Media in October 2011 after spending seven years at Vault.com, most recently as Director of Research and Consulting. Before that, he was, among other things, an associate at a Manhattan law firm, a French teacher in Brooklyn, a Peace Corps volunteer in Mali, and a security guard at a waterslide park in Albuquerque, NM. Here is our discussion.
Spousal Hiring, Ethics, and the Theory of the Family
Some of my work intersects with family law, although I've yet to fully step into the curricular powder room. After hearing a wonderful presentation about her upcoming book on women in academia by one of my Radcliffe Institute Co-Fellows, I have been thinking more about the ethics of spousal hiring in academi [full disclosure: I am unmarried myself]. As part of her interview with several university presidents and academics, apparently spousal hiring is often credited with helping to improve the number of women on faculties and there is also some data suggesting that in universities with spousal hiring the "index spouse" if you will (the one the university has gone after) performs better than where there is no such policy. I am very interested in how the laudable goals of accomodation and family support intersect with general priors against nepotism.
For today's post, though, I wanted to examine the notion that spousal hiring rules or tendencies may reflect a certain theory of the family. To see this, imagine the following hypotheticals.
1. Brenda and Allen are married. Brenda is hired to teach physics, and the university finds a position for her husband Alan in its law school clinic.
2. Carl and Dan are same-sex partners in a state without legalized gay marriage. Dan is hired to teach physics, and the university finds a position for Carl in its law school clinic.
3. Evelyn is the daughter of Frank. Evelyn is hired to teach physics, and the university finds a position for her father Frank in its law school clinic.
4 Garret is the father of Jordi and a senior scholar in the field. Garret is hired to teach physics, and the university finds a position for Jordi in its law school clinic.
5. Hector and Ingrid are best friends and have been for life. Ingrid is hired to teach physics, and the university finds a position for Hector in its law school clinic.
So each of these is a potential family relation. My sense is that many schools would do or have done hiring in case 1, some would do it in case 2, but none would do it in case 3 through 5. 3 and 4 at least are what average people would call family relationships, so this is interesting.
By making a cut (whether between 1 and the rest or 1 and 2 and the rest) universities are essentially endorsing once conception of the family over others. I want to suggest this is contested terrain, and we may need a justification for why they do so.
One answer would be that everyone asks for 1, and no one asks for 4 or 5. That kind of conventional answer, though, might suggest no one asks for the others because universities have never offered them. A more essentialist answer is that 1 is endorsed because there is a particular value that familial hiring is meant to secure relating to child rearing. That would raise the question of why universities should support that particular goal -- after all closeness and ability to care for an aging parent is also important -- whether some of these other family structures might also facilitate that goal (case number 3 in particular -- and what to do about relationship hiring that has no child rearing involved (including possibly case number 2). Finally, one might suggest that universities are committed to romantic love, or at least believe potential people they might hire care more about romantic love, than parental love or friendship. Again, though, it seems to me highly contestable as to what relationships people value more, very culturally contingent, and also I wonder what it is about the Telos (if I can be Aristotelian for a moment) about the university that connects it to romantic love?
What do people thing about these cases?
Teaching and Testing Law Students
I'm glad to be back for another rotation here at PrawfsBlawg. Like many of you, I've just finished up spring semester, and I'm grading exams while I think about new projects, line up my research and writing for the summer, and think about what I'd like to do differently the next time I teach. In this post, and some future posts, I'll share some things I did differently this year, and my thoughts on whether or not they were a success. I hope you'll share your ideas in the comments: I'm always on the lookout for better ways to teach my students.
Sports, video, and procedural rules
1) The umpires went to video review of a disputed non-Home Run call. And despite everyone (including the opposing team's announcers) believing the ball was a home run, the umps upheld the call. Why? Because video review still involves judgments and inferences, depending on the angle and what each individual sees. Contra Justice Scalia, the video does not necessarily speak for itself; someone has to figure out what the video is saying and that is going to vary on the viewer. Video just gives sports fans another thing to argue and complain about with respect to umpires.
2) The manager for the losing team was thrown out after this happened. Baseball has specific rules on what and how you can argue with umpires. One rule is that if a manager requests video review, he cannot argue over the results of that review (much as he cannot argue balls and strikes). Nor can he protest the review decision to the league, which is a non-reviewable judgment call. So you can make a motion, but not a motion for reconsideration. And you cannot appeal.
Reflections on the Rhythm of Academic Life
Apologies for showing up a bit late to the Prawfs party, and many thanks to Dan for inviting me back again. Like many of you, no doubt, I am overwhelmed at the moment with grading and administrative responsibilities, so the most I can muster here today is a post about academic life. I hope to provide more substantive posts later in the month.
I often find myself reflecting about the rhythm of academic life at this time of year, when the day-to-teach teaching routine of the regular semester seemingly grinds to a halt and my day is suddenly filled with stacks of papers and exams, along with the accompanying tedium of assessing them with a grade.
I remember thinking long ago that an appealing part of becoming a professor would be the up-and-down rhythm of each academic year: first, the intensity of the semester with regular teaching, student and colleague interactions, meetings, and—squeezed in between those—some writing and conferences; then, the slow, lazy pace of summers, with lots of time for reading and reflection combined with intensive writing in large, uninterrupted chunks. Although the summers have not usually turned out quite as relaxed as I had imagined, and although other fields (litigation, for example), do offer a similar up-and-down rhythm, I have found that I appreciate this rhythm for more than just the intermittent respite and constant variety it provides.
Wednesday, May 08, 2013
Thinking Carefully About Statistics: Gun Suicides (Updated)
There has been a lot of press attention on the CDC's recent report that gun-related suicides have jumped 28% between 1999 and 2010 for middle-aged people (35-64). Over at Atlantic Cities, Richard Florida attempts to explain the geography of suicides, tying it to gun laws: more access to guns, greater increase in suicides.
It's quite possible that gun laws and suicide are correlated, and I don't intend to get into a debate about gun control laws in this post. Instead, I want to draw attention to the fact that we too often attempt to force causal explanations onto data without first thinking carefully about the extent to which the results are just an artifact of baserates, regressions to the mean, etc., etc. And we perhaps too-readily overlook the risk of colinear or spurious relationships. That may be the case here--at least the risk is great enough that it demands attention.
The problem should be clear as soon as we look at the states with the ten largest increases in suicide rates:
“Why is a big gift from the federal government a matter of coercion? ... It’s just a boatload of federal money for you to take and spend on poor people’s health care” or the mysterious coercion theory in the ACA case
At oral argument in NFIB v. Sebelius, the Affordable Care Act (ACA) case, Justice Kagan asked Paul Clement:
“Why is a big gift from the federal government a matter of coercion? It’s just a boatload of federal money for you to take and spend on poor people’s health care. It doesn’t sound coercive to me, I have to tell you.”
The exchange is all the more curious because, despite
her scepticism, Kagan signed on to the Court’s holding that the Medicaid
expansion in the ACA was coercive, as did all but two of the Justices (Ginsburg and Sotomayor). What happened? I try to answer this question, suggesting the court misunderstood what makes an offer coercive, in this article published as a part of a symposium on philosophical analysis of the decision by the peer-reviewed journal Ethical Perspectives.
First a little bit of background since some readers may not be as familiar with the Medicaid expansion part of the ACA and Sebelius: The ACA purported to expand the scope of Medicaid and increase the number of individuals the States must cover, most importantly by requiring States to provide Medicaid coverage to adults with incomes up to 133 percent of the federal poverty level. At the time the ACA was passed, most States covered adults with children only if their income was much lower, and did not cover childless adults. Under the ACA reforms, the federal government would have increased federal funding to cover the States’ costs for several years in the future, with States picking up only a small part of the tab. However, a State that did not comply with the new ACA coverage requirements could lose not only the federal funding for the expansion, but all of its Medicaid funding.
Continue reading "“Why is a big gift from the federal government a matter of coercion? ... It’s just a boatload of federal money for you to take and spend on poor people’s health care” or the mysterious coercion theory in the ACA case"
Tuesday, May 07, 2013
Back in 2011, I attended a symposium on Legal Positivism in International Legal Theory: Hart’s Legacy. The conference was a bit outside the range of topics I usually write about (e.g. religion meets private law). But presenting at the symposium drove home the point to me that international law and religious law scholars are contending with similar inquiries, many of which flow from one core question: what does it means to be non-state law?
When I talk about non-state law, I'm thinking collectively of various forms of law - from religious law to transnational law to international law. Of course, thinking about these forms of law outside of the law of the nation-state has long been at the center of the legal pluralism project. But what is often missed is that lessons from international law are instructive for religious law - and vice versa.
This often overlooked opportunity was largely the motivation behind the "Rise of Non-State Law" symposium I organized last week. To my mind, the papers, presentations and discussion at the symposium were extremely productive and got me thinking even more about the overlap between various forms of non-state law. In my next couple of posts, I'm hope to say a little bit about non-state law, building on some of the insights from the symposium.
"Constitution USA" with Peter Sagal"Constitution USA" (more here) premieres tonight, on your local PBS station. It's hosted by Peter Sagal, of "Wait Wait . . . Don't Tell Me!", and includes bits with a number of law profs (including me, I'm afraid -- that's a whole lotta bald!) about speech, federalism, civil rights, religious liberty, and lots of other things. I've seen some clips, and the show looks to be a lot of fun! Check it out, tell your students, etc., etc.
Some More Thoughts on Stop and Frisk I: Comparative Baselines
In light of some of the comments on my previous post about stop and frisk, I thought I’d say a few more things about it. In this post I want to focus on Larry Rosenthal’s claim that because crime dropped at the same time that the NYPD adopted stop-and-frisk hotspot policing, we should be wary about dropping stop and frisk.
The core problem with this argument is that it treats stop-and-frisk-of-crime-hotspots as a single concept. But there are two distinct ideas here: hotspot policing does not require stop-and-frisk. Is it the hotspot part that matters, the stop-and-frisk part, or some combination of both? Admittedly, the simultaneous timing poses a serious problem for disentangling which matters more, but it may be possible to glean some rough conclusions.
Conveniently, David Weisbrud—recipient of the Stockholm Prize, criminology’s answer to the Nobel, for his work on (among other things) hot spot policing—has a recent article titled Could Innovations in Policing have Contributed to the New York City Crime Drop even in a Period of Declining Police Strength?: The Case of Stop, Question and Frisk [SQF] as a Hot Spots Policing Strategy (written with Cody Telep and Brian Lawton). Almost too on-point to be believable. The main conclusions are quite apt to the discussion in the comments. Ultimately, Weisbrud et al. come down in favor of the hotspotting, but not the stopping and frisking.
Monday, May 06, 2013
The truth about past relationships
NBA player Jason Collins famously came out as gay last week, the first active player in a major U.S. team sport to do so. The reaction was the expected mixed bag. One mini firestorm erupted over comments by media critic Howard Kurtz, who chastised Collins for not owning up to his having been engaged to a woman. Unfortunately for Kurtz, Collins actually mentions his engagement (along with the fact that he dated women) in the eighth paragraph of the Sports Illustrated cover story. Kurtz apologized--initially in a typically half-assed fashion, then more unequivocally--and was grilled about it on CNN, stating "I deserve the criticism, I accept it and I am determined to learn from this episode." He also was terminated from The Daily Beast, although he insists this was in the works for a while and the timing was a coincidence.
Criticisms of Kurtz, and his apology, all focus on the factual error of his criticism. But this suggests that had Kurtz been correct and Collins had not mentioned the engagement, Kurtz's criticism would have been justified. Is that right? hat bothered me about Kurtz's initial story (but that I did not see discussed) was the stupidity of his premise: Collins was not being completely honest or forthcoming in excluding the detail of his engagement from the SI story. When a public-figure comes out, does the story really have to be "complete" and does that completeness necessarily include details about past heterosexual sexual activity? And how deep does this run--what is it, exactly, that Kurtz believes the public is entitled to know? Is it only the engagement about which Collins was obligated to "come clean"? Is it all dating? Is it the number of heterosexual sexual partners? Collins is 34 years old and only recently (within the past several years) came to understand his sexuality. It stands to reason that in the decade-plus between puberty and his coming out, he dated and had relationships, perhaps even long-term and serious relationships, with women. But why is that fact remotely relevant to the story of his coming out? Does it make him less gay? Does it make his story less sympathetic that he behaved as many closeted (or unrealizing) GLBT people do and as people have been forced to do by society, particularly in the world of team sports?
Saturday, May 04, 2013
What Rational Basis Review Really Means
Thank you to Dan and the rest of the Prawfs regulars for having me back! I'll be blogging lightly for the next few days due to other commitments, but I hope to make up for it later in the month. Most of my posts will deal with individual constitutional rights.
Meanwhile, I came across a case the other day that I thought might interest my fellow constitutional law professors, particularly those who are, at this busy time of year, immersed in answering student questions or designing their final exams. It's not a new case, but it helps reveal exactly how little is required for the government to survive rational basis review.
Friday, May 03, 2013
Weekend Non-ReadingThis weekend, Yale Law School's Information Society Project will be holding a phenomenal conference on freedom of expression. The list of speakers and papers is here and it looks just great. I wish I could be there, but if you're in New Haven, stop by. (Why not, if you're in New Haven? You have someplace better to be?) Unfortunately, the papers are password protected, hence the "non-reading" in the title. Given that these are drafts I quite understand, but I hope the authors will be posting them on SSRN soon, or that the organizers will provide the password in a comment to this post. I hope everyone has a good time.
Kolber Signs Off
My thanks to Dan and the Prawfs family for the guest blogging stint. And special thanks to commenters for their very interesting and helpful thoughts. Here are some topics I'll have to save for a future round:
- Smooth and Bumpy Laws (forthcoming California Law Review, 2014)
- The Neurolaw Revolution (forthcoming Indiana Law Journal, 2014) (email me for current draft)
- Card Counting and Freedom of Thought (email me for current draft)
And here's a recap of what I did cover:
- Punishment at the Speed of Light
- The Mystery of Credit for Time Served
- Partial Credit for Punishment Look-Alikes and Less-Alikes
- A Challenge to Strict Proportional Punishment
- Measuring Generosity
- The Organ Conscription Trolley Problem
- Replies to the Organ Conscription Trolley Problem
- Blackjack and Cognitive Enhancement
- Lindsey Lohan and "Credit for Time Served"
Thursday, May 02, 2013
Statistical Shenanigans, NYPD Edition
The NYPD Commissioner, Ray Kelly, defended current stop-and-frisk practices today by noting two statistics:
1. 75% of all violent crimes are committed by African-Americans.
2. 53% of all those stopped are African-American.
The conclusion: "So really, African-Americans are being understopped in relation to the percentage of people being described as being the perpetrators of violent crime."
Put aside for a moment the dubious reliability of racial identification by eye-witnesses in general, and crime victims in particular. Evern putting that aside, and assuming this quote is not taken out of context or in any way mangled, Kelly compares apples and oranges in a very subtle, but very important, way.
Lindsey Lohan and "Credit for Time Served" (UPDATED)
I started out my blogging stint by discussing the mystery of credit for time served. I just saw most of today's Lindsey Lohan hearing, and it raises what is at least a related issue. Some time ago, Lohan's lawyer and the prosecution reached a plea deal for Lohan to spend 90 days in rehabiltation. There was also a set of conditions attached to the kind of rehabilitation facility that would be acceptable to the prosecution. At the last minute, Lohan decided to check into a different facility than the one the prosecution anticipated. (According to TMZ, she wanted a facility that permitted her to smoke.)
It is unclear whether or not the California facility where she is currently enrolled satisfies the requirements of the plea deal. Today the court simply acknowledged the potential dispute. If the prosecution is not satisfied with the facility, the court will hold a hearing to interpret the plea agreement. If the facility does not satisfy the plea agreement, will Lohan receive credit toward her 90 days for the time she is already spending in her current facility? Perhaps we'll find out, and maybe some California lawyers who have seen similar disputes will weigh in.
There is at least some evidence that Lohan was not taking her agreement with prosecutors very seriously. Perhaps that would bear on the outcome. And maybe it's important in rehab to stick with the same therapist for a sustained period of time. Otherwise, however, I have argued that courts and legislatures should be more open-minded about giving offenders partial credit for time served.
UPDATE: TMZ reports that Lohan was not at rehab when her lawyer said she was.
Great to be back and greetings from Washington!
It's great to be back at Prawfs for another guest-blogging stint. I'm looking forward to spending the month talking a bit about some of my favorite topics such as co-religionist commerce, religious arbitration, and non-state law.
My growing interest in non-state law largely traces to my sense that conversations in both international law, transnational law, and religious law share much in common (e.g. discussions of what is law, can there be law without enforcement, how should the state treat competing legal norms etc.). To further this interest, I'm running a symposium in Washington, D.C. today sponsored by Pepperdine Law School and the American Society for International Law titled "The Rise of Non-State Law." The symposium is part of a series run by ASIL's International Legal Theory Interest Group and the papers from today's symposium will eventually become part of a volume published by Cambridge University Press.
I must say the papers submitted (and being presented) by the participants are truly fantastic and have led today to some great conversation and debate. For those who share the interest, here's the full schedule for the day:
8:30 a.m. Breakfast (Tillar House)
9:00 Panel 1—Global Legal Pluralism: Trends and Challenges
- Moderator: John Linarelli (Swansea)
11:00 Panel 2—Non-State Law and Non-State Institutions
- Moderator: Donald Earl Childress III (Pepperdine)
1:00 p.m. Lunch
2:00 Panel 3—The Role of Religion and Culture in Non-State Law
- Moderator: Mortimer Sellers (Baltimore)
4:00 Open Forum
5:00 Closing Comments
What is a Drug Crime? Part II
In my last post on drug offenses, I noted that the standard definition of a “drug incarceration”—someone convicted of a drug possession or drug distribution offense—may provide too narrow a view of how the war on drugs is driving prison populations. How, for example, should we count the person whose life is upended by a minor drug arrest and ultimately turns to crime as a result: isn’t his incarceration for, say, robbery in some ways tied to the war on drugs? Or how about drug-market related violence that arises in no small part because there is no legal market nor legal ways to handle business disputes?
It isn’t possible to address all these here. For example, it is almost impossible to determine which violent crimes were drug-market related from official statistics, except perhaps for homicide.1 But two datasets gathered by the BJS provide at least some indirect evidence on the extent to which prior drug arrests and convictions may be responsible for subsequent non-drug incarcerations.
To foreshadow my conclusions: both suggest that the effect of prior drug arrests is weak. The evidence is by no means clear-cut or dispositive, but neither is it wholly ambiguous.
Wednesday, May 01, 2013
Happy May Day all!
For our new month, I'm delighted to welcome a band of new but familiar voices to the conversation this month: Jack Chin (Davis), Nancy Leong (Denver), Jake Linford (FSU), Glenn Cohen (Harvard); Jessie Hill (Case Western); Michael Helfand (Pepperdine), and here for the first time, Lisa Tucker McElroy (Drexel).
Some of our April guests may still be lingering, but please join me in thanking them for all their contributions. We look forward to seeing you again soon, and we're glad you could celebrate our 8th Anniversary with us this month.
Mark your calendars for Law and Society, which is coming up in Boston at the end of May. We'll be having our annual Prawfs and friends Happy Hour on Saturday, June 1, at 9pm, location to be announced.
What subjects do students choose to write about?
In Fed Courts, a big chunk of the final grade is builty around a large writing assignment and oral arguments (arguing one case and judging one case). The arguments are on recent court of appeals and students are randomly assigned. For the writing portion, each student picked whatever third case she wanted (other than the ones assigned to argue or judge) and write the reviewing opinion. There were seven possible cases for 14 students--seven wrote on a Ninth Circuit case involving standing to bring a First Amendment challenge to a campus sexual-harassment policy and four wrote on a Fifth Circuit case involving ripeness of a challenge abortion-clinic regulations. Only one wrote about Hollingsworth. And no one wanted to write about the collateral order doctrine or mandamus to review pre-trial orders (imagine).
Do those selections surprise?
Tamanaha on Class and Law School Reform
Brian Tamanaha has posted on SSRN a short and enjoyable piece on my current favorite subject, apart from law and religion: social class and the legal academy. His paper, "The Failure of Crits and Leftist Law Professors to Defend Progressive Causes," is specifically about the failure of "progressive law professors" to do or say much about the problematic conditions Tamanaha explored in his book Failing Law Schools. From the abstract:
The pricing structure of legal education has profound class implications. High tuition will inhibit people from middle-class and poor families more than it will deter the offspring of the rich with ample resources. Law school scholarship policies, for reasons I will explain, in effect channel students with financial means to higher ranked law schools, reaping better opportunities, while sending students without money to lower law schools. A growing proportion of elite legal positions will be held by people from wealthy backgrounds as a result. For students who rely on borrowing to finance their legal education, the heavy debt they carry will dictate the types of jobs they seek and constrain the career they go on to have.
Liberal law professors often express concerns about class in American society — championing access to the legal profession and the provision of legal services for underserved communities. Yet as law school tuition rose to its current extraordinary heights, progressive law professors did nothing to resist it. This Article explores what happened and why.
This is offered in the spirit of critical legal studies — as a critical self-examination of the failure of leftist law professors. The Crits were highly critical of complacent liberal academics of their day, arguing that they had a hand in perpetuating an unjust legal system; here I charge liberal legal academia — including the Crits — with perpetuating the profoundly warped and harmful economics of legal education. What follows will offend many of my fellow liberals. It may even lose me some friends. Liberal law professors must see past their anger to reflect on whether there is a core truth to my arguments, to take personal responsibility for what has happened, and to engage in collective action to do something to alter the economics of our operation. If not, the current economic barrier to a legal career may become permanent.
Without endorsing it in whole, it's a worthwhile and certainly entertaining (if that's the right word) read. A couple of points. I'm not sure what kinds of personal responses Tamanaha has received to his book and other writings on law school reform, but he has made his point about potential personal costs before, and I'm not sure it needs to be made in general terms anymore. That's just a quibble, however. More important, I'm not sure why he focuses on the Crits and SALT. He makes his points about them well enough. But I would have thought that plain-vanilla liberals, including those who insist on calling themselves progressives, constitute a much, much larger and more influential sector of the legal academy than genuine members of the left. If their failures are less glaring and entertaining, their attention, embarrassment, and commitment are probably more important for purposes of actual reform.
Finally, as noted above, Tamanaha writes that "[l]iberal law professors often express concerns about class in American society." I would say in response: Not that often! As far as I can tell, they much prefer to write about other kinds of inequality and identity issues than about class. Understandably, perhaps. "Write what you know," the old adage goes. This is not an issue that the legal professoriate, and especially the elite legal professoriate, is likely to know as much about. I read and enjoyed, more or less, Duncan Kennedy's book on legal education, but I learned more, and more viscerally, about class from this critical review of the book than from the book itself.
Sleep No More: Sleep Deprivation, Doctors, and Error or Is Sleep the Next Frontier for Public Health?
How often do you hear your students or friends or colleagues talk about operating on very little sleep for work or family reasons? In my case it is often, and depending on the setting it is sometimes stated as a complaint and sometimes as a brag (the latter especially among my friends who work for large law firms or consulting firms). To sleep 7-8 hours is becoming a “luxury” or perhaps in some eyes a waste – here I think of the adage “I will sleep when I am dead” expresses that those who need sleep are “missing out” or “wusses.” My impression, anecdotal to be sure, is that our sleep patterns are getting worse not better and that many of these bad habits (among lawyers) are learned during law school.
One profession that has dealt with these issues at the regulatory level is medicine. In July 2011, the Accreditation Council for Graduate Medical Education (ACGME) – the entity Responsible for the accreditation of post-MD medical training programs within the United States – implemented new rules that limit interns to 16 hours of work in a row, but continue to allow 2nd-year and higher resident physicians to work for up to 28 consecutive hours. In a new article with sleep medicine expert doctors Charles A. Czeisler and Christopher P. Landrigan that just came out in the Journal of Law, Medicine, and Ethics, we examine how to make these work hour rules actually work.
As we discuss in the introduction to the article
Over the past decade, a series of studies have found that physicians-in-training who work extended shifts (>16 hours) are at increased risk of experiencing motor vehicle crashes, needlestick injuries, and medical errors. In response to public concerns and a request from Congress, the Institute of Medicine (IOM) conducted an inquiry into the issue and concluded in 2009 that resident physicians should not work for more than 16 consecutive hours without sleep. They further recommended that the Centers for Medicare & Medicaid Services (CMS) and the Joint Commission work with the Accreditation Council for Graduate Medical Education (ACGME) to ensure effective enforcement of new work hour standards. The IOM’s concerns with enforcement stem from well-documented non-compliance with the ACGME’s 2003 work hour rules, and the ACGME’s history of non-enforcement. In a nationwide cohort study, 84% of interns were found to violate the ACGME’s 2003 standards in the year following their introduction.
Whether the ACGME's 2011 work hour limits went too far or did not go far enough has been hotly debated. In this article, we do not seek to re-open the debate about whether these standards get matters exactly right. Instead, we wish to address the issue of effective enforcement. That is, now that new work hour limits have been established, and given that the ACGME has been unable to enforce work hour limits effectively on its own, what is the best way to make sure the new limits are followed in order to reduce harm to residents, patients, and others due to sleep-deprived residents? We focus on three possible national approaches to the problem, one rooted in funding, one rooted in disclosure, and one rooted in tort law. I would love reactions to our proposals in the paper, but wanted to float the more general idea in this space.
JOTWELL: Tidmarsh on Lemos (and Hensler) on parens patriaeThe new essay in JOTWELL's Courts Law has been published: Jay Tidmarsh (Notre Dame) reviews Margaret Lemos, Aggregate Litigation Goes Public: Representative Suits by the Attorney General (Harvard Law Review) and Deborah Hensler's response essay (Harvard Law Review Forum) on the possibility of attorney general-initiated parens patriae actions as an alternative to class actions.
Tuesday, April 30, 2013
Are Your Students Cheating On Your Take-Home Exam? Would You Know? What Should You Do About It?
After the well-publicized cheating through collaboration scandal at Harvard College (not the law school to be clear) I have been thinking more about whether law students routinely cheat through collaboration, whether I would know if they did in my classes, and what fears about their doing so should cause me to do in terms of my exam format.
In Civil Procedure I give an 8-hour take-home, typically with one long multi-part issue spotter (worth most of the grade), a few true/false (and explain why if false statements), and a theory question.
When I asked some of my former students I trusted to be honest to me if they had encountered cheating at Harvard Law (and specifically on my exam) they told me emphatically no, and in a back-handed compliment told me my exam was hard enough to require so much of the eight hours they would think it would be very risky to try to do this.
I certainly do not want to help people with “how-to”s on cheating, but I told these former students that if one was worried about this drawback, I could imagine telephoning a friend mid-way through, comparing issues spotted on the issue-spotter and the true/falses, and then getting back to work.
I am curious whether others have thought about these issues and what it has or has not motivated them to do. Are your students cheating on take-homes? How would you know? Unlike other kinds of cheating (like copying) this form strikes me as hard to detect: among 82 students I suspect people often cluster on the issues they spot or do not spot) Should I be thinking about moving to an in-class exam (which, I think, is for this course pedagogically less good for my purposes) to avoid it?
-I. Glenn Cohen
ABA Committee Discusses Tenure Requirements and Law School Accreditation
An interesting article here. The gist: the ABA law school accreditation committee is looking at several alternatives to the current requirement that all ABA-accredited schools have a system of tenure or comparable security for full-time faculty.
I fail to see the point of the third alternative the committee is considering, which basically strikes me as a rent-seeking move by clinical faculty. But the second alternative seems like a reasonable move to me: "[T]o move away from any tenure requirement. Schools would afford all full-time faculty some form of security of position, but each would decide what system that would be. (The interpretation of the standard stipulates that schools at minimum must have a system of long-term renewable contracts of at least five years.) Schools could adopt different rules for different types of faculty."
Of course, the even shorter gist is probably accurately contained in the only comment currently posted on the NLJ story: "If you're betting on this question, bet on the ABA committee to avoid anything controversial. Really, bar association junkies, how often does any such committee do anything bold?"
Pennoyer = Lochner?
I just did my Civ Pro review and got several questions about what they need to know about or do with Pennoyer. Now I spend relatively little time (maybe 20 minutes) on Pennoyer, but everyone still seemed freaked out about what to do with this case that no longer is good law. After the session, I reminded one student that in Con Law (which is a fall course) they read and learned all the pre-New Deal cases, even though none really remains good law and even though they were not going to rely on it as the controlling law in their answers. But they learned it in order to understand how the law had changed and perhaps what some argue the law should return to being.
So, Pennoyer = Lochner? Discuss.
More On Counting: The Problem of Shady Statistics
The DC Fire Department seems to have come up with an innovative way to reduce the number of arsons and to improve its arson clearance rate (i.e., arsons that result in an arrest). No new technologies, no new investigative techniques, not even any additional investigators. It has simply redefined arson.
The old definition—which is apparently the one used by fire departments around the country—counted any fire that had been deliberately set as an arson, while the new definition requires “evidence of willful or malicious intent sufficient to support an arrest….” The effect of this shift? The number of arsons dropped from 154 in 2008 to 32 in 2012, and the clearance rate was nearly three times what it would have been under the older definition (34% vs. 10%).1
In this case, the nature of the change was so dramatic that it automatically calls attention to itself. DC’s arson rate was just one-third the national average for a city of its size. Maybe this was really the case—maybe the investigators were really good and deterred a lot of arsons, or the populace was uniquely disinclined to start fires—but it at least openly demands scrutiny.
Perhaps the most egregious example of such redefinitons took place in Chicago in 2010, when the police commissioner attempted to counter rising murder statistics by breaking murder into two categories, “indoor murders” and “outdoor murders,” arguing that the police could only be held accountable for the latter. How, he argued, could the police really prevent murders that take place away from the police?2 In one fell swoop, he cut the number of murders that his department was “responsible” for that year from 138 to 98.
Other problematic statistics, however, are harder to detect.
The FCPA Contra the ATS: in Conclusion
The best laid plans . . . I might have liked to get a couple more posts in this month, but alas. So let me conclude my series on the ATS vis-a-vis the FCPA with a few quick thoughts.
First, I suggested in prior posts that we should think of bribery (and corruption) as an inherent human rights violation. Definitely some pushback there. But you need not buy that claim to nonetheless see the FCPA as a rights tool. I think we can all agree that bribery is very closely related to rights already recognized in our international instruments: the right to equal protection, to political representation, to self-determination, to food, housing, and medical care, to education, to equal access to a country’s public services, to safe working conditions, to the control of natural resources, and indeed to the rule of law itself. If we want to keep corporations from violating these rights, the FCPA is a pretty good way to go about it.
Comparing the FCPA to the ATS, one may object that the former statute cannot really touch the egregious violations that we’ve used the ATS to address, such as torture or genocide. That’s probably true. But though the rights violations I listed above are less egregious, they are also more pervasive and systematic, touching the lives of the vast majority of the world’s population. I’d suggest that this is every bit as meritorious a focus of our federal human rights laws.
Finally, in terms of statutory drafting, the FCPA is so many things that the ATS never was. It provides a clear cause of action, supported by an accessible legislative history. It rests on well-established common law principles of corporate liability. Its claim to extraterritorial application is utterly uncontroversial, Congress having clearly expressed therein its intent. And as if this weren’t enough, FCPA enforcement has produced a robust transnational culture of corporate compliance, almost certainly altering the ways both US and foreign corporations conduct themselves overseas. Were we to redraft the ATS we might use the FCPA as a sort of template. But of course, that ain't gonna happen.
So instead, here's hoping that international law scholars might, in the post-Kiobel world, more fully appreciate the potential of anti-bribery law as a tool for deterring overseas corporate human rights violations. And with that, I'll bid you adieu. Thanks for listening.
Blackjack and Cognitive Enhancement
Blackjack players who “count cards” keep track of cards that have already been played and use this knowledge to turn the probability of winning in their favor. Though many casinos eject card counters or otherwise make their task more difficult, card counting is perfectly legal. So long as card counters rely on their own memory and computational skills, they have violated no laws and can make sizable profits.
By contrast, if players use a device to count cards, like a smartphone, they have committed a serious crime. For example, several iPhone apps helps players count cards and at least one has a “stealth mode” that lets users surreptitiously enter data and receive feedback. In response, the Nevada Gaming Control Board issued an open letter reminding the public that using such an app when betting at blackjack violates the state’s antidevice statute which provides for up to 6 years imprisonment for a first offense. Somehow using a device to augment our abilities to remember and to calculate turns a perfectly legal activity into an offense with a very serious penalty.
The fact that we do not criminalize natural, unassisted card counting raises interesting questions of criminal and constitutional law: Could we criminalize natural card counting without violating fundamental principles that protect thought privacy? (Email me for a manuscript on that question.) In this recently published paper, however, I focus on a puzzle about technological enhancement. Namely, can we justify criminalizing device-assisted card counting but not unassisted card counting?
The importance of the question extends beyond the world of blackjack and casino gaming because it appears, at least superficially, that antidevice statutes criminalize a kind of technological enhancement. Some ethicists distinguish therapies that seek to return us to normal, healthy functioning from enhancements that promise to give us extraordinary abilities. People are often much more comfortable with therapies (e.g., drugs or devices to treat attention deficit disorder) than with enhancements (e.g., drugs or devices to give us better-than-normal concentration).
As a historical matter, casinos lobbied for antidevices statutes in the 1980s to protect their revenue as computers were becoming more popular and accessible. I focus on a deeper question: Is there any moral justification for permitting an activity, like card counting, when it uses only our natural abilities but severely punishing the activity when it is technologically enhanced? I consider a couple of possible justifications for the differential treatment and suggest that both are lacking.
[Adapted from Criminalizing Card Counting at the Blackjack Table]
Lose the Wig
"In hypermodern Hong Kong, a debate over 17th-century fashion is dividing the city's legal circles." Some say magical, some say colonial...here.