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Monday, May 23, 2005

Son of Filibuster

I think it's finally time to return to the filibuster issue, after long silence in this forum.  (I have been posting instead on the conlawprof listserv, which raises another amendment to Kaimi's earlier discussion of blogging vs. scholarship: sometimes the question is of one of blogging for a wide audience vs. posting for a narrow one.)  I'm glad my time on this blog was extended a bit, because it gives me a chance to close out my time here by returning to the issue I began with, just as it hits the point of "resolution" -- a word that, in a subsequent post, I hope to show is in fact far from accurate.

I think one reason I have been slow to re-post on this issue, apart from having expended my limited time resources elsewhere, is because I have been reluctant to get caught in a recursive loop of commentary and responses -- although I much appreciate the thoughtful comments I have received!  But in looking back over those comments, I am struck by the degree to which my interlocutors and I have diverged, not as to our views, but as to the subject under debate.  So before moving on to discuss other events and aspects of the filibuster debate, let me clarify what I have been saying.

Let me indulge in some taxonomy here.  The current debate over the filibuster involves a number of interrelated questions, including at least these questions:

1) Is the filibuster of judicial nominees unconstitutional?

2) Is the filibuster of judicial nominees unprecedented?

3) Even if unprecedented, is the filibuster of judicial nominees permitted by the current Senate rules?

4) Even if permitted, is the filibuster of judicial nominees wise?  (One could add a fifth question: even if wise in some cases, is the filibuster of these judicial nominees wise?  I will treat it as a sub-part of this question only.)

5) If a rules change is required or desirable, how must it proceed?

My focus on this blog (and elsewhere) has been on questions 1 and 5, and to a lesser extent question 3.  I am not convinced that the filibuster of judicial nominees is unconstitutional, and none of the debate on this point that I have seen, which I think has largely been driven by expediency rather than constitutional principle, has altered my view.  I may be wrong in ascribing motives, but that point is less important to me than the need to think through, carefully and with attention to the implications, the answer to this question.  Remember that my fundamental point has always been a narrow and simple one: that the Vice President, and all the members of the Senate (most certainly including the Democratic minority), are being called on to answer a constitutional question, and ought to be pressed -- whether or not they are obliged to do so -- to explain the reasons for their conclusions, and outline the future implications to which they are precommiting themselves. I am not saying that no constitutional arguments are available to those who wish to argue for the unconstitutionality of the judicial filibuster, although I am not convinced by those arguments.  I am saying that those arguments, if based on principle, contain implications by which their adherents must abide in the future.  If the filibuster of judicial nominees is unconstitutional now, for instance, it must be if the parties change sides (and this applies to both sides of the argument).  More importantly, if the filibuster of judicial nominees is unconstitutional because the Senate must provide an up-or-down vote when fulfilling their advice-and-consent role, then the filibuster must be equally unconstitutional when applied to all advice-and-consent nominees, no matter how insignificant and no matter whether the body wishes to abide by that rule or not. 

I think there are other implications, but leave it at that: where the interpretation of the Constitution is involved, I have argued, all constitutional officers must take the issue seriously, not just judges, because all of these officers have taken a constitutional oath.  I have focused especially on the Vice President, not least because he has said a constitutional officer may be forced to resign rather than comply when asked to take action he believes is unconstitutional.  That does not mean the Vice President is insincere in announcing he would vote to change the rules, including through a constitutional ruling as presiding officer; it does mean that he cannot let mere expediency alone guide his decision, and ought to be pressed to elaborate his views.  I have still seen no evidence that he has elaborated his views, or that he has been pressed to do so.  My view has been that this says something significant and unfortunate about how casually we treat the Constitution outside the courts, and how degraded the notion of a political officer's constitutional oath has become, not just for the oath-taker but for the citizen-voter as well.

A separate question is how the rules change must occur, even if it is either desirable as a matter of policy or constitutionally mandatory.  My view after careful and continuing study is that any of the options currently available involve some violation of Senate rules and/or generally binding precedent (i.e., prior rulings of the chair; and remember that not all traditions are precedents with this binding quality).  Remember that the goal of the leadership is necessarily to ensure an immediate majority vote, since any other option will lead to precisely the extended debate and super-majority vote requirement that they need to avoid.  So, for instance, having the Vice President make a constitutional ruling will lead to a majority vote: but it will also violate Senate precedents that make clear that such a question is supposed to be submitted to the whole body for debate.  And having the Vice President simply rule further debate out of order will likewise contravene Senate rules and precedents.  (One may fairly point out that, on this latter issue, Senator Byrd himself has skirted, abused, or even violated Senate precedent in the past; but apart from the fact that tomorrow's action cannot legitimate this activity if it violated the Rules, I do not think the Byrd precedents provide precise authority for what the majority is seeking to do here.  At the same time, I am not defending those earlier rulings.)  I think this CRS report is correct in stating that either of the procedures that, on my reading, are most likely to occur if the leadership proceeds with its plans "would require to the chair to overturn previous precedent."  This is clearly not an issue with lasting traction for the public, and even many lawyers may be more solicitous of court procedures than of the procedures of legislative bodies.  But I think that violating the Senate's rules to effect a rule change should be a matter for concern. 

Note that I have, from the beginning, left open the possibility that the Constitution itself prohibits entrenchment of the Senate rules.  This is a complicated issue, and I don't know the answer here; but I think it would, at least, provide the basis for a principled argument with at least some clear implications.  But if this press relase from Senator Frist's office is to be credited, that is not the constitutional argument before the body.  Rather, the question before the chair will involve "the appropriate amount of time to be used by the Senate to debate Circuit and Supreme Court nominations."  Senate precedent, as I understand it, does not answer this question in a way that favors the leadership, which suggests either that the Vice President will wilfully overturn precedent or, more likely, will base his ruling on the advice-and-consent-equals-up-or-down-vote constitutional argument.  (Note, as a side issue, that if the ruling is constitutionally based, there is no basis to single out "Circuit and Supreme Court nominations" from other advice-and-consent nominations; hence my concern with pressing the officers involved for a full elaboration of their reasons.)  So I respect the anti-entrenchment argument, but don't think it is going to provide the ground for debate here.  One reason for this may be that although this is the best constitutional argument available, the leadership (which enjoys only a slim and shifting majority on these issues) does not want to give up the possibility of entrenching rules against majority votes; but it may have other reasons for not going this route, and I cannot draw any firm conclusions here.

As to the other questions, these have been closer to the comments I have received.  I tend to believe that the filibuster of judicial nominees is permitted by the rules and not prohibited by binding Senate precedents.  So I may continue to disagree with my questioners on this point.  On the other questions, we may come closer to agreement.  Although I don't think the rise in judicial filibusters actually violates Senate rules or precedents, I do think a solid argument is available that it represents a change in institutional practice.  And although I think this tool is available to the minority, that does not mean I agree that it ought to be used, or used often.  I do not think the President is entitled to an up-or-down vote, but I think he generally ought to get one, even if that means that the minority, after raising tough questions, must swallow a loss, and even if we are talking about lifetime appointees.  (I should add that I think this policy argument applies both to filibusters and to other tools, such as refusing to give a nominee a committee hearing or permit the nomination to come to the floor.)  I am on record as saying that I think we need a reasonable number of genuinely brilliant judges (as opposed to merely dutiful and competent judges -- although we need them too) on the federal bench, including brilliant judges with whom I fundamentally disagree.  After all, many issues decided by the federal courts raise no deep constitutional issues and don't break down neatly along ideological lines, but do require innovative and thoughtful judging, which brilliant right-wingers can provide equally along with brilliant left-wingers (to use crude categories).  Although I doubt many of the current slate fit the "brilliant" label, I think they are competent to take the bench, at the very least, and the minority is mistaken in staking its all against their doing so.  It may be entitled to do so, but that does not make it wise or sound.  (I don't know whether I feel the same about all the current nominees.  I might be more or less inclined to think the filibuster appropriate in an individual case.  But I truly don't know.)

None of these considerations, though, alter the constitutional question or the rules-change question that are the focus of my concerns.  Indeed, I think the conflation of the multiple issues I have discussed above has been harmful in every direction.  It has led to inadequate attention to the core constitutional and procedural questions, and has allowed both parties to get off the hook by saying, in effect, that the policy considerations inform or even outweigh the constitutional and procedural questions.  This is where I agree with my questioner that "the politics aren't just on one side."  (I'm not sure that I agree that it's "all politics.")  The judicial filibuster is constitutional or not, and a rules change complies with or violates existing procedural rules, regardless of whether a nominee is "outside the mainstream," which I find a silly and inaccurate claim, and regardless of whether the President feels thwarted by the minority, which I think is irrelevant.  I am struck by how much both sides feel called upon to use broader "policy" arguments, often distorted ones, as window-dressing to justify their positions on what I think of as the core central issues.   

Well, that brings me up to date, I think.  More to come, believe it or not.         

Posted by Paul Horwitz on May 23, 2005 at 02:42 PM in Law and Politics | Permalink | Comments (0) | TrackBack

Very Strange Debate Club

In light of the filibuster-related goings on, it is appropriate that this week's Legal Affairs Debate Club focuses on judicial nominees.  But the topic, Who Could Win Every Senator's Vote?, is just weird. 

The question appears to be whether there is a potential Supreme Court nominee who could gain unanimous support in the Senate; but it is possible that the participants will debate whether such a question is even useful.

My thought is that Bush has nothing to gain from seeking such a nominee--and much to lose.  He certainly doesn't need that kind of support.  If he wins the filibuster fight, then he only needs 50 senators to support his nominee.  If he loses, he still only needs enough senatorial support for cloture. 

Further, this is not a president who has embraced compromise positions or sought middle ground; and the Supreme Court is one of the biggest prizes he could win for himself, his party, and his core supporters.  Any nominee that would gain the support of every member of the Senate would likely undermine the goal of taking the Court.

So why in the world would he bend any more than he absolutely has to?  And why should he?  Has any president prioritized unanimous senatorial support for his judicial nominees?

If Bush vanquishes the Democrats on this fight, why would he then give them exactly what they want, a "moderate" Justice?

Posted by Hillel Levin on May 23, 2005 at 02:18 PM in Law and Politics | Permalink | Comments (0) | TrackBack

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

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

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

Hopefully, with publicity, this practice will change.

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

How Credit Reporting Agencies Are Scamming the Free Credit Report Requirement

This year, pursuant to the Fair and Accurate Credit Transactions Act (FACTA) of 2003, credit reporting agencies must provide people with one free credit report per year.   This is gradually being phased in this year.  People can obtain their reports from this website: https://www.annualcreditreport.com/cra/index.jsp.

Earlier this year in his blog, law professor Eric Goldman discussed the difficulties and inconveniences he experienced when attempting to obtain his report.

But most disturbingly, MSNBC reporter Bob Sullivan writes:

An independent research firm has found that there are dozens of Web sites with names like My-Free-Credit-Report.com which claim to offer free reports, but instead steer consumers to sign up for subscription-based services sold by credit bureaus.  Often, these paid sites are easier to find than the Congressionally-mandated site, AnnualCreditReport.com.

One might expect such crude exploitative practices from low-life companies or fraudsters.  But no. . . These websites are linked to two major credit reporting agencies: 

For example, visitors to Google’s search engine who type in “free credit report” get a list of links for Web sites that ultimately sell services from Experian and Trans Union. AnnualCreditReport.com, the only place to get a free credit report, doesn’t make the first page of search results. 

Javelin Strategy & Research, which conducted the study, said it found 16 so-called "free credit report" sites connected to Experian and nine to Trans Union.  Javelin found no such sites connected to the third bureau, Equifax.

At ConsumerInfo.com, an Experian site, visitors get the message “Free! Free! Free!  Get your FREE Credit Report Online in Seconds!!!” But clicking on “Free report” sends users to a sign-up page. At the bottom of that page, in small print, is the message that a credit card is required and a fee will be charged.

“The low monthly fee of $9.95 will automatically be charged to your credit card after the trial period ends. What a small price indeed for financial peace of mind!” It says.

It seems quite unseemly that companies as big and powerful as Experian and TransUnion are acting like sleazy hucksters.  These are the very companies that have a statutory duty to provide people with free credit reports.  Perhaps we might be reassured that the FTC is watching over such practices:

Joel Winston, assistant director of financial practices at the Federal Trade Commission, says the agency is monitoring sites that are mimicking the AnnualCreditReport site, "and if we determine that consumers are being deceived into paying for something they should be getting for free, we are prepared to act against it."

But the FTC has failed to act on a complaint by Chris Hoofnagle of EPIC filed back in 2003 that contended that these practices were deceptive. 

These practices suggest that some credit reporting agencies are not discharging their statutory duty to provide free credit reports in good faith . . . to put it far too gently.       

Posted by Daniel Solove on May 23, 2005 at 01:30 PM in Daniel Solove, Information and Technology | Permalink | Comments (0) | TrackBack

A Dissent From the Opinion of Professor Tribe

As many law-blog types have no doubt already read, Professor Tribe has announced he will be setting aside, at least for now, his plans to publish the second volume of the third edition of his magisterial constitutional law treatise.  (For discussion, see, e.g., here and here.  Tribe's letter(s) explaining his decision can be found here.) 

I've quickly read Professor Tribe's discussion of his reasons for abandoning the project for now, and although I think I understand his reasons for doing so, I'm not quite sure.  The quick version -- expressed in a letter to Justice Breyer, who apparently had inquired as to the status of the second volume -- is that we are at "a fork in the road" on a variety of fundamental issues; that the current conflicts are especially heated; and that in these circumstances, a work that "organizes the corpus of decisional law -- that identifies, and reflects critically on, the major themes and directions of movement" -- is not appropriate or possible right now.  Or, to draw from his longer letter, "no treatise, in any sense of the term, can be true to this moment in our constitutional history -- to its conflicts, innovations, and complexities."  I suppose this is easy enough to understand; but it is a decidedly short version of his explanation, and I am still sorting through the longer version.

In any event, I think it's too bad that Tribe has dropped his plans to publish volume 2, and I wish (doubtless futilely) that he would reconsider.  Let me make a few points about his explanation. 

First, there is no doubt that there are any number of widely divergent points of view on constitutional methodology on the Court and in the academy right now, and that, at least where the courts and the political arena intersect, those debates are very heated at the moment.  So I am sympathetic.  But I wonder if Tribe is not too close to the maelstrom he describes.  Although the fissures may be particularly deep and evident right now, there is also a considerable amount of bridge-building across those fissures.  As Tribe himself notes, for instance, many scholars now pay closer attention to constitutional text and structure in their analysis.  Similarly, many scholars are more attentive to history, and more careful in their use of history.  In a host of other areas -- the use of foreign law being a prime example -- there is no doubt that the debate is still unresolved, but I think it is also true that the players in these contests at least are striving towards a common language in debating these issues.  In short, I do not think the times make a treatise impossible.  Indeed, in a host of areas involving individual rights, there is a substantial amount of consensus, whether right or wrong, that cries out for treatise-type treatment: I think in particular of the broad movement toward a speech- and equality-based vision of the Religion Clauses.

Second, I think Tribe overstates the extent to which a treatise was unproblematic in 1978, 1988, and 2000, when he published his other iterations of the treatise.  He suggests that the "deeper fissures" that Roe v. Wade occasioned "had not yet become so prominent as to demand central treatment -- or, more to the point, so prominent as to preclude unified treatment."  Maybe so in 1978, but was this true in 1988?  And were the fissures in the federalism debate not both prominent and unresolved in 2000, when he issued the structural half of the third edition of his treatise?

Third, I think Tribe conflates two different visions of treatise-writing itself.  One involves "organiz[ing] the corpus of decisional law" -- "identif[ying], and reflect[ing] critically on, the major themes and directions of movement."  I think the time is always ripe for such an endeavor -- not least at those times when the major themes and directions of movement are in flux, as they arguably are right now.  The other involves "propound[ing] a Grand Unified Theory" -- having "a vision capacious and convincing enough to propound as an organizing principle for the next phase in the law of our Constitution."  These tasks are, of course, not necessarily the same.  But even if Tribe feels he has no such vision to contribute right now, I am not sure this task is as essential.  More to the point, even if a grand unifying vision that points to the future of constitutional law is inaccessible to Tribe right now, there is still room for a grand unifying vision that encapsulates this moment in time -- that shows how we have come to the end of certain roads and, perhaps, the beginning of others, that seeks to fix a dot on the map and say, this is where we are now.  That vision alone would contribute mightily to the next movements on the map.

Fourth, I think Tribe overstates the adequacy of the substitutes for his treatise.  I do not say this as a Tribe-ean acolyte; one can find an endless amount to disagree with in his treatise, whether one is a sworn opponent of Tribe or a friend.  But it is precisely the contestable nature of Tribe's treatise that makes it such a rich and valuable read.  No other major con law treatise comes close in richness to Tribe's work.  I regularly read the Nowak and Rotunda treatise for a fairly close reading of cases when prepping for class, but it often alternates between two much and too little detail, and its overall descriptive vision of constitutional law and methodology is, I think, lacking.  I read Chemerinsky's treatise even more often, and my students swear by it; but although it does a better job of synthesizing both the general structure of the law and the underlying issues in any given area, it is ultimately a fairly simple primer in the area.  If I truly want to grapple with an area -- to really confront and think through the deep issues -- I must turn to Tribe.  I miss the chance to do that with the individual rights materials right now, and so much has happened since 1988 in this area that would make Tribe's treatment particularly valuable.  Nor, I think, would Tribe's articles be an adequate substitute.  I think those works fill a different role and, to a substantial degree, are written in a different voice.  Although, as I say, Tribe's treatise often makes contentious arguments, it is not simply a work of advocacy; it does not just "push constitutional thinking in new ways," but engages in an act of real synthesis that necessarily involves taking stock of competing arguments and laying some groundwork for an over-all understanding of the field.

Fifth, although Tribe acknowledges the availability of "online" and "real time" constitutional law sources, he does not really acknowledge the changes in his own thinking about his treatise, or about how to make it available, that those technologies make possible.  This is true in a practical sense: if he does not feel he can issue a once-and-for-all statement about these issues, why not issue an on-line version of the treatise, subject to updates?  Indeed, if he does not want to commit to the labor involved in updating the treatise, why not take a page from Wikipedia and other online information sources, and make the treatise itself the beginning of an online, hypertexted, discussion, a group effort at synthesis?  No doubt other such methods of making the material available are possible, and I welcome comments on this point.

But this last argument is not true on just a practical level; it also invites him to think differently on a conceptual level about his treatise.  Why think of volume 2, or the third edition as a whole, as having to utterly capture and extend the vision of the Constitution at this moment in time, let alone into the future?  Why not acknowledge the transience of the enterprise -- a transience that is all the more apparent when publishing lead times have shortened and any number of contemporaneous reactions to events are now instantly available -- and publish, whether online or in print, even if the treatise cannot perfectly capture the moment, even if events are in the saddle?  I called Tribe's treatise magisterial, a label I think appropriate even if one disagrees with some or many elements of it.  But I fear the author is now a victim of the magisterial status of the work; I fear that he is experiencing a postmodern kind of anxiety of influence, with Tribe3 cowed by Tribe1 and Tribe2.  Perhaps this is a moment that defies magisterial treatment; but there is still much room, and need, for broad and deep synthetical work, even if it cannot point unerringly in one direction. 

Let me end on a more personal note.  Although, as I say, I am not a Tribe acolyte, I have greatly enjoyed and benefited from his treatise.  I confess that I am one of those individuals who, from the moment volume 1 of the third edition came out, harried every Foundation Press representative I could find for news of volume 2's release (sorry, folks).  I agree that Professor Tribe, having assumed the burdens of authorship, is not permanently obliged to his readership to keep the enterprise going forever.  Just the same, I now feel bereft.  I have never expected that the treatise could provide a grand unifying vision that truly could direct the movement of such a polyphonic work as interpreting the Constitution.  But I welcomed the chance to immerse myself in such a rich synthesis of the debate -- and such a rich contribution to the debate.  If the voice of the people can sometimes be enough to revive truly ephemeral television shows, perhaps Professor Tribe can yet be persuaded to make the second volume available, if only in an online form that recognize the necessarily transient nature of the work.  If Professor Tribe had simply tired of the work, I would award the laurel, swallow my disappointment, and be done with it.  But to the extent he bases his decision on arguments that I don't think obviate the need for or role of the treatise, I hope he can be persuaded to reconsider. 

Posted by Paul Horwitz on May 23, 2005 at 01:23 PM in Books, Legal Theory, Life of Law Schools | Permalink | Comments (0) | TrackBack

Court Agrees to Take Abortion Case

The Supreme Court has agreed to hear an abortion case next term.  Rehnquist's expected retirement will not impact the outcome, of course.  But might someone on the pro-Roe side retire?


Posted by Hillel Levin on May 23, 2005 at 12:31 PM in Law and Politics | Permalink | Comments (0) | TrackBack

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

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

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

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

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

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

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

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

Here are my own results:

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

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

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

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

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

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

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

The Future of the Blog

What will happen to blogs when they hit prime time?  It might even be fair to argue that right now is the start of prime time for blogging.  One interesting development is the rapid growth of advertising on blogs.  As this news article states:

Advertising content is of key interest to Blogads (http://www.blogads.com), which sells space on blogs.

"We fight a constant and horrifying battle with advertisers to keep the ads human and humorous and vaguely relevant and interesting," founder Henry Copeland said.

Blogads has a network of 750 blogs, including gossip-oriented http://www.thesuperficial.com/ as well as the politically bent http://www.wonkette.com/ and http://www.wonkette.com/. Advertisers have run the gamut from carmaker Audi to political and other special-interest groups.

Copeland said he expects to have 2,400 ads on blogs this month, up from 700 a year ago. The average blogger makes $50 a month from displaying Blogads, he said, but some bring in more than $5,000 monthly.

$5000 a month from blogging?  That's enough to make a living on blogging.  Will a group of professional bloggers emerge?  What will the impact of advertising be on the blogosphere?  What will happen if the mainstream media attempts to become more involved in the blogosphere?   

Judge Richard Posner has an interesting argument that bloggers should have an "exemption" from "the ethical standards applicable to the mainstream media."  But if blogging becomes commercialized, and as some blogs capture audiences that are larger than some newspaper or magazine circulations, should they have more responsibilities given their large social power?  To what extent will blogs begin to affect the mainstream media? 

What makes blogs so interesting is that today, anybody can become a pundit with a world-wide audience.   This can be quite democratizing, as people no longer need to work their way through the professionalized ranks to become a pundit.  Will this trend continue?  Or will blogs become more professionalized?  In other words, as advertisers and others begin to tap the power of the blogosphere, will this begin to blur the line between the blogosphere and mainstream media? 

I certainly don't know the answers, but I find it fascinating to ruminate over the future of blogging.  Thoughts anyone? 

Posted by Daniel Solove on May 23, 2005 at 10:43 AM in Blogging, Daniel Solove | Permalink | Comments (0) | TrackBack

Saddam's Trial

Fair to say from this article in The Atlantic that Saddam's trial is going to be a zoo.

Posted by Hillel Levin on May 23, 2005 at 09:14 AM in Current Affairs | Permalink | Comments (0) | TrackBack

Fascinating Article on Rick Santorum

The New York Times Magazine has a fascinating bio of Rick Santorum this week.  Of course, I'm no fan of his brand of theocracy, and let's be clear: that's an apt description.  As he himself says:

''How is it possible, I wonder, to believe in the existence of God yet refuse to express outrage when his moral code is flouted?''

Of course, he doesn't simply wish to "express outrage."  He wants to outlaw that which is against God's moral code.  And so "theocracy," the "rule of God," is an appropriate term.

Putting that aside, I should say that the article is very well-balanced.  I say that because, having read it, I have greater esteem for Santorum than I did before I read it.

I will blog a bit more about some of the issues raised in the article later, but I do want to point out perhaps the funniest paragraph:

In 1999, the [Santorum] family received a malpractice award after Karen Santorum sued a chiropractor in Virginia. She testified that she sought treatment for back pain after childbirth in 1996 and suffered a ruptured disk from an improperly administered spinal manipulation. Santorum has been a vocal critic of large malpractice awards and has backed measures to limit damages. Karen Santorum asked for $500,000 and was awarded $350,000 by a jury. A judge finally reduced the award to $175,000, of which Santorum said they received about $75,000 after their lawyer took his share. ''I'm not against all lawsuits,'' Santorum said. ''I think they're appropriate where the case warrants it, and this one did. It was not frivolous.''

Ah, there's the rub.

Posted by Hillel Levin on May 23, 2005 at 09:10 AM in Law and Politics | Permalink | Comments (2) | TrackBack

On Star Wars (Warning: spoilers ahead)

I finally saw Star Wars Episode III last night.  Frankly, I was a little bummed out.  I had been holding out hope that Anakin wouldn't be seduced by the dark side.  I hope that doesn't spoil the movie for you.

Posted by Hillel Levin on May 23, 2005 at 08:54 AM in Culture | Permalink | Comments (0) | TrackBack

Friday, May 20, 2005

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

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

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

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

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

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

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

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

Online Professor Ratings

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

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

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

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

Posted by Kaimi Wenger on May 20, 2005 at 02:45 PM in Life of Law Schools | Permalink | Comments (8) | TrackBack

Sociologist discusses the value of student evaluations

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

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

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

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

Say what now?

Democrats and liberals occasionally and absurdly equate Bush and the conservatives to Hitler.  It is a ridiculous comparison and, worse, it diminishes the evil that was Hitler.  At the same time, listeners understand the intended reference.  The claim is that conservatives are taking this country on a path that is fascist and totalitarian; and Hitler is pretty much the prime example of fascism and totalitarianism.  So while it is a horrible comparison--and one that, in my mind, should not be used--everyone understands its point.

Similarly, when conservatives refer to Democrats and liberals as Stalinists and Communists, we understand the reference point even as we are horrified by the comparison.

But what in heaven's name is Rick Santorum talking about when opines on the Democrats' stance on the filibuster:

"The audacity of some members to stand up and say 'How dare you break this rule' . . . . It's the equivalent of Adolf Hitler in 1942 saying, 'I'm in Paris. How dare you invade me. How dare you bomb my city? It's mine.'"

I'm mystified.  I could deal with it if it was just offensive; but I don't have the slightest clue what he means.  Please go back to calling me a Stalinist!

Posted by Hillel Levin on May 20, 2005 at 08:59 AM in Current Affairs | Permalink | Comments (6) | TrackBack

Some Questions About Star Wars

I recently saw the new Star Wars movie, and although I try generally to post on more legal and weighty topics, I just can’t resist saying a few words.  Having grown up on Star Wars, I had to see the new movie within 24 hours of its release, but I’m proud I at least did not go to the midnight showing and could wait until the next morning.  That’s only because the first two prequels were so terrible. 

I’ve been pondering some deep issues about the Star Wars series, and although the movies are made to require a suspension of disbelief, I still find myself asking these questions.  Warning – spoilers below.

1. How could anybody write that dialogue?  Lines like Padme saying to Darth Vader: “You’re a good person, don’t do this”?  This hilarious review in the New Yorker captures it best:

The prize for the least speakable burst of dialogue has, over half a dozen helpings of “Star Wars,” grown into a fiercely contested tradition, but for once the winning entry is clear, shared between Anakin and Padmé for their exchange of endearments at home:

“You’re so beautiful.”
“That’s only because I’m so in love.”
“No, it’s because I’m so in love with you.”

For a moment, it looks as if they might bat this one back and forth forever, like a baseline rally on a clay court. . . .

Why didn’t anybody on the set say something when they were filming?  How could the crew refrain from laughing?   

2. How come Jedi Masters are killed so easily?  Do they put any schmo who picks up a light saber on the Jedi Council? 

3. We learn that the Death Star is being constructed as Episode III ends.  Why does it take some 20 years to complete, as it is finished not long before the Episode IV of Star Wars begins?  Were there construction delays?  Union problems?   After all, this isn't the Freedom Tower.

4. I still can’t understand the reason why Anakin goes to the dark side.  He wants to save his wife, but Yoda’s advice is to just let her die.  So if you care about a loved-one and don’t just want to let them go, then you’re in danger of becoming an evil madman.  The way of the “good side” of the force is to just shrug off the deaths of the ones you love and don’t bother lifting a finger to try to save them.  If that’s the good side of the force, the dark side must be really dark.   

5. In the original Star Wars, why is it that the storm troopers, described at one point as amazingly accurate shooters, can’t seem to hit anything or anybody with their blasters? If you’re creating a clone army, shouldn't you clone somebody who can hit a target?  The Emperor would have won if he just created storm troopers who had better aim.  And why do the storm troopers wear all that clunky armor if one blaster shot will kill them?  Heck, a rock thrown by an Ewok will kill them too. 

6. Others have pointed out this one, but how in such a high-tech society is it a surprise that Padme has twins?  And if Darth Vader can be saved despite being burned to a crisp, why does Padme die despite such wondrous medical technology?

7. How does Obi Wan Kenobi age so much in the 20 or so years between Episode III and IV?  After all, although old, Count Dooku leaps around like a cricket in his battles, but poor Obi Wan goes from a spry young man in Episode III to a very old man in Episode IV who can barely wave his light saber.   And why is Yoda on his deathbed by the time of Episode VI, only about 30 years after he fights like an acrobat on speed in Episodes II and III?  After all, if Yoda is over 800 years old, why should 30 more Yoda-years make such a big difference?

8. Why does R2D2 suddenly go from being a battle bot who can fly and do amazing tricks to a much less functional droid by Episode IV?  If C3PO’s memory is erased, why does R2D2 (whose memory isn’t erased) not tell him what’s going on sometime during the 20 years they hang out together between Episode III and IV?  Why keep it all a big secret? 

9. Why hide Luke on the planet where Darth Vader grew up with people he knows?  And if you want to hide Vader's son from him, why do you fail to change Luke’s last name from Skywalker?  The witness-protection program sure isn’t up to snuff in the Star Wars galaxy. 

10. Why does Yoda say he’ll miss Chewbacca?  Since when are they such great friends?  And how is it that at the very day and moment that Luke and Obi Wan enter the cantina bar in Episode III they just happen to run into Chewbacca?  [An interesting fact I learned while typing this post -- "Chewbacca" is part of Microsoft Word's spell check dictionary, as it corrected my misspelling.  It doesn’t recognize “tortious” or other commonly-used legal terminology, but apparently it is well-programmed for Star Wars.]  In an another amazing coincidence, R2D2 winds up in the hands of Luke.  In a galaxy of millions of planets and gazillions of life forms, it just so happens that R2D2 is purchased by Luke Skywalker.  Please don’t tell me the odds of that happening.  I guess that the Force works in mysterious ways.

Posted by Daniel Solove on May 20, 2005 at 02:00 AM in Daniel Solove, Film | Permalink | Comments (21) | TrackBack

Thursday, May 19, 2005

Properly American Political Tests

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

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

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

More About "More About Law Professor Blogging"

I appreciate Kaimi's post about law professor blogging.  I think I have to register a partial dissent on the value of it.  First, for reasons that I think have already been canvassed somewhere in earlier comments on this blog, it's not always clear that blogging heightens the value of the blogger in every legal academic's view, although certainly it makes that blogger's name more recognizable and may lead to their academic work being read by more people (certainly my SSRN page has seemed to reflect that since I started blogging here).  But blogging is not heavy academic work, and I think some legal academics are suspicious of the value of the activity -- and not entirely wrongly, in my view. 

More importantly, although I think blogging puts one into the good habit of writing regularly, which might ultimately show itself in increased scholarly output, one's hours spent blogging -- or worse, reading other blogs -- have to come from somewhere; and since they're obviously not going to come from one's time spent watching Lost, writing time may be sacrificed.

For me, a larger issue is one Kaimi touches on.  Although I've blogged on issues that I also write about, I also see the blog as an outlet for writing on issues you care about -- as a scholar or otherwise -- but don't want to expend scholarly time on.  The filibuster is such an issue for me; I've taught legislation and care about the issue, but my con law work is on other subjects.  So blogging allows you to write about the issue, in a more ephemeral, immediate forum and with less work; but it is not a net gain within one's more narrow field of scholarship.  Scholars considering the costs and benefits of blogging might want to consider this.  Perhaps the best approach would be to start up a narrow, subject-specific blog, one that often consists more of collating news items that you would be reading anyway than of commenting on them.  You would have readers within your field and the time spent would not take you away from you specialty.  For dilettantes like me, though, that would count as a loss.  What if you do want to write about everything?  I mean, blogging about the Solomon Amendment is all very well, but what if you also want to recommend the new Porcupine Tree album?

Posted by Paul Horwitz on May 19, 2005 at 05:22 PM in Life of Law Schools | Permalink | Comments (5) | TrackBack

On Guest-Blogging

I'm sure most folks who find themselves here (stop that!  Go out and plant a tree, or something) have already seen David Greenberg's piece on guest-blogging, which should be of great interest to those of us who are current grateful short-term tenants here.  Not a bad piece.  He is certainly right that one watches anxiously for comments, because they are a rough indication that one is being read (a very rough indication: I have heard from folks who I had no idea were reading my stuff).  Yet they can be consuming.  This is a good thing: it's good to have to clarify, to defend yourself, and even to correct yourself.  The question is, how much time should one put into responding to comments?  I find myself wanting to respond to comments.  After all, I wouldn't have posted on the subject in the first place if I wasn't interested.  And even when comments are antagonistic, that doesn't mean they're not smart and good, and of course you want show respect for those readers by responding to them.  And so you find that suddenly it is 5 pm and you still have 60 exams to grade.  In any event, it's worth the read.  Some kind of happy medium is called for -- although, given the writing compulsion that is necessary to blog successfully, I'm not sure the blogosphere is the home of the happy medium. 

Posted by Paul Horwitz on May 19, 2005 at 05:06 PM in Culture | Permalink | Comments (0) | TrackBack

Grading Exams

Having graded around 65 essay questions in the past three days, I'm ready to dip my feet back into the blogging pool, as I draw near my extended guest stint.  I find myself not at all relieved to be done with this pile, because I have another pile of 75 con law exams waiting for me, and these are a good deal longer.  Happily, the con law exam was a somewhat better-designed exam, so at least it should go fairly smoothly.  While getting through the exam pile is most of the battle, moreover, it is not the whole battle.  There is the nagging insecurity and delicacy involved in attempting to grade with consistency -- especially where, as in this case, my legal ethics essay question was too much of a race-horse, such that I can't simply count up the issues covered by each student and how well they were covered, but must allow for different scope of coverage by each student.  There is the difficulty (not impossibility, I stress -- just difficulty) of figuring out why one exam gets 14 points and another gets 15.  And there is the difficulty of turning all these raw scores into a final score, graded on a curve.  I think I feel the same way about grading that I do about winter in Toronto: you always forget what it's like, and it's always worse than you remembered.  I understandably expect zero sympathy from my students.

Let me get my feet wet on other topics before revisiting the filibuster question, although I greatly appreciate the patience of my questioner.      

Posted by Paul Horwitz on May 19, 2005 at 04:54 PM in Life of Law Schools | Permalink | Comments (0) | TrackBack

More about Law Professor Blogging

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

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

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

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

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

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

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

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

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

Where are you on the political spectrum?

Take this neat test and see where you fall out on the political spectrum.  Of course, it is the British political spectrum, but you can do the basic translation in your head.

Gartle twirl: Dave (you know who you are)

Posted by Hillel Levin on May 19, 2005 at 03:42 PM in Current Affairs | Permalink | Comments (1) | TrackBack

performing arts

A lawyer becomes a one man act off broadway:

"I am a civil rights and antitrust lawyer with 40+ years of experience and am producing and performing in my production "Town Attorney General Meeting" to explain: * how one person can obtain free healthcare for an entire town or village; * how voters can be encouraged through a "reverse tax" of $5-10,000/year to support enforcement of the nation's antitrust laws; * how a "Town Attorney General" can fight the "Evil Economic Trio of Outsourcing, Globalization and Declining Standard of Living" on behalf of the entire town or village; * what has caused globalization and how to attack the cause at the town level; * how the antitrust law-enforcement role of the federal and state governments can be re-created by a willing coalition of towns and villages, for the increased prosperity of their residents * how the monopsony power of certain major retailers is based on violations of the federal antitrust laws and can be stopped by appropriate actions by a collection of the nation's Town Attorneys General to be. The idea of having a Town Attorney General become the primary law enforcement official for the United States is a "no-brainer" upon several moments of reflection, and when the first town or village in the US obtains free healthcare as a result of the enforcement activities of its Town Attorney General you could expect a grassroots movement by many of the other 18,500 towns/villages to do the same for their respective residents. You have an opportunity to participate at the start of this movement to offset the destructive effects of globalization upon the residents of the US by (i) attending one of the performances and participating in the meeting together with the other members of the audience (even if you should be critical of any or all parts of the plan); and (ii) letting your colleagues, friends and students learn about my "Town Attorney General Meeting". Tickets ($15) are available at www.townattorneygeneral.com...  Opening night is Thursday, June 2nd, at 7:30 pm, in midtown Manhattan; and a 2nd performance is set for Friday, June 3rd, 7:30 p.m."


Posted by Orly Lobel on May 19, 2005 at 02:12 PM in Odd World | Permalink | Comments (0) | TrackBack

Blogging and Academics

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

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

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

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

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

Changing the Subject

Truly bizarre op-ed here.  I think the point is that we should not be talking about whether it is bad to ban gay sperm--but that we should be talking about this author's book and sperm donor anonymity (an issue on which, by the way, the author has no position and which no one really cares about very much).

On the issue of donor anonymity, it is hard for me to be especially sympathetic to the argument that sperm donations should be contingent on whether the biological father is willing to allow his offspring to discover his identity.  But am I missing the good arguments?  Is it just that some kids really want to know who their biological father happens to be?  I, for one, would like to see less fetishization of biological relationships; that's the best way to normalize same-sex adoption and adoption more generally.

UPDATE: One reader writes in that the father's information may be critical to get health information or for organ transplants.  I suppose we could create an exception for the health of the child!  But that isn't obviously right.

Posted by Ethan Leib on May 19, 2005 at 11:50 AM in Current Affairs | Permalink | Comments (0) | TrackBack

Third Year of Law School: The Historical Perspective

Reading the comments over the past few days regarding whether there should continue to be a third year of law school, I noticed two themes (among many others) consistently repeat. The first was that law school was extended from two years to three due to "guild" concerns and pressures from the bar. The second, related theme was a desire to return to the LLB degree, and allow prospective lawyers to bypass college and get an undergraduate degree in law. Since both of these ideas have been hotly debated in the comments, I thought I would provide some historical perspective.

I first want to clear up a common misconception about why law school was extended to its current three-year term. Although it is true that the ABA, the AALS and other bar associations had some influence in adding the third year, their involvement is not the end of the story. The other major influence working to extend and professionalize legal education was the influence of late 19th-century German scholarship. As Mathias Reiman, among others, has documented, German legal philosophy and scholarship had an enormous influence on American law schools, spurring the transition from the apprenticeship system to our current school-based system of legal education. Like the United States today, German had no undergraduate law degree: students could only go to law school after several years of study and scholarship in both secondary school and then university. Ultimately, German ideals of legal science, research and pure scholarship transformed American ideas of what legal education should be--and this included the gradual extension of law school from 18 months to a full three year course. So it was not just regulation that lengthened our law school curriculum, but desire for genuine scholarship as well.

Now, how this bit of history informs our current debate about 21st century law school is another matter. It is true that most civil law countries (as well as England) have an undergraduate law degree, and any further study is optional. In England, which divides its lawyers into solicitors (corporate lawyers) and barristers (trial lawyers), entering the bar requires another year or two at the Inns of Court.

Personally, from what I have seen of countries with undergraduate law degrees, I do not think this is the optimal choice. Besides all the reasons already articulated in the comments and by Dan Solove about the value of a post-B.A. law degree, another consideration would be the effect this would have on high school students. For example, in England, high school students are forced, at the age of 16, to choose either a "science" or a "humanities" track, thus to enter either sciences/medicine or humanities/law. Accordingly, from a very young age, British students are required to choose their track and stick to it, losing out on the general humanities education that American universities are unique in providing. Is this early and irrevocable specialization what we want?

In the end, I am still convinced that a two or two-and-a-half year required term of post-college law school, with at least one optional term for those students who wish to graduate early, is the best way to balance all these competing considerations. But I want to thank everyone who participated in the debate for sharing their views and helping me visualize the alternatives to our current system

Posted by Laura I Appleman on May 19, 2005 at 11:27 AM in Life of Law Schools | Permalink | Comments (1) | TrackBack

Peace Studies

In November 2003, the University of San Diego and the University of Notre Dame received two of the largest gifts ever given for the study of peace in the academy, each receiving $50 million. USD is now in the process of establishing the Joan B. Kroc School of Peace Studies, which is planned to start its Masters program next year. The school expands the existing Institute for Peace & Justice and the plan is to define "peace studies" broadly to include issues of economic development, transitional justice, and international relations. Peace as field of university study, especially as a professional graduate school, is still relatively young. Anyone knows about similar degree programs in other universities? Thoughts about what the curriculum of such a school might/should look like? Who would be the students and what would they do with their degree?

Posted by Orly Lobel on May 19, 2005 at 11:07 AM in Current Affairs | Permalink | Comments (0) | TrackBack

Updating the Dark Side

Lucas created the first Star Wars stories during Vietnam and now bloggers are debating the relevancy of the finale to current politics.

Posted by Orly Lobel on May 19, 2005 at 10:32 AM in Film | Permalink | Comments (0) | TrackBack

Other Supermajority Issues Abroad

In case you are not a deliberative democracy nerd . . .

British Columbia recently engaged in a fascinating experiment in deliberative democratic governance.  The province was debating adopting a completely new electoral system and got together a sample of citizens to participate in a Citizen's Assembly on the issue.  After months of deliberations with citizens and experts, the Citizen's Assembly issued a report, recommending a form of the STV ("Single Transferable Vote") system.  Here's how that electoral system works.

The recommendation then went to the B.C. voters for a referendum approval, but could only be adopted by a 60% supermajority.  The Citizen's Assembly garnered only a 57% approval. 

So what do we think of how the supermajority rule functioned here?  My instinct is that the deliberative process probably worked best within the Citizen's Assembly and worked worst in the context of a mass democracy referendum--and that the Assembly's result commands more political legitimacy than the simple exercise of direct democracy.  Or so I argue in my book (which comes out in paperback on June 1).  Thoughts?

Here are some comments and resources to learn more.

Posted by Ethan Leib on May 19, 2005 at 10:29 AM in Current Affairs | Permalink | Comments (0) | TrackBack

Read other people's secrets

This site is mesmerizing.

[Bekeshe Flash: Andrew]

Posted by Hillel Levin on May 19, 2005 at 10:18 AM in Odd World | Permalink | Comments (1) | TrackBack

David Brooks on the Newsweek Story and the Real Problem

David Brooks has it right in today's column.  Better read it soon, because soon you'll have to pay.

Posted by Hillel Levin on May 19, 2005 at 08:57 AM in Current Affairs | Permalink | Comments (2) | TrackBack

Wednesday, May 18, 2005

Privacy and Speeding

An interesting case has just come down from the Connecticut Supreme Court: American Rental Car, Inc v. Comm'r of Consumer Protection.  In short, a rental car agency installed GPS tracking devices in its rental cars, enabling it to track renters' location--and speed.  In the rental contracts, the fine print enabled the company to charged the renter $150 for every time the renter exceeded 79 miles per hour for more than two minutes. 

The rental company was sued by the state (!) for violating the Connecticut Unfair Trade Practices Act -- and won.  The court found the term to be an illegal penalty rather than a permissible liquidated damages provision under the statute because it charges 400 times more than the increased "wear and tear" effected by the speeding.

If this technology is available, could the state be doing this kind of speed tracking itself?  I suppose we have no right to be free from speeding regulation or any reasonable expectation of privacy in the speed of our cars.  Still, it seems creepy, no?

Posted by Ethan Leib on May 18, 2005 at 02:43 PM in Current Affairs | Permalink | Comments (3) | TrackBack

Tuesday, May 17, 2005

What Is Law School All About? Thoughts on the Third Year of Law School

Laura Appleman has been posting some provocative recent posts here on PrawfsBlawg (here and here) about whether there should be a third year to law school.  The answer to this question depends upon what we believe law school should be all about. 

I believe that training students with skills to practice law is just one aspect of law teaching.  Lawyering skills might make students adept within the current legal system, but they might not help make students have a satisfying careers or achieve in life something they consider to be meaningful or figure out a way to change the legal system. Although lawyering skills are certainly very important to learn, there can and should be much more to a legal education.

The great virtue of law school is that it is one of the few times in people's legal careers where they can think more broadly about the law and what they are doing; they can think about why the law is the way it is; how the law might be changed; and how the law affects society.  In other words, law school is a time to think about more abstract questions, which is harder to do when one is busy with the day-to-day hectic pace of practice.  The best way to learn about practicing law is to do it, which is why clinics are an indispensable part of legal education.  But the classroom studies can provide another dimension, a focus on the big questions, a way to learn to think in new ways, and to explore various issues and topics that one might not encounter in one’s everyday practice. 

In a two-year legal education, much of this exploratory time might be lost.  It might limit students’ exposure to new and interesting topics that they might not ordinarily explore.  It would make law school more of a means to an end – passing through quickly to get a degree. 


The practice of law has a lot to benefit from being seen through a broader and more critical lens.  When folks talk about being “practical” in a law school education, they typically mean learning various skills that will improve students’ ability to win cases or do other legal tasks.  But a law school education can be practical in another way that it often isn’t – it can invite thinking about the way law is practiced, how this affects the lives of those practicing it, and how it affects society and the parties involved in the legal system.  This is practical too.  Indeed, these issues are often not explored sufficiently, and students leave law school and head off into jobs where many will wind up unhappy.  Dissatisfaction rates among lawyers are very high.  There are few professions that provide the level of empowerment and potential that law can provide.  It should be shocking that with these attributes, so many lawyers are unhappy and unfulfilled.  Why does this have to happen?  How can one achieve social and political change through law?  The practical elements to these questions are often not taught enough.  As professors, we often discuss in class how the law should be, but we rarely discuss practically how one might work to change the law or the legal system. 

I agree that currently, the third year of law school is often unproductive for many students.  But it need not be this way.  Perhaps we should spend some time in our training of law students to think about ways that the practice of law can be transformed into a rewarding and fulfilling experience for more lawyers and how it might better benefit society.  Perhaps this is the practical dimension that the third year of law school could provide. 

Posted by Daniel Solove on May 17, 2005 at 11:02 PM in Daniel Solove, Life of Law Schools | Permalink | Comments (17) | TrackBack

Quick note on the wine decision

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

. . . one case at a time.

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

Third Year of Law School: Part II

Well, as I suspected, there is a wide range of opinion of whether we should continue to have a third year of law school.  Let's see if I can sum up the prevailing themes, for and against:

1) We should not have a third year of law school because it is a waste of student's time and money.  With law school tuitions at $30K for private schools and at least $15 K for public schools, per year, this is not an insignificant argument.   Plus, this argument goes, perhaps students can find a better use of their time, either by starting in the working world or doing some sort of internship, that would provide more marginal utility than another year of classes.

2) We should have a third-year option of law school, which would give students the ability to do supervised intern- and externships if they wished, but also graduate early if they so desired. 

3)  We should have  a third year of law school because students cannot learn enough in two years to become quality, ethical lawyers.  Law school does not consist only of classroom learning, but also involves learning how to become  an upstanding member of the profession.   We need this third year, the argument goes, to turn our students into better lawyers all around.  This is the "why rush students into practice" argument.

4)  We should have a third year of law school because having only two years would (a) devalue the professional degree, and (b) make the hiring pressures impossible for first years, thereby affecting the second year of law school as well. 

5)  We should eliminate law school as a profesional school, entirely, and reinstitute the LLB degree, allowing prospective lawyers to enter law school straight from high school (as they do in Europe and used to do here.  Hugo Black never attended college, but went straight into law school because he was rejected from his college choice).   

6) On the other extreme, as Orly argues for below, we should make a two year degree available for most lawyers and then force law professors to get a PhD if they want to teach.

Personally, I'd pick option #2.  Although I loved law school, and got a lot out of my third year, I don't think that it's necessary for most students.  Those who want to stay and take extra classes or do internships may do so;  those who wish to graduate early, either for professional or financial reasons, may also do so.  This already happens in many law schools I know of, where students graduate a semester early in order to pursue other options. 

Orly's idea about requiring law professors to get a PhD is interesting, but ultimately unworkable, I think.  Law is different from other graduate disciplines in that it daily affects people's lives and livelihoods.  Unlike other disciplines, such as English, we need our professors to have at least little practice/real world experience, which they would not have if required to get the PhD.  As Robert Cover wrote almost 20 years ago, violence is inherent in law's practice:  "Legal interpretation takes place in a field of pain and death." (Robert Cover, Violence and the Word, 95 Yale LJ 1601 (1986)).   Accordingly, to have a corps of professors who only approach the teaching and scholarship of law from the theoretical side would be extremely dangerous, in my estimation. 

Over at the Legal Ethics Forum, my fellow blogger David Hricik discusses the problems inherent in legal academia's disconnection from the law.    As he notes,  professors are shut up in the ivory tower enough as it is.  To require a PhD would simply exacerbate the problem all the more.

Posted by Laura I Appleman on May 17, 2005 at 05:24 PM in Life of Law Schools | Permalink | Comments (4) | TrackBack

Giving 'Em the Finger, Part IV: Property Issues

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

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

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

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

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

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

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

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

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

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

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


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

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

Blogging Can Get You Sued: Privacy Tort Suit Against Washingtonienne Blog

Back in the summer of 2004, a clerk on Capitol Hill blogged about her sexual exploits on a blog called Washingtonienne.  A very interesting article in the Washington Post Magazine describes what happened:

The instant message blinked on the computer at Jessica Cutler's desk in the Russell Senate Office Building. "Oh my God, you're famous." Before she could form the thought -- "famous, cool" -- or puzzle how she, a lowly mail clerk, had escaped obscurity, a second instant message popped up on her screen. Startled, Jessica recalls, she began to curse.

"Your blog is on Wonkette," the message said.

Jessica's blog (short for "Web log") was the online diary she had been posting anonymously to amuse herself and her closest girlfriends. In it, she detailed the peccadilloes of the men she said were her six current sexual partners, including a married Bush administration official who met her in hotel rooms and gave her envelopes of cash; a senator's staff member who helped hire her, then later bedded her; and another man who liked to spank and be spanked.

Wonkette is a popular online gossip column that was read by lots of Jessica's friends and Capitol Hill co-workers, including some of the men in her blog.

The messages warning Jessica that her private little joke had just gone very public came from a girlfriend over on the House side. . . .

Typing and clicking her mouse at a desperate pace, Jessica logged on to blogger.com, the electronic bulletin board where she'd posted her sexploits under the pseudonym Washingtonienne, and deleted her blog, hoping she'd blown her diary into oblivion.

But it was already too late.  Now, Cutler is being sued in federal district court by one of the people she wrote about in rather graphic detail.  The cause of action is the public disclosure of private facts tort, which is defined in the Restatement (Second) of Torts § 652D:

One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that

     (a) would be highly offensive to a reasonable person, and

     (b) is not of legitimate concern to the public 

Some interesting issues in this suit:

1. The blog was originally anonymous.  The people Cutler blogged about weren't identified.  Cutler referred to the plaintiff by his initials only.  Cutler was later identified as the author of the blog, and she achieved great infamy for it.  She posed for Playboy and signed a book deal for a six-figure advance. But the identity of the plaintiff was still not revealed by Culter.  According to the Post article:

Jessica was officially fired for misusing an office computer, but the men she wrote about kept their jobs. What they lost was their privacy. Jessica's blog identified them only by their initials. But amateur Internet sleuths who read the blog searched electronic databases looking for likely suspects, then posted names and photographs on the Internet. Jessica still refuses to name the men publicly.

The complaint alleges that the plaintiff was still identifiable by the details and initials used.  To what extent should Cutler be liable if she didn’t directly identify the defendant but gave a lot of details so that he could be identified by others?    

2. In order to bring the suit, the plaintiff reveals his name in the complaint.  In Europe, the common practice is for such plaintiffs to proceed anonymously; in the U.S., proceeding anonymously is rare.  It seems odd that in the U.S., a plaintiff must increase and exacerbate the disclosure in order to seek legal redress. 

3. To what extent should Cutler have a right to talk about her sexual exploits?  Should she be liable under the First Amendment for speaking about the lurid details of her own life?

For those interested in the public disclosure of private facts tort, I’ve written an article, The Virtues of Knowing Less: Justifying Privacy Protections Against Disclosure, taking on Eugene Volokh, who contends that the public disclosure tort violates the First Amendment.  I argue that the tort is valid under the First Amendment, and I justify normatively why the tort is a good thing, too. As for the Cutler case, I haven’t yet formed much of an opinion, but I'm inclined to think that the plaintiff has a good case.    

Posted by Daniel Solove on May 17, 2005 at 04:00 PM in Blogging, Daniel Solove, Information and Technology | Permalink | Comments (2) | TrackBack

Why I Write. (No, Really, Remind Me Again -- Why Do I Write?)

In keeping with the ongoing peek behind the veil of law school teaching on this blog (or blawg, or...[sigh]), I want to ask the question: why do we write?  This is a surprisingly difficult question on which I'd be curious to hear from my fellow bloggers (or blawgers, or...forget it).  Let me limit it to the question, why do we write legal scholarship?  Why do we blog can be left for another time, or perhaps for a discussion between us and our respective deans.

There have been some interesting exchanges on this question from time to time, and I recommend the articles in the Fall 2004 issue of the San Diego Law Review.  I attended the AALS session at which these papers were delivered, and I think the question has remained with me ever since.  One thing that particularly struck me was Kimberly Yuracko's statement that she wrote legal scholarship "to change the world."  She may have spoken these words, or I may have misremembered: the article refers to writing as "a political world . . . . to advocate for social changes that will make society more just and encourage people to live more satisfying and rewarding lives." 

She is suitably realistic about the actual prospects of achieving this goal in her paper; but I remember hearing the words and having a strong negative reaction.  I think writing legal scholarship (or most other kinds of scholarship in the humanities) to change the world is generally a mug's game.  If that were truly the goal, why don't more legal scholars write basic empirical or doctrinal work that might actually achieve marginal change?  Why, in particular, do so many people who do want to "change the world" write precisely the kinds of pieces -- heavy on the theory and systematizing -- that is least likely to do so?  If the goal is actually to change the world in some practical utilitarian sense, why not stay in practice?  I don't want to be too critical.  Surely it's a noble goal, if it's actually sincere and not just self-serving.  And it is possible; I happen to think Dan's writing has a fair chance of doing so, although it is highly theoretical, because it narrows in on specific issues and because he practices what he preaches.  (I should say that I have no idea why he writes.)  But most people who write to change the world know they won't do so; yet they keep writing. 

Why else, then?  Well, "for tenure" is always a good reason, and both Yuracko and Yale Kamisar mention it.  "For fun" would be another reason, but Kamisar is rightly skeptical of it.  Legal scholarship is fairly hard work, especially because in our precedent-oriented field, there is very little free and easy movement of pen across paper and a great deal of collation and cross-referencing.  "For money" would work in many fields -- and don't forget what Samuel Johnson had to say on the subject.  I assume I am not the only legal scholar who is invariably asked by his parents, upon announcing that some journal or other is about to publish my work, "And how much will they pay?"  Um....  "For tenure" is the closest we generally come to this reason, or "for promotion," etc.

For me -- and this may be a way of dodging the question rather than answering it, exactly -- it's utils all the way down.  I write because I more or less like writing, and am more or less compelled to do it.  I write because I love finishing writing: the most enjoyable part of a piece of writing is often the accomplishment one gets in typing the words "the end."  I write because I keep thinking of the look of my name and work all neatly typeset and printed -- although, when my work finally comes out, I am always struck by the sense that it's not real, that the other journals mean something but in my case someone just set the thing in type as a favor.  I write for my own ego; because I want to enhance my reputation; because I want to be cited, and invited to nifty symposia, and all the rest of it; I write because (and I think this is what most people who say they write to "change the world" really mean) I kind of want to change the world too, but not in any way that would unduly interfere with my other goals or endanger my class status, and writing is a reasonable way to strike that balance.  Not least, I think, I write for fear of death.  The grave beckons, and the cold immortality of being preserved in a library cellar somewhere is better than none at all. 

Why do you write?              

Posted by Paul Horwitz on May 17, 2005 at 03:34 PM in Life of Law Schools | Permalink | Comments (11) | TrackBack

The Lawst Professor: Graduate Degrees in Law

American legal education in the U.S. is anomalous when compared to the rest of the world and to the rest of the campus. In most parts of the world, including Europe, Canada, Australia and New Zealand, and to the best of my knowledge, most parts of Asia, to become a law professor you usually need study more than simply to become a lawyer. That is also true in the U.S. in almost any type of professorship and discipline. Even the American legal academy has long realized that this makes sense, but has compensated for the historical anomaly through a patchwork of fellowships, lectureships, post-doc center slots, and the all star jd/phd in something other than law...

What does this patchwork, and lack of a real graduate academic degree in law, mean for legal academia? First, it produces a thin idea of inter-disciplinarity that doesn't recognize law as a semi-autonomous theoretical field. Second, it entrenches the hundred of years of supremacy and inner-breeding of less than a handful of law schools, and curtails true (and much needed) competition, innovation  and specialization among many more excellent law schools. Third, it means that law professors have less of an opportunity to think seriously about training the next generation. Their work with students on paper and research is hit and miss or pure luck. Some of their students, in few schools, might choose the academic path; most will not.  Fourth, law school admissions does not fine tune for academia. Everyone gets admitted using the same criteria, whether they will become lawyers or professors. Do we really think you need the same skills, experience and character for such different careers? Fifth,  it opens the space for the "foreigners." (LLM? S.J.D.? what is that? are you a foreigner? did you screw up your first degree in law?) We come to Harvard, Yale, Columbia, NYU, Chicago, Michigan, and we find faculty thirsty for mentorees that are already ready for serious research and that will stick around for a long enough time to produce serious work, to present in colloquia, to find their own voice and challenge their own mentors on their own terms. Isn't that what we all dream about?

Imagine a different model: a professional school that has a two year degree program for those going to practice, let us call it an MBA. And a 4-6 year degree for those going to academia, let us call it a PhD. Yes, only the latter can get you a tenure-track position in a serious research business school.

Posted by Orly Lobel on May 17, 2005 at 01:37 PM | Permalink | Comments (5) | TrackBack

Filibuster Week

By all accounts, this may be the week that the filibuster rule change is pushed through, at least as to judicial nominations (a distinction from other presidential nominations that, as I've said, is constitutionally untenable).  I've discussed this subject on a number of occasions: see here, here, here, and here.  According to the New York Times, leadership talks on the issue have broken off, leaving only the efforts of a bipartisan group outside the leadership, and both parties' weighing of general public opinion against the heightened passions of their core interest groups, to avert the rule change.  A few comments:

1) Kaimi has written on this blog to partially concur with Rick Garnett's argument that we ought to drop the labels and address judicial nominees on the merits.  No argument here.  But neither Kaimi nor Rick are arguing about the rule change -- only about the underlying debate.  Debate on the merits is, I think, not well-served by the filibuster as it currently operates, essentially as a non-deliberative veto.  That's why, as I've written, I favor restoring the traditional "speaking" filibuster.  Such a move would, I think, spark more and better debate in the Senate chamber and force both sides to decide, given the effect on the Senate agenda, which nominees are truly worth going to the mat for.  In any event, whether or not we need better debate on the merits, I believe the nature of this rule change -- in particular the prospect that the Vice President will make a constitutional ruling, in violation of Senate precedent and without due consideration of the underlying constitutional arguments -- is important on its own terms.  After all, for those who care more about the courts than the Senate, we wouldn't look favorably on a judge who said, "The parties lack standing here -- but the issues are important, so I'm deciding the case."

2) Further to my last point, make no mistake -- it is difficult to conceive of a rule change to the judicial filibuster that will not violate Senate precedent.  Rule changes are currently subject to debate, and that debate can not be ended by a simple majority.  That is why the Senate leadership has bruited about the idea of having the VP and/or Presiding Officer make a direct ruling on the constitutionality of the judicial filibuster, which can then be appealed, with the motion to table the appeal subject to majority vote: to effect the rule change without debate.  I would be happy to see a meaningful debate in the Senate about whether the entrenchment of Senate rules against pure majority change is itself constitutional: Mike Rappaport has argued that it is not, and it is an argument worth taking seriously.  But that is not the debate currently ongoing in the Senate.  As it stands, pretty well any manoeuvre by the Senate leadership will involve a violation of Senate precedent.

3) Why haven't we been having the broader debate about whether rule changes can be entrenched against a majority vote?  If this is the best constitutional argument, why hasn't the leadership focused on it?  Because, I think, they would rather win unfairly with the patina of a bad constitutional argument that they think they can limit to its facts, than win fairly with a good constitutional argument that they find inexpedient.  If a majority could always change the rules, leadership in a closely divided Senate would be a devalued good, and the current leadership would like to maximize the benefits of their leadership.  I may be wrong, and I don't want my principled opposition to the filibuster rule change to descend into questioning the other side's motives.  But I think the push to change the rules on judicial filibusters exhibits a strong concern for expediency over a strong concern for Senate tradition and constitutional principles, and I think it is a matter of grave concern.  This is not the first time one or both parties have privileged expediency over consistency in the operation of the Senate rules (for a discussion of a GOP change to Senate Rule 16, which they promptly reversed upon regaining power, see here), and it is highly unfortunate.

4) Let me be clear that my concerns are not about Democratic advantage, or about the particular judges who are currently under consideration.  For present purposes (indeed, for most purposes), I could care less whether the filibuster helps or hurts Democrats, now or in the future.  I care about the institution, which I think is ill served by the kinds of tactics that are contemplated in this rule change.  And I care about constitutional principles, which the Senate and the Vice President are oath-bound to obey too -- and I continue to find the constitutional arguments against the judicial filibuster transparently weak.  I also find those arguments especially unprincipled in the extent the leadership has argued that one can draw distinctions between judges and other advice-and-consent nominees, or between different categories of Article III judge.  At the very least -- and this is fundamentally what I have argued from the beginning of these posts -- we ought to demand a far clearer explanation from these constitutional officers of their constitutional arguments, and we ought to hold them to the full implications of their argument.  We ought to demand from them a full measure of clarity, consistency, and sincerity.  After all, as I wrote here some time ago, the Vice President has said in the past that faced with a conflict between his orders and the Constitution, a constitutional officer ought to resign rather than violate the Constitution.  The Vice President may be utterly sincere if he makes a constitutional ruling against judicial filibusters; but surely we ought to press him on the point.

5) Finally, let me respond to a very thoughtful and, for the nonce, anonymous interlocutor who has pressed me on my previous posts.  Time prevents me from making a full response to this person's interesting questions.  But let me take on three points.  The most prominent is the question whether my arguments are "imposing judicial norms on a branch of government to which such norms do not clearly apply[.]  I agree that the proponents of reform have a political burden to explain themselves (and in a principled way), but how are they constitutionally/legally obligated to do so?"  I think are differences on this point are more apparent than real.  I have not argued that any Senator, or the Vice President, is legally obligated to explain him- or herself.  I have argued that they have an obligation to obey their oath to support the Constitution, and that they ought therefore to interpret and apply the Constitution in a sincere, obedient, and principled way -- and that we, the people, should press them to do so.  I have not said that these officers are obliged to issue reasons -- but we ought to press them for their reasons, and those reasons ought to be cogent and consistent.  I think the degree to which we have allowed prominent constitutional officers, most especially the Vice President, to make poor constitutional arguments in this affair reflects poorly on them and on us, and suggests the degree to which both sides -- the rulers and the ruled -- have politicized and trivialized the Constitution outside the courts.  Second, a technical point: I was asked whether my statement that the Vice President is obliged to submit any constitutional questions to the Senate, rather than simply rule on them, describes Senate precedent.  The short answer is: yes.  Finally, and relatedly, my questioner asked why the VP could not simply make a ruling from the chair ruling that extended debate on a judicial nominee is out of order, whether for constitutional reasons or otherwise.  Again, as I have said, either route violates Senate precedent: the VP may not make constitutional rulings, but must submit them to the Senate for debate -- which is precisely what the leadership needs to avoid here.  Nor is there any basis in Senate precedent for simply saying that debate is dilatory at some point, outside of specialized rules in such areas as the budget process. 

So I end more or less where I began: one way or another, the leadership will kill some Senate precedent or other this week if it pushes through its rule change.  For those of us who care about the lasting effects on the institution, this is a matter of concern and we should demand good reasons in favor of such a violation of Senate norms.  For those of us who care about the Constitution, I think the arguments the leadership and its proxies have put forth so far fall well short of the mark.                  

Posted by Paul Horwitz on May 17, 2005 at 01:02 PM in Law and Politics | Permalink | Comments (5) | TrackBack

Women and last names

Volokh asks why professional women who consider themselves feminists nevertheless frequently choose to change their last names upon getting married.

But he only wants responses from women. 

Here at prawfsblawg, we are happy to provide an opportunity for everyone to weigh in.

UPDATE FROM ETHANDissemination.org had a long dispute about a similar issue here, when France abandoned its age-old practice of requring children to take their father's name.  It also covered whether married people should have separate accounts here.  My position, in case it isn't obvious: women who take their husband's last names are doing women as a class a tremendous disservice.  I suspect AmosAnon1 disagrees under his assumption that all choices are liberating and should be affirmed.

Posted by Hillel Levin on May 17, 2005 at 11:09 AM in Culture | Permalink | Comments (8) | TrackBack

Monday, May 16, 2005


In response to some of my blogging about Organ Donation, a representative from an organization called "Lifesharers" plugged his organization in the comment section.  He wrote:

If you're going to donate your organs when you die, please donate them to registered organ donors.  By doing so, you'll create an incentive for others to do the same.  This incentive can put a big dent in the organ shortage, which kills over 6,000 Americans every year.

If you want your organs to go to other registered organ donors, please join LifeSharers at http://www.lifesharers.com.  Membership is free and open to all.

This is an intriguing idea but should give us pause.  Although--all things being equal--it seems reasonable to give preference to donors, plenty of people don't sign donor cards because they just don't know that they can.  Moreover, as I've explained, the decision ultimately rests with the family rather than the brain dead potential donor, so signing a donor card doesn't ensure that your organs can be harvested when/if they become available.  Finally, it seems arbitrary whether someone has thought to register with this particular organization.  In short, I suspect this group's heart is in the right place.  But the execution seems to prejudice people that may need the organs more--and people who may not be blameworthy in any way so as to justify withholding organs from them.  Even worse, people who are blameworthy (by destroying their own organs) can get themselves preferential treatment by signing up. 

The organization has thought through some of these issues here and on its blog, but I remain skeptical.  No doubt there are problems with how organs get allocated, but this doesn't seem like the solution.  Thoughts?

Posted by Ethan Leib on May 16, 2005 at 05:46 PM in Current Affairs | Permalink | Comments (5) | TrackBack

Legal Affairs Debate Club

The Debate Club looks promising this week: Should states abolish marriage?

In the first post, Mary Lyndon Shanley begins to construct her argument that, rather than simply provide civil marriage to same-sex couples, states should do away with "marriage" altogether and replace it with civil unions; "marriage" should be a term employed by religious groups.

This is something I've given a great deal of thought to.  I think that one of the reasons same-sex marriage is taboo for so much of the country is that marriage is still identified as a very religious institution.  There is something odd about the fact that being united in a church or synagogue is itself sufficient to confer a secular social status.  Are there any other civil functions akin to presiding at a wedding that can be performed by clergy? 

It is easy to see why, historically, marriage straddles the line between church and state.  But it is also easy to see that if we were designing the institution from scratch today, we'd probably come up with something entirely different.

In principle, therefore, I agree with Shanley.  Hers is even a solution that religious people could embrace (putting aside the current political tenor, which makes it impossible), for it reinforces the religious character of marriage.  Recall that one of the strongest arguments in favor of the general separation between church and state is that religion itself becomes corrupted when it is entwined with the state.

Alas, of course, this policy proposal is unlikely to win many adherents, for a variety of practical reasons.

I look forward to reading this Debate Club, and I'm particularly interested in seeing what Shanley has in mind for civil unions: to whom would they be available (e.g. just couples, or also groups), and how much would the rights and responsibilities associated with civil unions look like the rights and responsibilities currently associated with marriage?  In other words, are we just talking about a semantic change, or does she have in mind much larger reforms?

Posted by Hillel Levin on May 16, 2005 at 03:09 PM in Deliberation and voices | Permalink | Comments (1) | TrackBack

PrawfsBlawg's Dan Markel in the Spotlight

Over at CrimProf, Dan Markel is featured in the spotlight

Posted by Daniel Solove on May 16, 2005 at 01:40 PM in Criminal Law, Daniel Solove | Permalink | Comments (0) | TrackBack

Winos rejoice

The Supreme Court has just handed down its opinion in the wine cases.  It holds: Under the commerce clause, if a state allows direct-to-consumer shipment by in-state producers of wine, it must also allow direct shipment by out-of-state wineries.  (Having not read the opinion, I won't stand by that summary if pressed.)

Frankly, I thought this was not a very difficult case.  What I find surprising is that it was 5-4.  Even more surprising?  The lineup: Kennedy Scalia, Souter, Ginsburg, and Breyer in the majority; Thomas, Stevens, O'Connor, and Rehnquist dissent.

This just goes to show, once again, that the Court is not quite made up of the easily-defined political factions we usually identify.  And that's a good thing.

Scotusblog has the opinions, which I look forward to reading.

Posted by Hillel Levin on May 16, 2005 at 11:41 AM in Law and Politics | Permalink | Comments (5) | TrackBack

Brown and Originalism: A question for Professor Balkin

Over at Balkinization, Jack Balkin opines (at length, I should add) that the originalist interpretation favoring Brown is pretty weak; and also argues that it looks like originalists are only making this weak argument in order to achieve certain results.

I link it both because it is interesting on its own terms, and also because it relates to my own earlier post on Brown and originalism.  (Where's the linklove, Professor Balkin?)

Professor Balkin: do you think Whelan et al., favor Brown because they can't imagine a world without Brown, or because they realize that if they don't embrace Brown, lots of people will be scared off from originalism?  (My earlier post suggested the latter.)  There's a distinction there, albeit a thin one.

Posted by Hillel Levin on May 16, 2005 at 11:23 AM in Legal Theory | Permalink | Comments (5) | TrackBack

Sunday, May 15, 2005

Do we need a third year of law school?

Most lawyers take for granted that law school is a three year course.   But do we really need that last year?   Historically, even after American lawyers switched from the apprenticeship model to a more formalized system of legal training at the turn of the century, law school lasted, at most, between 18 months to two years.  (I've written about the reasons underlying the switch from the apprenticeship system to a law school model here).   So the three-year term is a relatively new invention, and one that has come under some criticism as of late.

So why the third year?  As the old chestnut goes, "the first year they scare you to death, the second year they work you to death, and the third year they bore you to death. " How much truth is there in that?

I can see why law schools would want to keep a three year term;  the financials alone make it worth their while.  And professors, theoretically, are interested in passing on as much knowledge as possible to their students, as well as serving in mentoring relationships, both of which are better achieved in three years rather than two.

But what about the students?  Is there any compelling reason why law students are better off in a three year course of study, rather than two years?  Does that extra year of coursework make students better lawyers?  Does it foster a greater understanding of the law?  Or should we make law school more like business school, a two year course of study?  

I'd love to get comments from current students, lawyers and professors on this.

Posted by Laura I Appleman on May 15, 2005 at 09:48 PM in Life of Law Schools | Permalink | Comments (23) | TrackBack

Security, Privacy, and Shark Bites

Recent discussions regarding the Real ID Act follow the same general path as many discussions about the trade-offs between security and privacy.  These discussions typically begin with taking a security proposal and then weighing it against its costs to privacy and civil liberties.  What is often not done, however, is to put the security proposal through meaningful scrutiny as an effective security measure.  Instead, it is often assumed that the security measure is worthwhile, and the only question is whether it is worth the trade-off in privacy and civil liberties. 

But what if security measures against terrorism were examined with a more critical eye?  I believe that the risk of terrorism is not being assessed in a rational way and is receiving a disproportionate amount of resources.  This can have grave consequences, probably resulting in significantly more loss of life than a major terrorist attack.

Consider the risk of death from terrorism on US soil.  Here are the statistics I could find:

-- 9/11 – 2749 fatalities

-- First WTC bombing – 6 fatalities

-- Oklahoma City bombing – 169 fatalities

-- Unabomber – 3 fatalities

-- Olympic Park bombing – 1 fatality

The total is 2928 fatalities.  This has occurred over the past 15 years.  That’s about 195 lives per year.   Now, consider other risks.  Flu deaths are estimated to be around 30,000 to 40,000 in a good year. Terrorism is nowhere near this danger level.   Another 40,000 die in auto accidents each year.  On the scale of things, dying from terrorism is a very tiny risk.   

Dramatic events and media attention can cloud a rational assessment of risk.  This reminds me of the summer of the shark bite, when a barrage of media coverage about shark bites lead to the perception that such attacks were on the rise.  This wasn’t the case at all.  Consider the following from a CNN article:

The media coverage was prompted by a bull shark biting off the arm of an 8-year-old boy on a Florida beach July 6, 2001. Overnight, shark bites and sightings became major international news, triggering countless TV news reports and front-page stories. . . .

Lost in the hoopla was the fact that in 2001 there were 13 fewer attacks worldwide than the year before, Burgess said. The same year, four human deaths were linked to shark bites compared with 13 in 2000, he added.

Certainly, we should guard against terrorism, but rarely do discussions about the sacrifice of civil liberties explain the corresponding security benefit, why such a benefit could not be achieved in other ways, and why such a security measure is the best and most rational one to take.

What is troubling is that the government could reduce many risks we face if it expended more resources to address these risks.  The government could do quite a lot to prevent flu deaths, such as subsidize more vaccines.  Instead of spending millions studying data mining, maybe that money could be used to study ways to better prevent motor vehicle deaths or injuries.  Instead, because terrorism is dramatic and gets lots of news coverage (like shark bites), it gets a disproportionate amount of attention.

Another risk that is not getting sufficient attention, in my opinion, is the risk from a pandemic of SARS or bird flu.  This could kill millions of people.  Consider the following from CNN:

Pandemics usually occur every 20 to 30 years when the genetic makeup of a flu strain changes so dramatically that people have little or no immunity built up from previous flu bouts.

"During the last 36 years, there has been no pandemic, and there is a conclusion now that we are closer to the next pandemic than we have ever been before," Stohr told reporters.

There are certainly grave risks from terrorism, and we should not ignore these risks.  But we must prioritize risks.  Even focusing on terrorism alone, we must recognize that not all terrorist risks are the same.  There’s only so much damage one can do by blowing up a plane.  In my view, the most serious risks of terrorism include nuclear or biological weapons.  Protecting against bioterrorism would involve many of the same measures to ready ourselves for a pandemic.  Regarding nuclear terrorism, it seems far from clear that increased identification or using databases to spy on people are a good way to address this risk.  Consider this Washington Post article about our response to nuclear terrorism:

The obvious effective way to combat nuclear terrorism seems to be preventing nuclear material from getting into the hands of terrorists.  Nevertheless, the government throws tons of money into identification requirements and into research into data mining, which have speculative benefits at best.  In the meantime, more obvious and effective security measures aren’t being undertaken.  Ironically, those who advocate for security should be just as outraged as the privacy advocates. 

But more than 3 1/2 years after the Sept. 11, 2001, attacks, the U.S. government has failed to adequately prepare first responders and the public for a nuclear strike, according to emergency preparedness and nuclear experts and federal reports. . . .

Security experts consider a terrorist nuclear strike highly unlikely because of the difficulty in obtaining fissionable material and constructing a bomb. But it is a conceivable scenario, especially in light of the lax security at many former Soviet nuclear facilities and the knowledge of atomic scientists in such places as Pakistan.

Posted by Daniel Solove on May 15, 2005 at 04:47 PM in Daniel Solove, Information and Technology | Permalink | Comments (1) | TrackBack

Friday, May 13, 2005

Long Overdue?

In light of our recent conversations about the MBE as a work of serious jurisprudence, it seemed serendipitous that I ran across a post by Shubha Ghosh, over at AntitrustProf Blog, who links to a complaint filed recently against BarBri and West for anticompetitive behavior.  I have no sustained thoughts on the merits, but it can't be pure coincidence, can it, that BarBri is the only player in town??  There must be some 3L's and recent grads who might have some reactions too.

Posted by Administrators on May 13, 2005 at 01:51 PM in Life of Law Schools | Permalink | Comments (3) | TrackBack

Originalists and Brown

Randy Barnett over at the VC has a good post on originalism and Brown.  Non-originalists use Brown to attack the acceptability of originalism.  That is, if originalism can't take us to Brown, then originalism is unacceptable.  Barnett points to articles by Judge McConnell and Edward Whelan that argue that originalism can get us to Brown, and further argues that non-originalists shouldn't be trusted to provide a reasonable originalist interpretation (particularly when the very goal of presenting such an interpretation is to undermine originalism).

That's all well and good.  (My own thought is that textualism can get you to Brown without resort to second-level interpretive theories like originalism or "the living Constitution.")

But Randy, don't you give away the ball game when you engage in this debate?  Doing so seems to implicitly accept the premise that "If originalism can't take us to the desirable result, then originalism is unacceptable."

The proper originalist response is to say, "We can talk about the proper outcome in Brown, but from our perspective, the outcome of that inquiry is irrelevant to the question of which interpretive techniques are most reasonable."

Let me ask the question this way, Randy: What if originalism couldn't take us to Brown?

Posted by Hillel Levin on May 13, 2005 at 11:16 AM in Legal Theory | Permalink | Comments (9) | TrackBack