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Saturday, April 29, 2006

Very Bad Idea for Democrats

Tim Roemer has a really bad idea for how Democrats should sell themselves to the public during mid-term elections: use the slogan "Had enough already? Vote Democrat!"

While this sentiment may be one worth expressing, I have a suspicion people often don't vote Democrat because they can't for the life of them figure out what the Democrats stand for.  Even though the Republicans have very low approval ratings, I think that when asked people can more easily identify what that party stands for.  I'd urge Democrats to find a non-whining, non-negative voice that might resonate with the voting public.

Posted by Ethan Leib on April 29, 2006 at 02:26 PM in Article Spotlight | Permalink | Comments (22) | TrackBack

Getting Snubbed by the Harvard Blogging Conference

You may have noticed that no one from Prawfs participated in the great law bloggers convention at Harvard yesterday.  Unlike Brian Leiter who was invited but refused to participate because he thought he had better things to do (as the subject of "blogs as scholarship" was "a topic of no intellectual interest"), none of us were invited.  We're not bitter or anything -- and appreciate Dan Solove's punchy summary of the whole thing

Posted by Ethan Leib on April 29, 2006 at 02:18 PM in Life of Law Schools | Permalink | Comments (11) | TrackBack

Friday, April 28, 2006

Using Sexual Harassment Policies to Harass Sexual Minorities?: The World of Warcraft Example

Here’s yet another data point in the discussion about whether sexual harassment law and private harassment policies are harmful to other interests—either First Amendment interests, or the interests of people of color and sexual minorities—or whether the fear is overblown. (Previous posts on the topic from Joe and me are here and here.) While I cited the Friends case as a possible example of overblown fear of sexual harassment law, this story seems to represent a good example of the queer theory version of the fear.

For the non-gaming readers of prawfsblawg, World of Warcraft (WoW)  is a massively multiplayer online roleplaying game (MMORPG).  Subscriptions are sold by the private company Blizzard. And, in case you think controversy surrounding WoW is isolated to some kind of irrelevant and tiny geek subculture, it might be interesting to know that WoW boasts over 6 million active subscriptions.

In Newsweekly reported on the situation back in January:

Sara Andrews thought it was a big misunderstanding when she received an e-mail from a game master in Blizzard Entertainment's popular online role playing game "World of Warcraft" citing her for "Harassment - Sexual Orientation.". . .Andrews' original posting read: "OZ [the name of her guild] is recruiting all levels ¦ We are not 'GLBT only,' but we are 'GLBT friendly'! (guilduniverse.com/oz)"

In her follow-up letter to the company, Andrews explained that there was an obvious misunderstanding and that she was not insulting anyone, but merely recruiting for a "GLBT friendly" guild.

The response from Blizzard was, "While we appreciate and understand your point of view, we do feel that the advertisement of a 'GLBT friendly' guild is very likely to result in harassment for players that may not have existed otherwise. If you will look at our policy, you will notice the suggested penalty for violating the Sexual Orientation Harassment Policy is to 'be temporarily suspended from the game.' However, as there was clearly no malicious intent on your part, this penalty was reduced to a warning."

Blizzard's stance was clear that recruiting for a guild using "GLBT" was inappropriate as, the company said, it may "incite certain responses in other players that will allow for discussion that we feel has no place in our game."

Gamer John Blatzheim, who heard of Andrews' situation, e-mailed Blizzard to express his concern of a double standard that game masters would send her a warning that she could not use "GLBT" as an advertisement to express a safe place for gay gamers after an incident a few months ago where a plague occurred within the game and players yelled in general chat, "Don't get the AIDS!"

"Many people are insulted just at the word 'homosexual' or any other word referring to sexual orientation," Blizzard responded to Blatzheim in an e-mail . . . .

. . .

Sara Andrews has stated that she will not be renewing her World of Warcraft account due to Blizzards lack of support for a GLBT friendly environment, "It seems to be OK for general chat to be flooded with, 'That's so gay!' and 'I just got ganked! What a fag!' yet advertising for a GLBT friendly environment where we don't have to deal with such language is deemed inappropriate."

Blizzard’s tune changed, however, after Lambda Legal interceded on Andrews’ behalf.  Kotaku has a good summary of how Blizzard finally apologized in March, characterized what happened as a big mistake, and clarified that its harassment policy does not prohibit players from being out of the closet.

I wouldn’t be surprised if Blizzard’s game masters had interpreted Blizzard’s rather clear and sensible written harassment policy to impose a general norm of silence about sex. As Joe pointed out in his post, while the law itself tends to create a pretty narrow definition of what constitutes harassment, it may have encouraged private entities to create broad harassment policies to avoid liability.

But this story appears to be about more than fear of liability. Fear of liability would lead one to police sexual talk across the board, not to interpret a harassment policy so as to force its purported beneficiaries into the closet, while leaving untouched heterosexual talk of dating, sex, marriage, and even insulting epithets. Instead, this does look to me like a case of rearticulating old fashioned discrimination against sexual minorities in terms of “legitimate” attempts to stop harassment.

Posted by Gowri on April 28, 2006 at 06:23 PM | Permalink | Comments (1) | TrackBack

Live Blogging the HLS Panels

Over at Legal Theory Blog, Larry Solum is doing a great job keeping up with the various presenters of the bloggership conference.  I had my exam to administer yesterday and so wasn't able to hustle up to Beantown in time to witness the events, but I had the chance to read a bunch of the papers, which some of you will enjoy. For instance, in her paper, (blog-loving anti-blogger) Kate Litvak shrewdly notes that one of the downsides of blogging as a scholarship medium is that there are no penalties to being silent in response to other peoples' scholarship efforts on blogs. She is surely right, but I wonder if sometimes less is more. Great feedback is wonderful to have and it's a super thing if we can get people to comment on works in progress.  But it's a bit oppressive to feel that readers and writers must peacock with our playmates by feeling the need to always have to pipe up, lest one feel, um, inadequate.  At least here on these pages, the conversation is opt-in, and thus a little more amped-down.  Not entirely a bad thing, methinks.

Today's meme, btw, is Orin finished up his presentation to thunderous applause. When the guy begins his presentation by checking his Sitemeter hits and presenting slides wryly titled: How Email is Changing Legal Scholarship, it's hard to blame the adoring masses  :>)

Posted by Administrators on April 28, 2006 at 05:17 PM in Life of Law Schools | Permalink | Comments (0) | TrackBack

"Futile Care" and unexpected alliances

Joseph Bottum has this, at the First Things blog, about what strikes me as a troubling case in Houston, and what it suggests about unusual political alliances:

. . .  Wesley Smith reports on the case of Andrea Clark, down in Texas—where a state “futile-care law” has allowed the bioethics committee at St. Luke’s, an Episcopalian hospital in Houston, to reject a patient’s desire for treatment.

As Smith puts it, “The idea behind futile-care theory goes something like this: In order to honor personal autonomy, if a patient refuses life-sustaining treatment, that wish is sacrosanct. But if a patient signed an advance medical directive instructing care to continue—indeed, even if the patient can communicate that he or she wants life-sustaining treatment—it can be withheld anyway if the doctors and/or the ethics committee believes that the quality of the patient’s life renders it not worth living.”

In other words, you’re free to choose, as long as your choice is for death.

Andrea Clark’s family faced a problem when they were delivered a notice that the patient must be removed from the hospital within ten days. The local hospitals have joined, Smith reports, in a “Houston City-Wide Guidelines on Medical Futility,” and will not contradict each other’s futility decrees.

But in response to the embarassment generated by the rapid response of the pro-life world, St. Luke’s has offered to pay the $14,000 or more it will cost to move Andrea Clark to a hospital in Illinois that contacted the woman’s family and offered to take her. Clark’s sister reports that the hospital gave them one day to decide—declaring that it would pay only half the cost if the family took a second day, and nothing if the family took more time.

The conservative pro-lifers moved this story, through the network and quick responses put in place by the death of Terri Schiavo. But the appeal for Andrea Clark originally appeared on a left-wing website, Democratic Underground, where the response was strong and heartfelt.

For years, many activists against euthanasia and physician-assisted suicide—Wesley Smith among them—pitched their appeal primarily to the Left. Smith was a Naderite, co-authoring books with Ralph Nader, and he, like many others, originally thought of the fight in leftist terms: the struggle of citizens against large-corporation hospitals, insurance companies, and HMOs. But they got very little traction on the Left, and gradually found themselves preaching to the pro-life community on the Right.

That the pro-life political connection isn’t necessary seems to be proved by the reaction to Andrea Clark’s story on Democratic Underground. But maybe that’s too strong a conclusion. Abortion has so badly skewed American politics, it’s hard to see what natural groups would be formed. Still, it does suggest there is a constituency for Democrats who could successfully buck their party on the life issues.

Bob Casey, call your office?

Posted by Rick Garnett on April 28, 2006 at 02:04 PM in Law and Politics | Permalink | Comments (2) | TrackBack

The Quasi-9/11 Case Nobody Knows About

United 93 opens today, and I have all kinds of angst about it, which, near as I can tell, is mostly recounted in Manohla Dargis's deft review in today's New York Times. One point not made in the review, but which I also think bears mentioning, is that it seems entirely possible, if not likely, that New Yorkers (e.g., me) will experience the movie quite differently from how it's experienced by others. I don't know if it'll be in any particular direction, but different. I think I'll go see it, but not because I want to -- sometimes, I think, there are movies that simply need to be seen, of which Schindler's List and Hotel Rwanda strike me as two well-known, if perhaps controversial, examples.

But the deeper issues arising from the movie give me good cover for blogging about an Eleventh Circuit decision from last Friday that seems to have evaded the notice of the blogosphere -- United States v. Arbane. What makes this a valid, if odd, segue is that Arbane claims to have smuggled in at least two of the 9/11 hijackers from South America (even though the federal criminal case is "only" about a conspiracy to import cocaine).

That's only a segue, though. What's substantively fascinating about the case is the extent to which Judge Wilson, dissenting, appears to have an... umm... unusual view of federal conspiracy law.

Specifically, Judge Wilson's dissent suggests that, in a conspiracy-to-import case, the government need not prove that two co-conspirators agreed to import drugs.  He suggests that only the defendant should have to have agreed to import drugs, and that the government needn't prove anything about the co-conspirator (which, in this case, would have been difficult, since the main co-conspirator was a government informant, and the only remaining conspirator didn't know anything, except that the drugs might be leaving Ecuador, but not that they were going anywhere specific, like, oh, I don't know, the United States).

I'm not exaggerating. To quote Judge Wilson:

Judge Barkett’s opinion seems to read a new essential element into the offense of conspiracy-to-import: knowledge on the part of an unindicted co-conspirator as to the intended destination of the drugs. Such a reading places an enhanced burden on the government that is not supported by our precedent, which speaks in terms of the defendant’s knowledge, not the knowledge of an unindicted co-conspirator such as Lopez-Posada. . . .

   Evidence of an unindicted co-conspirator’s particular knowledge as to the object of the alleged conspiracy (here the importation of drugs into the United States) is certainly relevant to establishing the existence of a conspiratorial agreement, but it is the agreement–not the unindicted co-conspirator’s particular knowledge–that is the essential element to be proved. Because a conspiratorial agreement can be established by circumstantial evidence, one can conceive of numerous plausible scenarios in which the existence of a conspiracy to import drugs into the United States can be inferred without any specific showing as to an unindicted coconspirator’s knowledge of its object.

I have two big problems here, not even counting the fact that Judge Wilson doesn't provide any examples of these "numerous plausible scenarios."

First, if the drugs are being imported somewhere else, how does the United States have jurisdiction? That is, isn't an essential element of a conspiracy to import drugs (presumably into the United States) some agreement to import drugs into the United States? That is, regardless of where the drugs were going, there wasn't an agreement between two people to do anything specific with respect to the United States...

Second: If so, how can you have an agreement with just one person?  I didn't pass the New York bar by much, to be sure, but I knew at least that an agreement is a meeting of the minds, and, as Judge Barkett notes for the majority:

[I]t is impossible to have an agreement absent knowledge by both parties as to what it is they have agreed to accomplish. There exists no scenario where a person will have agreed to a conspiracy without knowledge of the essential nature of the conspiracy – the very definition of an “agreement” is a meeting of the minds, and there can be no meeting of the minds if only one mind contains knowledge of the object of the agreement.

Maybe I'm missing something here -- I'm certainly not a crim. expert, especially in this company, but this just smelled wrong from the outset. Indeed, Arbane's apparent evildoer-ness notwithstanding, there's only so far the law can bend over before it ends up on its back.

At least it was only a dissent.

Posted by Steve Vladeck on April 28, 2006 at 03:08 AM in Criminal Law, Steve Vladeck | Permalink | Comments (3) | TrackBack

Ignorance and Reason in the Grasso-NYSE Case

Since Larry Ribstein is otherwise occupied, I thought I'd point you to the latest development in N.Y. Attorney General Eliot Spitzer's case concerning Richard Grasso's $187.5 million compensation package from the New York Stock Exchange.  BusinessWeek is reporting on a 2003 memo dictated by Carl McCall, former N.Y. Comptroller and member of the NYSE board.  According to the memo, the NYSE was "shocked" to learn about the enormity of Grasso's pay after it came out.  In addition, McCall expressed concern that the compensation committee had failed to inform the board properly about Grasso's payout.  McCall had reason to be concerned, as he was on the compensation committee and was actually chair of the committee when the pay package was announced.  (Kenneth Langone, co-founder of Home Depot, was the prior chair of the committee, and he is also a defendant in the suit by AG Spitzer.)

Does this prove Spitzer's case?  No. But it does provide support for his theory that Langone hid the size of the pay package from the NYSE board in the process of getting it approved.  It may also implicate McCall as a less-than-informed board member whose failure to exercise proper oversight led to the shocking result.  In any event, it makes it harder for Langone and Grasso to claim that the board was completely on board with the form and the amount of the pay package.

Even if the Board was fully aware and informed, AG Spitzer still has the claim that the pay package was unreasonably lucrative.  As a non-profit at the time, the NYSE was obliged to provide its executives with reasonable levels of compensation.  Even in the world of Ovitz, $187 million looks fairly unreasonable.  Others disagree. Larry Ribstein, for one, argues:

there's other evidence in the case . . . that Grasso's compensation was well within the realm of reasonableness, and certainly within the business judgment rule. State law business judgment decisions don't necessarily apply to Spitzer's suit. That's too bad, because the policies that underlie the rule – the lack of judicial expertise, and the problems inherent in second-guessing managerial and board decisionmaking – apply no less to the NYSE than to, say, Disney.

I'd like to see a court wrestle with the limits of "reasonable" compensation.  As it becomes clearer that executives cannot properly police their own pay, perhaps it's time for courts to start setting some form of substantive limits.  Non-profits -- with their taxpayer benefits, state AG oversight, and public purpose -- would be a good place to start.

Posted by Matt Bodie on April 28, 2006 at 12:15 AM in Corporate | Permalink | Comments (0) | TrackBack

Thursday, April 27, 2006

"Da Vinci Code" Puzzle in a Judicial Opinion

This article in the NY Times about the puzzle Justice Peter Smith has embedded in his ruling in the recent copyright case involving The Da Vinci Code is fun, and it looks like nobody has solved the puzzle yet. One notable part of the story is that apparently nobody even noticed the Smith Code until he tipped a Times reporter off to it in an email exchange.

One occasionally hears reports of judges including fun elements in their opinions--a little dry humor, an opinion written in verse. But I wish it happened more often; to me, humor or creativity in a judicial ruling is a welcome admission that the decisionmaker is a real person, even though he or she wields a great deal of power.

Posted by Gowri on April 27, 2006 at 08:27 PM in Article Spotlight | Permalink | Comments (7) | TrackBack

Are Law Reviews Acquiring Institutional Memories?

People say that law reviews have no institutional memory. They say that if you fail to get a good placement in August you could resubmit in March. Is this still accurate or has technology, namely sophisticated databases and electronic submission systems, changed the practices of law reviews?

These days an increasing number of law reviews are using electronic submission systems. Some of these systems track submission by authors.  For example, when submitting to the Yale Law Journal each author has an account that features all the author’s prior submissions. I would suspect that other journals have internal systems that keep track of submissions in a similar manner. Furthermore, submissions are increasingly made electronically, whether through ExpressO or by email. Electronic trails tend to be more enduring than paper trails. A new board is more likely to refer back to an electronic submission by the same author than dig through a pile of paper submissions.

Are law reviews acquiring an institutional memory? Are law reviews keeping track of repeated submissions of the same article? If some form of tracking is taking place are articles that were substantially revised between submissions treated differently? I welcome comments about recent submission experiences.

Posted by Gaia Bernstein on April 27, 2006 at 07:39 PM in Life of Law Schools | Permalink | Comments (3) | TrackBack

Get Your JNV Votes in Now

A very enjoyable discussion ensues at the VC, as Eugene informs the world that Juan Non-Volokh will soon be revealing his or her (or "its," Eugene adds) true identity and the VC comments crew offer their best guesses as to who JNV actually is.  The smart money seems to be landing on Jonathan Adler -- although it is quite likely that a non-commenting majority of the blogosphere is putting their chips on "who cares?"  Short of Posner or Leiter, the answer is likely to be entirely anti-climactic.  Still, kudos for some of the guesses.  I am fond of these answers: "Someone who has never been in my kitchen," "[even money on] Cardinal Richelieu, or Ernst Blofeld," "Mark Felt as portrayed by Hal Holbrook," "Juan Non-Volokh is PEOPLE! [you'll get it if you've seen "Soylent Green"]," and my personal favorite: "Kate Beckinsale.  If there's a God."  Amen. 

Although perhaps Eugene's mention of "its" is a tipoff.  I've long suspected that people are a largely superfluous element of blogging.  Couldn't the whole thing be handled more efficiently, equally predictably, and just as well by some sort of algorithm?  I'm no mathematician or computer scientist, but perhaps our readers will be kind enough to supply simple examples.  (For example: "If X=[Ninth Circuit], print "Those liberal Ninth Circuit judges have done it again."  Or: "Read the value of N.  If N="faculty moves," print [comment critical of Northwestern University Law School].")         

Posted by Paul Horwitz on April 27, 2006 at 05:18 PM in Blogging | Permalink | Comments (1) | TrackBack

After Katrina: What Law Students Can Do

While most first-year law students find law school sufficiently consuming of their time, five Hofstra first-years spent their spring break helping out in New Orleans.  They created a blog of their experiences; here is the introductory post.  Their trip was organized by the Student Hurricane Network, which coordinated spring break trips for over 700 law students this semester.  The Hofstra folks have a readable and informative blog about their experiences.  Pictures like these are a reminder of how much work remains to be done.

Posted by Matt Bodie on April 27, 2006 at 01:03 PM in Life of Law Schools | Permalink | Comments (0) | TrackBack

Colloquium on Constitutional Law and Theory

Earlier this week, thanks to Mark Tushnet's generous invitation, I presented a paper to the participants in Georgetown's Colloquium on Constitutional Law and Theory.    I really enjoyed the session; both Tushnet and his students were appropriately skeptical and generously helpful.  I came away thinking, among other things, that this kind of course offering is really valuable, and (perhaps) underutilized.  As I understand it, students register to participate in the colloquium for credit.  Mark invites various speakers to present works in progress, the students write (and Mark reviews) short critical papers, and then the colloquium session is devoted to a seminar-type conversation, which Mark introduces and moderates, about the work, its aims and flaws, etc. 

I'd love to hear from others who have taught, would like to teach, or have taken courses like this.  Do they "work" well?  Are they as valuable as they seem (at present) to me to be?  (I know that the Con Law profs at Northwestern run, or have run, a similar colloquium.)

Posted by Rick Garnett on April 27, 2006 at 11:40 AM in Teaching Law | Permalink | Comments (6) | TrackBack

Grading: It's What They Pay Us For

I’ve heard that a zillion times, and it’s the one part of the job I truly dislike.  And soon it will be the only thing keeping me from blasting “School’s Out” by Alice Cooper.  Yet it’s vitally important to students and we have a serious professional obligation to do it well.  So, what makes for good grading?  Here’s my two cents.

First, you must start with a good, fair exam.  Err on the side of being too hard rather than too easy, because you can always decide that 70% right is an “A” and 60% right is a B, but if everyone gets practically everything right, it’s hard to make valid distinctions.  Of course an exam can be too hard, but the most common mistake for beginning folks along those lines is not asking questions that nobody can answer, but rather asking too many questions/having too many issues.  In my first year, in one exam, not a single student finished the last essay: that essay wasn’t particularly hard, nor were any of the others; there were just too many of them.  Also, spell out jurisdictional issues in the instructions.  In my labor and employment classes, I say in the instructions, “assume all the employers/employees/unions are covered by [the relevant laws] unless the facts indicate otherwise.”

Put in issues of varying difficulty:  relatively easy ones so that the “C” papers can be distinguished from the “F” papers, and relatively hard ones, so that the “A” papers can be distinguished from the “Cs.”  While you can’t test everything, keep some sense of proportion between how much it counts on the exam, and how much time you spent on it in the reading and in class.  Mix in questions that actually have right answers (plaintiff would win here, for sure, and here’s why), with questions that don’t have obviously right answers that make students articulate and weigh competing rules/policy concerns/types of arguments.

Do a detailed grading key.  Figure out how many points you should give for certain observations.  Then be consistent.  If the right answer is “Plaintiff wins, because the one-bite rule doesn’t apply to pet alligators,” four points are available, and a student says, “Defendant wins, because the one-bite rule does apply to alligators,” decide whether that’s worth 0, 1, or 2 points and be consistent for all similar answers.

People vary, but I don’t read Exam 1, then Exam 2, then Exam 3, etc.  I read Exam I, Essay A, then Exam 2, Essay A, then Exam 3, Essay A, etc.  This helps with consistency.

Read carefully.  There is no substitute for that.  Make comments, especially on the ones that will get lower grades, so you can remember, explain, and possibly defend what you did.

Essay questions often have kinks.   If a question’s wording really was ambiguous or legitimately suggested an issue you hadn’t thought of before, give students credit if they have a plausible argument.   I once used the phrase “worked in a large women’s clothing store” in an employment discrimination exam.  I meant “large” to refer to the size of the establishment to indicate coverage by a statute.   Some students, however, interpreted that to mean “clothing store for large women.”   That “fact” arguably could have gone to a legal issue in the problem (for reasons I won’t bore you with).   So ... they got credit.

Worst case scenario: some part of the question really makes no sense or contradicts itself in some important way that made it unfairly confusing.  Consider seriously just not counting that portion of the exam. 

Finally, when reviewing exams with students, I tell them that I will only change a grade if (a) there is a math mistake in calculating it; or (b) if it appears I actually didn’t read or completely misread a section of their exam and didn’t give them any credit when they deserved at least some.   Reviews are about the student learning how to do better, not for arguing that knowing that the one-bite rule applied should really be worth 3 points, not 2.

Posted by JosephSlater on April 27, 2006 at 09:55 AM in Teaching Law | Permalink | Comments (5) | TrackBack

Wednesday, April 26, 2006

Jane Jacobs, R.I.P.

Jane Jacobs, the author of the prescient and hugely important book, The Death and Life of Great American Cities, died on Tuesday.  Here is one obituary; here is another.  And, here is a blog post by Cass Sunstein:

Jacobs' great book is full of implications for various fields, including law. Her work has many themes and nuances, but it can be taken as a celebration of the diversity, the spontaneity, and even the wildness of the great cities -- where you might encounter, on any given day, people and activities that surprise and even astonish you, and where the diversity itself provides a kind of commonality for people from all walks of life. Among other things, Jacobs' book helps to illuminate the public forum doctrine in first amendment law, which says that parks and streets must be left open for expressive activity: Parks and streets provide unanticipated, unchosen encounters at the same time that they offer common experiences for heterogeneous people. Both the unanticipated encounter and the common experiences are valuable for a democracy. In fact democracy itself seems to me one of Jacobs' basic topics.

Jacobs' work on cities deserves special attention in a period in which "personalization" and "customization" are so widely approved. A great city isn't really personalized; that's Jacobs' central point. It exposes its inhabitants to people, ways of life, activities, culture, and ideas that they would not have chosen on their own -- and that's part of their greatness. Jacobs' work is itself like a great city, teeming with life and ideas -- even a kind of joy -- and its applications go well beyond her particular subject matter.

Jacobs did and lived "urbanism" before it was "new."  R.I.P.

Posted by Rick Garnett on April 26, 2006 at 06:53 PM in Law and Politics | Permalink | Comments (0) | TrackBack

Stop Snitchin'

So I write about snitching, which lets me do fun things like listen to hip-hop and chat on late-night urban talk radio. By ‘snitches’ I mean criminals who trade information for lenience (as distinguished from whistle-blowers or regular folks who talk to the police). Snitching is in the cultural limelight at the moment – the so-called ‘Stop Snitchin’’ movement has got young people wearing anti-snitch t-shirts and some witnesses afraid to testify. (For those of you who don’t know the stories about rappers Li’l Kim and Busta Rhymes refusing to talk to the police about crimes they witnessed, here’s a good description of some of the cultural issues .) While law enforcement and the mainstream press tend to portray the ‘stop snitchin’ sentiment as gangsta witness intimidation, I’ve argued  that this approach begs deeper questions about the insidious role of snitches in the war on drugs and in high crime communities.

Currently, I am thinking more about why so many urban residents and their cultural emissaries openly refuse to talk to the police. This is a famous legitimacy problem, of course. Tom Tyler and Jeff Fagan have a recent piece on SSRN in this vein entitled: “Legitimacy and Cooperation: Why Do People Help Police Fight Crime in Their Communities?” (finding that positive community perceptions of the fairness of police procedures lead to greater cooperation with police, above and beyond perceptions of police performance). Here’s the link.   But people’s willingness to submit to police authority also turns in part on their belief that the police will actually protect them. Basic Hobbes. Poor urban neighborhoods are famously underpoliced and crime-ridden, so people who live there often consider it futile (or even dangerous) to call or confide in the police. I’m guessing that heavy law enforcement reliance on criminal snitches exacerbates both these legitimacy and efficacy problems and is contributing to the popular ‘Stop Snitchin’’ sentiment.

By the way, due to my blogging inexperience, I wasn’t sure how my name would appear on posts. My name is Alexandra, though everyone calls me Sasha.

Posted by SashaNatapoff on April 26, 2006 at 01:23 PM in Criminal Law | Permalink | Comments (10) | TrackBack

Law Majors for Undergraduates?

Today’s WSJ reports that a consortium of college and university professors is urging college presidents to add an undergraduate major in law.  Advocates of the idea are careful to say that they propose only to teach law as a liberal arts subject, not to train professionals.  They argue that the non-professional study of law and society ought to have a place in the wider academy, not only in the classroom but also in scholarship.  Opponents counter that studying law in colleges is not necessary because interdisciplinary approaches to law have already found a home in law schools, which are increasingly hiring scholars who hold doctorates in other fields.  Austin Sarat, a professor at Amherst College, thinks the undergraduate study of law is inevitable: "It's not a question of whether, but when," he is quoted as saying. "After all, law is too important to be left to the lawyers." 

Posted by NTebbe on April 26, 2006 at 10:07 AM in Life of Law Schools | Permalink | Comments (11) | TrackBack

Best. Sweatshirt. Ever.

I don't know who's responsible for putting that sweatshirt on him on tonight's episode, but how excellent to find that Dr. Wilson, on House, and I have something in common besides boyish good looks: a McGill University education.

Posted by Paul Horwitz on April 26, 2006 at 12:51 AM in Culture | Permalink | Comments (0) | TrackBack

“Choose Life” License Plates

Last month the Sixth Circuit upheld a Tennessee program that allows drivers to choose a license plate bearing the message “Choose Life,” even though the state does not offer a plate communicating the opposite view.   That decision parts with a Fourth Circuit ruling that struck down a similar program in South Carolina.  Consequently, the issue appears headed to the Supreme Court.  Despite the legal uncertainty, states have pressed ahead.  Just earlier this month, Georgia joined the considerable list of states that offer “Choose Life” tags.

Under the typical statute, drivers may elect to pay an additional fee of around twenty-five dollars for the specialty license plate.  Part of the money goes to non-profit organizations.  In Tennessee, for example, profits are forwarded to New Life Resources, Inc.  The statute limits use of the funds, directing for instance that they “shall be used exclusively for counseling and financial assistance, including food, clothing, and medical assistance for pregnant women in Tennessee.”  Groups like Planned Parenthood have tried and failed to persuade these states to offer plates bearing the opposite message.

The constitutional question distills down to whether the plates constitute government speech, in which case courts have found them permissible, or whether they establish public forums that states must open to all viewpoints.  The Sixth Circuit reasoned that the license plate was government speech, largely on the ground that any other ruling would lead to absurd results.  Could it be the case, for instance, that when the government issued a postage stamp during World War II bearing the message “Win the War” it also was required to issue a “Stop the War” stamp?  By contrast, Judge Wilkinson of the Fourth Circuit, concurring in the denial of rehearing en banc, wrote that the license plates become speech only through the choice of private individuals.  Government may not “channel would-be speakers into privileged categories of expression,” he said.  Could states issue plates that endorsed one political party but not the other?

One commentator has predicted that the Supreme Court will strike down the “Choose Life” tags in Tennessee.  I have my doubts.  The Justices could instead observe that our government takes positions on controversial moral questions all the time, often in ways that have the effect of advantaging or disadvantaging private speakers.  Judge Wilkinson worried that departing from government neutrality in this way fosters resentment and damages national unity. For him, the “confidence that all are treated equally with respect to belief, conscience, and expression” builds unity and helps to make “‘e pluribus unum’ the lasting legacy of our nation.” Our official motto, however, is not “e pluribus unum” but “In God We Trust”—a choice that has generated some controversy.   Religion may present a special case, of course. But regarding these license plates the Court may well find that there is no constitutional requirement of government neutrality. I would be interested in your thoughts.

Posted by NTebbe on April 26, 2006 at 12:08 AM in Constitutional thoughts | Permalink | Comments (14) | TrackBack

Tuesday, April 25, 2006

The Role of a General Theory of Law and Technology

Law professors writing in the area of law and technology tend to focus on specific technologies. In particular, there appears to be a divide between those writing on communication technologies, such as the Internet and those writing on medical technologies, such as genetics and reproductive technologies. I think this division is not just a matter of specialization but reflects a deeper conviction that each technology is unique and should be studied on its own.                                                                                                                                                                                                         

During the 1970s, for a brief time, different winds were blowing. Laurence Tribe  in a book entitled “Channeling Technology Through Law” (and a series of articles) developed an approach called “Technological Assessment.” This approach undertook a broader look at assessing and regulating new technologies. Yet, in subsequent decades the study of new technologies has not followed this lead, instead it became more technology-specific.


Can we learn from our successes and mistakes in the regulation of one technology to improve our efforts in regulating or perhaps refraining from regulating other new technologies that share similar characteristics? Looking at technologies that are usually not studied together, but are currently in the midst of their diffusion process, namely genetic testing and the Internet, I have taken a broader look at the regulation of new technologies (see here and here). I believe that the role of a general theory of law and technology is an issue that warrants further discussion. In this year’s Annual Law and Society Conference, in a panel entitled  “Toward a General Theory of Technology Law and Society,” Lyria Bennett-Moses, Arthur Cockfield, Frank Pasquale and I will debate the role and potential formulations of such a theory. Any thoughts on the issue would be much appreciated and of course if you are there do come and join us.

Posted by Gaia Bernstein on April 25, 2006 at 10:00 PM in Information and Technology | Permalink | Comments (4) | TrackBack

Religious Disputes in Civil Courts

Here's an interesting NYT story about succession disputes raging in the Satmar community -- a sect of Hasidic Judaism -- that have heated up in the wake of the recent death of the Satmars' grand rebbe.  One of my upcoming projects will deal with religious communities as First Amendment institutions and, perforce, with the issue of deciding religious disputes in civil courts.  Until I do the work, I'll leave this as an "interesting story; thoughts?"-type post.  Well, perhaps one observation, which is that reading this story suggests to me that the arguments over how civil courts should decide religious disputes don't easily map onto a Roger Williams-type, "spare the religious garden from the secular wilderness" kind of argument -- because, as the story makes clear, both parties have eagerly and repeatedly sought to bring their dispute into the civil courts.   Understandably so, may I add, even if religious passions were not engaged, given the amount of money that's involved.

Posted by Paul Horwitz on April 25, 2006 at 07:10 PM in Religion | Permalink | Comments (0) | TrackBack

Byers on Leaving the U.S.

Brian Leiter links to this op-ed by Professor Michael Byers, late of Duke and now of the University of British Columbia's law school.  [Update: actually, I think his chair is associated with the poli sci department.  My bad.]  Byers explains why he surrendered his green card upon returning to Canada.  It's worth reading -- which is not the same as saying I agree with his choice, or with what he has to say.  I wonder what my fellow Canadian co-blogger thinks about this piece.  (Or is it co-bloggers?  I think there's only two of us here, but Canadians are more prevalent in the States than Starbucks, and less visible.  Perhaps when I write my fuller review of Kenji Yoshino's book on covering, I should write about that most serious civil rights issue of all -- the pressure for Canadians living in the US to cover their Canadianosity.)

I should say that Byers stacks the decks in some ways.   For instance, in describing what he calls the limited ability of immigrants to settle legally in the States, he neglects green cards by marriage, which I suspect are a pretty substantial category.  He implies without evidence that the "Mexican" and "Guatemalan" workers he sees on a trip to San Diego are illegal immigrants; maybe they are, but he simply assumes it.  Perhaps he became more assimilated, more "American," in his thinking and his assumptions than he realized.  And while there are sound reasons to question Congress's insistence on the use of passports in US-Canada travel, the potential harm it does to "Canadians living illegally in the United States" is not among them.

But what strikes me the most, as someone who has made a very different choice than Byers, is the quality of his commitment.  Byers ends the piece by saying that, for the first time, he is making a conscious and voluntary commitment to Canada, the country of his birth.  That's fair and even admirable.  As Byers notes, most citizens (of the US or Canada) accept their birthright as a matter of course.  Unless they join the armed forces, take an oath as a judge, law clerk, or government employee, or take other voluntary steps, they are not required to make the conscious commitment to their country that new citizens make every day.  Even then, the quality of the birthright citizens' commitment depends on how seriously they take the oath they speak.  Of course, Sanford Levinson has written in an illuminating fashion about these issues. 

So Byers has made his choice -- just as, in seeking permanent residence and (one day) citizenship, I am making a conscious choice to become part of this country.  And, in a Rubenfeldian way, in doing so I am committing not just to the present moment, but to being a part of the American experience over time, in good moments and bad.  I can respect his choice while still making my own.

But that same sense of commitment seems utterly lacking to me in Byers' decision to come to the U.S. in the first place.  He writes that when he first came to the U.S., "[t]he stock market was booming, most Americans felt prosperous and secure, and Bill Clinton -- despite Whitewater and Lewinsky -- was still capably in charge. It seemed obvious that one of two smart, experienced, open-minded internationalists, Al Gore or John McCain, would follow in January, 2001."  Byers' hopes were dashed, he dislikes the course of this government, the economy is less vigorous, and so he is leaving -- a process he likens to "getting divorced."  All of which suggests to me that the quality of his commitment to the U.S. in the first place was that he made no commitment at all.  He came to this country, it appears, because it was a good place to be, personally and professionally, and left when the balance of costs and benefits shifted back.  He likens the process to a divorce, but his depiction of events makes it sound more like ending a marriage of convenience, casually entered into and casually abandoned.

I'm sure there are broader conclusions one could reach using this op-ed as a starting point -- about the nature of commitment to citizenship and to nations in an era in which professionals and other workers are frequently mobile, choose their nation of residence based on professional rather than political reasons, and in which the more privileged among us can reverse our choices easily if we so choose.  I leave it to others to comment if they wish, simply closing with the view that his genuine commitment to Canada is laudable, but there is no evidence in the piece that he ever made a similar commitment -- even a provisional one -- to the United States.  If he had, he might not have left so readily.  All of which makes his current decision to leave far less fraught with significance than he seems to want to suggest.      

Posted by Paul Horwitz on April 25, 2006 at 05:07 PM in Article Spotlight | Permalink | Comments (7) | TrackBack

Privacy, Transparency, etc.

Last week, Rick posted about this article by Bill Stuntz in the New Republic, which attracted some good back and forth in the comments here.  In the fray, I had mentioned that Bob Weisberg had weighed in with a response, as had Dan Solove over at Co-Op.  Well, thanks to Dan S., I see that Stuntz has replied over here, and Dan S. has a sur-reply over here.  One thing is for certain and that is that this exchange should put an end to this debate on the relative merits of privacy and transparency once and for all!

Posted by Administrators on April 25, 2006 at 02:41 PM in Article Spotlight | Permalink | Comments (3) | TrackBack

Reactions to the Friends case, and Sexual Harassment Law in Perception and Reality

Why do so many people seem to think sexual harassment law goes so much further than it does?
Recently, on this blog, Gowri Ramachandran wrote a fine piece on Lyle v. Warner Brothers.   She noted that Lyle “seems to undermine the fears that leftist and queer theorists have been voicing for the past few years about sexual harassment law and the resulting workplace norms”about sexual harassment law being used to satisfy the old-fashioned Victorian impulses of a society caught in a sex panic.”  Meanwhile, at the Volokh Conspiracy, here, David Bernstein calls the case “a wonderful victory for freedom of expression.”

I hate to question anything that would cause both leftist queer theorists and rightist libertarians to celebrate.  But I confess that I can’t see anything new or significant, from a doctrinal standpoint, in Lyle.   The more interesting question is why people with very different perspectives might think that a case like this is a bold or refreshingly different approach (I mean the VC folks and the folks Gowri refers to, among others, not Gowri).   

Lyle relied heavily on the fact that “most of the sexually coarse and vulgar language at issue did not involve and was not aimed at plaintiff or other women in the workplace.”  This is standard fare for sexual harassment cases.   Compare another recent case (not involving celebrities), Brown v. Colgate-Palmolive, 97 FEP Cases 1428 (D. S. Ind., March 2, 2006). Brown held that a female employee failed to establish hostile work environment based on her being exposed to sexual images on company computers and being subjected to derogatory language about women on daily basis.  Even if she subjectively perceived work environment to be hostile, the court held, where none of comments were made about her, most were not directed at her, and the conduct was not physically threatening, it was not an objectively hostile work environment. 

This is entirely typical.  The Brown court noted that plaintiff had not cited any cases finding that even a “relentless pattern”of behavior created a hostile work environment, “when the ‘relentless pattern’ involves no more than sexual comments . . . where those comments are not directed at or about the plaintiff.”

This may be a good rule or a bad rule, but it’s certainly the rule.  Indeed, the standards for winning hostile environment sexual harassment cases are tough to meet; generally, employment discrimination plaintiffs do worse than plaintiffs in pretty much every other area of civil law.  See Kevin Clermont, Theodore Eisenberg, and Stewart Schwab, How Employment-Discrimination Plaintiffs Fare in the Federal Courts of Appeals, 7 Employee Rts & Employment Pol’y J. 547 (2003); Michael Selmi, Why Are Employment Discrimination Cases So Hard to Win? 61 La. L. Rev. 555 (2001).   Defenders of robust speech rights of workers might find more serious free speech/First Amendment problems in workplace law in section 8(b)(4) of the NLRA, which broadly bars appeals by striking workers to the public and other workers.

So, why do many folks feel that sexual harassment law has a much of a broader reach than it actually does?  I suspect in part it’s because of the anti-harassment training programs that the Supreme Court decisions in Ellerth and Faragher create incentives to have (employers have a complete defense to hostile work environment suits if, among other things, they have certain types of anti-harassment policies in place).   Employers have incentives to create policies that discourage a variety of acts, many of which wouldn’t be close to actually constituting actionable sexual harassment.  But people sitting through the harassment training programs may well get the impression that, say, off-color sexual jokes violate the law, when they clearly would not. 

Thus, we have both troublingly “de-sexualized” work environments in some places along with an inability of plaintiffs to win even given pretty gross facts in others.  There may be solutions to these problems, or steps toward solving them that we can genuinely celebrate.  But Lyle is just the status quo.

Posted by JosephSlater on April 25, 2006 at 11:08 AM in Law and Politics | Permalink | Comments (24) | TrackBack

An Odd Historical Milestone

I guess this is my week for somewhat silly posts...

In keeping with that tradition... If I have my math right, and I probably don't, July 11, 2006 will be an interesting, if profoundly odd, historical milestone.


Well, the longest period thus far in American history between the admission of new states into the union is 546 years, 10 months, and 20 days -- the time in between when Arizona was admitted on February 14, 1912, and when Alaska was admitted on January 3, 1959.

Hawaii, the 50th state, was admitted on August 21, 1959. So, 546 years, 10 months, and 20 days from then is, if my math works, July 11, 2006.

Time for Puerto Rico and D.C. to get cracking!

(Or should we think about other states, e.g., "Texas Tots"?)

Posted by Steve Vladeck on April 25, 2006 at 10:15 AM in Steve Vladeck | Permalink | Comments (2) | TrackBack

Fitzie on Scalia's Mistake

Over at Law.com, my law school classmate Brian Fitzpatrick is stirring the pot with an op-ed entitled Scalia's Mistake.  Here's the lede:

Supreme Court Justice Antonin Scalia is an opinionated guy. I know. I clerked for him four years ago. Every once in a while, however, Scalia's love of intellectual engagement leads him to make a mistake. He made one of these mistakes recently. No, I am not referring to his now-famous Sicilian hand gesture. Nor am I referring to comments he made last month during a speech he delivered to a university in Switzerland. Scalia stated his view that enemy combatants captured by American forces had no right to a trial in civil courts. He did so even though a case presenting this question was arguably pending on the Supreme Court's docket.  Rather, the mistake I am talking about occurred two years ago, when Scalia agreed to recuse himself from a case presenting the question of whether the Pledge of Allegiance was unconstitutional. Back then, Scalia made similar remarks to a public audience, making it clear that he thought the pledge was constitutional, even though a petition asking the court to review a lower court's conclusion otherwise was pending on the court's docket. Scalia's mistake was not making the remarks, but agreeing to recuse himself. There is nothing wrong with Supreme Court justices expressing their views on issues pending on the court's docket.

Is Fitzie right? Open minds want to know.

Posted by Administrators on April 25, 2006 at 12:10 AM in Constitutional thoughts | Permalink | Comments (17) | TrackBack

Monday, April 24, 2006

Professional Identities

I just returned from the Midwest Political Science Association meeting in Chicago where I presented a new paper entitled "Citizen Representation and the American Jury".  When I first arrived, I was totally alienated.  I was among 4,000 other political scientists -- but relatively few attendees and presenters were fellow law professors.  Although I have only been out of graduate school a few years, it is fair to say that most of my peers are now legal academics and not political scientists.  I attended a few panels and was quite surprised to hear the same arguments, debates, and frictions from political science conferences past.  Undoubtedly exacerbated by the fact that I teach at a "stand-alone" law school with no political science department, I thought that I might have simply outgrown my original home discipline.

Then I gave my paper, co-authored with another political theorist.  Although our presentation was attended by relatively few people (such is the problem with mega-conferences), I found myself wholly engaged and remembering which part of my brain and heart is essentially a political theorist.  My feeling upon arrival that "these aren't my people anymore" quickly evaporated.

I imagine that as the legal acedemy welcomes more and more PhDs from other disciplines, many people will find themselves in the position I was in this past weekend: experiencing role distance and role identity in quick succession.  My instinct is that the culture of the legal academy is actually a centrifugal one, in which even PhDs with their hearts deeply committed to other disciplines get acculturated to becoming law professors through and through.  But things may be changing as PhDs become more common. 

Posted by Ethan Leib on April 24, 2006 at 08:24 PM in Life of Law Schools | Permalink | Comments (1) | TrackBack


Thanks so much to Dan and the other Prawfs for this opportunity to try blogging.  It's my first time so I hope the veterans will bear with me. I’ve been teaching at Loyola (Los Angeles) for nearly three years now, writing about the criminal justice system, raising my seven-year-old son, and adjusting to LA’s juxtapositions (decaf hybrid pastel Hummer, anyone?) I’m looking forward to contributing to this conversation.

Posted by SashaNatapoff on April 24, 2006 at 04:58 PM in Housekeeping | Permalink | Comments (1) | TrackBack


One of the things I heard prior to going on the market was how cut-throat and unfriendly legal academia could be, particularly to newcomers entering the field.  I was even warned about how welcoming certain disciplines were to newbies, with not one but two fields within law memorably described as a community that "eats their young."  All of which, naturally, gave me a bit of pause before I delved into teaching this year and enduring the AALS process.

So color me pleasantly surprised to find such a welcoming atmosphere in the academy--not only with my colleagues at Hofstra, where I'm currently teaching, and Willamette, where I will start teaching this fall, but also with profs I've met at  schools all over the place.  In fact, I am currently sitting in the gorgeous City Bar library in Manhattan with two up-and-coming young scholars--Rose Cuison Villazor, who'll be starting at SMU this fall, and Kevin Maillard, who's currently teaching at Syracuse--and we're all working away, a grand collaborative effort of mind and labor.

So was the advice I got  pre-market just meant to terrorize  me, or have people had different experiences as entry-level profs?  Anonymous comments accepted....

Posted by Laura I Appleman on April 24, 2006 at 03:28 PM in Life of Law Schools | Permalink | Comments (0) | TrackBack

Better Ways to Use Your Law School Library

This story from the Waco Tribune speaks for itself.

But it begs the question: During law school finals, what might be some better ways to put your law school library to use?

[Hat tip: My colleague Michael Froomkin, who made today's faculty meeting far more amusing by telling me about this story, and who will surely have his own thoughts later via Discourse.]

Posted by Steve Vladeck on April 24, 2006 at 02:10 PM in Steve Vladeck | Permalink | Comments (1) | TrackBack


Ok, I realize I'm a bit late with all of these recommendations, but that's the joy of blogging.  Let me start with a confession: I've gotten hooked recently on Jack Bauer's exploits on 24, and if you've not been watching it the last five years, you might want to start with the DVDs.  For one thing, each episode is a great provider of hypos for criminal law exams.

I was riveted to the show during its opening season in 2001-02 but found the strength to resist its allure thereafter.  Now with DVDs of the show from Netflix -- which allow me to miss the myriad commercial breaks -- I can consume almost an entire season in the space of a week.  So I'm watching Season 2, where the good guys are trying to prevent a nuke from blowing up LA.  The plot contortion is great, but I have to say that the acting is, um, mixed.  Sometimes Dennis Haysbert as President David Palmer is entirely wooden in his performance, notwithstanding the joy I take in listening to his stentorian voice.  Far worse acting in perpetrated by his ex-wife, Sheri Palmer (played by Penny Johnson).  Her whole re-appearance on the show after season 1 makes little sense to me.  Here are some other things that don't make sense to me (at least so far): why did Marie Warner have her wedding day scheduled for the same day the bomb is scheduled to go off, a bomb that she's involved with?  How probable is it that Miguel, Kim Bauer's grungie musician boyfriend, would also be a gifted martial-arts practictioner, such that they can escape the evil child-abusing father of Meghan, a guy who looks eerily like Jim Carrey??  [Ed. Suspend disbelief, Markel.]

In other viewings: Yossi and Jagger.  Normally, I'm a huge fan of the sentimental Israeli film industry, but this movie, nominally based on a true story about two gay soldiers in the Israeli army serving on a mission on the Israel-Lebanon border, is quite odd.  For one thing, it's so short that you wonder how this movie got pitched as a feature.  After it finished, my wife and I had the same reaction: that's it?  Clocking in at a spare 67 minutes, it illustrates the difficulty of being gay in the military, even where there is not an express prohibition on homosexuality.  The acting is quite good here, though at times it seems more like an extended video for a melancholy song by pop-artist Rita ("Your Soul") than a showcase of cinematic talent.  Not a must-see, but it is interesting -- at least as a window into the ethnography of Israeli army life.

Nelson earlier highlighted Richard Primus' very interesting review of Amar's book in TNR.  That same issue also features two other important pieces: first, Matthias Kuntzel's disturbing essay on the cultural forces in Iran that produced its current nutjob-in-chief, and Michael Crowley's rumination on the end of Boredom and why it's sad to say goodbye to it.  I, for one, am like the pathetic creature in Crowley's essay who can't bear being alone with his thoughts and without any source of external stimulus.  Crowley suggests that "Our fear of boredom suggests a kind of self-loathing. What are we so afraid of? Anyone who can't bear a few minutes of his own company should probably ask himself why before buying a ticket to V for Vendetta."  The Vendetta movie is not yet on my to-see list, but perhaps it should be...  Anyway, putting aside my apparent self-loathing, I have to wonder if  fear of boredom manifests itself differently across various populations involving gender, class or ethnicity.  After all, Dan Kahan et al. suggest that certain risks are perceived in culturally-influenced ways; why woudn't fear of boredom? Anyone know of studies on this?

Posted by Administrators on April 24, 2006 at 12:31 AM in Culture | Permalink | Comments (4) | TrackBack

Sunday, April 23, 2006

Death Row emptied in the Philippines

Asia News reports

At Easter, President, Gloria Macapagal Arroyo, announced the commutation to life imprisonment of around 1,200 death sentences in the Philippines. The Catholic Church and anti-death penalty campaigners have enthusiastically hailed her decision, but there are concerns that victims’ relatives may seek revenge against the pardoned perpetrators.  Arroyo’s spokesman, Ignacio Bunye, said her decision had “developed” from “contemplation and reflection on Christian values”. He added: “We understand the deep hurt inflicted upon the families of the victims of heinous crimes, but the president believes that learning to forgive without compromising criminal justice would be a good start for the nation to move on.”

This is, I think, great news.  That said, can those who oppose this decision reasonably claim that President Arroyo has acted in a way that is not consistent with the obligations of democratic citizenship and leadership?

Posted by Rick Garnett on April 23, 2006 at 03:53 PM | Permalink | Comments (2) | TrackBack


Move over "Red v. Blue"!  Here are some fascinating maps, of "religion in America."

Posted by Rick Garnett on April 23, 2006 at 03:39 PM in Religion | Permalink | Comments (0) | TrackBack

Saturday, April 22, 2006

Primus on Amar

Essential reading: Richard Primus’s just-published review of Akhil Amar’s new book, America’s Constitution: A Biography.  The review, which came out this week in TNR, is available here.  Primus begins by commending Amar for recognizing that Reconstruction ought to be viewed as a second American revolution with fundamental constitutional significance.  But after that point the two begin to part ways.  Put simply, Primus argues that Amar is a textualist because he is a radical democrat: He emphasizes the text because only the document itself was enacted by the people—if not at the Founding, then during Reconstruction.  Here is where the review really gets going: 

Amar's theory of constitutional history and his theory of constitutional authority are . . . two parts of an internally coherent whole. The Constitution is the paramount legal authority because it is the most democratic, emanating from the people themselves. Given that premise, Amar cannot locate the ultimate moment of enactment in the Founding, because a constitution so thoroughly infected by slavery cannot claim obedience by virtue of its democratic pedigree. Only later did emancipation, equal protection, and enfranchisement democratize the Constitution. For this reason, it must be to the Constitution of the 1860s, not to the Constitution of the 1780s, that modern Americans owe allegiance. For it was during Reconstruction that the people and the Constitution were finally brought together.

Amar's constitutional theory is elegant, but it is significantly flawed. As a historical matter, his vision of Reconstruction is airbrushed to make it seem more democratic than it really was. And as a normative matter, democratic enactment cannot suffice to legitimate the Constitution, if only because of the passage of time. Regardless of the process by which the Constitution was adopted, today it compromises democracy by governing people who were unrepresented in its formation.

In essence, Primus thinks that popular sovereignty alone cannot justify the Constitution, chiefly because of the dead hand problem: “the people” who enacted the document, whether in the 1780s or the 1860s, are not the same people who find themselves bound by it today.  Consequently, a method of constitutional interpretation that places too much emphasis on the text of the document (on the theory that only the text was enacted by the people) is bound to produce errors.  He parses through some of these mistakes in a fascinating analysis and then argues that many of our most treasured constitutional principles are really twentieth-century developments.  He concludes:

We are moving, slowly but perhaps inexorably, toward a perspective from which we can more easily see the Civil War and Reconstruction as part of America's origins. [¶]  Amar does a great service in advancing such a future perspective. By insisting that our Constitution is largely what Reconstruction made it, he helps to correct the prevailing tendency to focus on a few short years in the eighteenth century. For that contribution, all who work in constitutional law must appreciate this book. But just as it is a fallacy to locate the authority and the meaning of the Constitution in the 1780s, it is a fallacy to repeat the exercise with the 1860s, or with some combination of the two, or with any other period or periods of the receding past. Taking democracy seriously precludes imagining that generations now gone had the right to dictate our method of government today, and that is as true of generations gone one hundred years as of generations gone one hundred years before that. Taking constitutionalism seriously entails the willingness to temper simple democracy with other fundamental values. We love our Constitution, and we love democracy. But we cannot square the circle.

Take a look. 

Posted by NTebbe on April 22, 2006 at 12:09 PM in Constitutional thoughts | Permalink | Comments (3) | TrackBack

Friday, April 21, 2006

Law Panic?

Yesterday the California Supreme Court decided 7-0 in favor of Warner Bros. in Lyle v. Warner Bros, a case in which a writer’s assistant on the sitcom Friends alleged that a large number of rather raunchy statements and gestures made at and outside of writer meetings amounted to the hostile work environment form of sexual harassment. The Court reversed the appeals court, holding that summary judgment was warranted in favor of Warner Bros. because no reasonable jury could find that such conversations, in the context of writing an adult themed show, were sexual harassment. The Court clearly stated that “sexually coarse or vulgar language in the workplace is not actionable per se.”

The facts as alleged depict not merely sexual banter and personal sexual stories, which would be quite clearly useful in the process of writing a sitcom like Friends, but also cruel jokes about the female actresses (but not the plaintiff), such as mocking of one of the actresses’ infertility and questioning her ability to sexually satisfy her husband. Additionally, endless mock masturbation and other relatively childish sounding antics were alleged.”

What I find interesting about this result is that it seems to undermine the fears that leftist and queer theorists have been voicing for the past few years about sexual harassment law and the resulting workplace norms. Recently, deep and urgent concerns have been voiced about sexual harassment law being used to satisfy the old-fashioned Victorian impulses of a society caught in a sex panic, needlessly fearing sexuality: Janet Halley argues that sexual harassment law can be used as a mechanism to harass gay, lesbian, and other unpopular minorities in the workplace—something she calls “Sexuality Harassment.” Vicki Schultz argues that feminists have essentially made an alliance with Taylorist management types, who use sexual harassment policies (which often go much further than the law requires) to create a “Sanitized Workplace,” in which workers are needlessly controlled and policed, the rights of workers like men of color, older men, and gays and lesbians can be run over roughshod, and the real goals of sexual integration and equality are ignored.”

I’ve found these arguments compelling, and count myself among those who generally believe that society is in a sex panic. But when a decision like the one in Lyle v. Warner Bros. comes down, not only in favor of the defendant, but unanimously so, I have to wonder if it’s the queer theorists who are panicking? Maybe the problem (in this context) isn’t sex panic and old-fashioned Victorian repression, but rather “law panic”—a needless fear of law and the state, giving rise to old-fashioned libertarian impulses? Or perhaps it’s the good work of these and other scholars that is helping to prevent sexual harassment law from becoming the complete tool of Victorian repression it could?

Posted by Gowri on April 21, 2006 at 05:30 PM in Legal Theory | Permalink | Comments (5) | TrackBack

On Theoretical and Doctrinal Works

Orin Kerr writes here: “Judges often complain that the legal scholarship appearing in mainstream law reviews just isn’t helpful to them.  It’s too theoretical, too esoteric, and simply doesn’t try to engage seriously with the problems facing courts.” I think it is fair to say that lawyers feel the same way.                                                                                                                                                                                                      

Should a legal academic write to serve the legal profession? I have heard European scholars say that this is the prevalent conception of legal scholarship in Europe. I doubt many U.S. legal scholars would phrase the goal of their scholarship in this manner. But, many would like their work to influence the law.                                                                                                                                                                                                 

Theoretical and abstract writings can influence the law, but their impact is frequently indirect, and therefore, relatively belated. Theoretical writings often exert influence through the more doctrinally oriented articles that cite them. Nevertheless, we consider doctrinal work to be a lesser form of scholarship. I sometimes wonder how we can so brazenly belittle the very pieces of work that serve to promote our goals.

Posted by Gaia Bernstein on April 21, 2006 at 01:17 PM in Legal Theory | Permalink | Comments (10) | TrackBack

The Booker Error That Wasn't...

Courtesy of HJB comes this really interesting Second Circuit decision from Wednesday, striking down a sentence imposed by the U.S. Parole Commission on a prisoner convicted in a British court of murder, but transferred to the United States to serve out his sentence. In short, the court found the sentence of life imprisonment imposed by the U.S.P.C. to be unreasonable because it was based on the pre-Booker mandatory-adherence-to-the-guidelines mentality. Nothing out of the ordinary, right?

Well, not really. As the Second Circuit explains (below the fold):

Because Austin’s punishment derives from his violation of English law, he does not enjoy the Sixth Amendment right to trial by jury impaired by the mandatory application of the United States Sentencing Guidelines. See United States v. Booker, 543 U.S. 220, 231-33 (2005). The Parole Commission, however, was never bound by the Guidelines, and is only required to “consider . . . the applicable guideline range” – the standard now familiar to every district court. Compare 18 U.S.C.A. § 4106A(b)(1)(B), with 18 U.S.C.A. § 3553(a), and United States v. Crosby, 397 F.3d 103, 111 (2d Cir. 2005) (“[S]entencing judges remain under . . . the continuing duty to ‘consider’ [the Guidelines], along with the other factors listed in § 3553(a).”). Our post-Booker jurisprudence, therefore, provides a useful analogy for determining whether Austin’s sentence was “imposed in violation of law.”

So, there's no Booker error; there's just weird treaty-based, foreign-prisoner-centric, "quasi-Booker" error.

As OMC would put it, "how bizarre, how bizarre."

One random thought: It strikes me as at least a little interesting that prisoners such as Austin, the defendant in the Second Circuit case, have no Sixth Amendment rights. I guess that makes sense, since the trial wasn't a U.S. trial. But what about the rest of the panoply of constitutional protections? Is the law different for transferred prisoners?

Posted by Steve Vladeck on April 21, 2006 at 09:37 AM in Criminal Law, Steve Vladeck | Permalink | Comments (1) | TrackBack

Reading Skoros

One of the most interesting religion cases to have come down so far in 2006 is Skoros v. City of New York.  A divided panel of the Second Circuit upheld the holiday display policy of the New York City schools.  Under the city’s policy, schools may display a menorah, which signifies Chanukah, and a star and crescent, for Ramadan, but not a Christian crèche.  Many people have told me that they are outraged by the decision.  What intrigues me about Skoros, at least at first glance, is how surprisingly resistant it seems to analysis under familiar precedents.

What motivated the city to adopt this odd rule?  The text of the policy itself reasons that the menorah and star and crescent are secular symbols—an argument that must be wrong.  There are hints in the opinion that the city simply wanted to be able to display holiday symbols and celebrate diversity without contravening the Constitution.  Given the muddled state of Supreme Court doctrine, the safest way to do that was to copy a display that had actually been approved in County of Allegheny v. ACLU: A Christmas tree and a menorah displayed together with a sign saluting “liberty.”  When the city’s lawyers tried to articulate a rationale behind the Allegheny display, the best they could come up with was the unconvincing argument that both the Christmas tree and menorah were actually secular or quasi-secular. 

The Second Circuit upheld the city’s policy largely because it had a secular purpose (“to promote pluralism through multicultural holiday displays”) and because an objective adult observer would not have viewed the display as an endorsement of any religion or religions.  The opinion is worth reading.

Two aspects of the Skoros scenario differentiate it from many cases.  First, it is not about whether the government can display holiday symbols—the focus of most anti-establishment cases—but rather whether it must include all holiday symbols when it decides to display some.  Second, it involves government speech, not private speech.  The NYC school policy dictates what schools themselves can say during the holiday season.

Of course the nearest analogues are the crèche cases themselves.  But again the question in Skoros, unlike in the typical crèche situation, is not whether the government is permitted to display religious symbols, but instead whether it is required to display all symbols once it displays a couple.  Put differently, Andrea Skoros’s complaint is not really that the purpose or effect of the city’s policy is to favor a particular religion (or religions), but rather that it disfavors hers.  Yet both the majority and dissent quickly rejected her free exercise claim because the policy does not have a discriminatory purpose and because she is not significantly burdened.  And her speech claim has little traction because the case involves only government speech.  At least initially, then, the case seems resistant to familiar analysis.  I’d be interested to hear other reactions.

Posted by NTebbe on April 21, 2006 at 06:36 AM in Religion | Permalink | Comments (1) | TrackBack

Thursday, April 20, 2006

The WikiPolice State

Almost as soon as my students added a Wikipedia entry for me, it mysteriously disappeared.  No one could figure out how.  Then a group of us learned (thanks to the detective work of one student (thanks, Bev!)) that a random woman in Boston who thinks of herself as the WikiPolice had it deleted.  Here's what appeared on Wiki's "deletion" blog:

“01:22, 19 April 2006 FreplySpang deleted "Ethan Leib" (Wow. Nn-bio, attack, hoax, *and* copyvio from http://www.uchastings.edu/?pid=3523).”

Now, admittedly, some of the content was cut and pasted from my Hastings website.  I'm not sure who the copyright holder of my fabulous bio on the Hastings page is, but I think I wrote it.  This major copyright violation apparently offended the police.  No copyright holder complained, nor did I alert the police.  Standards of citation, I suppose, were violated.  But are we all better off for the entry's disappearance? 

More, the WikiPolice seems to have thought the material was "Nn-bio."  Yet the only false assertion on the entry was that I recieved an "AA" in dental management.  The rest of the material was all mostly factual: the quotes were accurate; the fashion commentary was in good faith. 

Was this a "hoax"?  I guess it depends what you mean by hoax.  Was it an "attack"?  I didn't think so -- and I was the target of the attack if there was one.

In short, I'm pretty suprised that the entry could so easily disappear in a matter of hours without any fact-checking or consultation with the subject of the entry.  Especially given that any inaccuracies in the entry can easily be edited -- that is, after all, the whole point of Wiki.  At ratemyprofessors.com, I will occasionally write to those who run the site to have defamatory remarks removed.  But at least there is a process in place where a third party actually judges the merits of my complaints.

Posted by Ethan Leib on April 20, 2006 at 05:42 PM in Culture | Permalink | Comments (10) | TrackBack

Stephen or Katie? You Be the Judge

I live in LA, where, naturally, all talk is of the Miracle Baby, also known as the TomKitten or, if you must, Suri ("with a fringe on top," my wife likes to add).  I have found, though, that many folks interested in the new baby are confronted with a common and difficult question: How do I distinguish between actress/wife/mother/contractual obligee Katie Holmes, and the noted law professor, holder of the Walter E. Meyer chair at NYU Law School, and author of such books as Passion and Constraint and The Anatomy of Antiliberalism, Stephen Holmes?

Well, first of all -- relax, folks!  It's an easy mistake to make.  I can't tell you how many times I've heard people mix up the two Holmses.  But we here at Prawfsblawg can train you to recognize the differences.

Now, it's not our way to just tell you what you need to know.  No, sir.  Teach a man to fish, is the motto at Prawfsblawgs.  (OK, it's actually the motto above.  But I came up with that one, and I can change it any time, if you all don't behave.  Just try me.)  Instead, we've come up with a short and simple quiz to help you figure out which Holmes you're thinking of.  Score along at home:

1) A. Has written extensively on precommitment strategies.  2) B. Has been accused of signing a "precommitment" to give birth to a Miracle Child.

2) A. Is interested in "gag rules."  B. Was subjected to a "gag rule" during childbirth.

3) A. Has dedicated a book to "Jamie," which means "supplanter" in Hebrew.  B. Has named a child "Suri," which is Japanese for pickpocket.

4) A. Has written about Joseph de Maistre and Leo Strauss, both of whom have been described as authoritarians with cultlike, fanatical followers.  B. [This point of comparison has been removed on the advice of counsel.]

There you go, kids.  Another public service from the gang at Prawfsblawg.  Next week: John Rawls vs. Lou Rawls.  The distinctions are subtle, but they can be taught.   

Posted by Paul Horwitz on April 20, 2006 at 05:21 PM in Culture | Permalink | Comments (5) | TrackBack

The Behavioral Economics of "Deal or No Deal"

A pair of economists from Yale and the University of Sydney have posted this paper, titled "Decision Making Under Risk in Deal or No Deal," on SSRN.  Here's the abstract:

We analyse the choices of 399 contestants in the Australian version of the television game show Deal or no Deal. As a first pass at the data, we calculate risk-aversion bounds for each contestant, revealing considerable heterogeneity. We then estimate a structural stochastic choice model that captures the dynamic decision problem faced by contestants. To address individual heterogeneity, we nest the dynamic problem within the settings of both a random effects and a random coefficients probit model. Our structural model produces plausible estimates of risk aversion, confirms the role of individual heterogeneity and suggests that a model of stochastic choice is indeed appropriate. We also examine generalisations to expected utility theory, finding that the rank dependent utility model provides substantially improved explanatory power. Finally, we do not find strong evidence in favour of an endowment effect for lotteries.

Sounds very interesting.  But how do you solve for Howie Mandel?

Posted by Paul Horwitz on April 20, 2006 at 03:20 PM in Article Spotlight | Permalink | Comments (2) | TrackBack

Subsidiarity and Religious Establishments

This paper, by Kyle Duncan, "Subsidiarity and Religious Establishments in the U.S. Constitution," looks interesting.  Here is the SSRN abstract:

This article proposes subsidiarity as a tool for understanding the problem of religious establishments and the function of the Establishment Clause of the U.S. Constitution. Subsidiarity is a theory with roots deep in European political thought. It concerns how persons become genuinely free by associating with others, and what those associations imply about state authority. Subsidiarity’s goal is to empower assocations by conditioning the intervention of state authority. State authority should foster, protect, and coordinate associations, but never absorb their functions. In this way, associations will provide genuine freedom and development for the individuals within them. As a political theory, subsidiarity has been applied to a wide array of problems—from international human rights and the International Criminal Court, to corporate governance and the European Union. Subsidiarity promises interesting applications to establishments and the Establishment Clause. The article concludes that, as a substantive norm, subsidiarity provides a viewpoint from which to assess the role of religious associations within a pluralistic society. It also furnishes an illuminating way of understanding the problem of religious establishments as such. As a structural norm, subsidiarity helps place the Establishment Clause within the federal framework of the U.S. Constitution. It invites us to view the Clause as a structural strategy for dealing with the problem of religious establishments faced by the authors and ratifiers of the U.S. Constitution. The conclusions promise a helpful reorientation of the typical discourse about religious establishments in U.S. jurisprudence and scholarship.

As I have tried to explain elsewhere, I am a big fan of subsidiarity as a political norm and structural principle, and am also inclined to regard as important mediating associations and their freedoms.  That said, I wonder if there are limits to subsidiarity's usefulness when it comes to "[]orienting [our] discourse" about our Constitution?  Subsidiarity, as I understand it, is a principle according to which decisionmaking ought to take place at the "lowest" possible level.  But, subsidiarity is not a general requirement of decentralization or devolution; sometimes, when centralization works best (all things considered), then centralization is required.  Under our Constitution, it seems to me, the local v. national decision is often (not always, of course) a function not so much of "which level works best?", or "which level of decisionmaking best facilitates human flourishing?", but "is the government actor in question authorized to make the decision, or engage in the conduct, at issue?"  If I'm right about this, then what room is there, really, for "subsidiarity" in deciding Religion Clause cases?  (Read the article, Rick.  ed.)

Posted by Rick Garnett on April 20, 2006 at 02:17 PM in Religion | Permalink | Comments (0) | TrackBack

Against Privacy and Transparency

A recent issue of The New Republic includes this essay, "Secret Service," by Professor William Stuntz.  He opens with this:

Politics in the age of information is often about secrets: who has them, who can keep them, who must tell them to whom. Can the NSA listen to my phone conversations? Can the police find out what books I buy or what movies I rent? Can I find out whether they know those things? As that set of questions suggests, secrets tend to pit individuals against the state. In the United States today, the left usually lines up with individuals; the right (though not always, and not unanimously) lines up with the state. Privacy and transparency--the twin concepts that government should know as little as possible about individual citizens, while those citizens should know as much as possible about the government--seem like quintessentially liberal ideas. 

But one might think about the politics of secret information very differently. In order to govern wisely, the government should know as much as possible about those it governs. And the citizenry should know a lot less about government officials--otherwise, those officials will spend too much time and energy hiding from reporters and too little time and energy governing. In these terms, individual privacy and government transparency are deeply conservative ideas, because they keep government ignorant and inactive, and thereby prevent it from acting aggressively to right social wrongs.

Stuntz then goes on to defend the provocative thesis that:

Today, the danger that American democracy faces is not that rulers will know too much about those they rule, nor that too many decisions will be made without public scrutiny. Another danger looms larger: that effective, active government--government that innovates, that protects people who need protecting, that acts aggressively when action is needed--is dying. Privacy and transparency are the diseases. We need to find a vaccine, and soon.

Along the way, he offers intriguing claims, like this one:

Transparency also acts like a tax--a tax on activist government. Anyone who has worked in a large institution understands why. For every good idea about how the institution might run better, employees generate ten bad ones. So the key to producing good ideas is encouraging ideas of all sorts. And the key means of encouragement is secrecy. Transparency, by contrast, is the ultimate status-quo rule: It punishes all suggested deviations from the norm. No wonder pro-business conservatives of the '40s liked it so much.

And, he concludes with this:

Getting privacy and transparency right is the key to making government work better. Conservatives should like that because, at least for now, they run the government. Liberals should want government to function better because they believe in it. America's greatest triumphs--fighting and winning the Civil War, battling the Great Depression, defeating first fascism and then communism, winning civil rights for African Americans--all happened because government worked. Today, it usually doesn't. The reasons sound surprising, but they would have made sense to Americans of generations past: We have too much privacy, and those who govern us have too little.


Posted by Rick Garnett on April 20, 2006 at 01:59 PM in Criminal Law | Permalink | Comments (8) | TrackBack

Part II: Indefensible Things About Law Teaching (and suggestions)

We don’t teach people how to teach sufficiently well.  How do people learn how to teach?  In most of the university, one learns the substance in graduate training and learns how to teach by being a teaching assistant (TA).   Law is unusual in that most of the folks starting teaching have never been in front of a class before.   Again, I firmly believe that at least most law profs are bright, talented folks; and I would bet, just based on anecdotal evidence, that a greater percentage of law profs today actually care about being good teachers than in past decades.  But even assuming lots of positives, good intentions + hard work + knowing the substance + being gregarious and socially skilled all together are not sufficient for good teaching.

I was a much better teacher in my first law class because I had been a TA in grad school.  I learned from undergrads in Georgetown’s history department that I should speak more slowly, write more things on the board, etc.  I also stumbled onto/learned strategies about questions and answers in class, dealing with students that were unhappy with their grades, how to make criticisms more constructive, etc.

None of this is rocket science, and at least most folks in law teaching who care can work this stuff out after a couple of years.  But I think law schools could and should do a better job of prepping first year teachers on how to teach in their first couple of years.

From what I gather, current strategies include the following.  First, sending new folks to the AALS “new teachers” conference.  That was good when I attended it, but there’s only so much you can learn in a day or two.   Second, giving first year teachers “light loads” of teaching.  While it’s good to have more time for preparation, this still doesn’t teach how to teach.  Also, one wonders if schools expect at least a chunk of the “extra” time to be spent working on scholarship.  Third, periodic reviews, usually related to the retention/promotion/tenure process.   A snapshot review can be useful, but it’s necessarily quite limited; also, to the extent that it’s part of “making a record,” that can interfere with frank dialogue about teaching.

So, what can be done?  First, I think more schools should treat “learning how to teach” as seriously as they treat “learning how to publish.”    I don’t have hard data to support my claims (if I’m wrong, tell me and I would be delighted), but I suspect that more schools have publication mentors than teaching mentors, and most have few if any faculty workshops devoted to teaching techniques and issues.  I think every new teacher should be assigned a teaching mentor; that new hires should be strongly encouraged and maybe required to visit classes of more senior teachers to expose them to a variety of styles that work; perhaps mid-term evaluations for first semester teachers could be used to get earlier feedback; and that generally, learning to teach should be treated as seriously as learning how to publish.

Posted by JosephSlater on April 20, 2006 at 10:01 AM in Life of Law Schools | Permalink | Comments (11) | TrackBack

Wednesday, April 19, 2006

The Genetic Discrimination Paradox


Debates about genetic discrimination generally assume that genetic discrimination is a prevalent phenomenon. (See here and here). I was recently collecting empirical studies for a case study on genetic discrimination and was extremely surprised at what the data revealed: Despite the growth in the number of available genetic tests, genetic discrimination remains rare (The case study is part of a larger paper available here).

It appears that the source of widespread public concerns about genetic discrimination was a series of first generation studies that were based on isolated case studies instead of survey methodology. Second generation studies remedied the methodological problems that inflicted the earlier studies. The overall picture derived from these newer studies reveals that genetic discrimination by insurers and employers is not only rare but also on the decline.

So why should we still be concerned? Although genetic discrimination is rare, individuals paradoxically are reluctant to submit to genetic testing. Individuals cite fear of genetic discrimination as a primary reason for not testing. Consequently, it appears that concerns about genetic discrimination are inhibiting the diffusion of genetic testing technology.

I believe these findings suggest a need to refocus our concerns regarding genetic discrimination. Calls have been sounded for years to supplement the existing patchwork of federal and state laws with a comprehensive federal law against genetic discrimination. These findings underscore the need for such a law, not primarily to deter genetic discrimination but to prevent the under-utilization of an important new technology by alleviating the public fears surrounding it.

Posted by Gaia Bernstein on April 19, 2006 at 08:29 PM in Information and Technology | Permalink | Comments (1) | TrackBack

Religious Tests in the Mirror

Did the Administration do anything wrong in invoking Harriet Miers' faith in promoting her nomination to the Supreme Court?  Would the members of the Senate have done anything wrong if they had questioned, or opposed, John Roberts based on his religious faith?  The answer to these questions has much to do with the Religious Test Clause of the Constitution, which states that no religious test shall ever be required as a qualification to any office or public trust under the United States.  During these nomination battles, some observers argued that the Religious Test Clause would forbid the Senators from questioning Roberts on his faith, on his religiously derived beliefs, or on the relationship between his faith and his role as a Justice.  Similarly, many observers suggested the President's apparent efforts to sell nominee Miers on the basis of her faith crossed the line marked by the Religious Test Clause.  Were these observers right?

In my paper, Religious Tests in the Mirror: The Constitutional Law and Constitutional Etiquette of Religion in Judicial Nominations, I argue that they were wrong.  Nothing in the Religious Test Clause ultimately forbids any of the actions we saw in the wake of the Roberts and Miers nominations -- nor did it forbid the kinds of questions we saw raised in the wake of the nomination of William Pryor to the Eleventh Circuit.  Indeed, it would not forbid the President from expressly selecting a nominee on the basis of that person's faith, or a Senator from expressly opposing a nominee on the same basis.  But just because the Religious Test Clause does not operate in this area, that does not mean we cannot hold a productive conversation about the "constitutional etiquette" of such behavior; we can still try to craft guidelines that help us to evaulate how people should talk about religion in the context of judicial nominations -- and, not incidentally, how people should talk about religion in the public sphere more generally.

Comments are welcome.  Honestly.  I'm always eager to find new readers, and the paper is early enough in the pipeline that I can still benefit from reactions and suggestions.  For those with time on their hands, the abstract is after the jump -- or you can just read the paper....

The Religious Test Clause of the United States Constitution states that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” Although it is the only place in the main text of the Constitution that mentions religion, it has been habitually ignored – until now. In the past several years, a spate of lower federal court nominations and two Supreme Court nominations – the successful nomination of Chief Justice John Roberts and the abortive nomination of Harriet Miers – have occasioned public debate over whether the Religious Test Clause forbids Presidents and/or Senators from supporting, opposing, or even questioning nominees on the basis of religion. More broadly, these events have been the occasion for discussions about whether and how religion may be raised in the public debate surrounding judicial nominees. Because the Roberts and Miers nominations present neat mirror images of each other, with religion used as a disqualification in one nomination and a qualification in the other, it is an opportune moment to assess what the Religious Test Clause has to say about these cases, and about the use of religion in the federal judicial nomination process more generally.

This article, a contribution to a Symposium on “Religion, Division, and the Constitution,” is the first to fully examine these questions. After discussing the invocation of the Religious Test Clause in the recent nomination controversies, it looks carefully at the text and history of the Religious Test Clause. It argues that the Religious Test Clause precludes Congress or the President from imposing a formal test oath on would-be federal office-holders that would require them to avow or disavow, under oath, allegiance to a particular faith or set of religious doctrines. And that is all it does. A President may select nominees on the basis of their faith if he chooses; a Senator may question a nominee on his or her faith or religiously derived beliefs, or support or oppose a nominee on that basis. Thus, those public officials, public figures, and commentators who argued during the recent nomination process that the Religious Test Clause barred certain actions or inquiries were wrong.

I argue that this conclusion is not only descriptively accurate; it is also normatively sound. There are many plausible reasons why a President or Senator might validly inquire into the faith, or religiously derived beliefs, of a nominee. To silence such inquiries because of the dangers of intermixing religion and politics ultimately disserves the broader principle that religion ought to be a fully welcome part of discussion in the public sphere. In addition, the broad reading of the Religious Test Clause, by constitutionalizing an area of politics, unduly limits the scope of popular responsibility for the political process. The best remedy for abuses of religion in the judicial nomination process lies in the realm of ordinary politics, and not in the Constitution.

Although the Constitution thus provides few if any barriers to the use and abuse of religion and religious rhetoric in the federal judicial nomination process, nothing prevents us from attempting to craft evaluative criteria that might lead to more fruitful uses of religion in public debate, and to guide our understanding of how well or poorly religion has been used in the public debate surrounding judicial nominations. The article thus offers several principles of “constitutional etiquette” that might guide our understanding of the sound use of religion in this context, and measures the recent nomination controversies against these standards. It concludes that even with these criteria in place, the invocation of religion in judicial nominations, as elsewhere, may lead to more rather than less division in our national politics. But the price is well worth paying, if our public discussions become richer and deeper as a result.

Posted by Paul Horwitz on April 19, 2006 at 08:28 PM in Constitutional thoughts | Permalink | Comments (16) | TrackBack

Conglomerate Junior Scholar Workshop

Blawgership, blah, blah, blah.  Knowing that many law school folks are still skeptical about whether blogging can/ought to count as scholarly activity, I can see that this discussion still needs to take place at many law schools.   Thank goodness for two people: first, Bernie Black, who just spammed informed all of us on SSRN listservs that the HLS bloggership conference will have its papers on a special SSRN page (which, as of now, hosts only Orin's oeuvre.)  And second, over at the Glom, Christine has announced the second annual Junior Scholar workshop. Prawfs might get around to doing something like that too, but perhaps we should draw on the mighty masses of our own former guests first to serve as referees and participants. Hmmm.

Update: further evidence just in suggesting something useful going on here. Ian Best at 3LEpiphany has just posted a collection of law review articles which cite legal blogs. "There are 70 legal blogs represented. The 27-page collection is available for downloading here."  Prawfs has been cited a couple times, but apparently one of these is from the ever-prolific (albeit sartorially challenged) Ethan, so perhaps that shouldn't count. [Ed. how probative is Ian's data? What about the number of tv shows and pop songs also cited in law review articles?]

The blogs included in this collection are listed below, with the number of citations for each blog in parentheses. The blogs with the most citations are Sentencing Law and Policy (60), The Volokh Conspiracy (41), Legal Theory Blog (24), How Appealing (19), SCOTUS Blog (19), Lessig Blog (17), Balkinization (14), and ProfessorBainbridge.com (11).

I take comfort in the suggestion (made by me) that our relative paucity of citations is due to our comparative youth in the 'sfere. Onward!

Posted by Administrators on April 19, 2006 at 05:01 PM in Blogging | Permalink | Comments (4) | TrackBack

Mearsheimer & Walt Redux

I thought I was slow in responding to Mearsheimer & Walt's LRB article here.  Finally, the New York Times ran something about it by the ever-sober Tony Judt.  I really think there is nothing plausibly objectionable about it.  But I'm looking forward to watching people at the VC and The Right Coast denounce it as anti-semitic.

I admit, by the way, that I had to stop reading Judt's Postwar; there really needs to be a shorter version.  Omitting footnotes for Judt may have trimmed pages -- but there are still 878 of them in really small type.  And I just don't have that kind of time.   Especially now that I'm on the edge of my seat about Iran, thanks to this article by Seymour Hersh.

Posted by Ethan Leib on April 19, 2006 at 01:33 PM | Permalink | Comments (1) | TrackBack

Legal Ethics 101: The Ups and Downs of Depositions

This is all over the web, but in case some of you hard-working lawprofs have not seen this video of a deposition gone horribly wrong, it is not to be missed:

Jamail deposition in Texas

I'm really tempted to play it for my professional responsibility class this evening.

Query to Texas lawyers:  how is it possible that the lawyers involved have not been disciplined?  Or have they?

See, there's no reason why teaching legal ethics has to be dry and dull.  In fact, in response to Ron's post last week about innovative teaching of professional responsibility, there is an entire discussion over at the Legal Ethics Forum about how legal ethics profs can make their classes interesting, useful and creative.

Posted by Laura I Appleman on April 19, 2006 at 12:46 PM in Teaching Law | Permalink | Comments (2) | TrackBack

Indefensible Things About Law Teaching (and suggestions), Part I

I love my job and  I respect most folks in this profession, but there are some things about this business that are hard to defend.  In this installment, I’ll talk about the elitism of law review publishing, and how we might address it.

We all know the criticisms of law review publishing:  the simultaneous submissions that result in editors having to sort through thousands of articles; the general lack of peer-review; the general lack of anonymous submissions.   And we’ve heard stories about articles being selected on the basis of the rank of the school of the sender (“wait ‘til you visit at that higher-ranked school to send out your publication”); the reputation of the author (“it’s by Professor Famous, so it doesn’t matter if the draft he sent is a mess”); the trendiness of the subject among law students (better to write about employment discrimination than labor law, and god have mercy on tax profs. ); the inability of law students to recognize good interdisciplinary work (history from archives, economics with hard math); and other issues not going to the merits of the piece.   I know that law review editors (whom I really, really respect, especially those who will be making decisions about acceptances come fall) work hard and try to be responsible.  I also know that this system of publishing is widely viewed with incredulity in much of the rest of academe.

I’m not suggesting that any of this is going to change significantly anytime soon.  What can be done, however, is that law schools should stop greatly over-stressing the placement of articles. 

One advantage of law review publishing is that lots of stuff gets published.  A tremendous amount of elitism exists, however, regarding placement:   in hiring law faculty, in votes on tenure and promotion, and in salary adjustments.   Placement prestige is greatly over-stressed in these processes.  The vagaries of law review publishing are such that we simply cannot use the fact that an article was published in a “top 30" journal as a proxy for superior quality to an article published in a 50-80 journal, or in a specialty journal, or even “lower” in the pecking order.   I’ve read lots of great stuff in second-third tier law journals and specialty journals.  Duncan Kennedy may not have gotten everything right in “Legal Education As Training For ...,” but there absolutely is irrational hierarchy in law review publishing.

I stress that this does not mean that any law review publication is as good as any other.  Evaluators simply have to come up with better methods of evaluating quality.   Get more folks on your own faculty to read the dang things, get more/better outside evaluations by peers, check number of citations, etc.   The time to do this can come in part from not putting as much effort into trying to bid articles up the law review food chain.  Just don’t rely so much on the name of the journal.

And yes, it’s possible that SSRN downloads, blogs, and other semi-democratizing forces, or more publishing of peer-reviewed university press books (buy mine here!)  will make law review publications less important at some point.  But for folks trying to get entry level or new teaching jobs, or trying to be viewed as a success at their current job now, the prestige factor is indefensibly overrated.

Posted by JosephSlater on April 19, 2006 at 09:56 AM in Life of Law Schools | Permalink | Comments (6) | TrackBack

Tuesday, April 18, 2006

To Wiki or Not To Wiki Your Professor

I was much rejuvinated after my recent Passover vacation -- and my students must have benefited from my feeling refreshed.  So delighted by my extra energy were they that they seem to have created a Wikipedia entry for me here.  It really is pretty funny, I must say. 

It is worth noting, however, that the black "velvet" jacket referenced there "most charitably described as garish" is actually faux fur.  And I designed it myself at Al's Attire in North Beach.  You should see the lining.

Posted by Ethan Leib on April 18, 2006 at 07:34 PM in Culture | Permalink | Comments (7) | TrackBack