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Friday, June 15, 2007

The Other Blackstone

Colonialamerica So I was abruptly awakened out of my 18th-century research daze by Kristin's post this morning entitled "Blackstone"--until I realized, sheepishly, that she was discussing the very modern Blackstone IPO (along with Vic Fleisher at Conglomerate).  Foolish me--who would be posting about Blackstone today?

Well, me, for one.  Lately my writing has taken me into the heady realms of 18th-century authors such as Blackstone, Beccaria, and even James Fitzgerald Stephen as I research how the pre-Revolutionary colonial community understood punishment.    I've been surprised about what I've found, and how it could apply to sentencing reform today.

Most surprising to me was how the 18th-century community, in proto-America, viewed their role in punishing a criminal offender.  I assumed it would be a straight retributive jurisprudence--you err, you are punished (harshly).  But this was not at all the case.  Even the most Puritan of communities (I'm looking at you, New Haven!) had a two-fold view of punishment, what I call expressive restorative retribution (the contours of which I explored in this piece).  In other words, there was interest in publicly punishing wrongdoers (to make the community whole), although much less harshly than in England (where death was the sentence for many felonies).  But there was also a great interest in restoring the offender back to the community after he or she had finished their sentence--a restorative aspect.  Calling the sinner back to the fold, as it were.

Now, this is all very interesting, I can (hopefully) hear you saying, but what relevance does it have towards today?  Well, that's where modern sentencing reforms come in.  Any impartial critic of our  current sentencing regime can see that we have a continuing problem in our released criminal offenders, who are effectively exiled from the community due to their felon status.  Once you are branded a felon, you can no longer vote (except in Florida), serve on a jury, work as a professional, or even be hired for the most routine of jobs.  This has resulted in an ever-growing underclass of ex-convicts who are completely shut out of the polity as well as much of everyday life.  That many of these ex-cons are young, male and minority just makes it worse.

So why not take a page from our 18th-century forbearers, and add some restorative justice to our current regime of punishment?  If we are going to have fidelity to the historical origins of the jury trial right, as the Supreme Court has held in Apprendi, Blakely and Booker, then let's be fully faithful, and implement more than just the straight retributive understanding of punishment and sentencing to our current system.

Posted by Laura I Appleman on June 15, 2007 at 03:51 PM in Criminal Law | Permalink | Comments (3) | TrackBack


So even though my scholarship thus far tends in a different direction, I will admit to being a total deal junkie. Yes, surprise, the tax lawyer in me gets a kick out of contemplating the little boxes and arrows that make up complicated transactional structures. The Blackstone Group IPO is great food for that habit, with a lovely structure that takes advantage of the statutory provision that allows publicly traded partnerships with 90% passive income to enjoy pass-through treatment and avoid the double taxation hit inherent in the corporate income tax. Now Congress is stepping in with the probably inevitable legislative fix to keep the financial services sector from reorganizing itself along similar lines, with a built-in transition that allows Blackstone to enjoy the benefits of its structure for five years.  The Blackstone structure raises a thousand interesting questions -- too many to cover in a single blog post.  Vic Fleischer has a great series of lengthy posts on the deal that you can access here. Paul Caron collects reactions to the proposed legislation here.

Hat tips:  Conglomerate and TaxProf Blog

Posted by Kristin Hickman on June 15, 2007 at 02:23 PM | Permalink | Comments (0) | TrackBack

Your Name Here: The Commodization of the Physical Public Domain

Prawf How much would you have to spend to have a public law school re-named after yourself or your blog? Do you think that law schools (and other public institutions willing to exchange naming rights for cash) should set a first-come, first-served fixed price, or auction naming rights off to the highest bidder? And what about politicians who seem to purchase naming rights for themselves and their families using taxpayer's money? Don't they illegitimately usurp something of value that belongs to the public?  These are all questions I consider in this article, but my emphasis is one of social justice rather than of market efficiency.  Here is a closing query: How does your law school barter its naming honors for cash, and how do you feel about it? 

Posted by Ann Bartow on June 15, 2007 at 11:15 AM in Life of Law Schools | Permalink | Comments (11) | TrackBack

About Justice Kennedy

Wow. Just wow. That’s all I can say about Jeffrey Rosen’s essay in The New Republic characterizing Justice Kennedy. Registration is required (though free), but here is a choice passage:

Kennedy does indeed agonize before reaching his decisions, and he has dramatically switched his vote in high-profile cases. Yet he seems to agonize not because he is genuinely ambivalent or humble but because he thinks that agonizing is something a great judge should do, to show that he takes seriously the awesome magnitude of his task.

Then there’s this:

Indeed, Kennedy has often cast himself in [former Chief Justice Earl] Warren's image, treating the Court as an engine for moral change that could save politics from its most partisan tendencies. Like Warren, Kennedy frequently decides cases based on his instincts about fairness and justice, rather than rigorous legal analysis. The difference is that Warren was a masterful politician who enjoyed interacting with people. Kennedy, by contrast, prefers romantic generalizations about "real people" to actually listening to them.

I don’t know Professor Rosen at all, nor do I follow his work closely enough to know where his sympathies lie generally. I remember seeing him a few times on television before I stopped watching three years ago. Maybe there is a fascinating backstory to this piece that everyone else already knows and someone can share with me in the comments. Until then, all I can say is wow.

Posted by Kristin Hickman on June 15, 2007 at 10:08 AM | Permalink | Comments (12) | TrackBack

Sorry, you're too late

The Supreme Court’s 5-4 decision yesterday in Bowles v. Russell, dismissing the appeal of a convicted murderer because it had been filed two days late, even though it had met a separate deadline set by the trial judge, got me thinking -- not so much about the technical jurisdictional rules that the Court was called upon to interpret, but rather about a problem that I suppose most every law school professor has had to deal with at one time or another: namely, how to deal with students who turn in seminar papers and other assignments late. 

Should one just accept the paper and get on with the grading?  Should one accept it but find some appropriate penalty (and, if so, what should that be)?  Or should one refuse to accept it at all?  More generally, what is the appropriate mix of factors one should consider in dealing with these problems?  Should one’s primary concern be with professional development?  After all, if the student doesn’t learn to hand in her papers on time while in law school, won’t she be developing bad work habits that she will carry with her into practice, when a late filing could result in dismissal and a subsequent malpractice suit?  On the other hand, is it really one’s job, as a professor, to impart these kinds of values to students who haven’t already learned them by the time they’ve gotten to law school? Perhaps one’s primary concern should be with fairness to other students.  But what exactly does that mean?  If the paper comes in an hour late, how much of an advantage is that?   Or perhaps one should endeavor to display the kind of compassion and caring that one hopes one’s students will demonstrate when they someday are in a position of power. 

Try as I might to solve these kinds of problems with my head, I usually end up deciding them with my heart, and a heavy bleeder mine happens to be.  I suppose the same can be said of the Justices.  The issue in Bowles was not the kind that could be decided through any grand theory of statutory interpretation.  It’s the kind of decision that one makes with one’s heart, and one’s soul.  Was it really any surprise that the Court’s majority opinion should have been written by Justice Thomas, joined by Justice Scalia?  And that the dissent was written by Justice Souter? 

Posted by Stuart Green on June 15, 2007 at 08:57 AM in Life of Law Schools | Permalink | Comments (23) | TrackBack

Thursday, June 14, 2007

Afflicting the Comfortable, Comforting the Afflicted -- and Vice Versa

Via the WSJ Blog, I see a story today about a teapot tempest that briefly raged over remarks by Rep. Ed Markey at the recent graduation ceremonies of Boston College Law School.  Markey told the graduates that they must find way to use their degrees "to comfort the afflicted, and afflict the comfortable."  The Journal's editorial board objected to the advice, saying that a lawyer's job is "to pursue justice," pure and simple.  Dean John Garvey wrote in to the Journal today, sweetly advising the editors to "lighten up."

Not having an online subscription, I can't say whether the relevant parties mentioned this, but Markey's lines ought to be familiar enough to the Journal's editorial board.  It's a quote from the journalist Finley Peter Dunne, writing earlier in the last century.  (Lawyers should recall that Dunne is also famous for the well-worn quote about the Supreme Court following the election returns.)  In this case, Dunne was referring not to lawyers, but to newspapers. 

No thoughts from me on whether Markey's use of the Dunne quote works well or poorly in the legal context, as opposed to the journalism context.  I mostly post this as an excuse to observe that Dunne's quote, which I have lived with ever since it was liberally spread around at the Columbia University Graduate School of Journalism, which I attended one career and half  a lifetime ago, has always bothered me.  Not because it's untrue, but because it's incomplete.  Surely it is sometimes the job of a good journalist to comfort the afflicted and afflict the comfortable.  But isn't it also sometimes the job of a journalist to afflict the afflicted and comfort the comfortable?  I might add -- can we not say the same thing about legal scholars?      

Posted by Paul Horwitz on June 14, 2007 at 05:28 PM in Culture | Permalink | Comments (6) | TrackBack

Coke and Tax

So I am nowhere near as invested as Ethan in the outcome of Coke v. LICH, though I have followed his posts on the topic with interest. I am not surprised by the outcome of the case, though like Ethan, I am troubled by Part II.D. and underwhelmed by the Court’s rather limited and flabby analysis both on the Mead question and the conclusion that the regulation satisfied APA notice and comment requirements. I want to expound a bit, though, on Coke’s implications, particularly in the tax area.

Tax is funny on the whole Mead/legislative versus interpretative set of questions. The Treasury Department issues most tax regulations under so-called general authority, and the tax community regards such regulations as “interpretative” for both APA compliance and deference purposes. These regulations are legally binding on taxpayers and the government. Congress has imposed penalties upon taxpayers who fail to adhere to these regulations in evaluating their tax liabilities and filing their returns. Treasury ostensibly utilizes notice-and-comment rulemaking in promulgating these regulations, too, though Treasury’s compliance with APA rulemaking requirements is not very faithful. Yet Treasury stubbornly continues to assert that these regulations are interpretative and thus that notice and comment, while utilized, are not required; and several prominent tax scholars and practitioners have tied themselves (and the Court’s rhetoric) in knots arguing that Chevron deference does not apply to most Treasury regulations. I have written at length arguing to the contrary that these regulations are legislative, subject to APA rulemaking requirements, and entitled to Chevron deference. (See here and here.) 

Notice that the regulation in Coke strongly resembles most Treasury regulations: promulgated pursuant to general authority, adopted through a slapdash notice-and-comment process that squeaked through as close enough, and labeled by the agency as interpretative but treated as binding. Stepping back, I read the Court’s opinion as concluding that the regulation at issue is legislative and entitled to Chevron deference. Thus, it seems to me that the Court’s opinion in Coke further supports my conclusions.

That said, and this is the frustrating part, Justice Breyer’s language is so mushy that it is susceptible of being read closely as indeterminate on both questions. Take, for example, this key bit of language toward the end of Part II.C.: “Where an agency rule sets forth important individual rights and duties, where the agency focuses fully and directly upon the issue, where the agency uses full notice-and-comment procedures to promulgate a rule, where the resulting rule falls within the statutory grant of authority, and where the rule itself is reasonable, then a court ordinarily assumes that Congress intended it to defer to the agency’s determination.” Although the issue is whether Chevron or Skidmore provides the correct evaluative standard, this language calls for deference without quite answering the question posed. (My explanation for this language is Breyer’s conviction that Chevron and Skidmore are merely variants of the same standard, rather than distinct deference doctrines.)

Regardless of the reasons, the Court in Coke clearly bends over backwards to uphold the agency’s regulations under these circumstances. It seems very likely that the outcome in a similar tax case will be the same. 

Posted by Kristin Hickman on June 14, 2007 at 12:02 PM | Permalink | Comments (0) | TrackBack

A Sad Coda to a Momentous Case

As I sit here waiting for opinions for the opinions to issue from Mt.Olympus 1 First Street, I thought I would provide a very different kind of Supreme Court update.

In recent weeks, the news here in Columbia, South Carolina has been dominated by a particularly horrific multiple murder-rape-arson case.  Well, the news broke yesterday that one of the victims--a woman by the name of Crystal Ferguson--was the same Crystal Ferguson who was the lead plaintiff in Ferguson v. City of Charleston, the 2001 case finding unconstitutional the City of Charleston's program of drug testing pregnant women and then using the results as grounds for hospital room arrests.

I remember the Ferguson case vividly because it was the first major case argued the year I clerked at the Supreme Court.  As a doctrinal matter, the decision in the case has proved to be notable, but not earth-shattering, acting (along with the same term's decision in City of Indianapolis v. Edmond) to impose some, minimal limits on the "special needs" exception to the 4th Amendment's general warrant requirement.

Personal connections and doctrinal matters aside, however, Ferguson strikes me as a case that deserves to be remembered.  Whatever one thinks of the legal analysis in the opinion (or even the ultimate resolution of the constitutional issue), the litigation revealed a pattern of state violence staggering in its insensitivity and historical naivety.  The images portrayed in the litigation were the familiar, almost archetypal, tropes of American history:  African-American women shackled in their beds, their children in some cases literally ripped from their arms,  while sanctimonious white folk stand by explaining the allegedly benevolent reasons behind their particular acts of brutality (all the while relying on alleged scientific theories that turn out to be more the product of panic and racism that actual science).  The resonances of slavery and Jim Crow were so pronounced that they would need no mention but for the fact that they escaped notice by those who formulated, enforced, and defended Charleston's policy.  Proof positive, I suppose, that history sometimes repeats itself as both tragedy AND farce.

Posted by amsiegel on June 14, 2007 at 10:50 AM in Constitutional thoughts, Current Affairs | Permalink | Comments (5) | TrackBack

Wednesday, June 13, 2007

Student Stress -- and Blaming Research

A former student alerted me to this post at the WSJ Blog:

munch“The emotional distress of law students appears to significantly exceed that of medical students and at times approach that of psychiatric populations.” That’s the conclusion of a new study, suggesting that law school has a corrosive effect on the well-being, values and motivation of students.

Here’s the 16-page study, “Understanding the Negative Effects of Legal Education on Law Students: A Longitudinal Test of Self-Determination Theory,” by Kennon Sheldon, psychology professor at the University of Missouri, and Lawrence Krieger, a law professor at Florida State. We picked up the study from the Personality and Social Psychology Bulletin, via the Chronicle of Higher of Education.

In a three-year study of two similar, unidentified law schools, the authors used questionnaires to measure the “subjective well-being” of students, their “need satisfaction,” how motivated they were for a career in law, and their “perceived autonomy support.”

The problem with most law schools, the authors write, is that they place little emphasis on hiring faculty members with proven records of teaching excellence.  Instead, they tend to “emphasize theoretical scholarship and the teaching of legal theory, and many hire and reward faculty primarily based on scholarly potential and production,” say the authors. Observers suggest, they add, “that such priorities and processes train students to ignore their own values and moral sense, undermine students’ sense of identity and self-confidence, and create cynicism.”

This is an absolutely absurd causal claim. Sure, some of us are bad teachers -- and schools should make an effort to get competent teachers in the classroom who are supportive of students.  But student stress levels don't come from teachers focused on research.  They likely come from the inherently competitive nature of the profession, the adversarial nature of lawyering, credentialism in the job market, huge debt loads with uncertain employment prospects at all but the best schools, and basic insecurity.

One hears this sort of nonsense a lot -- often from students who think there is something wrong with their professors caring about their research.  What students routinely fail to realize is that research makes teachers better and more in touch with their subject matter, and that teaching often presents interesting research ideas.  Most importantly -- and most often ignored by students -- is that the value of their JD rarely comes from what happens in their first-year Torts class: the value of the JD is a direct product of how the school is viewed in the professional community.  That, in turn, is a product of how faculty are perceived.  And a faculty member's reputation is made through research and contributions to the profession.  We should all strive to be good teachers, of course; it is part of what we get paid for.  But students who demean "research" are not understanding that faculty research is the real key to their employment, not what they learn in a random class.  As we all know, practicing law through your casebook would be legal malpractice.  And most people come to law school to get a job; it is vocational school, after all.

I do think that many students (like professors!) that are not at top tier schools have inferiority complexes that weigh down institutional culture heavily.  But the response should not be blaming each other for psychological reality.  Professors can play a role in building self-confidence and encouraging students to set their sights high; and students can try to build their own self-confidence through initiative and ambition.

Posted by Ethan Leib on June 13, 2007 at 04:20 PM in Life of Law Schools | Permalink | Comments (33) | TrackBack

Immigration and human rights treaties

I was just reading international law grrls and stumbled across this post (http://intlawgrrls.blogspot.com/2007/06/human-rights-at-border.html) about the need for the US to ratify the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. This convention reaffirms many protections found in more universal human rights treaties as well as fleshing out how more general protections might be specifically understood in this context, such as the right of family reunification.

While such ratification is extremely unlikely, for general reasons I discuss in this paper  Take the Long Way Home: Sub-Federal Integration of Unratified and Non-Self-Executing Treaty Law as well as for reasons particular to the domestic immigration debate, I do think the Convention may still influence the practice of non-ratifying states including the United States.

A new project I'm working on, which can be found here http://papers.ssrn.com/sol3/papers.cfm?abstract_id=993526, suggests that immigration human rights treaties may provide some small but meaningful gains for migrants by: influencing non-binding regional processes; (2) contributing to the development and dissemination of best practices; and (3) producing and codifying human rights discourse.

Thoughts and comments are welcome. 

Posted by Lesley Wexler on June 13, 2007 at 02:04 PM | Permalink | Comments (4) | TrackBack

Coke: The End of an Affair

I feel a bit like James Gandolfini: Coke is over and a great weight has been lifted.  For close to three years, I have been following this administrative law case through the court system.  It finally came to an ending this week, though not an ending I'm particularly happy about: Breyer wrote for a unanimous court reversing the Second Circuit decision, which I have been supporting and endorsing since it came down in July of 2004.  How did I get so invested in a case well outside my core areas of interest and expertise?  Well, I saw the case as a clerk and got attached to it; many clerks take especial interest in cases they saw and worked on as clerks.  The Co-Op poked some fun at me for this obsession/addiction by suggesting that Justice Breyer would be doing some guest-blogging with me here about Coke.  How Hoffman knew that it would be Breyer writing the opinion back in January, I'll never know.

SCOTUSblog has some coverage of the Coke decision here and here.  The comment at SCOTUSblog is focused on the silliness of the Court's reliance on an Advisory Memo written after the Second Circuit's original decision.  The Court had given the Second Circuit an opportunity to consider the agency's views when it vacated the decision the first time this case came before the Court.  The Second Circuit declined the invitation to defer to those post-hoc views that the agency had every opportunity to litigate the first time around.  But the Court repudiated the Second Circuit's reaffirmation based, in part, on its view that the agency's Advisory Memo was something more than "post-hoc rationalization" and a litigating position.  As the comment shows, this piece of the opinion may have substantial consequences, even though it was not part of the original Second Circuit decision. 

Something in the SCOTUSblog coverage is a tad misleading, however: it suggests that the lower court awarded the Department of Labor no deference.  That isn't a perfect way to put it.  The court acknowledged that the regulation was entitled to Skidmore deference; it just decided that the regulation did not withstand the scrutiny required under Skidmore's standard of deference.  One could still say colloquially that the court chose not to defer -- but since it did so under "Skidmore deference," it isn't perfectly appropriate to say that the lower court didn't defer at all.

Here was my initial reaction when Coke came down:

The ending of the Coke drama was less disappointing than I expected.  I was invested in the Second Circuit opinion but felt that reversal was likely.  What I didn't anticipate was the blow-out; the case was a close call.  That Ms. Coke couldn't get a single vote at the high court was rather surprising: she got three Second Circuit judges (and six clerks) to agree that her claim was valid.  But what counter-balanced this disappointment for me was the willingness of the Court to explain itself and try to deal with serious counter-arguments.  I was close to losing faith with the rule of law when I read the oral argument transcript because it seemed that the Court might have ducked all the hard issues in the case and might have presented the result as a simple application of earlier case law, which this result assuredely is not.  I still ultimately disagree with the result -- but concede that the opinion is within the realm of the possible.

My somewhat delayed -- and more skeptical -- reaction is below the fold.

I fear the Court didn't do quiteenough explaining.  I say this because the lower court opinion was an effort to figure out how to apply Mead, a case that seems simple enough to apply.  Mead tells  courts to give Chevron deference to an agency interpretation “when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.”  Mead, 533 U.S. at 226-27 (emphasis added).  The Court ultimately gave the regulation at issue Chevron deference (something the Second Circuit refused to do) even though it failed to explain fully how the second prong of the Mead test had been met: Was the agency regulation claiming deference actually promulgated in the exercise of Congressional authority under the relevant statute?  The unanswered question (still left open by Coke) is how we know when agency interpretations are so promulgated "in the exercise" of authority under the statute? 

Apparently, even though the DOL fairly self-consciously excluded the "interpretations" at issue here from the main general regulations (which themselves conflicted with the interpretation under review in Coke's favor) by (1) cordoning them off in their own section, (2) saying explicitly that only the general regs were promulgated pursuant to the Congressional statute, and (3) changing its mind about the status of the interpretations over 30 years, the Court still felt that the reg met the Mead  test for getting Chevron deference.  I must confess that I still find this part of the opinion somewhat bewildering.  All the painstaking explanations aside, the Court protests too much.  Although I appreciate the Court's effort to take all of Coke's arguments seriously, it doesn't add up for me.  The Court's need to justify itself so carefully, all while pretending that this result is not new law, made for strange opinion-reading.

But Scalia must be laughing.  In Mead and Brand X, Scalia argued that there is a "safe harbor" that can effectively guarantee an agency Chevron deference: using a notice-and-comment procedure to promulgate the reg, whatever its status.  The rest of the Court has gone out of its way to try and repudiate this view.  Souter did it in Mead; Breyer did it in Brand X.  Yet, I think it is fair to say that Coke can be read as a small vindication of Scalia's view.  Breyer's and Souter's protestations notwithstanding, it will be hard to say with a straight face that there is no "safe harbor," an idea Vermeule has supported by watching "Mead in the Trenches."  The relevant reg was subject to a notice-and-comment procedure (albeit a somewhat odd one), and that really seems to have made a big difference in the case. 

Notable in Coke too, I should add, was that the notice-and-comment procedure probably did not put interested parties on "fair notice" about what was going to happen, irrespective of what the Court says in its opinion.  The reg the DOL put out for "notice" was the opposite of the final rule it ultimately promulgated (without a new notice-and-comment period).  In some cases, a 180-degree turnaround probably still puts relevant parties on notice.  A reg about tobacco by the FDA would put the right parties on notice, irrespective of whether the final rule mirrored the proposed rule.  But in the DOL's case, the proposed rule was clearly the one more consistent with the statute, such that it would not have generated much interest.  It was simply the unspoken understanding of what Congress assumed would be the case -- and many interested parties in 1975 (well before Chevron and Mead, of course) would have no reason to get involved in submitting comments about a reg that was presumed to be the law anyway.  More, since it was promulgated as a mere interpretation whose legal status was far from self-evident in 1975, it is even harder to take seriously the Court's "fair notice" rationale.  Given that the final rule resulted in a facial conflict with another rule that was put out for notice-and-comment (one unquestionably entitled to Chevron deference) -- and that even the agency and courts when directly focused on the question can't render these conflicting regs coherent -- it is nearly preposterous to suggest that interested parties could be on "fair notice."  Like the holding about the value of the Advisory Memo, I'd expect that this holding about notice-and-comment procedure, sort of an afterthought for the Court in its desparate attempt to show that Coke had no case, will have real legs too.

Posted by Ethan Leib on June 13, 2007 at 01:32 PM in Current Affairs | Permalink | Comments (3) | TrackBack

Interesting New Blogging Study

Check out: Harriette A. Page, "Female Blogging: Issues of Identity, Relations and Play" It has lots of useful links and data. Here is an excerpt:

The monetization/potential commercialization of the spaces may bring changes, and indeed some changes are already happening, such as splogs and content theft that may impact this genre and the increased activity of commercialization in the sphere of the mom blogs, especially in the last quarter of 2006.  Spending on Internet advertising rose to a record $4.2 billion for the third quarter of this year, according to the latest survey from the Interactive Advertising Bureau and PricewaterhouseCoopers -- up 2 percent from the second-quarter level of $4.1 billion and a 33 percent increase over the $3.1 billion for the third quarter in 2005. Interactive advertising, with its eighth consecutive quarter of growth and the largest single quarter ever, is on pace for its biggest year," says David Silverman, Partner, Assurance, PricewaterhouseCoopers in a news.com article. Mom bloggers are aware that the money is moving online and many are moving in to capture it. Revenue from blog advertising and writing is increasingly helping the family budget for many women and blogging is providing a forum to showcase visions and experience, which are helping to build businesses and careers. Blog readers are 11 percent more likely than the average internet user to have incomes of or greater than $75,000, 51% of blog readers shop online and women continue to control 83% of household spending – all of which make women bloggers a powerful economic force, according to Elisa Camahort's study. My blogging study also found that money was not a motivating factor with the same statistic, 15%, concerned about having sponsorship or ads. This can be compared to the Pew Research study in July 2006 which showed that only 8% have made money blogging and 15% cited making money as a reason for blogging.

While some predictions for online advertising growth predicted a cooling off perhaps in the fourth quarter of 2006, but still with potential to reach $16 billion, surpassing last year’s total of $12.5 billion (which compares to $9.6 billion in 2004 ), according to figures from the Interactive  Advertising   Bureau reported on journalism.org, my study of blog content saw an increasing amount of advertising and commodification in the arena of the mom blogs with collaborative sites starting in order to capture the attention and statistics in order to leverage the site economically.  The commodification of the mom blogs has picked up tremendously since mid-2006 and it is expected that the trend will continue and that this may have an impact on the online environment for this blogging community.

Posted by Ann Bartow on June 13, 2007 at 01:28 PM in Blogging | Permalink | Comments (0) | TrackBack

Grading Flummox, Redux

Greetings from Tel-Aviv.  I am so impressed with the intellectual dynamism of the two law schools I've visited in the last two days, Bar-Ilan and Tel Aviv.  It won't surprise me if the next three on my list, IDC, Haifa, and Hebrew U-Jerusalem, will be founts of productive genius too.  These Israeli law faculties are publishing a storm of English-language scholarship in the top journals, chiefly in the US, and one has to wonder, if one is inclined to look at this from a Moneylaw perspective, what are they doing that the average American law school is not doing, and how do they do it, when, for almost all of them, English is not their first language? I have some decent conversational Hebrew skills but I literally cannot imagine what it would be like to develop the kind of linguistic competence necessary to publish top scholarship in a foreign language. I realize this happens all the time and all over the world, but I think Anglo scholars sometimes forget what a leg up in the lottery of life they received. Being here and watching seminars in Hebrew with professors who write in English has just reminded me of its salience.

Anyway, today I wish to return to another topic I raised last week: grading.  Last week, I talked about the potential benefits of ironic grade-giving.  Today, I want to draw our attention to and merely start a conversation about curves and distribution requirements in large classes (30 or higher). First, I recognize the potential randomness and arbitrariness that goes into my creating and grading an exam. Nonetheless, I feel bad when, out of obligation to the distribution requirements we have at FSU for meeting the curve in classes with 35 or more people, I have to drag someone down across the grade threshold. I can’t help but feel bad when I have to move someone from 67 to 66 to satisfy the curve requirement; in that one mark reduction, someone’s grade goes from C to D, based on how we "translate" numbers to letters.

Similarly, dropping someone from 81 to 79 to satisfy the curve requirement brings someone from a B to a C+ at FSU, where the letter grades we have are A+, A, B+, B, C+, C, D, F.) To my mind, the better strategy would be to either abolish the letter grades that correspond with the numeric grade ranges, or to introduce A-, B-, C-, and D+ grades too, so the compliance with the distributions doesn't generate unnecessary student panic at the prospect of going C to D or B to C+.  The problem is that I can’t quite tell whether my views are idiosyncratic because I think only of what students are getting in my class, as opposed to the cluster of grades they get across a range of classes, in which case, there’s less need to worry about any particular letter grade they get in a class and more need to just worry about the overall numerical average grades.

It seems we should get rid of the alphabetical grades altogether, and simply maintain the curve around a particular number.  The distribution requirements (ie., that 0-5% of the students must get F's or D's) can have perverse consequences: why bother spending time trying to educate or tutor the weakest students in the class if you need to have an anchor at the bottom of the curve? Anyway, again, I'm soliciting your input for what is done at your law school: Do you have mandatory or advisory curves? Mandatory or advisory distribution requirements? Simply numerical systems or also letter grades? If letter grades, which ones and why?  In addition, I also welcome your thoughts on the strengths and weaknesses of the various grading regimes discussed in this post.

Next post: how much information should students receive about their grades in a class and how should they get that information? Stay tuned...

Posted by Administrators on June 13, 2007 at 12:06 PM in Life of Law Schools | Permalink | Comments (5) | TrackBack

Tuesday, June 12, 2007

Increasing Scholarship Money For Poor Students By Changing Ranking Metrics

Writing in Inside Higher Ed, Walter Kimbrough laments the fact that wealthy philanthropists often prefer to make large financial gifts to prestigious private schools that cater to wealthy students, rather than to schools that serve students with less financial means. This, he argues, does little to improve access to higher education, and in fact exacerbates  economic inequality. He also notes that many public universities are becoming less accessible to poorer students who nevertheless help support them with tax revenue. According to this report:

Between 1995 and 2003, flagship and other research-extensive public universities actually decreased grant aid by 13 percent for students from families with an annual income of $20,000 or less, while they increased aid to students from families who make more than $100,000 by 406 percent. In 2003, these institutions spent a combined $257 million to subsidize the tuition of students from families with annual incomes over $100,000 – a staggering increase from the $50 million they spent in 1995. At the same time, poor students were disproportionately bearing the brunt of increased college tuition and fees.

Information about the economic diversity of a number of educational institutions is available here. Some of the differences are surprising. At Columbia University in 2004-05, 62% of the student body didn't even apply for Federal financial aid. At Cornell University, another Ivy League institution located in New York that begins with the letter "C' that number is much lower, at 38%. 

I don't know if similar information is publicly available about law schools (Brian Leiter didn't seem to think so in April 2006) though I am sure most law schools track this sort of data for their own students. For law schools, the desire to do well in the U.S. News rankings puts pressure on administrators to allocate scholarship money in the direction of students exhibiting U.S. News rewarded "merit," rather than based on financial need.  This means that at some law schools, wealthy students receive copious scholarship money, and poor students receive little, especially if they attended less prestigious (but more affordable) undergraduate institutions.

This dynamic could be reversed in a microsecond if U.S. News began either making the economic diversity of a law school's student body a substantial ranking factor, or simply by rewarding law schools that provide need based scholarships.  Because the wealthy law schools can afford a lot more scholarships and economic diversity than the poor ones can,  the rich schools will remain securely on top of the rankings, while poorer students would graduate with less debt.

Posted by Ann Bartow on June 12, 2007 at 02:08 PM in Life of Law Schools | Permalink | Comments (3) | TrackBack

Monday, June 11, 2007

And Public Interest Lawyers in NYC Make Ends Meet How?

By sticking to hamburgers, where the NYC dollar apparently remains relatively strong. Just don't order a glass of wine with the burger.

Posted by Brooks Holland on June 11, 2007 at 09:26 PM in Current Affairs, Odd World | Permalink | Comments (0) | TrackBack

Endings: Rorty, The Sopranos, and Coke

My life got a little less full over the past few days: Rorty is dead; The Sopranos is over; and Coke was unanimously (!) reversed.

Rorty changed my life.  For a brief period, Contingency, Irony, Solidarity was my bible -- and helped me break old modalities of thought.  I'm less a pragmatist now than I once was (somehow I have embraced a relaxed moralism these days), but his example of clear writing and impatience with disciplinary conventions will always be a model to emulate.  He might have encouraged loose name-dropping, something I was certainly guilty of in college.  But I've got that under control now.

Like Mike O'Shea, I once stalked the man.  We had a brief encounter in his office in Stanford.  I had just started my Ph.D. and was visiting Palo Alto; I thought I'd chat him up and ask him if he would be willing to advise me.  I was writing an article about his work and was considering transfering to Stanford (for a girl, not for Rorty).  The meeting was very disappointing: he didn't look at me; only discouraged me; and generally seemed sort of complacent and boring.  This man who had changed my life through his writing had nothing like the voice I had come to admire on the page.  Of course, having heard him speak here and there, I knew he didn't sound like a maverick.  But it was still a meeting I will always remember; it was a deflating moment.

The Sopranos' ending didn't deflate me.  It provided drama even though nothing quite happened.  That was good.

The ending of the Coke drama was less disappointing than I expected.  I was invested in the Second Circuit opinion but felt that reversal was likely.  What I didn't anticipate was the blow-out; the case was a close call.  That Ms. Coke couldn't get a single vote at the high court was rather surprising: she got three Second Circuit judges (and six clerks) to agree that her claim was valid.  But what counter-balanced this disappointment for me was the willingness of the Court to explain itself and try to deal with serious counter-arguments.  I was close to losing faith with the rule of law when I read the oral argument transcript because it seemed that the Court might have ducked all the hard issues in the case and might have presented the result as a simple application of earlier case law, which this result assuredely is not.  I still ultimately disagree with the result -- but concede that the opinion is within the realm of the possible.  I'll do a more substantive post on Coke in due course.

Posted by Ethan Leib on June 11, 2007 at 01:49 PM in Current Affairs | Permalink | Comments (4) | TrackBack

Tax, Rulemaking, and the Rule of Law

I spent part of my weekend with a group of junior tax scholars.  Two separate topics of discussion together raised an interesting rule of law question that I have been pondering ever since.

The first topic concerned a particular transaction structure that seems to “work” but is not what Congress intended to facilitate when it enacted the relevant statutory provision.  To be a little more precise without going too deeply into tax-speak, Congress created a “loophole” in the tax code that enables taxpayer group A to avoid the corporate income tax.  A member of taxpayer group B has found a way to utilize the same provision to accomplish the same goal.  Unlike most tax shelter activity, this is a real deal, not just a sham transaction ginned up to create phony paper losses.  But Congress clearly was not thinking of taxpayer group B when it enacted the provision in question.  Also, taxpayer group B represents a lot more tax dollars than taxpayer group A.  So Congress will not be pleased that members of taxpayer group B can fit into the loophole and may be moved to change the law.  The interesting aspect of the debate to me was over the following question: If you think that the corporate income tax represents bad policy and that Congress should repeal it, then should you care that this transaction structure and others like it enable significant numbers of corporate taxpayers to substantially reduce their corporate income taxes?

The second topic relates to my own work.  (Shameless self-promotion time.)  I recently wrote an article documenting a study of three years worth of Treasury Department tax regulations in which I concluded that 40% of the regulations studied were susceptible to legal challenge because Treasury failed to adhere to Administrative Procedure Act rulemaking requirements in promulgating them.  Treasury does not necessarily believe that its behavior is inconsistent with the APA, mind you.  But the article documents at length why Treasury’s compliance claims are weak and out of sync with modern administrative law jurisprudence.  Here, the point was raised that maybe the APA rulemaking requirements do not work very well in the tax area.  But if they’re not, should the solution should be for Treasury, the IRS, and/or the tax bar to convince Congress to modify or repeal the APA requirements, rather than turning a blind eye to Treasury’s . . . imprecision?

Does it make a difference that it is a government agency (trying to do good for society) arguably stretching the law rather than a corporate taxpayer (trying to make a profit for itself and its owners)?  Which is worse?  Should the government be held to a higher standard because it's the government or a lower standard because we at least like to think that the government is working for the good of all?

Posted by Kristin Hickman on June 11, 2007 at 01:09 PM in Corporate | Permalink | Comments (0) | TrackBack

Fourth Circuit Decides al-Marri

Hot off the presses, the Fourth Circuit's much-anticipated decision in al-Marri.

In short, the court unanimously held that the MCA doesn't apply to al-Marri (avoiding the constitutional elephant in the room), and ruled 2-1 in al-Marri's favor on the merits.

And now, it's on. (More analysis once I read the 86 pages).

Posted by Steve Vladeck on June 11, 2007 at 01:01 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (0) | TrackBack

Defending "Dollar" Bill

One of the reasons that I merely teach and write about white collar crime, rather than actually represent any white collar defendants, is that I lack the kind of imagination and hubris that are necessary to do a really effective job at the latter.  Consider the task confronting lawyers for Louisiana Congressman William Jefferson, charged last week with sixteen counts of conspiracy, bribery, wire fraud, money laundering, obstruction of justice, racketeering, and violations of the Foreign Corrupt Practices Act.  Jefferson, alleged to be at the center of a complex scheme of using his influence as co-chair of the congressional Africa Investment and Trade Caucus to broker deals in various African nations and demand kickbacks for himself and family members, was caught on camera in a hotel garage accepting a payment of payment of $100,000 from an FBI informant, and later found to have $90,000 in marked bills in the freezer of his Washington home. 

Jefferson has now pled not guilty.  If you were Jefferson's defense lawyer, what kind of defense would you offer?  As I say, I doubt I'm clever enough to come up with a very good answer.  But, based on statements by Jefferson and his lawyers, we can discern the foundation for an interesting two-pronged strategy. 

The first prong is the classic “this was merely aggressive business behavior rather than criminal conduct” defense that is so often used in white collar cases (and which, if you’ll excuse some self-promotion, is dealt with extensively in my recent book).   In bribery cases, defendants typically argue that alleged bribes were really just campaign contributions.  Given the nature of the payments here, that defense seems all but impossible.  Instead, Jefferson apparently intends to make the only slightly more plausible argument that, in representing various American companies that were interested in doing business in Africa, he was acting as a private businessman rather than as a member of Congress. 

The second defense is what might be called a modified O.J. defense, to the effect that, even if Jefferson is guilty of something, he has been the victim of government “persecution.”  This defense might have seemed promising if  Jefferson’s case were to be tried in the Eastern District of Louisiana, where he recently won reelection to the House despite the mounting evidence of corruption against him.  In such a venue, particularly in the wake of Hurricane Katrina and its aftermath of governmental neglect, arguing that a populist African American political leader was being framed by the all-powerful Department of Justice might have had some traction.  But, given that the indictment has been filed in the much whiter, much more conservative Eastern District of Virginia, I’m skeptical that this defense will get him very far.

Posted by Stuart Green on June 11, 2007 at 11:43 AM in Criminal Law | Permalink | Comments (2) | TrackBack

Diagram Trouble

What I’m about to say may be the single pettiest thing ever posted to this blog: it’s a complaint about a diagram. The diagram in question appears in Lee Anne Fennell’s Property and Half-Torts, 116 Yale L. J. 1400 (2007). The article is good. Even the diagram qua diagram is okay; it’s just the order in which parts of the diagram are labeled that gets my dander up. The argument is a bit technical (read: “absurdly nit-picky”) and has a lot to do with spatial layout, so rather than try to dance about architecture, I’ve made up a little presentation to show what happens when papers from the right side of the tracks make some bad life choices.

Posted by James Grimmelmann on June 11, 2007 at 12:22 AM in Article Spotlight | Permalink | Comments (4) | TrackBack

Sunday, June 10, 2007

More Trouble With Trademarks: Pork and Pork Byproducts

The National Pork Board was formed within the U.S. Department of Agriculture via the Pork Promotion, Research and Consumer Information Act of 1985. It is funded by the "Pork Checkoff" program,  basically a tax  placed on pork producers and importers, the constitutionality of which the Supreme Court addressed a couple of years ago. The money raised via the Pork Checkoff is used to encourage consumers to eat pork and pork facsimiles posing as pork. Oddly, the National Pork Board website is a dot org rather than a dot gov, which is rather tricksy.

In 2006, the National Pork Board purchased the rights to the trademark "The Other White Meat" from a private entity, the National Pork Producers Council, for $60 million.  The valuation of this mark, and the propriety of the sale is questioned here.  Once it held the trademark, the Board apparently hired a private law firm to "defend" it.   In February of  2007,  a  lawyer representing the National Pork Board sent a cease and desist letter to a breastfeeding promotion blog called The Lactivist that offered a number of tee shirts for sale, including one that said:  "Breast, the other white milk." Here is an excerpt from The Lactvist's rendition of what transpired:

... I received a letter this morning from Jennifer Daniel Collins, an attorney at Faegre & Benson that represents The National Pork Board. It stated, for the most part, that my use of the phrase "the other white milk" violates their trademark on the phrase "the other white meat." As such, they've demanded that I remove the shirt, demanded that the image of the shirt be removed from any site I know of, demanded that I destroy any shirts that exist with the logo and demand that I not at any point in the future use the phrase in a commercially profitable way.

(Want to read ALL the demands? Download the C&D as a PDF file.)

Apparently the National Pork Board is worried that someone might come to my breastfeeding blog, check out the shirts and worry that when I say "white milk" what I really mean is "thick and juicy, straight from the hog PORK." Come on now, be honest...were you confused? Because I sort of thought I was comparing breastmilk (which just happens to be white) with the milk of a variety of other animals (cows? goats?) that happen to produce white milk (not kangaroos though, their milk is pink) and that often gets fed to infants INSTEAD of breast milk.

Wait, it gets better...

As best I can tell, the issue that REALLY has their panties in a wad is expressed in this quote from the cease and desist letter:

"In addition, your use of this slogan also tarnishes the good reputation of the National Pork Board's mark in light of your apparent attempt to promote the use of breastmilk beyond merely for infant consumption, such as with the following slogans on your website in close proximity to the slogan "The Other White Milk." "Dairy Diva," "Nursing, Nature's Own Breast Enhancement," "Eat at Mom's, fast-fresh-from the breast," and "My Milk is the Breast."

Go back and read that again. "apparent attempt to promote the use of breastmilk beyond merely for infant consumption."

Do they think I'm trying to an promote an adult breastfeeding fetish??! ...

Ultimately The Lactivist caved and took her "Other White Milk" shirt off her website store, replacing it with this one:Originalwhiteshirt_2

See also. It is clear from her description of the settlement agreement, in which she repeatedly refers to the National Pork Board as a big company, a big corporation and "big business"  that she incorrectly believes that it is a private entity, rather than an arm of the federal  government. As noted above, I think the Board is intentionally confusing on this point.  In any event, The Lactvist's sale of  tee shirts bearing the "Other White Milk" slogan was not a trademark use, so it should not have been deemed infringing, and it was a parody use  that ought to be protected by the First Amendment.   Trademark holders love to pretend that if they aren't aggressive about objecting to all non-permissive uses of their trademark,  their trademark rights will sizzle and fry, but that is generally an inaccurate and self-serving reading of the Lanham Act.  It's understandable that The Lactvist capitulated to the Board's piggish demands, given the attorneys fees that might have been required to fight them, but this will further embolden the Board to overprotect the trademark in other contexts. Someday I hope the Board gets a taste of its own byproducts, perhaps in the form of a lawsuit by Harley-Davidson. Now that it has triumphed over a parody tee shirt, perhaps the National Pork Board will begin focus on developing a newer, more sophisticated  advertising campaign, like this classy entry from Canada:


Posted by Ann Bartow on June 10, 2007 at 09:52 PM in Constitutional thoughts | Permalink | Comments (3) | TrackBack

Practicing while Teaching

Douglas Berman had a neat post the other day at Sentencing Law & Policy about an appeal he’s handling before the Eleventh Circuit Court of Appeals. In the post Berman commented, “I suppose I am ... taking to heart Neal Katyal's terrifically interesting Harvard Law Review comment encouraging the legal academy to go practice.”

Professor Berman’s comment resonated with me, as I just picked up my first Ninth Circuit appeal as a CJA attorney. I couldn’t be more excited. I practiced criminal law as a public defender for eleven years prior to teaching, and I promised myself that I would not go too long without a client and case for which I was fully responsible. And after two years of teaching, I was feeling a little isolated from the practice that motivated me to teach and write about criminal law in the first place. Thankfully, my Dean and faculty colleagues seem very supportive, so long as I balance my responsibilities appropriately.

The undertaking has me considering some questions, though. I recall that as a law student I really appreciated when professors were willing to venture outside of the ivory tower and get their hands dirty. But, does the tremendous commitment of real-world practice ultimately compliment or distract from the primary work of a law professor? Especially a junior, pre-tenure professor? Does the answer depend on the professor's areas of teaching and scholarship? And, is the answer affected by the claim that "doctrinalism is dead?"

Posted by Brooks Holland on June 10, 2007 at 06:42 PM in Life of Law Schools, Teaching Law | Permalink | Comments (3) | TrackBack

Achievement and Reasonable Pride

I'm just getting ready for my trip to Israel to give some talks at Bar-Ilan, Tel-Aviv and Haifa.  By coincidence, Orly and Rob Howse will also be there, so maybe we'll have a Prawfs in Israel get-together... Mom, in case you're interested, you can see the abstract of the piece I'm presenting, Retributive Damages, up on my SSRN page.

As I've been getting ready, I got to thinking: what achievements in life can one justifiably gloat over without feeling stupid? And given today's crowded wedding pages in the NYT styles section, with lots of friends (congrats Edwin, Avery, Liz, and Frannie!), I realized, match-making is an unvarnished good in which everyone should delight.  So with that in mind, look at the glorious couple Wendi and I helped bring together, and whose magical wedding we celebrated last weekend.  Ever since we've made this match, and the accidental one I made with Adam and Steve in college, we've been emboldened to meddle in the lives of our willing friends. After all, under Jewish tradition, if you make 3 matches, you get a direct ticket to Heaven.  (Btw, the balance of this post is so completely not law-related (except that the bride is a lawyer and the daughter of 2 generations of judges) that you shouldn't bother continuing if that's a hangup of yours. And if you're wondering why on earth I'm posting what follows, it's because the NYT sadly didn't reprint it, and many Prawfs readers are friends or fans of the bride and groom.) Laurie Lin, please take note of this injustice for LEWW.

Abigail_zachary_shrier Abigail Brett Krauser was married last Sunday to Zachary Loren Shrier at the Sixth and I Historic Synagogue in Washington, D.C.. Rabbi Stephen Weil of Beth Jacob Congregation of Beverly Hills, CA, officiated.

The bride is a litigation and white-collar criminal defense associate at the L.A.-based law firm, Irell & Manella, L.L.P.  She was, until July, a law clerk to the Honorable Judith W. Rogers on the U.S. Court of Appeals for the D.C. Circuit.  She graduated summa cum laude from Columbia University.  Upon graduation she received Columbia's Euretta J. Kellett Fellowship to Oxford University, from which she received a B.Phil. in philosophy in 2002.  Mrs. Shrier graduated from Yale Law School in 2005. Her parents are the Honorable Sherrie L. Krauser, a judge of the Circuit Court of Maryland, and the Honorable Peter B. Krauser, a judge of the Maryland Court of Special Appeals and former chairman of the Maryland Democratic Party—both of College Park, Maryland.  She is the granddaughter of the Honorable Bess Lavine, retired judge of the District Court of Maryland; Judge Lavine was one of the first female elected officials in Maryland history.

The groom is a portfolio manager at Shrier Wealth Management, a California-based investment firm he founded and manages with his father, Steven Shrier.  The groom graduated with membership in Phi Beta Kappa from Harvard College in 1999.  From 1999-2001, he worked as a business analyst at McKinsey & Company in New York.  Mr. Shrier is also a screenwriter and playwright.  In 2003, his play, "So Fine Dining," was featured in the Boston Theater Marathon, and his play "Recess" was a finalist for the 2004 Heideman Award. The groom's mother, Debbie Shrier, is principal of the Yeshiva University of Los Angeles high school.

Posted by Administrators on June 10, 2007 at 02:25 PM in Blogging | Permalink | TrackBack

Friday, June 08, 2007

Is Wyoming's Senate Vacancy Plan Constitutional?

My colleague (for a few more days anyway) Vik Amar has a delicious commentary up at Findlaw on Wyoming's law to fill Senate vacancies.  In short, he thinks the plan is unconstitutional under the 17th Amendment.  The 17th Amendment requires that

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

Wyoming's law doesn't merely "empower" the Governor to make an appointment; it requires him to do so.  Worse, it constrains his discretion by forcing him to choose from a list.  These may be unconstitutional design features, Amar argues -- and he furnishes some analysis of how this may all play out.

This column is a must-read.  My own little addition to the argument would be to highlight another weak intratextual argument from Art III jurisdiction: "with such exceptions,and under such Regulations as the Congress shall make."  So, if the executive empowerment under the proviso in the 17th could be subject to "exceptions" or "regulations" by a state legislature, we'd expect to see
such a clause.

Posted by Ethan Leib on June 8, 2007 at 06:35 PM in Article Spotlight | Permalink | Comments (6) | TrackBack

So You Think You Can Engage In Nepotism

Although I seem to get media calls for my expertise on American Idol, I don't actually watch the show unless I have to (for research purposes!).  Its much better offspring, however, So You Think You Can Dance, is real entertainment.  The competitors actually have some skill -- most are trained dancers -- so the show rarely makes you cringe.  (Well, the judges do, but that's another story.)

I was very much looking forward to this season -- until I learned who made it through the auditions to the "top 20" competitors: three dancers who were selected have brothers or sisters who were in the competition last year -- and one was on the show last year in another capacity.  I fear the audition process has been compromised and I hope I'm able to see past the nepotism to enjoy the show.

Go, Hok!

Posted by Ethan Leib on June 8, 2007 at 02:18 PM in Culture | Permalink | Comments (4) | TrackBack

Thursday, June 07, 2007

Politics As Usual: He's A "Stud" While She "Works The Pole."

This is a photograph of possible '08 Presidential candidate Fred Thompson with his spouse, Jeri Kehn:

AaaaSee also. The New York Post has referred to Kehn as Thompson's "Babe Wife." This article also observed:

"Kehn scored a coup in convincing Thompson, who had won the nickname "The Tennessee Stud" during his D.C. bachelorhood, to meet her at the altar."

A Boston Herald columnist, Margery Eagan, had this reaction to the photo:

Flashed around the country Thursday was yet another full cleavage shot of Fred Thompson’s child wife looking almost as well-endowed as Alex Rodriguez’s stripper/pole-dancer girlfriend. “That was quite a dress,” said one GOP analyst, breathless.

Perhaps Fred’s wife “Jeri” - yes, with an “i” - helps Fred with AARP, Viagra-ed up men: “You still got it goin’, Fred, you dirty dog.”

MSNBC's Imus replacement commentator, former Republican Congressional Representative Joe Scarborough, recently had this on air exchange about Kehn:

SCARBOROUGH: Have you seen Fred Thompson’s wife?
CRAWFORD: Oh, yeah.
SCARBOROUGH: You think she thinks she works the pole?
CRAWFORD: That’s what a Hollywood career will do for you, I guess.
SCARBOROUGH: What do you mean?
CRAWFORD: You get wives like that.
SCARBOROUGH: I mean, look at that guy. God bless him, I love his voice. But I mean, you know. He ain’t Robert Redford in “Butch Cassidy and the Sundance Kid.”
CRAWFORD: Well I would like to see him back into politics because I think he’s a lousy actor.

You can watch the video here. According to this USA Today article:

Video of MSNBC's Joe Scarborough bantering on the cable news network Friday about whether Fred Thompson's wife "works the pole" is sparking criticism of Scarborough from the right, left and in between. A spokesman for the news network said this afternoon, though, that the comment has been taken out of context and that it is "irresponsible" to suggest Scarborough was employing sexual innuendo. "Works the pole" could have been a reference to poles that some strippers use in their acts. MSNBC says it was a reference to an exercise routine that a growing number of women are performing.

As both an actor and politician, I have to assume Thompson understands the importance of his public image, and that of his wife.  Kehn is described in the NY Post article linked above as "a former Senate staffer and Republican National Committee mouthpiece" and "a sassy political pro who could help his cause in the White House." It is difficult to divine what, if anything, her style of dress says about Thompson's perceptions of the current electoral zeitgeist. Is Kehn willing to be publicly portrayed as a "pole worker" to burnish Thompson's reputation as a "stud," or did the media coverage turn out differently than they expected? If Thompson didn't anticipate this kind of reaction, his political instincts probably aren't all that good.

Posted by Ann Bartow on June 7, 2007 at 11:15 PM in Gender | Permalink | Comments (9) | TrackBack

Paris Hilton, Communicable Diseases, and Prison Conditions

Prisoncell Well, not to tread on the heels of Gawker and Above the Law (and Sentencing Law & Policy!), but I find myself inexplicably fascinated with the ever-evolving story of Paris Hilton's  imprisonment.  For those of you not avidly following the tale, Paris Hilton was recently arrested, convicted, and sent to a Los Angeles county jail for violating her probation on a prior DUI.  To the amazement of celebrity-watchers everywhere, Paris did not opt for the "pay-to-stay" option, but checked in to the regular jail (although she was placed in the special "celebrity" section isolated from the majority of the other inmates).

Today, however, we find out that Paris has been released from her jail sentence due to "medical issues," and allowed to serve out the rest of her sentence at home.  Speculation has been rife as to what kind of medical issues allowed her quick exit, but several sources have mentioned a severe rash as cause.   Now this dovetails quite interestingly with a fact mentioned in a few of the news articles concerning the celebutante's jail term--that the inmates residing in the gen. pop. quarters have been repeatedly infected with a drug-resistant staph infection.

So, let's think about this for a moment.  On the one hand, we have severely overcrowded California jails and prisons (so much so that a federal judge has been threatening to take over the system) infected with a drug-resistant infectious disease.  On the other hand, we have a wealthy young socialite already given preferential treatment by the authorities who is quickly released due to some minor health problems, potentially a rash (not a staph infection, the prison officials claim).  On a third hand (or the other foot?), we have the hysteria over the drug-resistant TB traveler, who has gotten immense criticism for potentially exposing fellow passengers to his disease.  Why the  vastly different responses to similar problems?

The obvious answer is money--Paris has it, regular inmates don't, and that makes all the difference.  But how does that explain our  reaction to the flying Typhoid Mary?   In my mind, it has much more to do with the way we categorize both the sick and criminal offenders:  as untouchables.  The TB flyer has much more in common with Paris Hilton than with the average inmate, in terms of money, power, opportunity, etc.  Yet we furiously shun him and criticize his (potentially dangerous) actions with the same vigor and rage that we exhibit towards convicted felons.  Both are loathsome to us, unable to be rehabilitated, best off quarantined away from us, permanently. 

Which leads me to my real point.  Our criminal system today has no second chances for anyone who's been convicted of a felony;  once you have this stain on your record, you are essentially isolated from the larger community.  We allow no opportunities for restorative justice to our convicted offenders, who are primarily poor and often minority.  By having such a rigid, "no returns" policy, we cut off a substantive segment of our society, barring them from participation in the polity. In that sense, having a felony conviction is very much like having an incurable, communicable disease.  Either way, we want no part of you.

Posted by Laura I Appleman on June 7, 2007 at 09:20 PM in Criminal Law | Permalink | Comments (1) | TrackBack

Is Tom Wolfe on Justice Scalia's (Clerk's) Reading List?

This passage from Justice Scalia's dissent in the recent case of Zuni Public School District No. 89 v. Department of Education just sounds familiar, doesn't it?

Why should we suppose that in matters more likely to arouse the judicial libido -- voting rights, antidiscrimination laws, or environmental protection, to name only a few -- a judge in the School of Textual Subversion would not find it convenient (yea, righteous! ) to assume that Congress must have meant, not what it said, but what he knows to be best?

If I were Tom Wolfe, I would consider a variety of stylistic factors here -- the invocation of the libido, the Coining of Capital Letters, the italics, the interjection, the exclamation point! -- and decide whether to feel flattered or whether to take legal action.

Posted by Paul Horwitz on June 7, 2007 at 11:23 AM in Current Affairs | Permalink | Comments (4) | TrackBack

Bernie Black: When To Post On SSRN

The recent discussion of what was, by all accounts, a less than spectacular article that was publicly distributed (through BE Press) prompts me to write again on my thoughts about when to post a working paper on SSRN.  Here are some factors that matter to me.  They don't all point in the same direction.

1.  I want what I write to be read, built upon, cited, change the way people think about the world.  None of that can happen until I post it.  Some articles are more time sensitive than others, and will simply be less important if I delay posting too long.

2.  I don't want to be preempted.  Once I post, I have intellectual ownership of an idea.  I realize that someone else, most likely someone else who is already working in the same area, might see what I write, build on it, not acknowledge me, perhaps even steal my idea and try to beat me into print.  But usually the larger risk is that someone else will preempt me before I post, rather than steal from me after I post.  Or so I want to believe -- and I think this is usually right.

3.  I assume that I get one shot at any particular reader -- anyone who reads a working paper will likely not reread the final.  So this draft should be reasonably complete, enough so that I'm happy if this is the version that gets read.

4.  I assume that I will be judged on the quality of the work that I publicly distribute, and properly so. The draft should be spell-checked, proofread, ideally read first by a few colleagues, perhaps given at a workshop or two if the opportunity to do so was available.  It's a DRAFT, but it ought to be a GOOD draft.

5.  If I know a paper will be attacked, I am more cautious, and post a later, more polished draft.  This has been a factor in a series of papers on medical malpractice I've written with David Hyman, Charlie Silver, Bill Sage, and Kathy Zeiler.  Our data, and our analysis of that data, has political implications.  It has been and will be attacked by people who have strong political priors, and by other people who care only about results.

6.  For empirical work, if I have a new idea, but it relies on publicly available datasets, I am more cautious than if my idea relies on a hand-collected dataset, due to preemption risk.

7.  When a revised, better draft is available, I post it, as a revision to the old draft.  At least from then forward, the old draft disappears (but it still sits in the SSRN archives, together with the posting date, in case I later need to prove intellectual ownwership of an idea).

8.  When possible (almost always with student-run law reviews, if you insist, and often with peer-reviewed journals), I obtain permission to post the final published version, and then do so, as a revision to the working paper.  I add the citation to SSRN, including the magic words "as published in" [citation].  That's my way of telling readers this is the final version.  When this is not possible, I add the citation (without said magic words) to SSRN, and post the latest draft I have.  In substance, this is the final version, even though it will look different.

In the end, I usually post what I think of as an advanced working paper, perhaps ready to be submitted to journals, perhaps not quite there yet, but still solid.  Earlier for some papers, later for others, based on a rough sense of the factors above, and perhaps other implicit factors I'm not thinking of right now.  With coauthors, I tend more often to be pushing for posting, rather than pushing for delay.

None of this speaks directly to the idea of intentionally posting a short 10-15 page "idea only" draft, as Larry Solum has suggested, where it is clear that you are posting early and rough, to get an idea out there and claim ownership, taking the preemption risk that someone else who has a similar idea will say, "darn it, that was my idea, I had better write it up soon and better than that yo-yo."  And yes, you'll be cited, but you had better be on track to get a fuller version out there too.

Finally, I don't usually flog my own work, but here are a couple of recent examples of the judgments we make:

A.  A medical malpractice paper, just posted, and simultaneously submitted to a journal.  Posted relatively late because of the political concerns mentioned above.  Bernard Black, David Hyman, Charles Silver & William Sage, The Costs of Litigating Medical Malpractice and Other Personal Injury Cases:   Evidence from Texas, 1988-2004 (working paper, June 2007) (http://ssrn.com/abstract=979163)

B.  A law and finance paper, Vladimir Atanasov, Bernard Black, Conrad Ciccotello & Stanley Gyoshev, How Does Law Affect Finance?  An Examination of Financial Tunneling in an Emerging Market (working paper March 2007) (http://ssrn.com/abstract=902766). This one has been circulating for a while.  I wasn't even a coauthor on the first posted version.  It's been revised several times, has gotten stronger over time, and is now under submission at a journal (having already been rejected at two other journals, but heck, it's a finance paper about Bulgaria, and a lot of finance people think almost nothing outside the US is interesting).  I like this paper a lot, I want the idea out there, and it relies on data that we uniquely own so no one can directly compete with us.

Bernie Black
[managing director, SSRN]

Posted by Administrators on June 7, 2007 at 11:22 AM in Life of Law Schools | Permalink | Comments (0) | TrackBack

Wednesday, June 06, 2007

Macs in Law School

When I stand at the front of a class, staring at a sea of laptop lids, I always note the couple of Macs in the room … well, sometimes it’s only one. Why I notice, I really don’t know — Although I prefer the Apple platform to Windows, I’m not one of these crazed Apple worshipers. It’s just a computer. Maybe I simply appreciate those students willing to battle SofTest each semester from a different platform. Or maybe I have a soft spot for spawn-of-Satan conspiracy theories.

But for the folks in law school environments using Macs, one of my Mac-using students called my attention to a blog run by a group of law students, “Mac Law Students.” It appears to offer some decent product reviews and advice on using Macs in law school, especially at exam time.

Posted by Brooks Holland on June 6, 2007 at 01:09 PM in Information and Technology | Permalink | Comments (7) | TrackBack

A Cautionary Tale for Users of SSRN and bepress?

You've probably seen some blogging lately about the New York Times rule.  Some (like Jeff Lipshaw) say it means: don't do anything that you wouldn't want to see covered in tomorrow's NYT. Others  (like Jeff Harrison) interpret it as: don't say anything in writing that might get you in trouble; according to the rule, all controversial statements should be said orally so you can always deny what was said. 

Well, with reference to that discussion and Ethan's post yesterday about the possibility of using corrected versions of papers on SSRN or bepress, readers in our profession might feel a twinge of sympathy for Professor Victoria Dawson of FAMU in Orlando, wondering if she has her own "NYT rule" problem.  Here's why.

A few years ago, Professor Dawson posted on bepress a draft of a paper -- still in need of a proof-read -- as it was being circulated to law reviews for publication. The paper later appeared in the Missouri Environmental Law and Policy Review. Nothing too unusual there, right?

Well, some FAMU students are "now using [the draft paper] to help build a case that Dawson is not qualified to teach and was hired primarily on the strength of her personal ties."

Having reviewed the paper, the St Pete's Times authoritatively states it

is peppered with spelling, punctuation and grammatical errors. Even the title is off: "Environmental Dispute Resolution: Developing Mechanisims (sic) for Effective Transnational Enforcement of International Environmental Standards."

Wow.  And so because someone posted a shitty first draft on bepress, she is facing questions about her competence to teach. I understand that legal writing may be part of her responsibilities and I understand that FAMU's law school has had various serious problems, but I'm quite worried now that articles of the sort run in the St. Pete's Times will undermine the goal of getting "tomorrow's research today." If this is the flimsy evidence of incompetence used to shame someone publicly, we can thank the St Pete Times -- for now even more scholars, especially junior ones, will be worried about what their local paper will publish when there are incomplete or somewhat mangled drafts up on SSRN and bepress. 

Of course, the answer might just be, put up clean copies on ssrn. That's not going to help allay fears.  So many people in the prawf business are afraid of putting up work that hasn't gone through a dozen law students' eyes that we shouldn't be surprised when SSRN becomes a repository for only completed  and published papers. So, what is to be done?? Well, if you have any thoughts, feel free to contact the reporter, Ron Matus, who can be reached at (727) 893-8873 or [email protected].  And of course, share your thoughts here too. (H/t: the inimitable HB.)

Update: Check out the response by Prof. Bernie Black (the SSRN Guru) on When To Post on SSRN.

Posted by Administrators on June 6, 2007 at 10:58 AM in Dan Markel, Life of Law Schools | Permalink | Comments (19) | TrackBack

Litigation Hostility in the Early Roberts Court

Just about a year ago, I published an article in the Texas Law Review arguing that "hostility to litigation" was the dominant theme in the Rehnquist Court's jurisprudence.  Though I can't do justice to the whole article here, my central argument was that a semi-theorized, visceral antipathy to the litigation process colored the Court's response to a wide variety of issues, ranging from implied private rights of action to the Eleventh Amendment to the proper methods of statutory interpretation.  ( I even sought to bring Bush v. Gore under the umbrella of my argument.)

Like many of the other defining themes of the Rehnquist Court, this trend lost momentum in the final terms of the late Chief's tenure (a fact that Suzanna Sherry astutely notes in this article).  From his writings and associations, there were plenty of reasons to think that John Roberts would try and reignite the anti-litigation spark, but it was anyone's guess how the Roberts Court as a whole would react.

Well, we are about two-thirds of the way done with the Court's output for this term (arguably the first full year of the "Roberts Court") and the struggle over the role of litigation is--at least thus far--the great unappreciated story of the term.

In the main, the anti-litigation forces are winning.  To mention but a few cases, in Twombly, the Court not only raised the bar for surviving a motion to dismiss in certain antitrust cases, but also went out of the way to repudiate some of the broad language in its prior decisions explaining the limited scope of a 12(b)(6) motion.  In Ledbetter, the Court chose to construe an ambiguous provision of a central anti-discrimination statute in a manner that will effectively close the courthouse door to a wide swath of victims of unlawful pay discrimination.  In one habeas case, the Court's rush to deny a day in court to a potentially meritorious claim was so pronounced that Justice Stevens explicitly suggested that the decision was only explainable by reference to the Court's hostility to litigation.  Finally, all the tealeaves point to a major, litigation-restricting decision in Hein, the Establishment Clause standing case.

One thing worth noting about the dynamics of the Roberts Court is that there seems to be a more concerted pushback against the Court's anti-litigation orientation than there was during most of the late Rehnquist Court.  As noted above, Justice Stevens mentioned the trend and called it out for ridicule in one opinion.  In another case, he firmly engaged Justice Scalia in a shockingly frank argument over the role of judges in interpreting statutes.  In Twombly and Ledbetter, Justices Stevens and Ginsburg drafted lengthy and passionate dissenting opinions.   In the major EPA decision from earlier this term, Justice Stevens even managed to cobble together a coalition for a relatively broad standing decision, provoking a revealingly strident dissent from the Chief Justice.  Finally, just this week, the Court summarily reversed a particularly parsimonious 12(b)(6) decision, suggesting that the less litigation-hostile Justices are actively looking for vehicles to stem the Court's tide.

If one takes seriously John Roberts's writings as both a young Reagan administration attorney and as a more polished appellate lawyer, his single strongest ideological commitment is to the belief that role of the modern federal judiciary has grown too expansive and, thus, must be radically scaled back.  His early opinions seem to support that conclusion.  On the other side, if this year's opinions are to be believed, Justice Stevens and Justice Ginsburg have increasingly come to view the Court's skepticism towards litigation as a frontal assault on the traditional roles and responsibilities of the Anglo-American judiciary.  Both descriptively and prescriptively, the Justices are miles apart in assessing the powers and responsibilities of the federal courts.   While the abortion and affirmative action cases hog the headlines, the struggle between these two very different visions may well be the first big storyline of the Roberts era.

Posted by amsiegel on June 6, 2007 at 10:41 AM in Constitutional thoughts | Permalink | Comments (14) | TrackBack

Glad to Be Back

Thanks to Dan and the rest of the Prawfs for inviting me back for another guest stint.  For the great bulk of you who don't know me, I just completed my fifth year teaching constitutional law and legal history at the University of South Carolina and am in the process of moving to Seattle University where I will do much the same thing in a hipper and rainier environment.

Last time I visited my posts were all over the place--ranging from a reflection on the life of law professors to nuggests of my scholarship to an unplanned obituary for a grandfather.  In thinking about my contributions to the blog and reading what others write, however, I have decided that--for me at least--the two most valuable kinds of posts are discussions of issues related to law teaching and discussions of current legal events.  Thus, my plan for this month is to focus on those two things.  I may sprinkle in an occasional scholarly post or comment on pop culture, but my babble will mostly be limited to commentary on the last weeks of the Supreme Court's term and on issues related to our profession.   I look forward to it.

Posted by amsiegel on June 6, 2007 at 10:04 AM | Permalink | Comments (0) | TrackBack

Ageism and the Meat Market: On Being “Too” Young for AALS

Every year, in the midst of the hiring season, concerns are raised that law school hiring is discriminatory, at least with a lower-case “d,” against those too long out of law school. Some practice experience is good, the conventional wisdom goes, but schools seem to be (increasingly?) suspicious and/or skeptical of individuals who, after over a decade in private practice, have decided that the academic calling is the right one.

There’s another kind of ageism that occurs in the hiring process, as well. Every year, lots of aspiring candidates struggle on the market because they are too soon out of law school. For many (if not most) schools, practice experience is an absolute must, and applicants who have gone straight from law school to a clerkship to the market are simply passed over, without any regard to whatever else may be on their resume, including other graduate degrees, extensive publications, or pre-law school experience that might otherwise separate them from their peers on the market.

Especially given the ever-increasing focus on writing and scholarly publications in law school hiring, I guess my question is why law school publications don’t make up for a lack of practice experience in many of these cases, especially for those candidates who aspire to teach and write in fields where meaningful practice experience is hard to come by. What does a year or two of document review at a big corporate law firm do for an aspiring constitutional law professor beside further convince him or her that academia is a much better lifestyle? Why do schools seem to think that those candidates are inherently more qualified, even if their writing is, at best, only comparable to those coming straight out of school?

This post, of course, is informed by my own experience of going right on the market after clerking. As I tell anyone who asks, it was difficult. Notwithstanding a fair number of publications (although I leave any assessment of their quality to the reader), I only had a handful of interviews at the meat market. What’s more, the interviews were all with “good” schools, suggesting that they were more willing to take a chance on a young Turk than those further down the proverbial totem pole, where my chances of actually getting an offer on the merits might have been higher.

Moreover, every interview invariably turned into a conversation about why I was in such a hurry… my response was simple: I knew that teaching was what I wanted to do, and wanted to get started as soon as possible. (I refrained, fortunately, from quoting Billy Crystal’s line at the end of When Harry Met Sally).

But I was incredibly lucky. And as a result of my own experience, I tell anyone who will listen that it’s not a very good idea to go right on the market. Even the most impressive candidates will find not nearly as much interest as they will after a fellowship, a few years at a New York or D.C. firm, or similar real-world experience.

That such is the reality doesn’t make it “right,” though.

And so, the question motivating this post: Why don’t law schools take more chances on “young” junior academics? In many cases, won’t these candidates have a more extensive written record than their junior associate colleagues, and won’t their references be in a better position to comment on their academic work than supervising partners at law firms, or other professional bosses?

To be clear, I'm not suggesting that younger, less-experienced candidates are any better than those coming from the real world. Nor am I suggesting that all real-world experience is equal. Surely, someone who wants to teach labor law and who spent five years working in-house at a union or the Department of Labor has immensely valuable experience that can--and should--factor into their appeal. Rather, what I'm trying to get at is simply whether a lack of significant practical experience should be disqualifying in all (or nearly all) cases, as it currently seems to be...

Posted by Steve Vladeck on June 6, 2007 at 12:57 AM in Life of Law Schools, Steve Vladeck, Teaching Law | Permalink | Comments (18) | TrackBack

Who's Transmitting Hate on 95.1?

Twice in the past month, while driving through the Newark area, I’ve had the chilling experience of hearing white supremacist talk shows on the radio, FM 95.1. The first time, it was a man with an Australian accent, speaking slowly and with odd pauses and emphases, who switched seamlessly from mocking Fidel Castro to complaining that the Australian press would never report the race of degenerate violent criminals. His tone of voice was so strange that it took me about five minutes to decide that he was espousing racial purity, not mocking it. The second time, the accent was American, but the hatred just as intense. Both men were calm, almost bemused, even as they recounted in lurid, graphic terms the heavily sexualized violence perpetrated on innocent white victims, denounced the meaninglessness of Christianity, and bemoaned the cowardice of the whites who refuse to display proper racial pride. These cheerful men with no empathy whatsoever were unhinged in a way that suggested sociopathy. I was reminded of the Reverend Doctor Lionel J.D. Jones, D.D.S., D.D., from Vonnegut’s Mother Night.

The first time, I drove out of range before hearing any station identification. The second time, I didn’t hear an actual station ID, but I did pick up that I was listening to the Turner Radio Network. Three evenings a week, it broadcasts shows such as “NSM Presents” (that’s the National Socialist Movement) and “Free Talk Live” from the Vanguard News Network (whose slogan is “No Jews. Just Right.”). My guess is that last time, I heard “Australia Calling,” and that this week, I heard “Yahweh’s Truth” from James Wickstrom. Its website suggests that the the Turner Radio Network is an Internet-only broadcaster, which raises the question: By what right is it on-air?

I’ve tried to track down the licensed radio station whose facilities are being used to send this hate speech out into the world. I’ve been to the FCC’s FM database, but haven’t found any licensed station on 95.1 MHz based close enough to Newark, NJ to be a plausible candidate. Perhahps I’m misreading the results (a lot of which, I think, are license applications rather than actual licenses), perhaps there’s another database I should be searching in, or perhaps there’s a reason why the broadcast could be unlicensed. (It’s worth noting that the transmitter was reasonably powerful: I was able to continue to get clear reception for a good ten miles or so down the road.) Can someone with more telecom chops than myself answer the question of what legal authority is allowing this transmission?

If someone can come up with a specific answer, that would be useful, since it would provide a target for complaints and boycotts. If in fact the broadcasts are unlawful, knowing that would be useful, too, since it would open up the possibility of invoking the FCC’s enforcement powers.

Posted by James Grimmelmann on June 6, 2007 at 12:34 AM in First Amendment | Permalink | Comments (9) | TrackBack

Berkowitz: Hitchens, et al., are the ones really betraying Spinoza

The new issue of Policy Review is out, and with it a really fine review essay by Peter Berkowitz of Rebecca Goldstein's newish book, Betraying Spinoza: The Renegade Jew who Gave us Modernity.

The review captures Goldstein's achievement and registers a protest against those contemporary heirs of Voltaire's anticlericalism -- including but not limited to Christopher Hitchens, Richard Dawkins, and Sam Harris -- who might be tempted to also claim they were Spinoza's children.  In the course of giving due praise to Goldstein, Berkowitz notes that Goldstein

reads Spinoza differently than he would have wanted to be read but with a driving desire to understand that he would have very much admired. This is in contrast to our contemporary publicists for atheism. They put forward a critique of religion that renders the world smaller and narrower based on claims to knowledge that far exceed their evidence and argument. They do not respect either the varieties or the limits of human understanding. They are the ones betraying Spinoza.

The whole piece is definitely worth reading.

Posted by Administrators on June 6, 2007 at 12:23 AM in Books | Permalink | Comments (0) | TrackBack

Tuesday, June 05, 2007

Male Attorney More Effective As Female Online

Over at Madisonian Theory,  Fred Yen notes:

Today’s law.com has a interesting story about law firms conducting investigations to enforce clients’ IP rights on the Internet. It describes how a Covington and Burling lawyer impersonated a “flirtatious 27 year old female programmer” in chat rooms to identify software pirates and have them arrested.  The rest of the story discusses online IP enforcement as a major growth area for law firms as clients spend significant resources to stop the sale of infringing goods. ...

The referenced article starts out:

On the Internet, no one knows if you're a dog. Or a well-tailored lawyer in the London office of Covington & Burling. That fact has guided Peter Anaman's entire career over the last seven years. The 33-year-old British-trained attorney is the head of Covington's Internet monitoring and investigation unit, and he uses multiple online personas to nail bad guys: sellers of counterfeit goods and pirated software, hackers, phishers, you name it. ...

The article doesn't explain how many of Anaman's "multiple online personas" claim to be female, but notes that he "managed to infiltrate [a software infringement] ring in a matter of months by pretending to be a flirtatious 27-year-old female programmer who complained a lot about her boss in online chat rooms."  Perhaps it amuses Anaman that the folks he sent to prison erroneously believe they were betrayed by a women. Or maybe he correctly deduced that his targets would assume a woman was powerless and harmless, and easily let their guards down around her. I think Fred Yen is correct that using subterfuge to identify infringers is potentially unethical or illegal.

Posted by Ann Bartow on June 5, 2007 at 09:26 PM in Gender, Law and Politics | Permalink | Comments (4) | TrackBack

Greetings from the great Pacific Northwest

Mtjeff Thanks to Dan and the rest of the Prawfsblawg crew for having me as a guest this month.  As Dan mentioned before, I teach criminal law and sentencing at Willamette, which is located in the quirky state of Oregon.  Summer is prime visiting season in the Pacific Northwest, so I encourage you all to explore the natural beauty, perfect weather, ample vineyards, and great used bookstores!   

Since summer is also prime research and writing season, I'll be posting on such varied topics as the jurisprudence of sentencing, the evolving role of the criminal jury trial, retributive justice, and the origins of the 6th Amendment.  Plus some general thoughts on getting through the first year of teaching, the culture shock of moving from New York to Salem, Oregon, and some random bits of poetry along the way.  Looking forward to all of it...

Posted by Laura I Appleman on June 5, 2007 at 09:26 PM in Blogging | Permalink | Comments (0) | TrackBack

Another Benefit of SSRN

I recently discovered an error and a misleading statement in an article I published last year.  I had relied on a secondary source for a proposition that was simply false.  It wasn't quite the secondary source's fault, I should note -- because I made an unwarranted inferential leap, albeit a small one.  Now it is memorialized in Lexis and Westlaw -- and, of course, I feel I owe it to the scholarly community to make sure the error isn't replicated in someone else's work, relying on my misstatements. 

Lexis and Westlaw, however, makes it very difficult to correct errors, since their self-conception requires them to reproduce articles in their printed form (a self-conception that seems outdated, I think).  They have indulged me by changing (other people's!) articles that spell my name incorrectly, but do not easily allow scholars to note corrections to their articles in the databased incorrect version.  I filed a formal "errata" sheet with them and I don't know how they will treat it.  Time will tell.

But SSRN makes it easy to note errors because authors can control and revise the "final" drafts there.  I had never quite thought of this advantage; I do hope, however, that I don't have to think about this issue again.

Posted by Ethan Leib on June 5, 2007 at 08:02 PM in Life of Law Schools | Permalink | Comments (8) | TrackBack

Hello and Hurrah for Junior Scholars

Hello all.  I'm happy to be guest-blogging again here at PrawfsBlawg, and I want to thank Dan and Ethan for inviting me to return.  I teach Tax and Administrative Law at the University of Minnesota, and I have several topics in those areas that I would like to highlight here over the next few weeks.  Yet I must concede that my brain has not fully re-engaged since I finished grading exams last Friday.  So I thought I would open my return to blogging with a tip of the hat to the organizers of a workshop I am about to attend and a promise to return in better form (I hope) next week.

I am shortly off to Boston University for a Junior Tax Scholars Workshop hosted by David Walker, with assistance from Vic Fleischer, Miranda Perry Fleischer, and Lily Batchelder.  At least in my fields of study, opportunities to attend different junior scholar workshops seem to be proliferating.  I understand from my more senior colleagues that these events represent a relatively new conference format.  For those not familiar, the idea is for a few or several junior scholars in a particular area to get together, with or without more senior scholars present, to hash around their current research projects and related ideas in a relaxed and informal setting.  I have found these workshops to be invaluable for my own research and a great way to meet some of the people I otherwise know only by their work, so want to extend my kudos and thanks to those who have taken the initiative to organize them.  But I mention these workshops, too, in the hope that others less familiar with the format might be inspired to start one of their own.  Let a thousand junior scholars workshops bloom?

Posted by Kristin Hickman on June 5, 2007 at 01:18 PM | Permalink | Comments (3) | TrackBack

A New York State of Mind?

I haven't read the Second Circuit's decency ruling yet, but I liked this moment from today's New York Times coverage of the decision.  The story quotes FCC chairman Kevin Martin as saying, "'The court says the commission is "divorced from reality."  It is the New York court, not the commission, that is divorced from reality.'"  He adds that if the agency is unable to prohibit some vulgarities during prime time, "'Hollywood will be able to say anything they want, whenever they want.'"

How subtle!  The problem lies not with the law, the Commission, or even the ruling as such; it's those potty-mouthed hedonists living in our bicoastal Sodom and Gomorrah, New York and "Hollywood."  And the Second Circuit is not a multi-state federal circuit, it's "the New York court."  Thank goodness we have folks from the moral, non-licentious, non-vulgar heartland of America -- or, anyways, Washington, D.C. -- to set us straight. 

For the record: The three-judge Second Circuit panel that issued yesterday's opinion does indeed feature two New Yorkers -- but one of them, Pierre Leval (Aha!  A French name!  It just gets worse and worse!), wrote the dissent.  The third judge, Peter Hall, who joined the majority opinion, sits in that notorious den of sin, Vermont.  (Too many trips to Foley Square have warped his sensibilities, presumably.)  Judge Hall was appointed to the Second Circuit by the current President Bush. 

Posted by Paul Horwitz on June 5, 2007 at 12:33 PM in Current Affairs | Permalink | Comments (0) | TrackBack

Is Ironic Grade Giving the Answer?

In the next few days, I want to start some conversations about grading to find out whether there are some best practices to adopt. Today I want to begin with the topic of ironic grade giving. (Some might think it is more an instance of "tragic" than ironic, but I leave that topic aside.)

A few years back Harvey C. Mansfield, a conservative (and yet iconoclastic) political theory professor at Harvard, raised a ruckus about grade inflation in college. Because of his reluctance to compromise his standards, Mansfield was known as Harvey "C-" Mansfield. But even Mansfield tired of losing talented students who would avoid taking his classes because his curves were out of sync with the vast majority of teachers at Harvard. So Mansfield decided to give both an ironic grade, the one that would be given to the registrar, and a grade that would be given to the student, which would reflect the “true” estimation of the grade deserved by the student in the eyes of Mansfield or his teaching fellows.

Ironic grade giving is certainly an, um, innovative solution to grade inflation. I wonder if it might work in the law school context, where, at least at some schools, curves are much more rigidly enforced. Since now is the season of grade-giving at many law schools, the idea seems like an apposite one. Here's why.

This past semester I taught both a seminar on punitive damages and a first year class on criminal law. I was fortunate that my seminar had a small and dedicated group of students. They worked tirelessly and each wrote seminar papers of an excellent quality, which I wanted to reward by giving the high grades they deserved, in my estimation. However, at FSU’s law school, where classes have an enrollment of 34 or under, we have to use what’s called a profile grading curve. Under the profile, we take the students’ pre-existing grade point average and generate an average GPA for the students in the class. Once that average GPA is determined, you have to curve around a +/- 3.  Thus, if you have a handful of students with B+ averages (say about 86 out of 100, on the FSU curve), the professor may not distribute more points than 86+3 points * the number of students in the class (or fewer than 86-3 points * the number of students in the class). So hypothetically if my students each wrote an A or A+ level (93 or higher) paper, the most I could distribute is 89 to each of them. Alternatively I could try to make distinctions among the papers but, to give the top papers what they deserve, I have to artificially and substantially lower the papers that are less impressive to a grade they do not deserve, in my estimation.

When confronted with this predicament, FSU profs are able to ask the Curriculum Committee to grant an exception.  In my case, the Committee did, thankfully, but it was limited: I could curve around a median that was 3 points higher than I would normally be able to do.  So I did my best with what I could do. 

But I wonder whether one should also take the step of informing the seminar students that their true grades should have been higher by a few points and their actual grades were constrained by rules. I think that sharing this information has two upsides: first, it lets the students know just how much I really valued their diligence and intelligence; an email to this effect can also explain that the professor is willing to write references for them later that both sing their praises and explain why each's grade wasn't even higher.  Second might it also foment revisitation of grading practices in general? I have a sense of how the rule might work in larger classes as a substitute for distribution requirements, but in classes where the size is small, it penalizes motivated students for working hard and taking that class.

In sum, ironic grade giving seems attractive in both settings of grade inflation and grade “deflation.” So two questions: first, what does your law school do regarding small upper level classes generally? Second, what do you think makes the most sense and why? I'm curious to hear both from students and faculty (and former students too).

I have to confess that grading my first year criminal law course also leaves me flummoxed, but I will get into that in a separate post. Of course, all this probably means I need to think more about the relationship between grading and sentencing, and the perils of educational vs judicial discretion.

Posted by Administrators on June 5, 2007 at 12:33 PM in Life of Law Schools | Permalink | Comments (18) | TrackBack

Cock and Bull

Last Friday’s New York Times had a ridiculous little piece about the demise of cockfighting in Louisiana.  It’s a reasonable enough subject for news analysis: Until new prohibitory legislation goes into effect, Louisiana, to its shame, remains the last state in the nation to permit this barbaric practice.  But what makes the Times article so offensive is that it’s a travel piece, complete with tips about which motels to stay in and where to eat on your way to the fight.  The gist of the article is to offer the reader advice about how to attend one of these ghastly events before the ban becomes effective.  Talk about slumming it.

Cockfighting, in any event, is something I’ve been thinking about lately.  In the criminal law theory seminar I taught this past semester, we talked a lot about Joel Feinberg’s influential analysis of the moral limits of criminal law.  Building on Mill’s Harm Principle, Feinberg identifies four possible bases for making conduct subject to criminal penalties: (1) An act can be harmful to others in the sense that it causes a significant injury or setback to a person’s interests (this is the most common basis for criminalization – it’s the reason it’s a crime to commit murder, rape, arson, theft, and the like).  (2) An act can be harmful to self (e.g., drug use, cigarette smoking, financial risk-taking) -- this category of paternalistic legislation is more controversial.  (3) An act can be offensive to others, meaning: that it causes universally disliked mental states such as unpleasant sensory experiences, disgust, revulsion, shock, shame, embarrassment, anxiety, and so on; that it violates another’s rights; and, typically, that it cannot easily be avoided by the one who would be disgusted or revolted.  Feinberg offers a catalogue of offensive vomit-and-feces-eating, corpse-smashing, swastika-wearing, and racist-banner-carrying behaviors which he says might justify criminal sanctions provided that the penalties are relatively light. (4) Finally, an act can constitute harmless wrongdoing -- that is, it can be morally wrong without violating anyone’s rights or causing any harm or offense (traditional examples are prostitution, adultery, and non-coercive incest).  Although Feinberg approves of penalties for at least some acts that fall into the first three categories, he concludes that, in a liberal society, conduct that falls into the final category should not generally be subject to criminal penalties.

One of the questions I raised with my students is how exactly bans on cockfighting and other forms of animal cruelty fit into Feinberg’s framework.  Well, the issue is undoubtedly too complex even to begin to do it justice in this forum, but I will nevertheless venture a couple of preliminary thoughts.

One possibility is that cockfighting constitutes offense to others.  It certainly does cause disgust, revulsion, and the like.  The problem is that such fights are typically held in private clubs and can easily be avoided by those who would find them offensive (much as it’s easy to avoid pornography, professional wrestling, and the Jerry Springer show).  A second possibility is that cockfighting constitutes harmless wrongdoing.  But if that is so, then, as noted, criminal penalties would be highly suspect (though it should be noted that Feinberg does at one point seem open to the possibility of criminalizing “free floating evils” of the sort that might occur in a hypothetical consensual gladiatorial contest – a case with obvious parallels to cockfighting).   A final possibility is that cockfighting and other forms of animal cruelty involve harm to others.  Roosters are surely harmed, but the question is whether non-human animals should count as “others” within the protected class.   

Feinberg, so far as I know, never addressed this issue, but my guess is that he would want to limit “harm to others” to harm done to other human beings.  Moreover, it’s a little hard to see how the harm principle could support prohibitions on cockfighting and bearbaiting while allowing the regular killing of roosters and other animals that goes on in countless slaughterhouses across the country every day. 

In short, I confess to some puzzlement about this issue, and would be interested in hearing what others have to say.  I certainly share the intuition that practices like cockfighting should have no place in a civilized society, but I am unsure how, under Mill and Feinberg’s liberal Harm Principle, a ban on such practices can be justified.

Posted by Stuart Green on June 5, 2007 at 08:51 AM in Criminal Law | Permalink | Comments (19) | TrackBack

Monday, June 04, 2007

An Internet Harassment Case With A Depressing Twist

Allan Stokke is a criminal defense attorney who unsuccessfully represented the so called "OC  Rapists," a rape case in which an unconscious 16 year old girl was gang raped and assaulted in many degrading ways, and the entire assault was videotaped.  One account of the trial reported:

Defense lawyer Al Stokke, who replaced lead trial attorney Joseph G. Cavallo, questioned any link between the rape and the victim’s claim of mental anguish. Stokke also mocked the girl’s physical injuries, finally conceding she was unconscious but then trying to use that against her. “There’s [no pain] that is felt,” he said, “because she was unconscious.”

Stokke had better luck defending a police officer accused of masturbating on a women during a traffic stop.  Here is one account:

No one disputes that an on-duty Irvine police officer got an erection and ejaculated on a motorist during an early-morning traffic stop in Laguna Beach. The female driver reported it, DNA testing confirmed it and officer David Alex Park finally admitted it.

When the case went to trial, however, defense attorney Al Stokke argued that Park wasn’t responsible for making sticky all over the woman’s sweater. He insisted that she made the married patrolman make the mess—after all, she was on her way home from work as a dancer at Captain Cream Cabaret.

“She got what she wanted,” said Stokke. “She’s an overtly sexual person.”

A jury of one woman and 11 men—many white and in their 50s or 60s—agreed with Stokke. On Feb. 2, after a half-day of deliberations, they found Park not guilty of three felony charges that he’d used his badge to win sexual favors during the December 2004 traffic stop.

Now we get to the Internet harassment. The victim? Stokke's daughter Allison. The WaPo reports:

Early this month, 18-year-old Alison Stokke walked into her high school track coach's office and asked if he knew any reliable media consultants. Stokke had tired of constant phone calls, of relentless Internet attention, of interview requests from Boston to Brazil. ...

... Three weeks later, Stokke has decided that control is essentially beyond her grasp. Instead, she said, she has learned a distressing lesson in the unruly momentum of the Internet. A fan on a Cal football message board posted a picture of the attractive, athletic pole vaulter. A popular sports blogger in New York found the picture and posted it on his site. Dozens of other bloggers picked up the same image and spread it. Within days, hundreds of thousands of Internet users had searched for Stokke's picture and leered.

The wave of attention has steamrolled Stokke and her family in Newport Beach, Calif. She is recognized -- and stared at -- in coffee shops. She locks her doors and tries not to leave the house alone. Her father, Allan Stokke, comes home from his job as a lawyer and searches the Internet. He reads message boards and tries to pick out potential stalkers.

"We're keeping a watchful eye," Allan Stokke said. "We have to be smart and deal with it the best we can. It's not something that you can just make go away."

My guess is that the Stokkes found a media consultant who could convince someone at the WaPo to write the story linked above without doing much in the way of research.   Alison Stokke does not in any way whatsoever deserve the  harassment she is receiving, nor  is she responsible for her father's  actions, but it is very odd that the story doesn't mention the disconnect between Stokke's views as a parent and his behavior as a lawyer.

Via Ann Friedman at Feministing.

Posted by Ann Bartow on June 4, 2007 at 11:35 PM in Criminal Law | Permalink | Comments (16) | TrackBack

Blogging While Practicing

I opened my second stint here on Prawfsblawg with a post on the difficulties of writing while practicing. It’s therefore somewhat fitting that the difficulties of blogging while practicing will force me to sign off after just four posts. I had hoped to share some thoughts related to the laws of war and just war theory, some of which you can find in this forthcoming article. Thanks again to Dan for inviting me and to everyone else for the hospitality.

Posted by Adil Haque on June 4, 2007 at 11:15 PM | Permalink | Comments (1) | TrackBack

Commuting and consuming, or, The "work-life balance" thing, again

One of the subjects that comes up most often in my conversations with current and former students is the challenge of "work-life balance."  Students understand, it appears, and worry that, the practice of law -- at least, in the sectors of the profession where they expect to practice -- is increasingly in tension with the project of constructing a balanced, integrated, happy life.  When students express their worries in this regard, what should / can I say?

I had to confront this question, again, this weekend, reading Sunday's Washington Post, in which two relevant and interesting pieces appeared:  First, this article, "Driven to Extremes," about the increasing number of people in the D.C. area who are commuting more than four hours a day -- drawn by "cheaper housing and better pay", but "at what price?"; and this one, "Breaking Free of Suburbia's Stranglehold," about some families who have "simplif[ied] [their] lifestyles in quest for meaning that constant hustle obscured."

I hope that our graduating students will read and reflect on these two pieces.  Sure, many of these talented and blessed late-20-somethings will go live, without spouses, SOs, or children, in hip urban neighborhoods in lively and interesting cities (and bill several hundred hours each month), and so might not -- at least, not yet -- face the kind of trade-offs and challenges described in these articles.  But, before too long, many (most?) will.  My advice?  For what it's worth:  Start thinking now about cultivating a life that is not going to put you on a hard-to-exit trajectory toward four-hour commutes, strained marriages, drive-by parenting, and a dis-integrated life.  (Easier said than done, I know.)  A question:  How could the law schools help?

Posted by Rick Garnett on June 4, 2007 at 03:30 PM in Teaching Law | Permalink | Comments (6) | TrackBack

First Twelve in the Box

In today’s New York Times, Adam Liptak has in interesting piece, “Oddity in Picking Jurors Opens Door to Racial Bias.” The oddity is the peremptory challenge, which permits lawyers to strike a limited number of prospective jurors without showing any cause for the strike. The number of peremptory challenges permitted often varies with the degree of offense being tried. In New York where I practiced, for instance, in a low-level felony case lawyers have ten challenges each, in a mid-level felony case fifteen, and in serious non-capital felony cases the lawyers have twenty.

In Batson v. Kentucky, the U.S. Supreme Court prohibited peremptory challenges on the basis of race, and the Court subsequently has extended this prohibition to criminal defendants, civil cases and challenges based on gender. Liptak examines a recent case in Louisiana, however, to show that racial discrimination by prosecutors persists in jury selection. Liptak concludes that Justice Thurgood Marshall had it right in Batson when Justice Marshall advocated for the abandonment of the peremptory challenge system as the only effective way to eliminate race-based jury selection.

I do not disagree, but I do have a few thoughts of my own.

I have no doubt that prohibited racial considerations still permeate many jury-selection decisions by lawyers. Prosecutors and criminal defense attorneys think about juror race a lot — sometimes perniciously, and sometimes, at least in the lawyers’ minds, benevolently, such as to achieve a “representative,” “balanced” or “fair” jury. But either way, in violation of Batson, which does not recognize a lawyer’s good social motives as a defense to striking a juror because of the juror’s race. And, as Liptak suggested in his piece, experienced trial lawyers know how to defend strategically against a Batson claim such that many Batson objections are not sustained. All in all, good reasons for thinking about ending the peremptory challenge system.

My concern about eliminating the peremptory challenge, however, centers on the likely alternative: a near jury lottery. In addition to peremptory challenges, lawyers in our country also may raise challenges for “cause,” by which lawyers may remove an unlimited number of prospective jurors whose response to questions reveals that they may not remain impartial. But the days of three-day jury selection for a one-day drug trial have long passed. Some jurisdictions, including the federal courts, do not assure lawyers the right to question prospective jurors directly about their beliefs or experiences that might reveal potential biases. The lawyers instead must rely on questions posed by the court. Even in jurisdictions that permit the lawyers to question prospective jurors, such as New York, courts have tightened the time limits and scope of lawyer questioning significantly in recent years. I've often seen judges permit lawyers as little as 10-15 minutes to question a felony panel containing 16 or more prospective jurors. In misdemeanor cases, I’ve seen lawyers given five minutes to question prospective jurors. Typical time limits thus give lawyers a minute or less to question each prospective juror well enough to explain to the judge why one or more of them might be biased — assuming the lawyers get to question the jurors at all.

Liptak appears to focus his distaste for peremptory challenges on capital cases, where the jury selection process generally remains more robust and insightful at revealing juror bias. But in the hundreds of non-capital cases tried every day in this country, peremptory challenges give lawyers an important mechanism for using their experience and insight to eliminate jurors whose bias — including hidden or unconscious bias — the lawyers cannot prove sufficiently for a challenge for cause.

Of course, peremptory challenges also permit lawyers to inject their own biases into the process, including the many latent and unconscious biases that we lawyers hold ourselves. But, if peremptory challenges are eliminated without meaningful individual juror questioning being assured, we are left with a near lottery jury-selection system: once the handful of people with plane tickets, obvious mental health issues, and a willingness to reveal their biases are eliminated, you get the “first twelve in the box,” as the saying goes. Perhaps this randomness offers a degree of procedural fairness of its own. But I wonder whether it really will reduce the impact of racial and other improper biases on our criminal justice system, or whether it simply will make their impact a roll of the dice for each defendant, and bury those biases deep within the secret confines of the jury deliberation room.

Ethan — I wonder whether your non-unanimous verdict proposal could play a back-end role here to offset the random bias effect of a first-twelve approach to jury selection?

Posted by Brooks Holland on June 4, 2007 at 03:09 PM in Criminal Law | Permalink | Comments (2) | TrackBack

Do-It-Yourself Reverse Browsewrap

Inspired by Ian Ayres’s LiabiliT (back story here), I've added some text to my browser’s User-Agent string, so that every time I point my browser to a web site, my computer includes in its initial request this little statement:

By responding to this HTTP request, you accept legal responsibility for any resulting harm.

Like Ian with his T-shirt, I would be interested to hear what legal effect (if any) people think this statement has. Have I successfully bound the web site to a reverse-browsewrap contract?

Some theories of browsewrap would say that I have, which I take to mean that there is something deeply wrong with those theories. It is impossible for a web site operator to have its software parse and understand the natural-language meaning of arbitrary text sent to it by a browser. To say that the web site operator has “agreed” by sending a response would be like saying that I have “agreed” to a contract by nodding politely at someone talking to me in Esperanto. It’s simply not reasonable to infer an intent to accept from my—or the web site’s—actions.


(Firefox users, if you’d like to do the same, point your browser to about:config, right-click, select New > String, enter “general.useragent.override” for the preference name, and type in your new text. Fuller explanation here. You can also install User Agent Switcher to automate the process, or RefControl if you’d rather override the referrer part of the HTTP request. Do note that messing about with the information your browser transmits has privacy implications.)

Posted by James Grimmelmann on June 4, 2007 at 11:33 AM in Information and Technology | Permalink | Comments (9) | TrackBack

Should We Move to Speed Dating at the Meat Market?

Before signing off, I thought I'd throw out an idea that I've pretty much stolen from my colleague Tim Zinnecker.

Should we dump the current approach to the AALS hiring process and move to a three-round process that starts with the equivalent of speed dating?  Under the current system, most schools conduct about two dozen 30-minute interviews on Friday and Saturday and then offer full-day callbacks to a few lucky people based on those interviews.  The problem with that approach seems to be threefold.  First, and most obviously, there are far too many attractive candidates to narrow down to two dozen interview slots.  Second, even after carefully selecting the two dozen candidates, many of the interviews seem to be over in the first five minutes.  For whatever reason, these candidates don't fit the bill, and it is apparent almost immediately.  As a result, a lot of the hiring committee's time in DC is spent in uncomfortable meetings that won't amount to anything.  The third problem is that some of the candidates brought back to campus turn out to be less of a fit than the hiring committee expected from the 30-minute interviews.  Those faculty who did not go to DC then demand to know what the hiring committee was thinking.  To which the hiring committee can only reply, "well, they seemed good from the 30-minute interview."

So here's a (halfway serious) proposal.  Why not have the equivalent of speed dating on the first interview day?  Schools would have the ability to spend 10 minutes with double or triple the number of candidates that they'd normally see.  Then, for the second day in DC, schools could arrange to have one-hour or even ninety-minute meetings with candidates who appeared to be the best fit.  During the longer interviews on Saturday, schools could get a better sense of whether they're truly interested in particular candidates.  And the candidates would have to signal earlier in the process whether they're truly interested in a particular school by agreeing to spend a pretty substantial chunk of their Saturday with that school as opposed to another university.  On the downside, the Friday speed dating would probably make the meat market even more demoralizing for the candidates.  But on the upside it might make the dance a little more efficient and give more candidates a shot to show their stuff.

Posted by Adam Gershowitz on June 4, 2007 at 09:42 AM in Life of Law Schools | Permalink | Comments (4) | TrackBack


With the arrival of a new month and a band of new guests here at PrawfsBlawg, I will take my leave, with much gratitude to Dan Markel, his fellow Prawfs, and the reading & commenting public. Thank you for being such kind hosts. I look forward to seeing just how much a year of experience aids in the academic endeavor. 'Til then, I return to grading my stack of exams (and checking my email).

Posted by William Birdthistle on June 4, 2007 at 08:53 AM in Housekeeping | Permalink | Comments (1) | TrackBack