Monday, May 27, 2013
Spring Self-Reported Entry Level Hiring Report: Reporting Rate 2013
As last year, I here compare the self-reported placement with the number of alumni from each school on the market this year, as reported on Leiter's Law School Reports last fall.
The graph below gives the self-reported hiring rate (the "reporting rate") for tenure-track U.S. law school jobs for each of the schools listed in Leiter's chart. This is calculated by dividing the number of reported tenure-track U.S. law school hires for a given school by the number of alumni from that school on the market this year based on the first FAR distribution, as reported by Leiter.
For example, the SSRELHR (Spring Self-Reported Entry Level Hiring Report) shows that 16 reported hires received their JD from Harvard, and Leiter reports that Harvard had 57 alumni in the first FAR distribution, so Harvard has a rate of 16/57, approximately 28%.
This is all subject to a lot of caveats, of course--here are four, and I'm sure I'm missing some. There are both numerator and denominator issues:
(1) Numerator: I don't know whether the apparently "unsuccessful" candidates weren't hired, or were hired but weren't reported to the SSRELHR.
(2) Numerator: Some schools tend to report their alumni to the SSRELHR very faithfully, so the reporting rate might well differ by school.
(3) Numerator: The data analysis includes only tenure-track, U.S. positions. Some people received other sorts of jobs. For example, seven Chicago hires were reported--one at a non-U.S. law school. If that hire were included in the data analysis, the Chicago percentage would go from 6/12 = 50% (already very high) to 7/12=58% (even higher!).
(4) Denominator: The "number of people on the market" is drawn from the first FAR form distributions. There are subsequent, albeit smaller, distributions, and some people hired were not in the FAR pool at all.
Keeping those caveats in mind:
Virginia 4/7 (57%); Chicago 6/12 (50%); Yale 18/37 (49%); NYU 12/31 (39%); Duke 5/13 (38%); Michigan 5/13 (38%); Penn 1/3 (33%); Harvard 16/57 (28%); UCLA 2/8 (25%); Northwestern 3/14 (21%); Cornell 3/14 (21%); Texas 2/11 (18%); Georgetown 3/18 (17%); Stanford 2/13 (15%); Berkeley 3/20 (15%); Columbia 2/18 (11%).
This is also available on the spreadsheet, on the tab labeled "Reporting Rate."
Originally posted 5/27/13; edited 5/28/13 to reflect change in Michigan.
Spring Self-Reported Entry Level Hiring Report 2013
Following is a data summary of the Spring Self-Reported Entry Level Hiring Report for 2013. To remain consistent with past years, while the spreadsheet contains all hiring information received, the data analysis includes only tenure-track hires at U.S. law schools.
Here is the full spreadsheet:
We have reports of 106 people being hired, at 74 different law schools.
Two schools have been reported as doing no entry level hiring this year.
Here are answers to some frequently asked questions:
Q: 106 self-reported tenure-track hires? How does that compare to previous years?
A: Yeah. Not good. (I omit 2010 in this and all subsequent cross-year comparisons because insufficient data was collected that year.)
Schools in the "other" category with two JD/LLBs who reported hires: Columbia; Texas; Stanford; UCLA.
Schools in the "other" category with one JD/LLB who reported hires: Brooklyn; College of Mgmt Acad Stud; Diego Portales; Fordham; Hastings; Kansas; Louisana State; Melbourne; Miami; Montana; New Mexico; North Carolina; Oklahoma; Penn; Phillipines (U of); Russian University; SMU; Tulane; Washington (St. Louis); West Virginia.
Q: How many reported hires had a fellowship, degree, or clerkship?
83 (about 78%) had a fellowship; 59 (about 56%) had an advanced degree; 53 (about 50%) had a clerkship.
Nonproportional Venn diagram:
A: It's a lot of fellowships.
Okay, but first a caveat: Although some people had more than one advanced degree, the following looks only at what seemed to me to be the "highest" degree someone earned. For example, someone with a Ph.D. and an LL.M. would be counted only as a Ph.D. for purposes of this question. (This tracks the "Other Degree (1)" column, for the two people out there who are actually following along on the spreadsheet.)
That said, looking only at what seemed to be the most advanced degree (apologizing in advance for mischaracterizing the relative advancement of anyone's multiple degrees), and including "expected" degrees, the 59 "highest" advanced degrees broke down like this:
LL.M. (or LL.M. expected) 10; Masters (or Masters expected) 23; D.Phil. (Law), SJD, or JSD (or SJD or JSD expected) 6; D.Phil or Ph.D. (or Ph.D. expected) 20.
Zero to Four Years (Graduated 2009-2013) 20; Five to Nine Years (Graduated 2004-2008) 59; Ten to 19 Years (Graduated 1994-2003) 21; Twenty or More Years (Graduated before 1994) 3; Blank 3. The year-by-year break-out is on the spreadsheet ("Years Since Hire" tab).
Women 49 (about 46%); Men 57 (about 54%). (Let's say this is right within +/-2 people.)
The self-reported entry level hires had diverse specialities--in fact, the hires named 116 different fields of specialty! (I did this differently from the "what kind of degrees" question--here, if someone listed four fields of speciality, I included all four.)
As for which fields were most popular:
You can see the full list, sortable either by number of people who stated an interest or alphabetically by interest, here (on the tab labeled "Subject Summary").
Q: More slicing! More dicing! Different slicing! Different dicing!
Sure--you can do it yourself, or ask questions in the comments and I'll see what I can do, or we'll work it out as a group.
Q: This is all wrong! I know for a fact that more people from School Y were hired! Plus, you account for only 76 different law schools, and there are over 200!
Yes, this spreadsheet is certainly missing some information. Repeat: this spreadsheet is incomplete. It represents only those entry-level hires that were reported to me, either through the comments on this blog or via email. It is without question incomplete.
If you want to know about real entry level hiring, I commend to you Brian Leiter's report and the Katz et al. article. This is just a report about self-reported entry level hires as of the spring before the school year starts.
Q: What does it all mean?
Not much. But it's been fun!Originally posted 5/27/13; edited 5/28/13 to reflect misclassified hire from original spreadsheet.
Sunday, May 26, 2013
Lemon is Dead
The New York Times yesterday published the obituary of Alton T. Lemon, "a civil rights activist whose objection to state aid to religious schools gave rise to a watershed 1971 Supreme Court decision." That case, of course, is Lemon v. Kurtzman. Lemon died in Pennsylvania on May 4 at the age of 84.
Lemon's biography itself is interesting; I did not know, among other things, that he was African-American and a civil rights activist. He remembered playing basketball with Martin Luther King at Morehouse College. He was also, interestingly, the first black president of the Ethical Humanist Society of Philadelphia. The obituary concludes: "Mr. Lemon attended the Supreme Court argument in his case, but he found the experience a little alienating. 'When your case gets to the Supreme Court, it’s a lawyer’s day in court,' he said. 'It doesn’t matter to the justices if you are dead or alive.'" Certainly Lemon's name is famous today for a generally applicable legal test, not any personal details about the man.
The title of the post is, of course, not meant disrespectfully. It is the title of Michael Stokes Paulsen's famous article about Lemon v. Kurtzman, an article that also focused (understandably) on the test and not the man.
Saturday, May 25, 2013
Is a picture worth 1,000 words in a law school class? My experiment with visual aids
In my year-long visit at Yale Law School this Fall and Spring, I felt free to experiment with new teaching ideas. If they fell flat, I would have skipped town in just a few months, my reputation (such as it is) intact at my home institution. If it succeeded, I could take my new technique back with me. So, using my Yalies as guinea pigs, I used projected diagrams, pictures, and text as a teaching tool for the first time in my career.
My basic goal was to make doctrinal relationships, legal and political history, and legal text more intelligible by representing it visually in different modes -- color, shape, movement, or images generally. My prime directive was to adhere to Edward Tufte's principles: For instance, avoid "chartjunk," and never use bulleted text that you read from a screen. Within this capacious constraints, I tried a wide array of images and diagrams -- decision trees and flow charts, Venn Diagrams, statutory text in multiple colors, photos galore, and some often hokey but hopefully memorable visual representations of causal and doctrinal relationships.
My verdict? In anonymous surveys with a decent response rate, my constitutional law section (70+ members) seemed to like the slides. Many printed them out as guides during the final exam. My own sense: The pictures, if sufficiently simple and memorable, helped clarify ideas or narratives that had previously left some significant portion of the class baffled and frustrated. After the jump, I will provide some samples and invite you to share your comments on whether you think that these sorts of visual aids help and how they might be improved.
Curves in the upper level
Jessie raises some good issues about the use of curves. I agree with the commenters who argue that grades are inherently comparative and relative, so I am generally good with using curves.
I want to ask a slightly different question about using curves in upper-level classes. At least arguably, the curve's signaling and weed-out functions are gone, at least as to smaller, niche non-core classes, particularly with respect to 3Ls in their final semester. And smaller class size means that the mandatory low end may be one student forced to get a C-. Certainly the sample size may be too small to get a "natural" bell curve. Upper-level curves tend to be higher than 1L curves (fewer mandatory low grades, more mandatory high grades, higher median, whatever). But even if we accept curves in the first year, are they justified after that, especially as to the mandatory low end? At what enrollment point should the curve kick-in--15 students? 25 students?
Friday, May 24, 2013
"Sport as Speech" and Non-sport as Speech
I just finished reading Sport as Speech, a new paper by Genevieve Lakier (currently a law clerk on the Sixth Circuit); Lakier argues that spectator sports are expressive activities entitled to First Amendment protection (or at least First Amendment scrutiny of any regulations). It is an interesting notion that I had not thought of, although if she is right, it certainly strengthens my arguments about fan speech.
Two further thoughts on the paper.
1) Lakier takes on prior scholarhip and case law (notably a 2002 student comment in Yale LJ) arguing that sport is protected only to the extent it is close to being a dance or theatrical performance--for example, gymnastics, diving, and figure skating. These are the events that I have argued are not sport because the results are determined by evaluating the intrinsic merit of the athletic skills performed, as opposed to sport, where the result of that performance. In other words, under this approach (which Lakier rejects), non-sport is expressive, but sport is not expressive. So there is another reason to bother defining what qualifies as sport.
2) Lakier expressly limits her argument only to spectator sports, arguing that the expressive component of sport comes from players performing for a crowd. But I wonder if that cuts her case short. She relies a lot on the similarity between sport and other conduct widely recognized as expressive, notably music and dance. But those activities enjoy First Amendment protection even if not done for an audience; a prohibition on dancing in private or when no one is watching (think Footloose) would violate the First Amendment. So if basketball is expressive when played for a crowd, why not when it's ten people playing in an empty gym or playground or even one person playing in the driveway?
Trouble with the Curve
Though I was taken by surprise by the extent to which my last post touching on the topic of grading provoked rather strong responses, I am now presenting a proposition that I very much hope and assume will provoke controversy. Here it is: There is no (as in, none whatsoever) pedagogical justification for the traditional law school curve, and it should be abolished.
Here are my problems with the curve -- by which I mean a strict curve requiring x% As, x% A-, etc. all the way down to the lowest grades, and not something like a "target mean grade." First, it corresponds to nothing at all. I'm no statistics expert, but even if there is reason to think that students somehow naturally fall out on such a bell curve if you take a large enough sample, I'm pretty sure there's no way any first-year section is actually large enough or diverse enough in its talents to ensure that the curve will be accurate in every case or even most cases.
Second, the curve hides and fails to discourage poor teaching. We should be trying to bring every student in our class up to a fairly high level (although that is not going to happen, of course, with every student). But whether or not most or all students reach whatever we perceive to be the basic level of competence we are shooting for (call that level of competence a "B"), we have to assign a certain percentage of students grades below that level. And in fact, it's better -- or certainly no worse -- if a certain number of students don't reach that level of competence, because then we can justifiably assign them grades below that level. And when students come to see us wanting some justification of their grades, we really don't need to (and in some cases can't) give them any explanation other than, "you got that grade, not necessarily because you deserved it, but because other people did better than you." It doesn't require us to think about what a "B" really signifies, or whether there is any consistency across courses or years in terms of the grades we give.
Now let me outline what I think might be some traditional justifications: First, curves protect against grade inflation. This is undoubtedly true, but it can be accomplished with the far less arbitrary system, such as a target or maximum mean grade for a course.
Second, I suppose one could argue that grades are inherently arbitrary and correspond to nothing in reality anyway. In other words, the only thing a grade ever meaningfully represents (or perhaps more modestly, is ever meant to represent in the law school context) is one's performance relative to others who happen to be in that same class. But this strikes me as somewhat cynical. I doubt many of us fully accept this view. Maybe employers see it that way to some degree. But if employers' expectations are driving the curve, I would first point out that this is still not a pedagogical justification. What's more, even if this is a reasonable defense of having a curve, it has to be weighed against the unfairness of using an arbitrary curve in the first place--one which does not necessarily correspond even to the differing levels of relative ability among students (i.e., even if you can come up with a relative ranking of exam scores that accurately reflects relative strength, which is what employers most likely really care about, you are still required to draw an arbitrary line between a B+ and a B exam, for example, which doesn't necessarily correspond to a meaningful drop-off in quality).
Finally, the other justifications are .... well, I have no idea. I'm out of them. I'm stumped. Can anyone defend the curve?
Non-State Law Beyond Enforcement
So I've been a bit behind in posting as I slowly drag myself toward the grading finish line (aside: thanks to all my Prawfs' Facebook friends who have been regularly taunted me by noting how long ago they finished grading. I get it - I'm slow). But today I wanted to post again about non-state law, focusing on what it might mean to be law even when the law in question is not enforced.
As an example of this dynamic, I've been reading some advanced chapters of Chaim Saiman's forthcoming book Halakhah: The Rabbinic Idea of Law (Princeton U. Press). One of the key questions Saiman tussles with in the book - and also addressed in his public Gruss Lecture in Talmudic Law - is why there are multiple Jewish legal doctrines which the Talmud expressly states are not intended to be enforced in any circumstance. As examples, Saiman notes how regarding doctrines like the "rebellious son" and the "rebellious city," the Talmud states the "law never did, nor ever will apply." In response to questions as to why there exist laws that are not intended to be enforced, the Talmud simply responds "To study and receive reward."
Saiman's book interrogates this response, exploring what it means to have "studied law" as opposed to "enforced law" - and by extension what it means to be unenforced law. Much of his analysis revolves around contrasting philosophical inquiry and legal inquiry, with the latter funneling the reader into concrete application of core values (in ways that abstract philosophical inquiry often does not) and requiring the reader to inhabit a particular religious world that can more effectively convey principles and values.
In this way, his project is a quintessential example of how the discursive practice of law - and not merely the enforcement of law - serves a unique legal purpose. It is the concrete and detailed method of legal analysis the pulls the reader into the legal text - much like a novel pulls the reader into a narrative - that captures a key facet of how Jewish Law functions as law (one hears strong elements of Robert Cover in Saiman's analysis). Moreover, it also provides important guidance to thinking about the internal elements (as opposed to external manifestations) of law and legal practice - a topic which I hope to explore a bit further in my next post.
How did Scalia's anti-federalism bluster in City of Arlington v. FCC go unnoticed by six justices?
Over the past decade, Justice Scalia has issued some oddly crabbed definitions of "federalism," but he has not always carried a majority for such sentiments. Unfortunately, his majority opinion in City of Arlington v. FCC, handed down this week, repeated the notion that federalism is irrelevant whenever Congress has "expressly" regulated some field. Consider the following paragraph at page 14 of the slip opinion:
[T]his case has nothing to do with federalism. Section 332(c)(7)(B)(ii) explicitly supplants state authority by requiring zoning authorities to render a decision “within a reasonable period of time,” and the meaning of that phrase is indisputably a question of federal law. We rejected a similar faux-federalism argument in the Iowa Utilities Board case, in terms that apply equally here: “This is, at bottom, a debate not about whether the States will be allowed to do their own thing, but about whether it will be the FCC or the federal courts that draw the lines to which they must hew.” 525 U. S., at 379, n. 6. These lines will be drawn either by unelected federal bureaucrats, or by unelected (and even less politically accountable) federal judges. “[I]t is hard to spark a passionate ‘States’ rights’
debate over that detail.” Ibid.
This paragraph is rich with a kind of calculated confusion about the meaning of "federalism," confusion that is capable of a lot of mischief if it is taken seriously in future opinions. After the jump, I will suggest that the vision of federalism implied by this paragraph suggests why the some have accused the SCOTUS of a pro-business bias. The pro-business effect is real, but the theory of federalism is entirely principled, having been set forth by Caleb Nelson in an influential law review article and only one vote short of gaining a SCOTUS majority in PLIVA v. Mensing.
The problem with Scalia's paragraph is not that it could not be justified on principled grounds but rather that Scalia almost defiantly refuses to provide any such justification, instead engaging in pure rhetorical bluster. Kennedy refused to join Justice Thomas' endorsement of Caleb's theory in Mensing: Why did he fall for the same theory when Scalia smuggled it into this offhand paragraph?
This blog post is actually a blatant attempt at crowdsourcing ideas, but hopefully one you will also find useful. When I was a first year law student, my "skills training" included one stab at writing a memo to a partner in a law firm, and one appellate brief. They were graded, at least, so one was required to take the exercise seriously, but that was it. There should be room for a bit more.
I teach contracts in the second semester here at FSU. I have four credit hours, so I already feel a bit pressed for time in covering everything that must be covered. This year, as I mentioned in a previous post, I added two memos, one graded, and one ungraded, that included a client counseling element as well as legal analysis. That was good, but I'm not sure it was quite right.
What "skills training" have you added to your courses, first year or otherwise? What would you most likely add first, if you could? Contract drafting? Statute drafting? Client counseling letters? Pleadings and responses? Dispute resolution? Negotiation? And what's stopping you?
Thursday, May 23, 2013
Gruesomeness and the First Amendment
As one who is interested in both women's reproductive rights and the First Amendment, I find issues at their intersection of those protections to be inherently fascinating. One such set of issues surrounds abortion protests, and a particularly thorny question under that broad rubric involves the permissibility of restrictions on the display of gruesome or graphic images of dismembered fetuses. Usually, such arguably content-basedrestrictions, which appear to raise First Amendment concerns, are justified as protecting children from the disturbing imagery.
Now, it appears the formidable Eugene Volokh has filed a cert petition in a case involving just such a restriction, in the form of a state-court injunction against "displaying large posters or similar displays depicting gruesome images of mutilated fetuses or dead bodies in a manner reasonably likely to be viewed by children under 12 years of age." The permissibility of restrictions like this has been the subject of a circuit split, and the Supreme Court is set to discuss the petition at its May 30 conference.
A few random thoughts follow the jump:
Police Body Cams
This afternoon, I appeared on a HuffPost Live discussion (hosted by Mike Sacks of First-on-First fame) of police use of body cameras to record public stops and interactions. During closing arguments in the trial challenging NYPD policies with respect to Terry stops, District Judge Shira Scheindlin said she was "intrigued" by the idea of police using body cams for all stops. Of course, I disagree with her comment that if we had cameras "Everyone would know exactly what occurred," because video is not that absolute. Still, this use of cameras (not unlike dashboard cameras) would be a good idea, so long as police accept that everyone else on the public street, including the person in the police encounter, gets to do the same.
LSA Happy Hours and info on the CrimProf Shadow Conference.
Some announcements for folks attending Law and Society next week in Boston:
1) there's a crimprof happy hour on Thursday at 9pm at CityBar,
2) The general Prawfs and friends happy hour will be on Saturday from 9pm at the Sheraton SideBar.
Nunc est bibendum!
3) My co-organizer, Carissa Hessick, has, in her typical god-like ways, assembled the info for the Shadow CrimProf conference. This year's shadow conference will have a fantastic turnout.
Info appears after the jump (although not in exact chronological order).
Wednesday, May 22, 2013
Conference on Privacy and Data Security
GEORGE MASON LAW & ECONOMICS CENTER PUBLIC POLICY CONFERENCE ON THE LAW & ECONOMICS OF PRIVACY AND DATA SECURITY
Wednesday, June 19, 2013
George Mason University School of Law (Arlington, VA)
The Law & Economics Center’s Henry G. Manne Program in Law & Economics Studies will present its Public Policy Conference on the Law & Economics of Privacy and Data Security at George Mason University School of Law, Wednesday, June 19. The conference will run from 8:30 am to 5:00 pm.
This conference is organized by Henry N. Butler, Executive Director of the Law & Economics Center and George Mason Foundation Professor of Law, and James C. Cooper, Director, Research and Policy at the Law & Economics Center, and Lecturer in Law, George Mason University School of Law.
Consumers have an incredible array of technologies and services available to them online. As these technologies have progressed, there are growing questions as to what policies are best suited to protect consumers and encourage industry innovation. Topics include the role of the state attorneys general in enforcing privacy laws and a discussion of the rapidly changing landscape of spam, spyware, data portability and industry data retention guidelines.
IRS and the political valence of constitutional litigation
I have written before about the phenomenon we have seen since 2008 of politically conservative plaintiffs (individual and organizational) bumping up against limitations on constitutional and civil rights litigation established in cases brought by politically liberal plaintiffs (think of all the birther lawsuits dismissed for lack of standing). The lawsuit filed Tuesday by True the Vote over the IRS handling of exemption applications by conservative groups could be the latest example.
In addition to a declaratory judgment that the group is entitled to its exemption under the tax laws, the lawsuit brings First Amendment claims under Bivens against various IRS officers and supervisors, including the acting commissioner, former commissioner, and direct of the Exempt Organizations Division. How is that part likely to fare?
9th Circuit Strikes Down Arizona 20 Week Fetal Pain Abortion Ban: Some Reflections on the Opinion
Yesterday, the 9th Circuit (a panel of Berzon, Schroeder, Kleinfeld) struck down as unconstitutional Arizona's ban on abortion at 20 weeks. As the court described the statute:
The challenged portion of Section 7, codified at Arizona Revised Statutes § 36-2159, reads:
A. Except in a medical emergency, a person shall not perform, induce or attempt to perform or induce an abortion unless the physician or the referring physician has first made a determination of the probable gestational age of the unborn child. In making that determination, the physician or referring physician shall make any inquiries of the pregnant woman and perform or cause to be performed all medical examinations, imaging studies and tests as a reasonably prudent physician in the community, knowledgeable about the medical facts and conditions of both the woman and the unborn child involved, would consider necessary to perform and consider in making an accurate diagnosis with respect to gestational age.
B. Except in a medical emergency, a person shall not knowingly perform, induce or attempt to perform or induce an abortion on a pregnant woman if the probable gestational age of her unborn child has been determined to be at least twenty weeks.
The stated purpose of the Act is to “[p]rohibit abortions at or after twenty weeks of gestation, except in cases of a medical emergency, based on the documented risks to women’s health and the strong medical evidence that unborn children feel pain during an abortion at that gestational age.” H.B. 2036, sec. 9(B)(1). The Act lists a number of legislative findings in support of the assertions in the purpose provision, with citations to medical research articles. See H.B. 2036, sec. 9(A)(1)–(7).
After Nebraska passed the first of these kinds of bills in 2010, Dr. Sadath Sayeed and I wrote about them in Fetal Pain, Abortion, Viability, and the Constitution, for the peer-reviewed Journal of Law, Medicine and Ethics in 2011 on the constitutionality and normative justifiability of these statutes. This is the first case of one of these statutes to reach a Circuit court decision on the merits, so I thought I would offer some thoughts. This will be from the perspective of a scholar not an advocate, though given that I have argued that these statutes should be held unconstitutional I don' t pretend to be disinterested.
Judge Berzon's opinion for the panel takes about as strong a stance against these statutes as possible. She presents this as an easy somewhat "paint-by-numbers" case of unconstitutionality based on prior precedent. Her logic is Roe and Casey make viability an absolutely cut-off for restricting abortions. Viability has to be decided according to the Court by physicians in individual cases. This is a restriction and not a regulation of abortion. The restriction covers pre-viability fetuses. Therefore it is unconstitutional.
That is strongly put, but only by completely ignoring the fetal pain aspects of the case. Indeed to read her opinion one would scarcely know that fetal pain is at issue. As we argued in our article, and I put it even more succinctly in an op-ed in the Washington Post last year:
The fetal-pain bills do not directly challenge the Supreme Court’s judgment. Instead, they assert a new theory for outlawing abortion. The Nebraska bill states that “by twenty weeks after fertilization there is substantial evidence that an unborn child has the physical structures necessary to experience pain.” The legislatures passing these laws say that preventing this pain is a compelling state interest that justifies prohibiting abortion.
Hence, the loophole: Although the Supreme Court has identified preserving fetal life after viability as a compelling interest, the justices have never said it is the only one.
These statutes might be thought of as asking the courts to find that preventing pain to fetuses is also a compelling state interest. Alternatively, states may argue that, although preventing pain is not compelling on its own, it becomes so when combined with the state’s interest in preserving fetal life before viability.
Thus, I think Judge Berzon writes a strong opinion only by blinding the reader to what is new and difficult here.
By contrast, I think Judge Kleinfeld's concurrence does a better job of wrestling with the hard issues. His opinion echoes four points we make in our article:
Tuesday, May 21, 2013
Sperm Donation, Anonymity, and Compensation: An Empirical Legal Study
In the United States, most sperm donations* are anonymous. By contrast, many developed nations require sperm donors to be identified, typically requiring new sperm (and egg) donors to put identifying information into a registry that is made available to a donor-conceived child once they reach the age of 18. Recently, advocates have pressed U.S. states to adopt these registries as well, and state legislatures have indicated openness to the idea.
In a series of prior papers I have explained why I believe the arguments offered by advocates of these registries fail. Nevertheless, I like to think of myself as somewhat open-minded, so in another set of projects I have undertaken to empirically test what might happen if the U.S. adopted such a system. In particular, I wanted to look at the intersection of anonymity and compensation, something that cannot be done in many of these other countries where compensation for sperm and egg donors is prohibited.
Today I posted online (downloadable here) the first published paper from this project,Can You Buy Sperm Donor Identification? An Experiment, co-authored with Travis Coan, and forthcoming in December 2013 in Vol. 10, Issue 4, of the Journal of Empirical Legal Studies.
This study relies on a self-selected convenience sample to experimentally examine the economic implications of adopting a mandatory sperm donor identification regime in the U.S. Our results support the hypothesis that subjects in the treatment (non-anonymity) condition need to be paid significantly more, on average, to donate their sperm. When restricting our attention to only those subjects that would ever actually consider donating sperm, we find that individuals in the control condition are willing-to-accept an average of $$43 to donate, while individuals in the treatment group are willing-to-accept an aver-age of $74. These estimates suggest that it would cost roughly $31 per sperm donation, at least in our sample, to require donors to be identified. This price differential roughly corresponds to that of a major U.S. sperm bank that operates both an anonymous and identify release programs in terms of what they pay donors.
We are currently running a companion study on actual U.S. sperm donors and hope soon to expand our research to egg donors, so comments and ideas are very welcome online or offline.
* I will follow the common parlance of using the term "donation" here, while recognizing that the fact that compensation is offered in most cases gives a good reason to think the term is a misnomer.
- I. Glenn Cohen
Entry Level Hiring: The 2013 Report - Final Call for Information (For Real)
This is (honestly) the last call for information for the Entry Level Hiring Report. The data collection will close on Friday, May 24. I am aware that I will miss some hires because of this closing date. C'est la report. (And yes, I am also aware that I do not know French.)
At any rate, if you have information about entry-level hires for this year, please either email me directly (slawsky *at* law *dot* uci *dot* edu), or add a comment to the original information-gathering post.
Please encourage anyone you know who has accepted a job but isn't reflected on the spreadsheet to contact me.
As a reminder, I am looking to collect the following information for tenure-track, clinical, or legal writing full-time entry-level hires:
Basic Information: Name, Hiring School, JD Institution, JD Year of Graduation
Other Degrees: Type of Degree, Degree Granting Institution, Degree Subject
Fellowship, VAP, or Visiting Professorship: Institution and Type (e.g., VAP, name of fellowship, etc.)
Clerkship: Court (e.g., 9th Circuit, Texas Supreme Court, etc.)
Areas of Speciality (up to four) (if you are a clinical or LRW hire, please list this as your first Area of Specialty)
Type of Position: Tenure Track or Non-Tenure Track (if you are clinical or LRW and also tenure-track, please indicate this)
Helping OklahomaJust a quick PSA-type post from this Tuscaloosan: Here are a few sites with suggestions about how to direct your aid for the victims of yesterday's tornado in Oklahoma.
Monday, May 20, 2013
FSU Law Is Hiring, 2013 editionFlorida State University's appointments committee for the College of Law will be gearing up over the summer and we are looking (principally) for laterals in the following areas: Environmental Law, Torts/Products, Trusts and Estates, Tax, Health Law and ADR. If you or someone you know is a possibly good fit for FSU’s virtues (ie., extraordinary scholarly culture, good weather, great cookies, among other things), please feel free to (have them) send Wayne Logan (and/or me) a CV and statement of interest. The Fall 2013 committee includes Wayne (Chair), Hannah Wiseman, Manuel Utset, Courtney Cahill, and myself. (If you are outside our targeted area of interest, but still keen on FSU, please don't hesitate to send us your materials as needs and interests evolve.) As always, FSU seeks a diverse pool of applicants from a wide range of backgrounds and interests.
More on the Town of Greece
Following up on Paul's post, just a few quick thoughts (for now): First, I agree entirely with Paul that his book, and Chris Lund's excellent article, are must-reads on this subject. Since Chris is visiting at Notre Dame next year, I look forward to learning a lot from him about this case.
Next -- and proving true, I guess, Paul's predictions about disagreements-among-friends -- I think it would be a good thing if the possibility Eugene Volokh raises - i.e., that the Court might re-examine the so-called "endorsement test" -- came to pass. I think the criticisms directed at that test in Steven Smith's 1987 article had and have force.
Finally, even if the justices leave the "endorsement test" in place, I hope they do not follow the Second Circuit in importing that test into the legislative-prayer context. Yes, this context is an anomalous one and, yes, Marsh was and is something of an outlier, given that it prioritized history, tradition, and practice over the "wall of separation" idea. For reasons I mention in this very short piece, I don't think the courts are very good at deploying all-things-considered balancing tests that purport to somehow measure the effects of religious displays and the like on the feelings of hypothetical "reasonable observers" and so they probably shouldn't try. Better, it seems to me, to either (a) rule out legislative prayers as per se unconstitutional "establishments" or (b) police the practice for discrimination in selection and leave the issue of particular prayers' content to politics and (dare we hope?) a spirit of charity.
Beware of "Town of Greece" Bearing Gifts
The Supreme Court has granted cert. in Town of Greece v. Galloway, a case out of the Second Circuit involving prayers given by guest chaplains before monthly town board meetings. Here is the SCOTUSBlog page, and here's the Second Circuit opinion by Judge Calabresi.
There has been a good deal of circuit court action involving legislative prayer, but the Supreme Court has basically not touched it since Marsh v. Chambers. Prediction is pointless, so I'll just say the following.
1) I talk about legislative prayers and similar cases in my book The Agnostic Age. I characterize the rulings in this area as "constitutional easements" over the Establishment Clause and argue that they are constitutionally problematic, at least, although I suggest that we might be better off letting sleeping dogs lie. (Andy Koppelman criticizes Marsh in similar terms in his excellent recent book, Defending American Religious Neutrality and says clearly that it should be overruled.) It would appear that the dogs are awake and hungry.
2) There is a good deal of consensus and friendship among law and religion scholars these days, at least in my view. The friendships will remain, I'm sure. But this is one case that will reveal the differences among us more starkly than many recent cases. I look forward to friendly disagreements with colleagues like Rick Garnett and Marc DeGirolami.
3) The best scholarly work in this area that I am aware of is by Christopher C. Lund. If you're interested in this case and these issues, you ought to read Chris's work. I hope we can get him over here for a timely guest stint at Prawfsblawg.
Sex, People with Disabilities, Prostitution, and Universal Health Care: Reflections on "The Sessions"
One of my favorite initiatives at Harvard Law School, where I teach, is that faculty members get to offer an optional 10-12 student not-for-credit "First-Year Reading Groups" on a topic of interest to them that is related to law in some way but not too law-class like. I've taught a reading group on bioethics and law through film that pairs films with papers/topics in bioethics (e.g., A.I. with readings on personhood, Minority Report and neuroscience and law and predicting criminality, Dirty Pretty Things and organ sale and exploitation, The Constant Gardener with clinical trials in the developing world, Eternal Sunshine for the Spotless Mind and therapeutic forgetting and "cosmetic neurology" and many others...)
Next year I will add The Sessions, a film I found very enjoyable starring John Hawkes, Helen Hunt, and William H. Macy from last year that I also found very bioethically interesting. The film is based on a true story and follows Mark O'Brien, a poet who lives in an Iron Lung due to complications from Polio. After unsuccessfully proposing to his caretaker, and believing the end of his life may be nearing, he decides he wants to lose his virginity. He hires Cheryl Cohen-Greene, a professional sex surrogate, who will offer him a maximum of six sessions but makes clear to him this is therapy not romance. I will stop there to avoid ruining the film, but on to the bioethics...
There are fairly clear issues raised about commodification, exploitation, the difference between sex therapy and prostitution, that I have written about in various forms in various places. These are certainly interesting issues but familiar enough. What the film newly prompted me to think about, though, is actually universal health care. In particular, as I have written about indirectly in a couple of papers, what would some of the most prominent theories explaining why we need universal health care say about whether the state should pay for sex therapy (or perhaps even prostitution) for people with disabilities like Mark who find themselves otherwise unable to have sex?
For example, in his wonderful book Just Health, my colleague Norman Daniels, coming from a more Rawlsian tradition (i.e., a liberal tradition focused on promoting liberty and distributive justice through giving priority to the worst-off), grounds the state’s role in promoting health in the obligation, as a matter of political justice, to ensure access to the “normal opportunity range” to pursue the “array of life plans reasonable persons are likely to develop for themselves.” Although Daniels' focus is on health care, it seems to me that sexual satisfaction is also part of that normal opportunity range and part of a life plan most of us would like to pursue.
Similarly, Martha Nussbaum in her great book Frontiers of Justice, writing from a more aretaic (i.e., Aristotelian, focusing on character and virtue) perspective, has argued that the state’s role is to enable human flourishing by raising people above the threshold level on a number of “capabilities.” Among these she mentions “bodily integrity,” as including “having opportunities for sexual satisfaction and for choice in matters of reproduction." I have previously discussed how this kind of approach may justify funding reproductive technologies, but it seems to me as though it also fairly directly establishes an argument for funding Mark's attempts to lose his virginity.
Now this is meant to be provocative, of course. And for some this is no doubt a reductio ad absurdum against universal health care. Fair enough. But for those who believe there is a moral case for funding universal health care, does the argument also lead to funding these kinds of sex therapies? Health is important, of course, but let's be frank (and my parents can stop reading at this point) so is sexual satisfaction, and both seem to me essential parts of the normal opportunity range and/or human flourishing.
Friday, May 17, 2013
Non-State Law and Enforcement
As I mentioned in my last post, I've been doing some thinking about what it means to be non-state law and looking to different types of non-state law - such as international law or religious law - to consider some common dynamics that consistently arise.
One theme that regularly emerges - and is often discussed - in the context of non-state law is the problem of enforcement. Put simply, without the enforcement power of a nation-state, non-state law must typically find alternative mechanisms in order to ensure compliance with its rules and norms. This hurdle has long figured into debates over whether one can properly conceptualize international law as law.
But the focus on enforcement is problematic for a couple of reasons. First of all, the challenge of enforcement for non-state law is in many ways overstated. For example, in a 2011 article titled Outcasting: in Domestic and International Law, Oona Hathaway and Scott Shapiro explored this issue, emphasizing - especially in the context of international - how certain forms of nonviolent sanctions, such as denying the disobedient the benefits of social cooperation and membership, can be deployed as a form of non-state law enforcement. Indeed, the use of outcasting has long been prominent in other areas of non-state law, such as a method to enforce religious law within religious communities.
There's, of course, much more to be said on the relationship between non-state law and enforcement (something I may explore in a subsequent post). But too heavy an emphasis on this piece of the non-state law puzzle is problematic for a second reason - it too often obscures other important ways in which non-state law functions as law. In my next couple of posts what I'd like to do is consider other ways in which various forms of non-state law function as law by focusing more directly on the internal practice of law within the relevant communities.
The Modified Workshop Queuing Experiment
In the interest of sharing ideas, I wanted to say a word about workshops. Over the last several years I have co-run with Einer Elhauge a workshop in health policy, biotechnology, and bioethics, where leading scholars present works in progress.
We usually have a significant number of faculty and fellows, as well as several students who enroll for credit. The session is about two hours, with 30 minutes ear marked for the presenter and the rest for Q & A. After observing our faculty workshops and other Harvard Law workshops over the years, I became dissatisfied with standard queue system, in part because tangents or ideas get lost and don’t build on one another as much as I would like. Instead I have used what I call the “modified queue,” am quite happy with it, and want to share it with you (and also get other ideas you have used that work).
Here is how it works (it sounds much harder than it is, it is pretty easy in operation):
- Raise one hand and get listed on the “regular” queue just like in most workshops.
- Raise TWO hands if you have a follow-up question to one that has been asked (or to the answer to it). I always remind people here that they will be policed by the social opprobrium of others if their “follow-up” question does not look sufficiently follow-up-esque. I then go through all the follow-ups and put them on a follow-up queue [But note that if you ask a follow-up to a follow-up you are given no additional priority on the follow-up queue, just put to the end of it]
- If you are on the “regular queue” and you ask a follow-up I “demote” you and put you to the end of the “regular queue” as it now stands, thereby making asking a follow-up question slightly costly in that it means your own question is delayed.
- Occasionally when there are too many follow-ups (say more than four or five) and/or when we are getting towards the end of our time and someone who has been patiently waiting on the regular queue has not yet got to ask their question, I will “cheat” and start putting people asking follow-up questions to the end of the regular queue. This way I ensure that follow-ups don’t swallow the whole regular queue.
I (and I think others who have attended the workshop from what I hear) have been very happy with this system. I have now started exporting it to conference sessions I chair where the format is workshop-y too. Try it out, if you care to, and let me know what you think!
Thursday, May 16, 2013
Missing Minorities in a New Publication About Law School Diversity
The publication Lawyers of Color just published a special issue on diversity in the legal academy, apparently aimed at students. It identifies "50 Under 50", the most influential minority law professors under 50 years old, a very distinguished group. It also purports to list the most diverse law faculties and to identify every minority law professor teaching at every law school.
Unfortunately, the reliability of these lists is impaired by the fact that many people were left off the list of minority law faculty. For example, at UC Davis, 10 colleagues were listed, but I was omitted. I might suspect that this was my dean's way of trying to tell me something, but he was another one of the ten faculty in total who were left off. The missing faculty may explain why UC Davis made the National Jurist Diversity Honor Roll but not this list. Seattle University, which has around 18 minority law faculty, was not mentioned at all.
Because this is a digital publication, I hope it can be corrected and updated before students making decisions are misled.
Learning from exams
I want to own and expand on a comment from Jessie's post about the teaching value of taking and grading exams.
Like Jessie's commenter, grading exams puts in stark relief what I did well and not so well during the semester. My exams showed that the two big problems this semester involved amendments to pleadings under FRCP 15(a) and the primary federal venue statute, § 1391. The answers I saw on the exam showed that the overwhelming majority of students did not understand what the language of either provision means or how the pieces fit together. This is a bit ironic, actually, because both provisions recently were revised (§ 1391 in the Juridiction and Venue Clarification Act of 2011 and FRCP 15 substantively and as part of the Restyling Project) specifically to make them clearer. So much for that. Like Jessie's commenter, I wish I had known this at the time so I could have spent a bit more time going over it.
At some level, the misunderstanding as to both provisions reflects a general weakness in reading and understanding statutes, triggering the ongoing question of how to get students to properly read statutes when they otherwise are focused only on case law.
Spreading out grading
I am happy to say I have finished grading for the semester and it was as thrilling an experience as ever. I experimented for the first time with a mixed short-answer/multiple choice format for the final in Civ Pro and liked it a lot as a testing mechanism; it gave me a good sense of what students did and didn't know (I will have more to say about that in a later post). I also did not find grading it overly burdensome.
The real struggle for me was grading the take-home essay portion--that is the part that feels overwhelming. And it struck me this cycle that the source of the struggle is several-fold: 1) the sheer number of essays to read all at one time, 2) that they all say basically the same thing (things actually, since students wrote on one of 3 questions), and 3) the fairly short time window (about a week) to get them all read, which even if sufficient time, feels crunched. So while it is perhaps too soon (my grades have not yet posted and I have not yet met the deluge of questioning 1Ls), I am thinking about alternative approaches for next spring.
Blog Symposium on Radin's BoilerplateThere is a blog symposium at ContractsProf on Peggy Radin's new book, Boilerplate. My micro-review on the fetishization of consent is available here.
First Amendment Institutions in the Law and Politics Book ReviewMy most recent book, First Amendment Institutions (it makes a good Victoria Day gift!), is reviewed in the latest issue of the Law and Politics Book Review by law professor Ruthann Robson. It's a tough but fair review. I welcome the criticism, and hope I may be forgiven for cherry-picking a couple of generous lines: the book "provides the most sustained, nuanced, and well-reasoned argument for an 'institutional turn' in First Amendment jurisprudence," and "admirably achieves" the goal of "open[ing] a conversation about First Amendment institutionalism, . . . providing a book that is worth reading, considering, and debating." Obviously, I hope people will read and even buy the book, and take part in that conversation. But it's very much meant to be a conversation, and Robson's criticisms are a valuable part of that. Read the whole review (and the book, of course!).
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