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Friday, June 16, 2006

Short People

I'm a short person.  It has never gotten me a break in any area of my life.  My law school adviser used to joke that he was trying to get law schools to hire me based on affirmative action for short people. 

Now comes a tale from Cheyenne County, Nebraska of a child molester who is getting probation because the sentencing judge thought he was too short for prison.  Now that's a break!

Hat tip:  Ruchira Paul

Posted by Ethan Leib on June 16, 2006 at 01:07 AM in Criminal Law | Permalink | Comments (4) | TrackBack

Thursday, June 15, 2006

PrawfsBlawg Get-Together in Vancouver

As Dan mentioned last week, we'd love to see those of you who are hanging out at the AALS Mid-Year Conference in Vancouver.  We'll be meeting tonight at Bar One in the North Tower of the Sheraton Vancouver Wall Centre.  As the hotel's site suggests, come "indulge in our sensuous leathers and vivacious atmosphere of Vancouver's premier hotel."  Festivities to begin around 9:00-ish (PST).

Posted by Matt Bodie on June 15, 2006 at 05:54 PM in Blogging | Permalink | Comments (0) | TrackBack

An Interview with SSRN's Gregg Gordon

One of the most important developments in legal academia in the last ten years has been the rise of working paper repositiories.  Social Science Research Network (SSRN) has been at the forefront of this movement, championing the easy and free accessibility of working drafts for scholars around the globe.  SSRN has changed the debate on a number of issues, from measures of scholarly productivity to the quality of working drafts that become publicly accessible.  I recently had a chance to catch up on a number of these issues with Gregory J. Gordon, President and CEO of SSRN.  Gordon helped found SSRN in 1994, and he has worked with SSRN Chairman Michael Jensen on a number of different projects for over 15 years.  Before the founding of SSRN, Gordon worked at KPMG and two entrepreneurial companies in technology and health care.  His work at KPMG focused on start-ups, spin-offs, and other nascent enterprises.

1.  Tell us a little about SSRN.  When did SSRN begin?  What is your mission?  Who are you looking to serve?

SSRN was founded in 1994 by Michael Jensen and Wayne Marr to provide an efficient means to distribute scholarly research.  Our motto, Tomorrow’s Research Today, drives what we do every day.  Tomorrow’s Research Today means rapidly distributing research worldwide enabling researchers around the world to be on the cutting edge of new ideas.  It also means providing reliable, ongoing access and accurate content. Changing the way research is distributed changes the way research gets done, speeds the creation of ideas in the world, and gets new research done sooner. Hence research that would have been available “tomorrow” without SSRN, now is available “today.”

2.  SSRN is a closely held for-profit company.  As many of your owners are corporate scholars, does the notion of “shareholder wealth maximization” enter into your corporate philosophy?  On a more practical level, should we fear that SSRN may sell out to a large corporation if it becomes profitable to do so?

We have never taken any outside money (no investment bankers, venture capitalists, or bank debt).  SSRN has been funded entirely by a small group of scholars and myself. Since we are spending our own funds, this approach has required us to make tough decisions and not do everything we want to do.  The benefit is that we hold the decision rights about what we do in the future.  As we have demonstrated over the past 11 years, we are not in this venture to maximize revenues or profits.  As for a future sale, other than myself, the shareholders are academics.  They have invested their own money and time into SSRN with the goal of changing how research is distributed, value their reputations and relationships within the scholarly community, and would not risk them by selling in a manner that would jeopardize our central goal. Our intention is to never sell, but it is hard to guarantee that.

3.  I'd like to ask you more about the download issue.  Lots of legal academics treat SSRN downloads as an indicia of scholarly impact.  SSRN encourages this by calculating downloads for each professor as well as ranking schools by their faculty download counts.  How important are downloads in measuring scholarly productivity and impact?

Downloads certainly generate a lot of discussion.  We think they can provide information about scholarly impact, in a way that differs from other measures. Downloads counts are especially useful for younger researchers and new and up and coming programs.  As we have said on our About Top Law Schools page and elsewhere:

The importance of scholarship cannot, of course, be captured by a single ranking. We provide rankings based on a number of measures. These rankings are meant to complement other measures of scholarly impact. We currently provide law school rankings for 9 different measures. Rankings are provided for each of the measures in the table and you can re-order the table by clicking on any column heading.

These rankings can inform your thinking about the productivity and influence of schools and authors; but the underlying issues are too complicated to be summarized in any limited number of simple measures. They cannot provide easy answers. They can provide data not previously available that is useful in addressing many issues. Use them carefully and wisely.

It is also important to remember how we define a download.  From our FAQ:

Downloads are a measure of the number of times a paper has been delivered to an interested party. SSRN takes great care to ensure that download counts are an accurate measure of reader interest in an author's work. First, because we distribute complete abstracts of every paper, we ensure that interested readers make informed decisions regarding whether or not to download the full text of a particular paper, rather than uninformed explorations triggered only by a catchy or vague title. A SSRN download starts with the reader visiting the paper's "abstract page." Readers, who still want to read the paper, can then download it. In general, only one out of five abstract views results in a download.

Second, we do not count multiple downloads of the same paper by the same person nor machine or "robot" downloads.  If SSRN permitted a single click to download a paper from another source, such as a search engine or a blog, and counted all mechanical downloads, this would inflate its download counts by a factor that has been increasing over time and is now close to six. This would degrade download counts as a signal of paper quality, and substantially increase the ability of users to manipulate them.

4.  Why don't you provide links that let users directly download papers, without first going to an abstract page?

As we just discussed, catchy titles generate clicks that often, in our experience, do not result in a user reading the paper. If you are interested in potential reader interest, look at the number of abstract views.  If you are interested in actual readership, look at our download counts.  You can look at either number depending on your interest but any comparisons should be apples-to-apples.

Allowing downloads only from an Abstract Page does impose a cost (one more click) on users who already know they want to download the paper.  But our approach reduces the overall cost for the large majority of users who are satisfied with the information on the abstract page.  The abstract page for each paper provides the following information:

  1. Complete title, author(s) name, affiliations, and abstract: this information helps the reader determine if they have the correct paper, are interested in it, and want to download it.
  2. A link to each author's "author page" so users can find other papers by the same author.
  3. Basic usage statistics (abstract views and downloads).
  4. Options: we allow readers to download the paper from multiple, mirrored worldwide locations (SSRN on the US east coast, Stanford Law School on the US west coast, ECGI in Europe, and Korean University in Asia) so that they can choose the one that best suits them, email the abstract to a friend/colleague or to themselves, or add it to their My Briefcase for quick access later.

Another concern is file size:  we have hundreds of papers that exceed 20 MB (and some over 100 MB) in size.  Mistaken downloads of these files can be a significant waste of bandwidth and reader’s time, especially for our many users around the world that have low-bandwidth connections.

5.  How important is the integrity of download counts to SSRN?  What measures do you have to protect against gaming the system?

We treat the integrity of download counts as a very high priority, and have devoted substantial resources toward ensuring that our download counts are clean. We cannot police every single download but our commitment is to do the best we can to ensure that downloads measure reader interest. I do not know what any other site does to validate downloads but I do know that SSRN has multiple filters and spends significant sums to validate our download statistics. When we announced the beta version of the Top Law Schools Rankings last year we also made some of our verification functionality more visible. We now require users who either intentionally or accidentally violate our standards for download counts to log in to the SSRN site to download papers.

There has been some discussion about comparing data from multiple sites.  Some sites provide download information and others do not. The important thing to realize about download data is that it is susceptible to gaming and some sites may not want to have their download data scrutinized.  Although rare, we have had some instances where we have identified some parties trying to increase download counts for themselves or others. In those situations we discuss the matter with the person and (when our systems did not exclude the downloads in real time) we adjust the numbers. If the abuse were to continue we would bar the continued use of SSRN by those involved. This is a time consuming process but critical if the data is to be trustworthy.

In addition, we make significant amounts of our data available, on a close to real-time basis throughout our web site.  Transparency on usage statistics has always been important to SSRN. You can see, at all times, the total number of abstracts, papers, authors, submissions, and downloads from the SSRN eLibrary on our eLibrary Search Page http://ssrn.com/search. These numbers are updated every day of the year. We also show the number of abstract views and download counts of each paper in the system on its public abstract page in real time. Thus it is possible for our users and authors to monitor this data in real time.

6. Let’s say a law school had a policy of sending out the following email to its alumni every time one of the faculty posted an article on SSRN:  “Professor X has just posted a fascinating new piece on SSRN.  Here’s the link.  I encourage you to download this piece and read it for yourself.”  If the dean did that for particular papers, or for every faculty paper, would that constitute gaming the system?

If someone attempted to “game” the system by asking people to download articles that were not of interest to them, we would consider it gaming.  If someone is promoting an article that they think is interesting research that is appropriate. Our email abstracting journals are designed to allow potential readers to receive abstracts and associated information in subject areas of their choice, to help them deal with the “fire hose” of data that SSRN provides in its entirety. These journals are very popular and account for a substantial number of downloads of individual papers. It can certainly be appropriate for schools or research institutes similarly to alert their constituencies to new research of potential interest.  Blogs also do a great job of introducing potential readers to research that they may have missed.  As the number of blogs expands and they become more granular, including Paul Caron’s subject based network of blogs, I think readers will find one or two that are of direct interest to them and read them regularly.  Suggestions from those blogs generate downloads because they are talking to an interested group of potential readers.  As I mentioned above, we provide an abstract page with other data as an interim step to mitigate uninterested parties from downloading an article, and we have technology in place to identify users or institutions that might attempt to directly manipulate download counts.

7.  On our site, Dan Markel asked whether SSRN is turning into a repository only for polished drafts, rather than real working papers.  Have you heard that this is happening and, if so, do you see it as a problem?

It is an interesting question that Michael Jensen responded to separately. http://prawfsblawg.blogs.com/prawfsblawg/2006/01/whither_ssrn.html There is probably not a single right answer.  Some authors put up early work and ask for comments, while others wait until a paper is close to being ready for submission to a journal.  Our submissions are running at the rate of about 30,000 papers per year and they run the entire spectrum.  We want to serve the researcher at all points along the process and are working hard to build technology to be able to do it.

8. What plans do you have for SSRN in the future?

We have a lot of things on our plate. We continue to invest very substantial resources to add new capabilities and increase the value of SSRN to researchers and readers. You will see a continuing stream of innovations from these investments in the future.  Some of them are discussed above but all of them relate to better service for our scholars and expansion of the subject areas, and all of them are focused on providing Tomorrow’s Research Today.

Authors in the SSRN eLibrary regularly tell me that they receive a lot of benefit from our interdisciplinary approach.  By allowing authors to classify into multiple networks, we provide them a mechanism for reaching people they wouldn’t have been able to reach in the past.  By broadening our subject areas within the social sciences and humanities and deepening the research within all of our areas, we can provide a more complete, comprehensive view of the research being produced around the world. Improving the distribution of scholarly research and expanding our interdisciplinary approach is very exciting to me.

Posted by Matt Bodie on June 15, 2006 at 11:49 AM in Life of Law Schools | Permalink | Comments (1) | TrackBack

Wednesday, June 14, 2006

Marriage & Politics

The NYRB has an interesting tidbit about Ehud Olmert, prime minister of Israel:

Olmert's wife, Aliza, an artist known for her support of the leftist Peace Now, recently told an interviewer that . . . [b]efore the recent elections . . . she had never voted for her husband. Now she had done so, because, she said, Olmert had undergone "a deep change." She was only sorry it had not happened thirty years earlier.

Do you know of American politicians' partners who are so open about not voting for their spouses?  Is there a President in recent memory whose wife didn't vote for him?

Posted by Ethan Leib on June 14, 2006 at 07:25 PM in Article Spotlight | Permalink | Comments (1) | TrackBack

Impact Outside the Academy

On Monday, I talked about the impact of legal scholarship outside of the academy -- specifically, in helping to raise children.  Today, a slightly more serious example that I think is heartening for those of us who occasionally wonder whether anyone reads or cares about these law review articles we labor to produce. 

Columbia Law professor James Liebman has recently taken leave to serve as the "chief accountability officer" for the New York City public schools, serving under Chancellor Joel Klein.  His new job -- from what I can tell from reading the press release, and Klein's speech announcing it -- appears to relate to his scholarship with Charles Sabel, available here, on the "New Accountability" movement in education reform -- scholarship which built on Sabel's work with Michael Dorf on "democratic experimentalism" as a new form of regulation and governance.   For Liebman, having an impact outside the academy with his scholarship is not new, a recent and prominent example being his empirical work on the death penalty with fellow Columbia Law Professor Jeffrey Fagan and colleagues.

I have no idea how exactly this job came about, but the basic chain seems clear: write an article or two about an important issue of law and policy, someone notices and thinks it's interesting, a reformer looking for new ideas asks you to come aboard and implement the idea.  No reason one needs to be The Implementer as well as The Conceptualizer, but still interesting.  Almost makes you think that some ambitious big-city police chief should appoint Markel "chief shaming officer" in a troubled neighborhood.  Though I suppose, given Dan's views, he wouldn't do very much.

Posted by Jason Solomon on June 14, 2006 at 01:27 PM | Permalink | Comments (0) | TrackBack

Tuesday, June 13, 2006

Bazelon and Lithwick on Supreme Court Clerks

Emily Bazelon and Dahlia Lithwick have this piece in Slate today on recent criticisms of Supreme Court clerks by Stuart Taylor and Benjamin Wittes, Richard Posner, and others.  Some of those criticisms have suggested that the Court consider reducing or eliminating its cadre of law clerks.  Dan has already written about the Taylor/Wittes article.  Bazelon and Lithwick argue that...well, their argument isn't exactly clear, except that they think getting rid of the clerks is a bad idea.

Orin Kerr recently wrote some critical thoughts on Lithwick, and I think he was basically right, although I think the criticism can be broader than simply suggesting that she leaves behind her analytical smarts when writing about conservatives.  Today's article is illustrative of her flaws, I think.  (Since the kill-the-clerks argument doesn't necessarily have a political valence, if anything today's article would suggest that if Lithwick has a bias, it is less a pure political bias than an institutional bias in favor of the Court and the (generally liberal and well-heeled) institutions, like big-firm appellate practices and elite law schools, that focus on the Court.) 

Lithwick is a great writer, as is Bazelon, and they get in some nice shots and a couple of decent arguments.  But the piece peters out, and one gets the sense throughout that they structured it around their best laugh lines rather than around any coherent central argument.  Back when I was a tyro in journalism school, one of my teachers liked to tell us, "Kill your darlings" -- meaning, don't be so devoted to your favorite lines that you won't sacrifice them to serve the broader piece you're writing.  Therein, I think, lies the problem with Lithwick's writing.  She's indisputably a bright and clever writer, and that's what's advanced her so far as a Supreme Court reporter.  But cleverness ain't thoughtfulness, as I am reminded every time I painstakingly edit one of my own articles, and ultimately there just isn't much of a there there in Lithwick and Bazelon's defense of law clerks.

Not that there aren't things to be said about the recent proposals to reduce the number of Supreme Court clerks.  One thing we might observe at the outset is that it's pretty unsurprising that we focus so much on Supreme Court clerks, but that doesn't make it a good idea.  Law professors, law students, and legal writers like Lithwick tend to fixate far too much on the Marble Palace. Just because the Supreme Court is the highest court in the land, doesn't mean it's the most important court in the land.  In the aggregate, we might want to spend more time thinking about law clerk structures on federal district courts and appellate courts, or on state courts, than at that one lonely institution on First Street.  Indeed, I suspect that those courts have seen many more changes and innovations in the clerkship structure -- some good, some bad -- than the Court has in the past several decades.  Students of clerkships, and more broadly of bureaucratic structures in the courts, would be well advised to turn their gaze somewhere other than the Supreme Court.

If anything, what's noteworthy about clerkships on the Court is how little they have changed, in their basic structure, in the last 60 or so years, other than the increased number.  Bazelon and Lithwick trot out the usual comparison of Justices and their clerks to "senior lawyers work[ing] with teams of more junior ones," but this is more of a credible post-hoc justification for the status quo than a real effort to identify whether the current system is the best means of organizing the system of lawyer assistance for the Justices.  While other courts have experimented with permanent clerks, staff attorneys, and clerks solely devoted to non-argument cases, the Court sticks by the old arrangement, only adding to the number of "secretaries" each Justice receives.  Is this ideal or not?  I'm not sure.  Neither, I suspect, are Bazelon and Lithwick or other defenders of the current setup.  But we might productively ask why the Justices have organized their chambers this way, and why they have not experimented more with the arrangement.  I have some suggestions about this, some of them to the Justices' credit and some not, but perhaps I'll leave them for the comments section.

As it turns out, like Dan (and Orin, I think), I don't really favor eliminating or seriously curtailing the number of clerks devoted to the Justices, and I doubt that doing so would achieve the goals that proponents of this idea are say it would.  But I do think that rather than simply defend the status quo with reasonable but reactive arguments, we should take seriously the notion of the Court as a bureaucratic institution, and ask, as a matter of first impression, what arrangements would best suit the Court's specific needs.  (That's why it won't do for Bazelon and Lithwick to simply say, as they do, that if members of Congress need staffers, so must the Justices.  First, each body has different needs.  Second, the nature of congressional staffing is itself an object of considerable study and occasional reform proposals, and there is no reason to think that the current staff system is all to the good.) 

Is it best to hire clerks with relatively little legal experience?  Maybe so, maybe not.  Senior partners at law firms don't limit their staffs to first- or second-year associates, after all.  And is there any good reason not to farm out the cert. pool to a cadre of permanent staff lawyers rather than the law clerks?  It seems to me an experienced staff lawyer would be at least as skilled, and perhaps more efficient, in sifting through the cert. pool than a group of brilliant clerks with only one or two years' experience, and no prior experience in evaluating cert. petitions.  Perhaps the clerks could write shorter opinions if they had more time to work on them.  The Justices have their own reasons to structure things this way, I'm sure, but that doesn't mean those reasons necessarily serve the institution's best interests, rather than their own interests. 

In any event, these things are worth thinking about, and perhaps the best way to think about them would be to look less at the Court and more at the varieties of clerkship and staff lawyer structures that other courts have used.  Pace Posner, it seems to me that the slow accretion of larger numbers of law clerks on the Supreme Court, without other significant changes to the system, doesn't illustrate the "bureaucratization of the Supreme Court" so much as it illustrates the Court's unwillingness fully to face up to itself as a bureaucratic institution. 

Posted by Paul Horwitz on June 13, 2006 at 05:27 PM in Article Spotlight | Permalink | Comments (8) | TrackBack

Sacred, Safe, and Busy

I am reviewing two recent books on urban and suburban development.  (Robert Bruegmann, Sprawl:  A Compact History (Univ. of Chicago Press 2005) and Joel Kotkin, The City:  A Global History (Modern Library Chronicles 2005).)  Bruegmann's book is the more "academic" of the two.  He is an historian who builds a very careful case for the suburbs (and against growth controls).  But, I am most struck by Kotkin's suggestion that healthy cities are "sacred, safe, and busy" places -- cities are centers of social and community life that protect their citizens and bind them together through shared norms and common aspirations.

The difficulty is, as any observer of the modern American landscape knows, that many cities have stopped serving any of these functions.   Some might argue that cities have stumbled because of suburbs, others that suburbs thrive because cities stumbled.  But, the question is what can be done to make cities "sacred, safe, and busy" again?  Like Bruegmann, I am skeptical of claims that we must stop suburbs to save our cities.  But, unlike Bruegmann, I do think that something should be done to save our cities.  Many cities' fortunes have improved in recent years --thanks in part to to new policing priorities, land use reforms, and sublocal government innovations.  The ultimate question is whether Americans can be convinced to live urban lives instead of suburban ones. 

Posted by ngarnett on June 13, 2006 at 10:31 AM | Permalink | Comments (7) | TrackBack

Innocence on the Court

Yesterday, the Supreme Court handed down House v. Bell, allowing a Tennessee prisoner on death row to proceed with his federal habeas claim.  The basic facts are straightforward: Paul House was tried, convicted and sentenced to death for the murder of Carolyn Muncey in eastern Tennessee.  Part of the state's forensic evidence was that there was semen consistent with House's on Mrs. Muncey's nightgown and panties.  Several years later, DNA evidence has shown that the semen was Muncey's husband's, not House's.  There was also evidence of problems with the blood samples, and other evidence pointing to Mr. Muncey, not House, as the possible killer.  Does House get to proceed in habeas, arguing for a new trial?  (Brandon Garrett, who's done terrific work in scholarship and practice on innocence claims, and I wrote about this case for the National Law Journal back in January.  More details also available here.)

The reason the question is close is that having procedurally defaulted his constitutional claims in state court, House has had to get past the requirement that a failure to hear the claim would be a "miscarriage of justice" by showing that it is "more likely than not that no reasonable juror would have convicted him in the light of the new evidence" -- both standards from the Supreme Court's 1995 Schlup v. Delo opinion.  It's a fairly high barrier -- deliberately so in order to balance the "societal interests in finality, comity, and conservation of scarce judicial resources with the individual interest in justice that arises in the extraordinary case." (Schlup)

Kennedy's opinion for the majority in House and Roberts' for the dissent differ in part on their views of the evidence, but the standard is critical: that "no reasonable juror" would have voted to convict in light of the new evidence.  But why should that be the standard? If one or two jurors vote to convict, that's still a pretty clear acquittal, but if the judges predict that outcome (I've written about the difficulty of making such predictions here), they should deny relief under this standard.  In other words, if judges think the acquittal in a new trial would not be unanimous, we shouldn't worry, and let the guy be executed. Huh?  Maybe the balance struck in Schlup made sense at the time, but after all the exonerations in recent years, driven by DNA evidence, maybe it's time to restrike that balance --  now that we know that unfortunately, such injustices are not the "extraordinary case."

Posted by Jason Solomon on June 13, 2006 at 12:14 AM | Permalink | Comments (3) | TrackBack

Monday, June 12, 2006

Responsibility for Health

Sorry to be away for so long!  Events overtook me.  So I'll be doing my "May stint" here for a bit of June.  I'm also doing some blogging on IP topics at Madisonian.net; I'll save this space for my other interests.

There's been a lot of talk on the news lately of a celebrated Pittsburgh Steelers quarterback (Ben Roethlisberger) who crashed his motorcycle and was badly injured while not wearing a helmet.  TV news stories focused on several NFL players who've defied contracts requiring them not to ride helmetless, and on the American Motorcyclist Association's opposition to helmet laws.  Proponents of helmet laws then noted that a high percentage of motorcyclists don't have insurance, and claimed that, at least for those riders, their "personal choice" had dire consequences for the public purse.  Apparently the AMA is having the better of the argument in several states, including Pennsylvania, which appears to have recently repealed its helmet law for riders over 21.

But at least some people are being held responsible for their health.  Under the Deficit Reduction Act of 2005 (which passed in 2006, and actually increases the deficit), states are permitted to impose all manner of paternalistic restrictions on Medicaid recipients:

Starting July 1, West Virginia will phase in a redesigned form of Medicaid that requires patients to sign a "member agreement," promising that they will keep doctors' appointments, take prescribed medicine and not overuse hospital emergency rooms. Patients who refuse to sign or to follow the rules will be eligible for less care.

I was recently at the Health Law Teachers Conference, where participants marveled at the conflicts of interest lurking here.  Are doctors supposed to turn in patients?  How about ERs?  The biggest problem is, of course, that medical spending is driven less by profligate patients than by chronic illness (a point my colleague John Jacobi makes in his Michigan J. L. Reform article, Consumer-Driven Health Care and the Chronically Ill). 

For me, the bizarre contrast here highlights a few problems in our political culture.  The common impulse to let the insured rider "off the hook," while scrutinizing Medicaid expenditures, betrays a troubling indifference to the nature of "spillovers" in health care.   Perhaps the insured cyclist's care will be "paid for;" but if you're the one who's triaged behind him in the ER waiting room, you're bearing some cost for that action.  And perhaps the Medicaid recipient will be scared away from overuse of the system by the new paternalism; but perhaps he'll also miss out on necessary health care (and preventive interventions) once he's been "cut off" for insubordination. 

So perhaps the bottom line is: it's not just the uninsured, or "wards of the state," who need to take responsibility for their health.  Given limited health care resources, just about anyone who demands care for a preventable condition may be viewed as unfairly diverting that from another who could not avoid her fate (and who happens to have ended up, by virtue of bad timing or lack of purchasing power, at the wrong end of the triage line).  This is not to say that I'm behind the whole "take responsibilty" mantra in health reform--I'd take it a lot more seriously if it were backed by significant funding for preventive care.  I just want to say that it should not be focused only on the poor.

Posted by Frank3 on June 12, 2006 at 10:28 PM in Current Affairs, Legal Theory | Permalink | Comments (0) | TrackBack

Who Controls the Internet?

I've just read Goldsmith & Wu's Who Controls the Internet?  (OUP 2006).  It was a very easy read and was quite informative.  Its central argument is that the internet must be "bordered" (both as an empirical and a normative matter) and that the "borderless world" some early enthusiasts foresaw in cyberspace was always illusory.  They make their points with a series of narratives and biographies from major events and figures in the history of internet development.   

Reading this book made me remember the ever-popular discussion about Rosa Brooks' "goodbye" to law reviews.  The book read like a long Atlantic Monthly article.  Although it had an underlying argument that structured the various chapters about "root authority," the internet and China, peer-to-peer networks and filesharing, Yahoo and censorship, and quasi-hagiography of Julian Dibbel, John Perry Barlow (of the Grateful Dead and EFF), Jon Postel, and Vint Cerf (The Economist has a nice article on Vint Cerf right now, BTW), there was something about the book that clearly placed it in the category of "popular" writing rather than "academic" writing.  Not that there is anything wrong with that, of course.  But the book seemed more a piece of well-done journalism than scholarship, OUP notwithstanding. 

If you are looking for a book that deeply engages many of the hard "cyberlaw" questions of our time (whether in IP, "net neutrality", 1st amendment in the digital age, etc.) and what others have said about them, this may not be the book for you.  And I would doubt that Wired readers will find the vignettes especially illuminating.  But if you are a novice to internet literature like myself, there is much to be learned in this book -- and it is a very painless and enjoyable way to do such learning.  If you also like academic debates, however, as I do, you may find yourself frustrated by Goldsmith & Wu's careful effort to keep the reading so entertaining.   

Posted by Ethan Leib on June 12, 2006 at 07:51 PM in Books | Permalink | Comments (5) | TrackBack

This Just In From New Euphemism Central

Today's New York Times contains a story recounting the efforts of black and Hispanic officials in Brooklyn "to devise strategies to keep a white candidate from winning a Congressional seat of historic significance in black politics."  The white candidate is David Yassky, a city council member and former Brooklyn Law School professor.  The officials are upset that he might win if voters split their votes among three black candidates who are also running.

"New euphemism" comes in with these quotes from local officials.  One organizer of the strategy session, an assemblywoman, tells the Times that they will encourage one or more of the black candidates to drop out of the race, adding, "We're going to try to work this out, reminding the candidates that people have fought for this district to be a Voting Rights district."  And a councilman chimes in:  "One of the things we want to do is to send a message to the public that we want to be supportive of a Voting Rights Congressional district."

I take it I am not being unfair in thinking that, according to these local pols, "Voting Rights district" means not what you might have thought -- a district in which voting rights, especially of minorities, are protected, and perhaps one in which minority voters have adequate voting strength to effectively vote their preferences.  Rather, it means a district in which voters' preferences are less important than the candidates' color, and in which those vital aspects of urban politics -- the protection of turf, and the money, jobs, and influences that come with it -- are not disturbed by interlopers, in this case those of the pigmentally challenged variety.  Please update your law dictionaries accordingly.   

Posted by Paul Horwitz on June 12, 2006 at 11:32 AM in Law and Politics | Permalink | Comments (2) | TrackBack

It Takes a Law Review Article

On Friday, fellow Prawfs guest-blogger Nicole Garnett raised the disturbing possibility of backing off her student paper's argument that working from home is good for child-rearing.  Stick to your guns, Nicole.  Indeed, as I work from home this summer with my 18 month-old son around, I'm beginning to see anecdotal evidence of the benefits -- not just of working at home -- but of working on legal scholarship at home for raising a child.

Here's a quick example: Just the other day, before our babysitter got to the house, my son and I were watching some guys outside deliver furniture. One of the guys was on the truck, handing the boxes down to another guy.  I explained to my son how this illustrated the importance of teamwork.  He stared at me blankly.  I then told him how this same concept (sort of) was used in corporate law scholarship, in Margaret Blair and Lynn Stout's seminal article "A Team Production Theory of Corporate Law."  His eyes widened.  The wheels were turning.  I could see him start to grasp the concept.  If I had not recently read a colleague's article that in part built on Blair and Stout's work, his understanding of teamwork might have had to wait for preschool, starting without the competitive advantage we hope to give him in the race for the Ivy League.

And this is not a partisan issue: whether you agree more with soon-to-be reelected Senator Hillary Clinton or soon-to-be defeated Senator Rick Santorum about what it takes to raise a child, we can all come together around the role legal scholarship can play.  By the way, I share this story with Prawfs readers, but please don't mention it to my wife: she worries enough about what I say to the kid when she's not around. 

Posted by Jason Solomon on June 12, 2006 at 07:11 AM | Permalink | Comments (3) | TrackBack

Friday, June 09, 2006

Working at home

One of the great benefits of academic life is flexibility -- the flexibility to write about what interests you, to teach what you want to teach (within limits), and to work when and where you want to work (again within limits).  When I was a law student, I wrote a paper arguing that kids would benefits from having parents who worked from home -- they'd learn first hand the discipline that work imposed, etc.  (I wrote this six years before I had my first child, so I was quite the expert.)  In my first academic article, I also wrote about working from home (and zoning).

Now that summer has rolled around again, and I am working at home more, I have been thinking about these issues again.  As a mother of three small children, I wouldn't trade the flexibility to work from home for anything.  But, I must say that it has its downsides.  First, there is the productivity hit -- at home, I am part law professor, part dispute mediator, part short-order cook.  But, more importantly, I've been wondering what it is like for kids to have two academic parents in the wired world.  It must be something like a law professor having 90  students with wireless access to the Internet during Property class.  I wish I could turn off the Internet; my two-year-old knows how to push the off button on the computer.  (At age three, my middle child told someone "Mommy's job is checking her email and talking to students.")  I think that I'll resolve to avoid a state of perpetual distraction around my kids this summer; and, when that fails, I'll resolve to cut my students some slack for being perpetually distracted.

Posted by ngarnett on June 9, 2006 at 03:08 PM | Permalink | Comments (6) | TrackBack

"Internet Hunting"

A few days ago, the New York Times had this story, "Online Throngs Impose a Stern Morality in China," about "a growing phenomenon the Chinese call Internet hunting, in which morality lessons are administered by online throngs and where anonymous Web users come together to investigate others and mete out punishment for offenses real and imagined."  The article raises many interesting questions -- about the Internet, privacy, blogging, etc.  Also, I wonder if this "internet hunting" phenomenon connects in any illuminating ways with something that Dan Markel has written about, i.e., "shaming" sanctions?

Posted by Rick Garnett on June 9, 2006 at 11:49 AM | Permalink | Comments (2) | TrackBack

Thursday, June 08, 2006

In re Disney: Meet the New Boss

The Delaware Supreme Court has issued its decision in the Disney-Ovitz shareholders litigation.  The opinion can be found here.  There are preliminary thoughts from Elizabeth Nowicki, Gordon Smith, Christine Hurt, and the good Professor.

My initial thoughts:  Jonathan Macey is still right.

Posted by Matt Bodie on June 8, 2006 at 10:22 PM in Corporate | Permalink | Comments (0) | TrackBack

Mixed Motives

I’ve been researching suspicionless vehicle checkpoints under City of Indianapolis v. Edmond, and thinking in particular about the requirement under Edmond that such checkpoints have a “primary programmatic police purpose” other than a “general interest in crime control.” Edmond raised a lot of questions, of course, about what “crime control” means precisely, and the Court’s subsequent decision in Illinois v. Lidster only sharpened those questions. But for the moment I’m quite interested in the Court’s implication in Edmond that when people act in response to multiple motives—here, commanding police officers who institute a checkpoint program—the objectives motivating this conduct consistently and accurately can be isolated and prioritized. I haven’t studied human motivation outside of traditional criminal law and procedure contexts. I wonder, however, whether the Court’s “primary programmatic purpose” standard reflects sound psychology, or is just one area of the law where the Court is willing to allow this type of ad hoc, and arguably haphazard judicial inquiry as a necessary trade-off for what these checkpoints do not require: individualized suspicion of the persons detained. Do any established methodologies exist for parsing and weighing mixed human motives for conduct, especially when that conduct is institutional more than individualized, such as when a police department institutes a checkpoint?

Posted by Brooks Holland on June 8, 2006 at 06:05 PM in Criminal Law | Permalink | Comments (0) | TrackBack

Equal Protection for the X-Men!

With a hat tip to fellow Amherst alum Laurel Kilgour for the pointer, I came across this analysis of equal protection and mutants, a-la-X-Men, by Ivan Ludmer, a law student at the other, other "UM" -- the University of Minnesota.

I only have two things to say in response:

  1. I really need to go see The Last Stand.
  2. It's too bad Ivan didn't write that as his Con Law exam.

Posted by Steve Vladeck on June 8, 2006 at 05:42 PM in Film, Steve Vladeck | Permalink | Comments (0) | TrackBack

Law School Rankings and Grading Curves

Orin Kerr has a really interesting post today on law school grading curves based on his experience at George Washington relative to other top-25 schools. Orin’s post follows up on a related post by Eugene Volokh.

Orin observes that the top-25 schools seem to have 3.2 or 3.3 mean grading curve range. This curve range also reportedly is elevating at the top schools: Orin notes that GWU recently raised its grading curve to a similar range from a 3.0 curve to keep pace with other top-25 schools, and Eugene Volokh’s post lists UCLA’s curve as a rising over the years to a “B+ median.” Stanford now has a 3.4 curve. I teach at Gonzaga Law School, where the grading curves for large classes are appreciably lower.

I have heard several different justifications for the harsher grading curves that seem to prevail at law schools outside of the top tier. Is this perceived grading curve variation between the higher and more modestly-ranked law schools accurate, though? If so, at what point out of the top-25 schools do grading curves drop consistently below this 3.2-3.3 range and even below a 3.0 mean curve? Do tougher grading curves at lower-ranked schools help the students at these schools or the schools themselves, or do they simply reflect different ranges of student capability? One of the comments to Orin’s post notes how harsher curves at lower-ranked schools can harm scholarship students who compete directly with each other to maintain required minimum GPAs for keeping their scholarships. I also wonder whether overall lower GPAs at lower-ranked schools harm those students' job marketability, although some comments suggest that employers care less about GPA and more about class rank.

Posted by Brooks Holland on June 8, 2006 at 04:43 PM in Life of Law Schools | Permalink | Comments (7) | TrackBack

The N Word

The NY Times has an interesting story about Randy Kennedy (Law, Harvard).  Apparently, he agreed to testify as an expert on the use of the N word in a trial court in Queens, where a defendant was being charged with a hate crime at least in part for using the N word during the perpetration of his crime.  Kennedy testified for the defense (for free) that the N word has many meanings and cannot be presumed to be used with racial animus.

A few things to note.  First, the idea that one needs to call a Harvard Law professor as a witness to tell a jury that the word 'nigger' is not always used as a racial epithet seems odd.  I wouldn't think such an eminent authority is necessary for entering testimony about how people talk in the street.  Yet there is something undoubtedly clever about calling legal authority with fancy credentials to make a sociological observation that almost everyone knows.

Second, the defense's ability to get Kennedy to do it for free is, at first blush, pretty impressive.  The article suggests that even the cost of airfare was borne by Kennedy.  Of course, I suspect Harvard itself covered the cost of the trip.  And it is perhaps interesting to see more small ways institutional backing helps an academic deliver his message to the world.   

Posted by Ethan Leib on June 8, 2006 at 11:40 AM | Permalink | Comments (5) | TrackBack

Unanimity and Ideology on the Court, Part II

In last week's public-employee speech opinion Garcetti v. Ceballos, the Roberts Court ruled in favor of the employer 5-4 and broadly. As I suggested yesterday, it appears that Roberts' conservative ideology may have trumped his stated preference for narrow, unanimous rulings.

Holmes v. South Carolina -- issued a month before -- shows the other side of the coin: a narrow opinion that should have been less so.   In Holmes's murder trial, the trial judge prevented the defendant from offering evidence that another guy did it.  Why?  Because the trial judge thought the case against the defendant was "overwhelming," and the South Carolina Supreme Court agreed with this analysis.  Holmes was also a death penalty case, a minor detail not mentioned in the opinion, as Dan Filler pointed out at Concurring Opinions.  Further details on the case can be found here and here. 

Holmes was a ridiculously easy case.  Judges can't prescreen the evidence of the defendant's guilt, and based on their assessment of the strength of the prosecution's evidence, decide whether the defendant gets to present a defense.  It violates the Sixth Amendment right to a jury trial, due process, and 97 other things, including common sense. It's an embarrassment it even got this far.

I nodded vigorously when I saw the the LA Times editorial on Holmes: "In the first opinion from its newest justice, the U.S. Supreme Court has given criminal defendants something most Americans assumed they already possessed: the right to offer evidence that somebody else committed the crime." But the opinion didn't even go that far. It probably went as far as to guarantee "the right to offer evidence that somebody else committed the crime without being limited by the trial judge's opinion that the defendant is pretty clearly guilty." 

Alito’s opinion for the Court said that you can't exclude defense evidence "under rules that serve no legitimate purpose or that are disproportionate to the ends that they are designed to promote." So what's the message to state prosecutors and judges?  Don't do anything as ridiculous as South Carolina did here in preventing a defense case, but if you have some "legitimate purpose," you're probably OK.

At a time of near-daily exonerations, the Court needed to send a stronger – yes, broader -- message to state prosecutors and courts: "Criminal defendants need to be able to put on a real case so the adversarial process can work.  Don't use these third-party guilt evidentiary rules to screw around with that, or you're going to be retrying a bunch of cases." In slightly more eloquent language.  Instead the message was narrow and unanimous mush.


A pro-criminal defendant ruling, reversing the Supreme Court of South Carolina (Holmes): narrow.  Even if we rule in their favor occasionally, we better make sure the ruling doesn't get out of control.  A pro-employer ruling reversing Judge Reinhardt and the Ninth Circuit (Ceballos): broad.  No such worries. And that's been the fear all along: that ideology, more than judicial modesty, would drive the Roberts Court.

Posted by Jason Solomon on June 8, 2006 at 11:02 AM | Permalink | Comments (7) | TrackBack

Wednesday, June 07, 2006

When all else fails, rocks, paper, scissors!

My colleague JB Ruhl sent around this delightful little order from Judge Presnell in the Middle District of Florida.   The good judge, who has penned some excellent Blakely/Booker opinions, writes:

Upon consideration of the Motion – the latest in a series of Gordian knots that the parties have been unable to untangle without enlisting the assistance of the federal courts – it is ORDERED that said Motion is DENIED. Instead, the Court will fashion a new form of alternative dispute resolution, to wit: at 4:00 P.M. on Friday, June 30, 2006, counsel shall convene at a neutral site agreeable to both parties. If counsel cannot agree on a neutral site, they shall meet on the front steps of the Sam M. Gibbons U.S. Courthouse, 801 North Florida Ave., Tampa, Florida 33602. Each lawyer shall be entitled to be accompanied by one paralegal who shall act as an attendant and witness. At that time and location, counsel shall engage in one (1) game of “rock, paper, scissors.”

CNN has more.

Posted by Administrators on June 7, 2006 at 03:47 PM in Deliberation and voices | Permalink | Comments (4) | TrackBack

Kahan, redux

Speaking of Dan Kahan, he's over at ELSBlog this week guesting, and chiefly discussing his empirical work with the Cultural Cognition Project at Yale.  Next week, Dan will guest with us for a few posts, some related to chick-sexing and torture, I'm sure.

Posted by Administrators on June 7, 2006 at 09:42 AM in Blogging | Permalink | Comments (0) | TrackBack

Unanimity and Ideology on the Court

On May 21, Chief Justice Roberts gave a commencement speech at Georgetown Law, heard 'round the legal elite.  In the speech, he indicated his desire for more unanimous and narrower opinions, saying "if it is not necessary to decide more to a case, then in my view it is necessary not to decide more to a case."  The merits of this view were quickly taken up by Cass Sunstein, Edward Lazarus, and Prawfs' own Rick Garnett, among others.

So last week, I was puzzled to see a 5-4, quite broad decision handed down in the public-employee speech case Garcetti v. Ceballos , which I taught in my Employment Law class this semester.  Interesting commentary on the merits of that case collected at Workplace Prof Blog, and at Findlaw, a typically thoughtful column from my CivPro professor, Michael Dorf.

What gives? I thought 5-4 broad decisions were out under Roberts. Well, in comparing this decision to others this term -- one of which, Holmes v. South Carolina, I'll look at in more detail later in the week -- I fear that behind the talk of consensus, narrow holdings and humble judging, Roberts' conservative ideology is actually carrying the day. And as the opinions remaining come out over the next few weeks, we ought to look carefully at which opinions are unanimous, which aren't, and ask why.

So here are some possible hypotheses for the 5-4, broad decision in Ceballos:

#1: Give the new Chief Justice a break.  This is his first term, the case was clearly 4-4 and had to be reargued when Alito replaced O'Connor, Alito then joined the Kennedy opinion (which may well have originally been in dissent), end of story.  The respective opinions were already written; Roberts can only do so much at once.

This is a perfectly plausible story, and may well be an accurate description of reality -- but the question remains: in which cases does Roberts push for a narrow holding and unanimous opinion, and in which doesn't he?  Maybe he did push and failed here, but I doubt it. And this is no small case -- big issue doctrinally, affecting 21 million public sector employees.

#2: The broad, per se rule announced by the Court serves important policy and administrative goals by limiting the number of claims that come into the courts.  Maybe, though I think Jack Balkin persuasively takes apart that empirical assumption.  And it may well be that broader rulings are better, to give better guidance to lower courts, employer/employees, etc.  But that contradicts Roberts' commencement speech.  As Justice Stevens put it in dissent, the court's answer to the question "whether the First Amendment protects a government employee from discipline based on speech made pursuant to the employee’s official duties" should have been “Sometimes,” not “Never.”

#3: Adopting the broad rule was the only way to rule for the defendant, which the majority thought was the right result. Indeed, the Washington Post editorial yesterday seems to adopt this view, criticizing the alternatives offered by the dissenting judges.

But here’s an alternative not mentioned: take advantage of the odd posture that the case arrived at in the Court to reverse, in favor of the defendant but narrowly, and remand.
You see, the 9th Circuit had only considered the memo Ceballos wrote to his boss as possible protected speech, and the SCt followed suit -- but as Justice Souter points out in Part III of his dissent, there was other speech for which the plaintiffs had alleged he was retaliated against.  According to the Court’s formulation, one part of the threshold inquiry under Pickering is whether the plaintiff is speaking "as a citizen" or "as an employee."  The memo was clearly "as an employee" -- and so, the court ruled, no First Amendment protection.  But the rest of the speech is murkier as to whether the speech is as a citizen, employee or both.

So, the Court could have said something like: "We doubt that Ceballos' memo to his supervisor, standing alone, constitutes speech protected by the First Amendment, as the Court of Appeals ruled.  This was the only speech considered by the Court of Appeals.  However, since there is other speech that serves as the basis for plaintiff's claim, which may well implicate First Amendment protections, we reverse and remand to the Court of Appeals to evaluate in the first instance whether this speech is protected by the First Amendment." 

That gets you nine votes, it's narrow, you decide only what you need to and no more. Indeed, according to the end of Souter’s dissent, this kind of remand is the result anyway.

So where does that leave us?  With my leading hypothesis to explain 5-4 and broad:

#4: It's a Ninth Circuit opinion, by Judge Reinhardt, with a special concurrence (really, a dissent) by Judge O'Scannlain no less.  Given the current lineup in the Supreme Court, the case was decided after the Alito for O'Connor substitution, and by glancing at Los Angeles County's cert petition, which could barely wait to the third paragraph of its “Statement of the Case” to mention Reinhardt as the author of the opinion.  Its second argument in support of cert is titled "The Ninth Circuit Has Refused to Give Any Consideration To..."  No need to read further, game over.

And when you're giving the crazy liberal Ninth Circuit, particularly Reinhardt, a smackdown, why go easy on them?  Take that, Reinhardt; here's a victory, employers, in your constant battle against those pesky employees -- Roberts, after all, was known as the business community's "go-to lawyer" while in private practice; the broader the better on this one.  Political scientists and legal realists 1, doctrinal scholars 0. Roberts’ commencement speech less than 2 weeks before?  For the moment, forgotten.

Posted by Jason Solomon on June 7, 2006 at 12:22 AM | Permalink | Comments (9) | TrackBack

First thing we'll do: fire all the clerks!

Apropos the Atlantic, which Rick has already pillaged in part, the new summer issue has a short piece by Ben Wittes (WaPo editorial writer and the Atlantic) and Stuart Taylor (National Journal), in which their recommendation to improve the workings of the Supreme Court Justices  is to "fire their clerks."

Here's why:

Eliminating the law clerks would force the justices to focus more on legal analysis and, we can hope, less on their own policy agendas. It would leave them little time for silly speeches. It would make them more “independent” than they really want to be, by ending their debilitating reliance on twentysomething law-school graduates. Perhaps best of all, it would effectively shorten their tenure by forcing them to do their own work, making their jobs harder and inducing them to retire before power corrupts absolutely or decrepitude sets in.  No justice worth his or her salt should need a bunch of kids who have never (or barely) practiced law to draft opinions for him or her. Yet that is exactly what the Court now has—four clerks in each chamber to handle the lightest caseload in modern history.

How serious are they about their "modest proposal"?  Well, though they start with the idea that all clerks should be fired, Wittes and Taylor appear to hedge at the end by referring to David Garrow's suggestion that one clerk would suffice to do the "scut work" of reading the cert petitions and digging up "obscure precedents."

My sense is that firing all the clerks is a silly proposal, and reducing the staff even to one clerk would be dangerous. 

For one thing, the SCT performs an educative function through its sometimes long or scholarly opinions, some of which requires assistance.  Also, those opinions probably benefit from having a few people think about a case together before reaching resolution in terms of what each Chambers produces. Moreover, assigning no clerks or even one clerk might also cause a Justice to write opinions in the most efficient manner possible --reducing the likelihood of concurrences or dissents that might seed interesting or important ideas for future case law. 

The motivation for eliminating clerks is exasperation with all the free time apparently on the hands of the Court.  But the fact (mentioned by Wittes and Taylor) that O'Connor took 28 paid trips in 2004 and published three books over 3 years doesn't suggest to me, at least on its face, that her time would have been better spent poring over  US Reports.  She may have been doing something  socially valuable by meeting with  members of the Bar or the public on those occasions, and  perhaps her memoirs will inspire more young women  (and men) to pursue a life in the law or public service.  (Indeed, a cynic might say that the opinions the Justices would have crafted in the absence of clerks would be even mushier or shoddier.)  But maybe I'm wrong.  Perhaps if we abolished "the Elect," law's hierarchies would be subverted--and that's supposed to be a good thing, right?

In any event, for a more measured analysis of this issue, check out Richard Posner's recent TNR review essay, where he shared some provocative thoughts about the historical reduction in outputs (opinions) notwithstanding the expansion of inputs (clerks).

Update: I see after having drafted this post that Ann Althouse and I are on similar wave lengths, at least with respect to post titles.    Moreover, Orin also has some "extreme" reactions.

Posted by Administrators on June 7, 2006 at 12:06 AM in Law and Politics | Permalink | Comments (2) | TrackBack

Tuesday, June 06, 2006

The Night Stalker

Richard Ramirez, the infamous “Night Stalker” serial killer from the 1980s, has resurfaced with a hearing before the California Supreme Court on whether his trial attorneys were ineffective. Ramirez, you may recall, was sentenced to death for 13 murders and other crimes. A teenager in San Francisco at the time, I vividly recall the fear that these crimes generated throughout the  State, but especially in the Los Angeles area, where I had many family members and friends. I guess Ramirez no longer wishes to see us in Disneyland.

Apparently, Ramirez’s two trial attorneys had five years of collective experience between them when they took his case, and Ramirez’s appellate lawyers have raised a host of issues with their performance. What caught my eye the most, however, was this defense that one of the lawyers purportedly has offered: “They’re Monday morning quarter-backing. But we did it pro bono. Didn’t get a penny. For free, I think we did one hell of a job.”

Posted by Brooks Holland on June 6, 2006 at 05:06 PM in Criminal Law | Permalink | Comments (0) | TrackBack

The Day After Roe

The June issue of The Atlantic has (in addition to a really funny send-up of management-consulting-speak) a long piece by Jeffrey Rosen called, "The Day After Roe."  (Unfortunately, the full essay is available only to subscribers.)  In a nutshell, Rosen works through the various scenarios and developments -- political and legal -- that might follow a reversal by the Court of Roe v. Wade.  The working premise for the piece is that Justice Stevens has retired, President Bush has nominated a "fire-breathing social conservative", the Democrats have filibustered, the Republicans have gone "nuclear," and so the Court that hears arguments in the partial-birth-abortion case has five possibly anti-Roe members.  "Because of the intricacies of American federalism," Rosen writes, "and the polarization of American politics exacerbated by Roe itself, the moderate national consensus about abortion might not be reflected in law for years to come, andthe political landscape could be transformed beyond recognition."

Near the end of the piece, Rosen considers the possibility that a post-transformation Democratic Congress passes (and President Clinton signs) a federal law guaranteeing early-term abortions -- notwithstanding the enactment of now-constitutional, more restrictive laws in some states -- but "conservative activists" on the Court strike down the federal law on New Federalism / enumerated-powers grounds.  "This," Rosen notes, "would be a brazen act of judicial activism - no less anti-democratic than Roe itself." 

What does Rosen mean here, exactly?  (Or, what do we mean when we characterize -- as most of us have, at one time or another -- a judicial decision as "anti-democratic"?)  Put aside, for now, the longrunning debate whether "judicial activism" is a particularly helpful term.  What does it mean to say that Roe is "anti-democratic," and in what sense would it be "anti-democratic" for the Court to invalidate a federal law that itself purported to displace states' more restrictive abortion laws? 

We could say, I guess, that both Roe and the hypothesized later case are "anti-democratic" in the sense that both involve the exercise of judicial review and the invalidation by unelected judges of a measure enacted through the legislative process by politically accountable representatives.  We might think that a decision is either anti-democratic, or it's not -- and both of these are.  But, if this is all that "anti-democratic" means, then it's hard to see why the term should be used or regarded as an epithet.

Or, maybe it's better to say that Roe is a lot more anti-democratic because, after all, it invalidated dozens of state laws, while the hypothesized later case only invalidates one.  Or, maybe the later case is rendered less anti-democratic by the fact that the law it invalidates has the purpose and (anti-democratic?) effect of displacing the now-constitutionally-permissible, more restrictive laws enacted in some states? 

I'm inclined to think that Roe was "anti-democratic" not so much because it invalidated the particular products (i.e., statutes) of democratic processes, but because it removed from the sphere of politics an issue about which the Constitution permits reasonable people of good will to disagree, argue, and compromise.  This is not true, it seems to me, of the cases that Rosen would probably identify as the results of "conservative judicial activism", like Lopez or Boerne -- decisions that did not purport to answer definitively disputed normative or policy questions, but only to identify the political communities that are authorized to answer them (or not).

Posted by Rick Garnett on June 6, 2006 at 01:40 PM in Constitutional thoughts | Permalink | Comments (12) | TrackBack

Is All Conservation Good Conservation?

Yesterday's Washington Post ran a story about a successful IRS effort to deny a tax deduction for the donation of a conservation easement in Fairfax County, Virginia.  The easement was a promise not to "overdevelop" land near Mt. Vernon; but the land was subsequently developed into 29 houses.  (This apparently did not violate the easement.)  The Tax Court ruled that the $350K deduction was not available because the easement "did not protect open space or a historically important land area."  I don't know much about tax, so I'll pass on the merits of that decision.  (The property owners sound like they were playing pretty fast and loose with the definition of "conservation," though.)

The case touches upon an interesting question about the optimal level of land conservation.  Right now, the federal tax code, reflecting conventional wisdom, assumes that all conservation is good -- and therefore encourages owners to donate conservation easements.  But Julia Mahoney and Nancy McLaughlin have both questioned this wisdom:  Conservation easements are property interest designed to last forever.  Development needs and conservation priorities change over time.  For example, my colleague John Nagle tells me that Colton California -- home of the Dehli Sands Flower Loving Fly of Commerce Clause fame -- is considering prohibiting owners from restricting their property with conservation easements.  Colton thinks it needs development, not conservation.  Before reading Mahoney and McLaughlin, I bought the conventional wisdom about conservation easement:  What could be wrong with private property owners voluntarily restricting their property?  Is there a reason to question this wisdom?

Posted by ngarnett on June 6, 2006 at 01:29 PM in Property | Permalink | Comments (0) | TrackBack

The Influence of Tort Law

I will get back, as promised, to what I see as troubling signs out of the Roberts court, but I'm quite pleased that the Court yesterday decided a case,  Anza v. Ideal Steel, involving an issue I write about -- on my first day of blogging no less! -- the influence and operation of tort-law principles outside the common law of torts. In Anza, the Court ruled that a business that claimed harm by a competitor's refusal to pay sales taxes, and therefore ability to charge lower prices, did not meet the "proximate cause" requirement for civil RICO standing, a requirement drawn from tort law. Other posts about Anza can be found at SCOTUSblog here and here, and at White Collar Crime Prof Blog here.

This "proximate cause" requirement was imported into the civil RICO statute in a 1992 case called  Holmes v. SIPC, because the civil RICO statute was based on the antitrust laws, which had in turn been read to have incorporated the common-law tort principle of proximate cause. But as Justice Scalia's concurrence in Holmes pointed out, even if you think that some type of policy-based limitation should be part of RICO standing, it's not at all clear that tort law or antitrust law is the source of that requirement.

Scalia seems to think that the requirement comes from some general background principles of the common law, but how exactly do we read that into a federal statute? I'm not sure, but see Caleb Nelson's recent, interesting piece called "The Persistence of General Law" on the topic.

Another oddity of this line of cases is that the proximate cause requirement is primarily a feature of negligence law, but in civil RICO, you're generally talking intentionally caused injuries, not carelessly caused harm. And the equivalent limitation in common law fraud -- the underlying intentional-tort claim on which the RICO claim was based -- is actually the reliance requirement, the issue which the Court had actually granted cert. on in Anza, but declined to address.  This “statutory standing” issue addressed in Anza may be better thought of as an issue of "substantive standing" in tort law, to use Ben Zipursky's term -- a rule that the defendant's act not just be a wrong, but a wrong to the plaintiff herself.

So far, I've written about this Anza-related theme of the influence of tort-law principles outside tort law in the context of  (1) harmless-error determinations in criminal appeals, which I reframe as a but-for causation problem in constitutional torts, and (2) workers' compensation cases, where common-law defenses like contributory negligence and assumption of risk -- that the injury was the worker's fault in some sense -- continue to preclude claims even though these defenses were explicitly dealt out of the workers' compensation "bargain" that replaced tort law for workplace injuries.

Besides these specific examples, I think it's interesting that tort-law principles continue to be influential in a variety of domains, at a time when the tort system itself is under attack from all sides. Not sure yet what accounts for this apparent paradox, and would welcome thoughts.

Posted by Jason Solomon on June 6, 2006 at 10:12 AM in Torts | Permalink | Comments (2) | TrackBack

Ending Endo's Obscurity

Over at Is That Legal?, Eric Muller is hosting "a  mini-symposium commemorating the life of Mitsuye Endo (of "Ex parte Endo" fame), who passed away last month. Endo had nothing like the fame of Fred Korematsu or Gordon Hirabayashi, but her case forced the end of the exclusion of Japanese Americans from the West Coast in 1944 -- a major achievement and an important precedent."

Participants include:  Professor Greg Robinson (History -- University of Quebec at Montreal), Pat Gudridge (Law -- University of Miami), and Jerry Kang (Law -- UCLA). Check it out.

Posted by Administrators on June 6, 2006 at 09:36 AM in Blogging | Permalink | Comments (0) | TrackBack

Kahan on Goldsmith and Yoo

Thanks to Orin, I see that my former evidence prawf and mentor, Dan Kahan, has posted his spicy commencement address up on the Yale  Law website.  Kahan, in seven snappy pages about chick-sexing, moral responsibility, and torture, comes down hard on Torture-Memo author John Yoo, though he doesn't name Yoo in the speech.  Yoo, according to Kahan's analysis, was a "bad lawyer" in part because he failed to accept moral responsibility for the content of his Torture Memo.  Specifically:

Because of the institutional stature and formal authority of the OLC within the Executive Branch; because of the function the memo was intended to play in resolving a debate among other governmental officials of immense authority; and because of the impact of 9-11 in provoking societal reconsideration of the relationship between civil liberties and national security, this Yale-trained lawyer did have every reason to believe that his memo, all on its own, would have a profound and shaping impact on the professional and cultural understandings that are our law. Yet he pretended this wasn’t so. When asked by an appalled career military intelligence officer whether the memo meant the President could order torture, he answered, “Yes, but I’m not talking policy. I’m talking law here.”

In contrast to Yoo, Jack Goldsmith earns Kahan's plaudits.  Why? Because Goldsmith, when assuming the mantle of OLC, repudiated the Torture Memo as well as temporarily suspended the NSA warrantless wiretapping program.  Thus, despite the undeserved rough handling Goldsmith received at Harvard Law School upon his arrival from some faculty, Kahan thinks things are looking up at HLS:

Now that Goldsmith is there, I suspect it's much less likely that any of its future graduates will try, in cowardly fashion, to evade moral responsibility for their actions by insisting that law is nothing but a set of formally binding rules. And I have hope that as a result of his actions, it's much less likely any of you ever will either.

Notwithstanding my prior disagreements with him, I love Dan K.  But I can't say with the same confidence he does that Yoo's statement, by which he decoupled law and policy, is itself an evasion of moral responsiblity.  When I clerked, I often had to advise the judge about what the law permitted or restricted even though I had disagreements with the law's underlying policy choices.  No one would say it was "cowardly" to both register those disagreements (either in conversation or urging a special concurrence) or in being clear about what the law was and just recognizing the institutional role one occupies. 

So what is it about the context Yoo was in that removed him from that occupational safe harbor?  To Kahan, it seems as if the problem was that Yoo's role was going to have the effect of interstitially creating law that Kahan disagrees with fervently -- something judges often do also.  But the interstitial nature of the law propounded by the Yoo Memo is, like other law, subject to revision and repudiation in a democratic society.  And indeed, torture has been subsequently, and at least officially, more or less proscribed.  So it might be the case that if Yoo had to write the Memo again from scratch today, the Memo would come out differently.  (My very raw understanding of Yoo's thinking is that POTUS' Art II powers are plenary in the field of national security, and so perhaps Yoo wouldn't actually change his mind on the issue of torture, but I'm not sure.)  Here's my naive question: is the problem with Yoo that he failed to accept moral responsibility for the law he "created" or that his memo "created" a law that most people find repugnant?

Posted by Administrators on June 6, 2006 at 08:46 AM in Deliberation and voices, Law and Politics, Life of Law Schools | Permalink | Comments (5) | TrackBack

Panel Shopping and Voluntary Mooting: A Problem Worth a Solution?

I've been thinking a lot lately about the government's successful mooting of the "enemy combatant" phase of the Jose Padilla case, at least partially because of the recent developments in the case deftly summarized by my colleague Michael Froomkin over at Discourse.net here and here.

To whatever extent the shenanigans in Padilla (and Judge Luttig's angry opinion in response) brought some broader attention to the problem of voluntary mooting on appeal, however, the attention was focused on the Supreme Court and the last possible stage of litigation.

But voluntary mooting happens with far greater frequency in the courts of appeals, especially once the composition of the panel is publicly disclosed (admittedly, not so much an issue in the Supreme Court). Howard Bashman has elsewhere documented the differences among the circuits with respect to when a panel's identity is released, but they are all released at some point. And as most current and former appellate law clerks can attest, last-minute requests to remand to the district court or the administrative agency, to approve settlements, or to otherwise dispose of the appeal in some manner not affecting the merits are hardly unusual in the 24-48 hours after the panel's composition is made public. From my own experience on the Ninth, we would see such requests all the time in immigration cases...

For litigants in a position where individual cases are less important than systematic legal rules, e.g., the government, groups like the Sierra Club in environmental cases, etc., there is an obvious advantage in preventing "bad" panels on the courts of appeals from reaching the merits when another case might allow a "better" panel to decide the same legal question. But should such blatant "judge-shopping" be tolerated? If not, what can be done about it?

For sure, these are two very distinct questions.

I don't want to dwell too long here on the first question, because I imagine there are fairly divergent views out there (and hope readers will use the Comments to share their own thoughts). My own view, though, is that panel-shopping dangerously undermines the randomness of appellate panels in the Courts of Appeals. What makes the circuits great is that different panels on the same court can answer the same question in two (or dare I say, six) different ways.

Moreover, panel-shopping would give institutional litigants, no matter which side they're on, a huge advantage over non-institutional litigants, e.g., petitioners in immigraton cases; prisoners in habeas cases; etc. By allowing those litigants to seek out panels likely to be receptive to their position, panel-shopping would only serve to distort the law within individual circuits, and, quite possibly, to force circuits to take more cases en banc where particularly unrepresentative panels are consistently deciding specific legal issues in a manner inconsistent with a majority of the circuit.

The harder question, it seems to me, is whether anything can be done to alleviate the "problem." Changing the timing of the release of the panel's identity doesn't strike me as a solution, because the panel would still become public at _some_ point, and it's at that point that the panel-shopping concerns would become manifest.  I also agree with Howard, who argues in his law.com column that advance disclosure is preferable to day-of notification.

An alternative possibility would be a new Federal Rule of Appellate Procedure, which would require judicial approval of any attempt to do away with an appeal after the identity of the panel is released (such approval is already required, but there's no standard that governs, and as Padilla demonstrates, it's often the case that the result is compelled when one party moots the appeal). The pressure on appellate judges to reduce their overbearing caseload where possible might well undermine that idea, unless the rule barred such voluntary mooting absent a change in the underlying facts, and even then imposed a strong presumption against dismissing the appeal.

I'm not sure that would work, either, but it's at least a starting point... As I preach to my Civil Procedure class, it's often more important for the Rules to protect the proverbial little guy, and this is another such example.

Posted by Steve Vladeck on June 6, 2006 at 01:18 AM in Law and Politics, Steve Vladeck | Permalink | Comments (16) | TrackBack

Monday, June 05, 2006

Alito and Legislative History

Jason Mazzone analyses a new SCOTUS decision at the Co-Op, highlighting that Alito's majority opinion relies on some legislative history; Scalia wrote separately to condemn the use of that history.

Given my prediction during the confirmation proceedings that Alito was not a textualist in the mold of Scalia and Alito's claims during his confirmation hearings that he would be a textualist, this is an interesting first datapoint.

Posted by Ethan Leib on June 5, 2006 at 09:29 PM in Constitutional thoughts | Permalink | Comments (0) | TrackBack

Prawfs Happy Hour in Vancouver

We'll have another Prawfs-hosted happy hour in Vancouver next week for the AALS midyear-fest. Chances are that in July we'll also do one at SEALS and one at Law and Society.  If you're a Prawfs reader and will be in Vancouver next week, let me know via email if you're interested so I can try to find an appropriate venue. Thanks.

Posted by Administrators on June 5, 2006 at 03:38 PM in Life of Law Schools | Permalink | Comments (0) | TrackBack


A quick word of welcome and thanks to Jason Solomon, Brooks Holland, and Nicole Stelle Garnett, who'll be joining us for the next few weeks here.   Frank, Scott, and Yair will also continue dipping in intermittently if conference schedules permit.  In the meantime, many thanks to Sasha Natapoff, Marcy Peek, and Ron Wright for their recent visits with us. We look forward to seeing you again soon.

Posted by Administrators on June 5, 2006 at 03:12 PM in Housekeeping | Permalink | Comments (0) | TrackBack

Universities and Redevelopment

First, thanks for inviting me back.  My last PrawfsBlawg visit was interrupted by a stay in the pediatrics ward with my one-year-old.  (Dehydration -- I am bad at Pedialyte.)  I appreciate the second chance!

Now for substance:  Ilya Somin (Volokh Conspiracy) and Ben Barros (PropertyProf Blog) have posts about Columbia’s efforts to redevelop NYC’s Manhattanville neighborhood.  Ilya raises interesting questions about the project's public-use implications.  I share his skepticism about letting private institutions exercise eminent domain to reshape neighborhoods to better suit their needs.  But the dispute also raises questions of the age-old “town-gown” variety, which highlight a deep divide between the preferences and priorities of elite and non-elites in the U.S.

Many universities have – or would like to – redevelop surrounding areas.  Notre Dame, where I teach, is working closely with residents of the neighborhood immediately to the south on a redevelopment project.  ND would like to develop the area as a mixed-use “college town,” with houses, townhouses and small businesses.  The non-university-affiliated neighbors (who are mostly working class and African-American) are deeply skeptical.  They worry about gentrification, and, more importantly, an influx of students into the neighborhood.  I live in the neighborhood, and I think the plans have much to recommend them.  South Bend is a struggling Rust-Belt town without a college town area; all new development is occurring in surrounding suburbs, etc.  But, for some reason, many of our neighbors cannot be convinced that we need both economic vitality and better housing.    (They want the latter, not the former – despite hours of new-urbanist visioning sessions.)

These disputes highlight the different aesthetics, and, more importantly, different priorities among elites and “regular people.”  I would like to see ND remake my neighborhood into a new-urbanist enclave.  (The university is the largest landowner in the area, so it can probably do this without asking the neighbors’ permission.)  But, a previous generation of planners thought they knew what was best for working class neighborhoods too – and gave us high-rise public housing and urban renewal.  Now, we tell ourselves that we’ve absorbed the lessons of the past.  Are the objections of the townies irrational – or are they a commonsense warning to proceed with caution, not hubris?

Posted by ngarnett on June 5, 2006 at 03:05 PM in Property | Permalink | Comments (2) | TrackBack

Blogging, Conventional Wisdom, and the Roberts Court

Hi everybody -- my name is Jason Solomon, I just finished my first year in the legal academy, teaching at the University of Georgia and living in Athens, the home of R.E.M. and the only college football team other than USC to finish in the top 10 each of the last four years.  We reference these two data points a fair amount here in Athens.


My wife, 18 month-old son and I just moved to the terrific Candler Park neighborhood of Atlanta, where, after a few months of my reverse commute, I'll become a strong advocate for trains, which are much talked about but so far nonexistent in ever-growing metro Atlanta.

I'm happy to be here at Prawfsblawg for my initial foray into the blogosphere -- I think Dan, Ethan, and the rest of the gang do a terrific job, and now that everybody's (myself included) favorite legal commentator, Dahlia Lithwick, has said that legal blogging is useful, all our angst about tenured/untenured, good use/bad use of time, etc. can just fade away. 

Feels good, doesn't it.  So let's get down to business.  And though others are more experienced and better-qualified SCOTUS-watchers than me, I want to start by pointing out some troubling signs in recent weeks from the Roberts court.

The basic question for liberals and moderates about Roberts and Alito has been whether, in deciding cases and writing opinions, their ideology trumps fidelity to stare decisis, the stated ideal of narrow holdings, decide-only-what-you-need-to-and-no-more judging, etc.  That is, if their conservative ideology points one way, but their ideal of narrow, faithful-to-precedent rulings another, which one wins? So far, the conventional wisdom seems to be that the early signs are promising, but as I'll explain in my next few posts, I think the conventional wisdom may be wrong.

Posted by Jason Solomon on June 5, 2006 at 02:06 PM in Current Affairs | Permalink | Comments (2) | TrackBack

Is Friendship Essentially Dyadic?

I'm in the middle of researching and writing my paper on friendship and the law.  More details to follow in due course.

But here's a question for the day:  Is friendship a fundamentally dyadic relationship -- or are dyads merely the most common form of true friendship?  There was a time in college when the "group" friendship seemed to me to be the highest form.  As time has passed, many of the dyads of the group have remained intact -- but the group (one that recently convened for a wedding of a group member) has commanded much less resonance for the individual members.  In fact, as we all departed back to our respective homes after the recent reunion, many of us observed that the group interactions actually undermine the strong dyads that remain.  It was right after this observation that I came across C.S. Lewis on the subject (The Four Loves, p. 61):

[I]f, of three friends (A, B, and C), A should die, then B loses not only A but "A's part in C" while C loses not only A but "A's part in B."  In each of my friends there is something that only some other friend can fully bring out.  By myself I am not large enough to call the whole man into activity; I want other lights than my own to show all his facets.  Now that Charles is dead, I shall never again see Ronald's reaction to a specifically Caroline joke.  Far from having more of Ronald, having him "to myself" now that Charles is away, I have less of Ronald. . . .  Two friends delight to be joined by a third, and three by a fourth, if only the newcomer is qualified to become a real friend.

I've always been more invested in group interaction than many others -- even though my dyads are quite strong.  Maybe C.S. Lewis is onto why.  So are we right?  Or is it just obvious to everyone else that friendship is essentially dyadic?

Posted by Ethan Leib on June 5, 2006 at 01:19 PM in Culture | Permalink | Comments (6) | TrackBack

Sunday, June 04, 2006

Inequality and Tax Revenues

I am generally inclined to believe that economic inequality is a bad thing, but its unambiguously good for tax revenues. For a country with a progressive tax system, shifting a dollar of income from someone in a low tax bracket to someone in a high bracket means that the government collects a greater share of that dollar, even if national income is unchanged. (Note: for this post I will ignore the impacts of changes in tax rates on inequality, and focus exclusively on the impact of inequality on revenues, holding rates constant.)
Its no secret that inequality has been rising in the United States. This has given government revenues a boost. For example,  after an initial decline, the share of income paid in taxes has been rising during most of the Bush administration, in spite of the fact that tax rates have not gone up.
The impact of inequality on tax revenues has at least one big implication-- it makes forecasting tax revenues almost impossibly difficult. Forecasters must estimate not only the growth rate of the economy but also the change in the distribution of income. Although these are both very difficult tasks, I would bet that forecasting inequality is even more difficult than forecasting growth rates. Income inequality in the United States went up, down, and then up again in the twentieth century, while growth rates have generally been positive; its much harder to estimate something when you can't even be sure what direction its heading over the medium term. So any forecast of tax revenues is probably subject to much greater error than a simple projection of the size of the economy. If anyone knows how future inequality is estimated by forecasters such as the CBO's Tax Analysis Division, I'd love to hear how they do it. 

Posted by Yair Listokin on June 4, 2006 at 10:05 PM in Current Affairs | Permalink | Comments (2) | TrackBack


Marty Lederman has a detailed, helpful post over at Balkinization, discussing the recent decision by a federal district judge in Iowa, "declaring unconstitutional the State of Iowa's establishment of a rehabilitation program operated in the state prison system by the InnerChange Freedom Initiative, a substidiary of Chuck Colson's Prison Fellowship Ministries."  (Marty's words).   Marty writes, quoting the court:

In the court's words, "state funds were used intentionally to indoctrinate Iowa inmates [within the state prison], by a non-profit religious service provider preferred by the state in its selection process, into a form of the Christian religion in the belief that the indoctrination, combined with the communal rehabilitation model, would be of some help in their rehabilitation." The funded program is faith-intensive, and fundamentally religious in nature: "The overtly religious atmosphere of the InnerChange program is not simply an overlay or a secondary effect of the program—it is the program. There are no separate educational and religious functions in the InnerChange program as there were in Agostini . . . . Here, every activity—worship services, revivals, community meetings, daily devotionals—is organized and developed by the InnerChange program and is designed to transform an individual spiritually. Even the otherwise traditional rehabilitation classes themselves . . . have been turned into classes intended to indoctrinate inmates into the Christian faith."

Now, both the trial-court judge, and Marty in his post, make extensive use of the term "indoctrination."  I wonder, what exactly is this word intended to communicate?  What does it communicate, about the motives and goals of the teachers participating in the InnerChange program, about the nature of religious belief and transformation,  about courts' understanding of what religion is, and about the disposition and goals of the participating inmates? 

My own view is that the Court in the late 1960s and early 1970s made use of "indoctrination" (and "sectarian") in an unfortunate way, that owed too much to Paul Blanshard- and Hugo Black-style anti-Catholicism (i.e., "our public schools educate children, and promote unity; the Catholic schools indoctrinate, and are divisive", etc., etc.).  To be clear, it is obvious that neither Marty nor the trial judge in Iowa intend this meaning.  Still, the question remains:  What is "indoctrination" and what is (or should be) the term's constitutional significance? 

What markers distinguish "indoctrination" from "conveying claims about the world that, the speaker hopes, will appeal to the hearer's reason and, perhaps, transform his or her thinking about the world"?  Is there a distinction between "teaching about religion" and "indoctrination"?  Coming at the matter in another way, in what sense is what was happening in the InnerChange program -- which aims, in a comprehensive way, to "transform an individual spiritually" -- "indoctrination"?  Notice that the court distinguishes explicitly between "educational" and "religious" functions, stating that "every activity" of InnerChange is, again, "designed to transform an individual spiritually."  I would have thought, though, that the line between "education" and "transform[ation]" was not so clear.

Now, none of this is to dispute the court's or Marty's conclusion that, given the relevant doctrines, texts, and precedents, the trial judge was correct in invalidating the InnerChange program.  I can think of many reasons why reasonable people of good will, including those who might well believe that religious transformation would be good for inmates and for "society", might nonetheless conclude that this program goes too far.  I'm not sure, though, how much work the word "indoctrination" should do in guiding us to this conclusion.

Posted by Rick Garnett on June 4, 2006 at 04:55 PM in Religion | Permalink | Comments (3) | TrackBack

Friday, June 02, 2006

"Blawgs on a Roll"

Dahlia Lithwick has this piece, "Blawgs on a Roll," in The American Lawyer.  Responding to the often-heard complaint that journalists "just don't get it right when they talk about the law," Lithwick writes:

My guess is that legal reporters are not sloppy or lazy-indeed, most of them impress me as meticulous and precise. The problem is that it's quite difficult to write about law in a way that is both technically accurate and also interesting and accessible to lay readers. That also explains the gaping chasm in the universe of legal writing: There are endless law review articles, and there are compacted news stories about court cases. In the middle, there are a few magazines that cover legal news (The American Lawyer, The New Republic, The New Yorker), and a plethora of cable TV shows that report every titillating detail of the latest celebrity shoplifting, divorce, or murder case. . . .

It's awfully hard to talk about the law in a fair, moderate, and interesting way when everyone else on the TV, radio, and op-ed pages is dumbing it down.

And that's where the blawgs come in.

After a nice plug for Prawfsblawg, Lithwick suggests that the proliferation of law-related blogs is helping law-journalists for several reasons, including this one:

[L]aw professors, who can be exceedingly cautious in print, sometimes become slightly drunk on the Internet's thin air.  Whereas legal thinkers once limited their most serious scholarship to law review articles, occasionally nipping out into the dangerous world to write an op-ed, now many of them offer off-the-cuff observations about everything from partial birth abortion bans to their favorite CDs, several times daily. The blogosphere thrives precisely because it exists at the interstices of the ivory tower and pop culture. As a result, it's the most fertile ground for cutting-edge law talk.

I wonder, is the idea that law-blogs are more useful to journalists -- that is, that law-blogs help journalists get a fuller picture of the relevant issues and debates -- if they are more "law &"-ish (or just "&-ish")?

Posted by Rick Garnett on June 2, 2006 at 05:59 PM in Blogging | Permalink | Comments (1) | TrackBack

Political Science and the Legal Academy

Mark Graber has some interesting thoughts on political science and the legal academy at Balkinization.  Given that I sometimes think of myself as a political theorist trapped in a law school (and sometimes a lawyer trapped in thinking of the world through the categories of political theory), I think I might be able to weigh in on the subject.  In brief, here's the part of Graber's claim on which I'd like to focus:

Today, the crisis of scholarship is in political science departments rather than in law schools. As what counts as legal scholarship has expanded, what counts as political science scholarship is narrowing. Fueled in part by a new generation of administrators who increasingly evaluate scholarship by the amount of grant funding for the research and in part by a new generation of political scientists more concerned with getting money than ideas, what constitues good political science is increasingly being determined by market considerations. Statistics are good because you can get grants to collect data. History is bad because you have to read the text yourself. Objectivity is when you have a second year grad student code opinions as legal or conservative. Making the decision for yourself on the basis on intensive textual analysis is subjective and, hence, not really scientific. One consequence of all of this is that rather than think about interesting problems in the world and read texts, too many younger scholars are being told to use those methods that promise "certainty, and require expensive machinery and graduate students, so they can get funding. More than one law professor has complained that the result has been lots of statistics that either have little bearing on an important problem in the world or totally misconceives the problem in the world. Another consequence is that teaching in a law school has become increasingly attractive to a great many of us, precisely because the legal academy is becoming the place where ideas are judged on their merits, rather than on their economics. This situation is unfortunate. As humanistic political scientists either physically or emotionally leave their departments, fewer and fewer persons are left to train the next generation of scholars. The generation of political scientists that ranged from Howard Gillman to Christine Harrington to Jeff Segal has, in my judgment, been particularly creative. I fear, however, for the next generation and hope, that in addition to wooing us with both higher salaries and more supportive intellectual environments, law schools and law professors combat the increasing problems with political science with the same fervor that some of us sought to combat the problems we saw in legal scholarship.

There is something undoubtedly true and important about Graber's diagnosis of political science.  But I think he is underestimating both the market forces that caused some of these problems (and getting the causation a bit wrong) and the current forces within law schools and political science departments that will not help matters. 

First, Graber claims that "teaching in a law school has become increasingly attractive to a great many [political scientists interested in qualitative rather than quantitative research], precisely because the legal academy is becoming the place where ideas are judged on their merits, rather than on their economics."  Really?  Is the legal academy "becoming the place where ideas are judged on their merits"?  Ideas are often judged based on their appeal to second-year law students -- and promotion and prestige is tied to a system so far removed from intrinsic "merit" that this argument is hard to maintain.  A discipline without peer review really should have a difficult time making the claim with a straight face. 

Quite simply, political scientists seek jobs in law schools because the pay is better and tenure is relatively easier to attain.  These basic economic points could not be denied -- and plenty of my political science colleagues would take jobs in law schools over jobs in political science departments for economic reasons, notwithstanding their knowledge that they prefer to study and teach political science rather than law.  Indeed, a handful of my junior professors in graduate school were scheming to figure out how they could get law teaching jobs (without JDs), not because they didn't like political science or feel welcomed by it but because of the basic economics.  Most of them would hate dealing with law students -- who are a very different clientele than grad students.

This has led to another dynamic in entry-level political science hiring.  If your resume shows you to be interested in law (i.e., you also have a JD in addition to your PhD), political science departments don't waste their time with you.  They assume you'll get and take a law teaching job, so don't bother.  My sense is that it has nothing to do with whether you want to undertake qualitative or quantitative research; you just aren't a viable candidate because political science departments assume that no one in their right mind would do mostly the same work for half the pay and half the job security.  The political science departments may be right -- but they may be wrong too.  They are as much contributing to the problem by not trying to keep these candidates within political science.  Take Keith Whittington.  He turned down what must have been a much more lucrative offer from UT-Austin to stay in his political science department.  Others might do the same.  Although I was widely published and cited within political science (indeed, moreso than within legal circles), I had a much easier time on the law market than the political science market.  I didn't have to choose in the end because no political science department would have me.  But I think I was untouchable because political science departments assumed I'd go to a law school, not because I was doing qualitative work.   

To be sure, Graber has a different conception of "economics" in mind that scares humanistic political scientists away from political science departments and into law schools.  This may be somewhat right at the margins.  But you'd have to be blind to ignore that plenty of qualitative work continues in political science departments (indeed, in almost every subfield too!) and that the dominant paradigm in the nation's best law schools is "law and economics" (and the up-and-coming ELS), with all the quantitative techniques those paradigms demand.  Techniques, mind you, that Graber claims have taken over political science.  So I'm not sure law schools will much help.  We humanists have to police our departments from the inside; if you are relying on law schools to carry the mantle, I think you should prepare yourself for disappointment.  At least political science has The Perestroika Movement -- and vigorous debate about methodology with strong defenders of pluralism.  What does the law have?  Conferences to teach us all statistics?  Critical Legal Studies is dead.  Long live CLS.

Posted by Ethan Leib on June 2, 2006 at 01:02 PM in Life of Law Schools | Permalink | Comments (8) | TrackBack

Thursday, June 01, 2006

Conglomerate Forum on Enron Trial

Today and tomorrow the Conglomerate is hosting a forum on the Enron trial.  As Gordon Smith described in the announcement, the forum will "explore issues relating to the use of criminal law as a corporate governance mechanism in the wake of last week's guilty verdicts against Ken Lay and Jeff Skilling."  You can check out the collected posts here.

Posted by Matt Bodie on June 1, 2006 at 01:06 PM in Blogging, Corporate | Permalink | Comments (0) | TrackBack