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Thursday, August 16, 2007

A Limited Defense of Clinical Placebo Deception

You may be surprised to learn that doctors sometimes give patients pure placebos (like sugar pills or saline injections) and claim or misleadingly suggest that the patient is receiving an active medication.  While this practice is probably on the decline, many doctors prescribe active medications (like antibiotics) for symptoms that they know the active medication doesn't treat.  In both kinds of cases, patient symptoms may improve by way of a placebo effect.  By deceiving the patient, however, the improvement arguably comes at an unacceptable cost.  Interestingly, there are virtually no published cases discussing whether the deceptive administration of placebos violates obligations to obtain patient informed consent.

The American Medical Association has recently revised its ethics policies to prohibit doctors from deceptively administering placebos.  This categorical prohibition paints with a rather broad brush, however.  In a forthcoming article in the Yale Law and Policy Review, I offer a limited defense of clinical placebo deception.  Here is the abstract (scroll down to download the full text).  The article is still in draft form, and I welcome comments on the piece by email.

Posted by Adam Kolber on August 16, 2007 at 06:33 AM | Permalink | Comments (1) | TrackBack

Wednesday, August 15, 2007

Law and Superficial Social Norms: Beijing Olympic Games 2008; Shanghai WorldExpo 2010

Go to fullsize image Greetings from Shanghai, China.  The city is the fastest growing in the world -  science fiction-like landscapes of high rises, shopping malls, and  foreign-designed tower blocks springing up daily.  Shanghai has the highest per capita income in China and it is good to see the emergence of a middle class, even if it is still a tiny percentage of the overall Chinese population. Among the many, many fascinating things that are happening here is anticipation for the Beijing Olympics 2008 and the Shanghai WorldExpo 2010. The Chinese government has launched a campaign "calling for increased levels of culture and civilization." Some of the habits that public officials are set to break are spitting, cussing, taking off shirts, rolling up trousers and wearing Western-like pajamas in the street. For example, law officials recently announced that spitting in the streets will carry a  fine of up to 50 yuan.  The cities have also sought to enroll the media and celebs in these efforts have devised reward incentives and slogans for city districts.

Another grand experiment in anticipation for the Olympics is clearing up the air to allow fireworks to be seen in the city skyline.  For a few months, Beijing has toyed with the idea of making it rain just before setting off the fireworks. But turns out, becoming a rainmaker is harder than it seems. So instead, they have announced that next week, for 4 full days, no traffic will be allowed in the city except ambulances and public transportation. The plan is to test the airs after those four days and see whether that is enough to temporarily clear up some polution, enough for the days of the Olympics' openning shows.

Shanghai has been used in many films now as the landscape of the far future. The preparations for the two international events offer a glimpse of what the most populated country in the world will look like in the near future, but the efforts to change street norms do not conceal continuing differences and challenges.  These are fascinating developments and I would recommend a visit here to all.

Posted by Orly Lobel on August 15, 2007 at 10:28 PM | Permalink | Comments (1) | TrackBack

Law School Evening Divisions

Yesterday we had our orientation for both the day and evening sections of our first year class.  The evening event brought to mind the issues surrounding part-time legal education, not just here but, from what I can gather, across the nation.

Evening divisions of law schools often have long histories.  Related to these programs' longstanding nature is their focus on serving underserved communities; my law school, for example, is said to have started, as a night school, in order to provide legal education to Catholics and Jews, who were excluded from the then-existing law schools in southern California.  Of course, those bad old days are (mostly) gone, but the fact remains that part-time programs offer a legal education to people who can't afford to spend three years not working in order to attend law school.  That class is surely a demographic that is underrepresented among lawyers today.  Of course evening programs take in other types of students as well, from the prosperous corporate middle-manager who doesn't want to give up a well-paying job to a twenty-something just out of college who wants to take law school more slowly. But in my experience the "classic" evening student remains a major part of our student body, and, I suspect, the student bodies of other evening programs.  I still remember talking to an LAPD cop a couple of years ago who responded to our call about a possible intruder in the backyard; as we were filling out the paperwork he noticed my job and immediately started talking about how much he'd like to attend the evening program.  I suspect there are a lot of people like him out there; indeed, I see them in my classes.

But modern legal education (and modern life more generally) has posed some major challenges for evening programs.  Clinical and externship opportunities -- which are becoming more and more important to students -- are harder to come by, since most law offices operate on a standard workday.  Law review and moot court activity often happens during the day.  Some faculty resist teaching in the evening, for personal schedule reasons (though, thankfully, some faculty actually prefer teaching in the evening).  It's harder to create the same broad curriculum I can create for the day students (although this is mitigated by the availability of adjuncts to teach in the evening).  And as far as the students are concerned, the changing nature of the workplace (nobody gets out at 5:00 anymore) and increasingly horrific traffic make it harder for working students to get to campus in time for class, let alone take advantage of the academic atmosphere (office hours, talking to classmates in the quad, going to hear a speaker) that day students take for granted and from which professors often expect their students to learn.

The difficulty a lot of would-be evening students face has caused a  nationwide drop, or at least stagnation, in application numbers.  In turn, this has put downward pressure on class sizes which has only made it more difficult for schools to offer a full-service evening division with an adequate curriculum.  Being in a big city helps mitigate this problem for us, but all evening divisions are facing fundamentally the same dynamic.

So it's a difficult situation.  Law schools with evening divisions are talking about all sorts of responses -- from distance learning to more flexible scheduling to weekend classes -- but none of these comes costless, either to the students themselves, their educational experience and/or the faculty or institution.  But as long as both economic inequality and the cost of legal education continue to rise then evening programs -- to the extent they continue to serve their traditional demographic -- play an important role in keeping the doors to the professional slightly more open than they would otherwise be.

Posted by Bill Araiza on August 15, 2007 at 07:05 PM | Permalink | Comments (2) | TrackBack

The Right to Bear Arms

If you're like me, you have a hard time finding the perfect gift for your favorite con law professor.  Well, the search ends here.  And on the subject of bears, check out Little Rock's own Bear Colony. Awesome.

Posted by Zachary Kramer on August 15, 2007 at 02:57 PM | Permalink | Comments (2) | TrackBack

Oh, Canada!

In reviewing the Articles of Confederation for the first day of Con Law I, I am reminded of one of its most curious provisions:

Article XI. Canada acceding to this confederation, and adjoining in the measures of the United States, shall be admitted into, and entitled to all the advantages of this Union; but no other colony shall be admitted into the same, unless such admission be agreed to by nine States.

Who has the goods on how and why this provision is there (and why Canada doesn't get the same treatment by the Constitution)?  One theory, in this article, is "fear--fear that the Revolutionary cause would be imperiled if Canada were permitted to return to its former role as a base of anti-American military and Indian operations."  Any other views?  SparkNotes offer the commensensical view that the US was eager to get Canada aboard to kick Great Britain off the continent altogether, so gave Canada an open invitation.  That doesn't, however, explain its exclusion from the ultimate Constitution a few years later.

Posted by Ethan Leib on August 15, 2007 at 02:47 PM in Constitutional thoughts | Permalink | Comments (2) | TrackBack

Effective Lawyering, for Students and Lawyers

The first-years are filing into my school's classrooms today, as they doubtless are or will be very soon for many of you.  Allow me to take that auspicious occasion to recommend a new book by my friends and former colleagues Austen Parrish and Dennis Yokoyama.  It's titled Effective Lawyering: A Checklist Approach to Legal Writing & Oral Argument.  It's a short and sweet guide to effective legal writing of all kinds, including trial and appellate briefs, legal memos (the foundation of most legal writing classes), legal correspondence, and academic writing, and also offers tips on effective oral argument.  It provides good, simple advice about how to write effectively; it also contains a series of checklists, which makes it a good desk reference for students -- and lawyers! -- who want to make sure their writing is effective before sending it out into the world.

I always tell my students in exam classes that legal writing is probably their most important class, and that doing well in it has a distinct payoff in classes they normally think of as having nothing to do with whatever they learned in that class.  Writing a good exam is basically like writing a good legal memo under condition of unusual haste and duress, and the more thoroughly you can master the skills involved in putting together a cogent and well-organized legal memo, the better you can do on a law school exam; if good legal writing is second nature to you, you'll be able to do it under pressure and when it counts.  That alone is reason enough to care about good legal writing -- quite apart from the fact that 1) legal writing is many lawyers' primary day-to-day activity, and 2) as any law clerk can tell you, a depressing number of lawyers don't do it well.  Austen and Dennis are great and well-loved legal writing teachers in addition to their broader academic pursuits, and the book promises to be a useful resource. 

Buy it while it's hot!   

Posted by Paul Horwitz on August 15, 2007 at 12:00 PM in Books | Permalink | Comments (1) | TrackBack

The Simulation Argument in the NYT

An article in yesterday's New York Times discusses the possibility that our world was created as a hobby or as an experiment by members of some more technologically advanced civilization.  It's the sort of late-night-type discussion you probably had in college.  The twist comes from a discussion with the-always-insightful Nick Bostrom, Director of the Future of Humanity Institute at Oxford University:

Dr. Bostrom assumes that technological advances could produce a computer with more processing power than all the brains in the world, and that advanced humans, or “posthumans,” could run “ancestor simulations” of their evolutionary history by creating virtual worlds inhabited by virtual people with fully developed virtual nervous systems.

Some computer experts have projected, based on trends in processing power, that we will have such a computer by the middle of this century, but it doesn’t matter for Dr. Bostrom’s argument whether it takes 50 years or 5 million years. If civilization survived long enough to reach that stage, and if the posthumans were to run lots of simulations for research purposes or entertainment, then the number of virtual ancestors they created would be vastly greater than the number of real ancestors. [emphasis added by AK]

There would be no way for any of these ancestors to know for sure whether they were virtual or real, because the sights and feelings they’d experience would be indistinguishable. But since there would be so many more virtual ancestors, any individual could figure that the odds made it nearly certain that he or she was living in a virtual world.

Of course, there are lots of caveats, and Bostrom later offers his gut feeling that there's a 20% chance that we're living in a computer simulation.  So, how do you live in a world where you might be part of a computer simulation? I suppose you live according to whatever the simulation has established for you.  (Do simulated humans make choices the way that we think we do?)  Here's some advice from the article that you will likely find less-than-entirely persuasive:

A more practical question is how to behave in a computer simulation. Your first impulse might be to say nothing matters anymore because nothing’s real. But just because your neural circuits are made of silicon (or whatever posthumans would use in their computers) instead of carbon doesn’t mean your feelings are any less real.

(Cross-posted here.)

Posted by Adam Kolber on August 15, 2007 at 08:15 AM | Permalink | Comments (9) | TrackBack

Tuesday, August 14, 2007

What's Your Favorite Bad Legal Argument?

I've meant for a few weeks to follow up on an earlier post discussing the high school in Connecticut that excluded a student from student gov't for calling school administrators "douchebags".  The school principal gave an argument that was particularly weak, as Appellate Law & Practice noted.

[S]chool leadership positions are a privilege, not a right.  "When kids are in a position of privilege, there are certain standards of behavior we expect them to uphold," she told Channel 30. "Our position stands for respect. We're just hoping kids appreciate the seriousness of any communication over the Internet."

Of course, many violations of the Constitution are denials of Thing You Don't Otherwise Have a "Right" To Have.  You have no right to an employed-at-will government job -- but you can't be fired for political speech.  You have no right to attend a particular public school within your city -- but you can't be excluded from that school because of your race (or political views).  In short, the "rights-privileges" distinction makes zero sense when the legal claim is, "I was denied XYZ privilege by a governmental body because of my [political views, race, gender, etc.]."

This got me thinking:  What's the weakest legal argument you've ever heard?  The weakest legal argument I've heard was also made by a public school.  In a case I worked on, a school district denied an individual a permit to hold a protest on school property (a grassy area that's part of a community center, not part of any school in use), property that's freely made available for many community uses -- because the first line on the permit application form asked, "Name of Organization" and the applicant was an individual, not an "organization."  The judge found that argument as bizarrely backwards (you can speak only in an "organization"???) as we said it was in our briefs.  But the school lawyer was stuck with that argument because it was the sole reason the school had given for denying the permit.

Please play along; post in the comments the worst legal argument you've ever heard.  Rules of the game:

(1) It must be a position asserted in court (orally or in a filing), not just a brainstormed argument early in the pre-litigation stages (so the principal's pre-litigation argument in the "douchebag" case wouldn't count).

(2) It must be an argument pressed by a lawyer, even if the lawyer was just making the bad argument because his/her client insisted (as in my "protest permit" case).

(3) It must be a case that you worked on, that you saw personally (as a lawyer, party, clerk, or bystander in court), or that you can document with a citation.

Posted by Scott on August 14, 2007 at 12:33 PM | Permalink | Comments (71) | TrackBack

Monday, August 13, 2007

A New Twist on the Solomon Amendment

Joan Schaffner of GWU Law School has a paper up on SSRN that raises a novel twist on the Solomon Amendment and the issues surrounding it.  Schaffner asks, regardless of whether a law school is obliged to provide equal access to military recruiters in the on-campus recruiting process, are law school student organizations bound by the same rules, and can law schools impose any restrictions on those student organizations if they invite military recruiters to a student event?  I'll let Schaffner provide some of the background:

The National Security Law Association (NSLA) hosted a program on employment opportunities in the national security law area -- essentially a career fair -- at GW. . . . Several employers were invited to attend the event, including two military employers . . . . The NSLA advertised the event but failed to include the [school-]required disclaimer for the military recruiters that informs attendees that these employers discriminate on the basis of sexual orientation in violation of the GW nondiscrimination policy. . . . The GW Lambda Law group . . . demanded that the military be uninvited or, at least, that all materials be replaced with those including the disclaimer.  The NSLA refused.

Schaffner concludes that the school here, even if it were not a private actor, should have "require[d] that all official GW student organizations follow the rules and regulations governing the institution that implement the GW nondiscrimination policy." 

My own analysis of the current state of the law is somewhat different than Schaffner's; in particular, I think she tends to assume too quickly that the speech interests of a student organization in these circumstances are on all fours with those of a law school hosting a similar event.  Normatively, while I have taken the view that a university ought to be free to oust military recruiters (which is not the same thing as saying it should do so), I find it difficult to square the recommendation she makes for GW with that school's broader commitment to student free speech; and I am concerned about the implications of Schaffner's argument for other student organizations, particularly religious ones.  Regardless, Schaffner has offered up a wonderful, real-world twist on the issues raised by the Solomon Amendment. 

Posted by Paul Horwitz on August 13, 2007 at 04:47 PM in Article Spotlight | Permalink | Comments (0) | TrackBack

Is the Hello Kitty Sanction Public Shaming or Semi-Private Guilting?

I'm grateful to the five professors (including Paul Secunda) who in the last few days emailed me with a link to the story in Thailand regarding the Hello Kitty armbands. You can read the story here in the NYT and here on Yahoo. I shouldn't be surprised it caught so much attention among my friends: the story is the second most emailed on the NYT from the last week, and it appears on the heels of some stories about Walmart's experience with shaming shoplifters, such as this recent one in BusinessWeek/MSNBC.

In short, the Thai police force recently announced that officers responsible for relatively minor infractions--littering, parking illegally, arriving late to meetings--will have to don a pink armband adorned by the famous Hello Kitty doll image, in addition to any other applicable sanctions.  This may look like, on the surface, to be a vogue adaptation of the famous scarlet letters of yore.  But, according to the Yahoo story, the officers won't be publicly shamed and held out to ridicule; instead affected officers will have to "stay in the division office and wear the armband all day."  (No word yet on whether the Sanrio Company behind Hello Kitty will be worried about its  potential intellectual property claims.)

Before sharing my reaction to this story, let me state my normal caveat, which is that these kinds of issues are far less worthy of media attention than the typical pathologies affecting criminal justice systems both domestically and abroad such as inadequate representation for indigents, poor prison conditions and over-incarceration.  That said, the Thai police force's innovative tool for regulating police misconduct is considerably more innocuous than the public shaming sanctions which spawn the debates I sometimes get involved with

Essentially, without the general public being involved and invited to leer and jeer at the officers, the Thai sanction raises none of the concerns associated with a menacing crowd hot for revenge that James Whitman and I raised in our separate critiques of shaming punishments. From what I can tell, an officer can sit in his office all day without too much interaction with others, but be required to see that his armband is intended to remind him of his misconduct.  This makes it seem far closer to what I call "guilt" punishments, not "shaming" punishments, because it is intended to induce moral awareness on the part of the person penalized, without subjecting the person to the excesses of shaming.

To be sure, it's likely that an officer's colleagues will rib one another for the armband and that definitely creates some degree of shaming among peers, which I could certainly do without.  But one could probably fix that simply by threatening to punish those who ridicule other officers with having to wear the armband also.  Another possible solution: one might be required to wear the armband only in a private office, where one does one's paperwork.

One troubling aspect of the Hello Kitty armband penalty not developed in the accounts I've seen so far is the gender assumptions accompanying it.  The acting chief of police who supports this penalty explains its rationale by saying that "'(Hello) Kitty is a cute icon for young girls. It's not something macho police officers want covering their biceps,' Pongpat said."  Does this rationale only apply if the officers are "macho"?  My guess is that few police officials in the US would articulate this rationale,  but then again, I remember Sheriff Joe Arpaio of Maricopa County (near Phoenix), who became famous over the last couple decades for, among other things, requiring those in his county jails to wear pink underwear. I'd be curious to hear reader reactions to this aspect of the Thai development or others.

Posted by Administrators on August 13, 2007 at 02:32 PM in Criminal Law, Dan Markel, Odd World | Permalink | Comments (4) | TrackBack

Faculty-hiring conference: Asking the right questions

A number of law-bloggers have put up helpful posts, advising prospective law-teachers about the hiring conference, etc.  On a related note, I'd like to hear from folks who either have recently gone through the conference, or who are planning on participating in this year's, what questions they would like to hear, or would have liked to hear, from interviewers.  What are some questions that, in your mind, give candidates the chance to put their best foot forward, in terms of the things that communities of legal scholars should care about?  What are questions that, you think, suggest a faculty community of which you might like to be a part?

Posted by Rick Garnett on August 13, 2007 at 01:46 PM in Life of Law Schools | Permalink | Comments (3) | TrackBack

Only "Supply Side Jesus" Welcome in Economics Dep't

Professor Andrew Paquin, who also is "head of a religious charity that aids poor people in Africa," including with "micro-loans ... allowing them to start simple businesses," was fired from Colorado Christian University because "his lessons were too radical and undermined the school's commitment to the free enterprise system."  For example, he "assigned works by Jim Wallis, who writes from the Christian left, and Peter Singer, an atheist and animal rights activist."

CCU's President, former U.S. Senator William Armstrong, "says free enterprise is fundamental to the school's philosophy.  'I don't think there is another system that is more consistent with the teachings of Jesus Christ,' Armstrong said"  No word on whether Economics 101 was one of the courses Armstrong took before becoming a college dropout.

As a not terribly observant Jew, I'm far less qualified to comment on Christianity and economics than Rick G., or any seven year-old who's been to church camp.  So I'll just cite a commentary on Christianity and economics by another not terribly observant Jew.  Al Franken's comic strip Supply Side Jesus goofily makes the serious point that an awful lot of Jesus's deeds and philosophy sure look more like John Edwards's than Mitt Romney's economic policy, e.g., fighting corrupt moneylending, and helping the poor and disabled.

The coverage I've seen doesn't indicate Professor Paquin's employment status, but let's assume he was tenured.  If so, was his firing legal?  The tenure question boils down to whetherr his firing was for "good cause."  I'll refrain from opining more until some discussion gets started.  Thoughts???

Posted by Scott on August 13, 2007 at 11:24 AM | Permalink | Comments (10) | TrackBack

Sunday Music Blog

Today a friend and I drove down to Grady, Arkansas, in the heart of the Arkansas Delta, to eat lunch at a restaurant that is known for having incredibly fresh vegetables.  Of course, it being Sunday in Arkansas, the restaurant, like practically every other business establishment in the state, was closed.  But all was not lost.  The drive gave me a chance to listen to the new Ryan Adams album, Easy Tiger.

Ryan Adams is one of the most prolific songwriters making music these days (Easy Tiger is, I think, his ninth studio album in seven years).  This is a good one, maybe his strongest in years.  Easy Tiger really works because Adams doesn't try to do too much with it.  He has been criticized over the years for lacking an internal editor.  But Easy Tiger is a really consistent record.  I recommend it.

Even if you think the whole alt-country thing is lame, I'm convinced that Ryan Adams will win you over if you give him a listen or two.  (As a footnote, a friend of mine thinks that "alt-country" is a name that hipsters came up with so they could listen to country music without sacrificing their street cred.  I disagree--and not just because I own a brown-ish but seriously awesome Members Only Jacket).  Enjoy!

Posted by Zachary Kramer on August 13, 2007 at 02:10 AM | Permalink | Comments (7) | TrackBack

Saturday, August 11, 2007

From the ABA Annual Meeting

I've been spending this weekend at my first ABA annual conference, in San Francisco.  It's different in lots of ways: the hanging out and catching up with people is minimized, since I don't have particularly strong links to practicing lawyers (and given the number of lawyers in the nation I'm not even sure the conference works as a way of catching up with people, unless you and your friends are both heavinly involved in bar activities).  The tone and subject matter of the exhibitors is quite different as well, unsurprisingly -- although at least one university press was there, as indeed, was a law school (an interesting marketing move).  I've been impressed with the sessions, which have been very smart and to the point -- both of which again are unsurprising.

I've also seen a number of law professors, especially at the Admin Law section meeting and events.  I've always heard that the Admin Law section was especially hospitable to academics, and as an admin law prof who lacks any work experience in the bureaucracy I've always been interested in checking them out.  I'm glad I did -- the reputation as welcoming is well-deserved, and I plan on getting involved.

It seems to me that profs, especially newbies in certain areas (admin law for sure and maybe specialized subjects like antitrust and environmental law) could spend their time in worse ways than getting involved in ABA sections.  We all know the complaints about the large disconnect between academics and practitioners.  Without getting deeply into that debate, it seems to me that there's at least a strong argument that that gap really is too large, and that academics could learn a lot from -- and teach -- their classmates who went into private practice.  For me at least the two hours I spent listening (and contributing very modestly) to a group of practitioners, ALJs and academics mark up the draft model state APA was time extremely well spent.  The discussion was at an extremely high level, and often touched on some of the fundamental issues I think about in administrative law.  But the discussion was also leavened with practica experience that I simply couldn't access at most academic conferences.  I suspect others could benefit from analogous experiences.

Posted by Bill Araiza on August 11, 2007 at 08:19 PM | Permalink | Comments (2) | TrackBack

Friday, August 10, 2007

Finally, one stop conference planning!!

A new blog is available to provide information on upcoming law conferences

For information on what will be included, see the About page,

Thanks to Faye Jones from FSU's law library for the tip.

Posted by Administrators on August 10, 2007 at 02:39 PM in Life of Law Schools | Permalink | Comments (2) | TrackBack

Justice Thomas's Originalism in Morse v. Frederick

In doing research for a short symposium piece I'm writing on Justice Thomas and student free speech rights -- namely, his concurrence in Morse v. Frederick (the "Bong Hits 4 Jesus" case) I have had occasion to do a little thinking about originalism.  As a reminder, Thomas's concurrence calls for the overruling of Tinker v. Des Moines School District, mainly on the ground that the Speech Clause, as originally understood, did not extent to speech made by students in a school context.

Thomas’s opinion is startling, in the way that many of his separate opinions are, by questioning basic and seemingly well-settled principles of constitutional law.  (I’m not engaging him on the merits of either his particular views or the idea of overturning such principles; I’m simply noting that readers expecting justices’ calls for incremental change often find his willingness to question basic principles jarring.)  In one sense his opinion in Morse seems to be simply another one of these calls for what he believes to be a return to the original understanding of a given constitutional provision, whether it be the Commerce clause, the Eighth Amendment or Article I’s allocation of “all legislative powers herein granted” to Congress. 

But, at least at first glance, his originalism in Morse strikes me as somewhat different.  In particular, Thomas’s opinion seems to use originalism less to define the term at issue than to define the contexts in which it applies.  For example, it’s one thing to say that in 1789 “commerce” only meant commercial “intercourse,” and thus did not extend to manufacturing, agriculture and the like.  But it seems to me a different thing to say that in 1868 (or 1791? – Thomas is surprisingly vague on that question) “free speech” “means” some class of speech that excludes student speech because of who is making it and the context in which it's being made.  Of course it is plausible to argue that, as of a given year, “free speech” was not understood to include, say, sexual speech or commercial speech, and to draw from that fact whatever constitutional conclusions one might.  But Thomas’s concurrence suggests that even core political speech (indeed, such as the speech in Tinker) was not originally understood as “speech,” because of the identity of the speaker and the social context in which it was uttered.

I guess the upshot of my confusion is about what people mean when they talk about originalism (at least “original public meaning” originalism).  If that term means what it seems to mean, then it’s easy for me to understand Thomas’s argument about, say, the Commerce clause, but difficult for me to understand how “free speech” cannot include political speech simply because of where or by whom it was uttered.  Of course I suppose an originalist might say that the original public meaning of “free speech” was “speech except (among other types) that speech uttered by students in a school context.”  But that answer seems to do violence to the text by drawing distinctions the text doesn’t even hint at, distinctions based on speaker and context – which in turn seems to make it hard to justify any interpretation that purports to be based on the text’s “meaning,” original or otherwise.

Maybe then the argument is simply that “free speech” had an “original public meaning” inconsistent with the text – by excluding certain utterances not because they didn’t come within the original meaning of “speech” but because they didn’t come within the class of protected speakers or protected contexts.  But if that’s the case then isn’t it odd to elevate “original public meaning” over the text?  Nobody, for example, would elevate the presumed original public meaning of the minimum age requirement to be President – that we want only mature people to be President – over the text’s explicit setting of 35 as the minimum age.  Of course that’s an easier case but it’s not clear to me why the analogy wouldn’t hold here. 

I'll be poring over this question as I wander around the ABA annual meeting this weekend in San Francisco.  Any comments and help would be welcome.

Posted by Bill Araiza on August 10, 2007 at 12:26 PM | Permalink | Comments (9) | TrackBack

Academic Etiquette, Part I

I remember how strange it was, when I met them for the first time in an interview room, to call my now-colleagues by their first names. Because it felt right to me (and because I had always begun calling friends' mothers "Mrs. So-and-so"  before they said, "Oh, honey, call me Carol"), I called Mark "Professor Movsesian," and gave him the opportunity to correct me in front of the others.

The purpose of this post is to ask whether Mark's correction applied (i)  only to him (definitely not, as he certainly meant for me to address his colleagues in the interview room by their first names, as well), (ii) only to my colleagues at Hofstra (again, not quite right, as it would have been odd, when meeting Danny for the first time, to have addressed him as "Professor Markel"), or (iii) to those listed in (i) and (ii), as well as other non-tenured, or youngish, faculty members at other institutions, unless either (a) a tenured, senior faculty member corrects you, a la Mrs. So-and-so,  or (b) you address any faculty member, including those listed in (i) and (ii), in any sort of public setting.

Okay, now that we've got some rules to tear into, let me offer some anecdotes that explain the origin of my question. First, last fall, I attended many of the NYU Law & Philosophy Colloquium readings. I remember (and perhaps Ethan may remember, too) that Professors Dworkin, Nagel, and Waldron ("Ronny," "Tom," and "Jeremy," according to each other, and many of the speakers at the Colloquium) referred to Jurgen Habermas as "Professor Habermas" (after he referred to his hosts as Professors Dworkin, Nagel, and Waldron). To be sure, there were students in the audience at Professor Habermas's talk; but there were students at each of the Colloquium's talks, and at most of them, the speakers were called by their first names, as were the Colloquium's organizers. Second, one of my senior and very accomplished colleagues forwarded to me an email that s/he sent to a casebook's author with a question about the casebook; in the email, s/he referred to the author as "Professor X." (Incidentally, and as could be expected, Professor X responded to her/his email and signed the email with her/his first name.) 

So now we' ve got rules and cases. What do they all mean? When Professor Habermas did not call Professor Dworkin "Ronny," was it out of respect, or instead some sort of irony (similar to, for example, when (male) partners at my old firm used to call their (male) clients, "Darling" or "Babe;" or when my (Latvian) father and his (Russian, Latvian, or Ukrainian) friends call each other, "Professor")?   When my colleague emailed the author and referred to her/him as "Professor," did s/he do that for a different reason than the professors in the NYU anecdote? Lastly, what is this young academic to do? (Final note: I am not sure whether "Academic Etiquette" will have a Part II to accompany this Part I; I chose the title because I think that the subject of academic etiquette has many parts, even if I won't be able to address them in future blog posts.)

Posted by Liz Glazer on August 10, 2007 at 10:24 AM | Permalink | Comments (11) | TrackBack

Thursday, August 09, 2007

When's the right time to present?

Later today I'm heading over to Forth Worth, Texas, for the Texas Junior Legal Scholars Conference, which is being held at Texas Wesleyan School of Law.  The conference organizers describe it as follows: "This inaugural conference is intended to create a platform for nontenured tenure-track law faculty to present papers and works in progress in an informal atmosphere while getting feedback from other untenured legal scholars."  The conference promises to be a wonderful event with lots of interesting papers.

For me, this conference comes at a really great time in the writing process.  After a summer of reading and writing, my paper has (finally!) begun to have the look and feel of a paper.  And although it's still a little rough, the ideas are in place and it just feels like a good time to present it.  Yet--if you'll allow me a Sex and the City moment--I have to wonder: When's the right time to present a work in progress?

I imagine everyone approaches this issue differently, so I'd be interested in hearing your thoughts.  On your mark, get set, go...

Posted by Zachary Kramer on August 9, 2007 at 12:20 PM | Permalink | Comments (7) | TrackBack

Wednesday, August 08, 2007

Improving SSRN, Part III

A few more points on the SSRN thread:

(1) Bernie Black has added some very informative comments to my last post.   In particular, it seems that SSRN is trying to make revised drafts available more immediately and in a more streamlined fashion than they are now.

(2) Brian Leiter posts here about the Philosophy Research Network, a new branch of SSRN devoted (not surprisingly) to papers in philosophy.   The SSRN umbrella is growing rapidly.

(3) Kevin Jon Heller sends me links to some Opinio Juris discussion of SSRN available here and here.

Posted by Adam Kolber on August 8, 2007 at 10:15 PM | Permalink | Comments (0) | TrackBack

Ramseyer's Case Against "Great" Judges

J. Mark Ramseyer of Harvard Law School has just posted on SSRN an interesting paper titled "Not-So-Ordinary Judges in Ordinary Courts: Teaching Jordan v. Duff & Phelps."  The final version of the paper, published in the Harvard Law Review, is available on PDF here.  Taking Duff & Phelps, a contracts/corporate case from the 7th Circuit featuring a heated disagreement between Judges Posner and Easterbrook, as his text, Ramseyer writes that it "shows the risk inherent in appointing judges too creative and independent for the job."  He adds:

[J]udging is not a job for unconstrained, innovative minds.  Judges are government bureaucrats.  Their job is to be honest, to unravel a set of facts, to decide what law applies, and not to think too hard about it all. . . . Judges may enjoy creating better rules, but judicial experimentation necessarily makes it harder to predict what judges will do. . . . [To encourage settlement,] the courts need to operate rigidly and mechanically -- judges need to abandon their intellectual ambition and work as lower-level bureaucrats. . . . [A]ppointing judges with the intelligence and creativity of Easterbrook and Posner is -- not to mince words -- exactly what we should not be doing.  As judges, they simply do too much: they muddy the law in trying to fix it, and they worsen the law by encouraging (through example) their less talented peers to do so as well.

It's a very interesting (and short!) paper.  Daniel Farber famously (depending on how you define the word) made the case against "brilliance" in constitutional scholarship; it's nice to see Ramseyer making it in the judicial arena.  It runs contrary to the usual culture here and in other common-law systems, but especially in the U.S., which tends to mythologize the "great judge" -- to exalt Hercules above poor Herbert. 

My own wholly intuitive view has tended to be that Ramseyer is half-right.  The common run of judges should indeed be "good" rather than "great," and the judicial system would suffer if too many of them were "great."  But there are real benefits for the law in having a small proportion of brilliant judges in the legal system, and those benefits outweigh the predictability-disturbing effects of such loose cannons.  But Ramseyer quite rightly zeroes in on one problem with this argument: that the less brilliant Herberts may try to emulate Hercules, thus reducing the benefit of having a large stock of mostly dutifully "dull" judges.  It doesn't ultimately change my view, but it's an excellent point.  I must say I don't see it as likely that the Senate will unite any time soon against a judicial nominee on the grounds that she is too "creative and independent," at least explicitly, although I imagine that the difficulty of getting a controversial nominee through a closely divided Senate often amounts to the same thing.      

Posted by Paul Horwitz on August 8, 2007 at 05:47 PM | Permalink | Comments (1) | TrackBack

Yale Law School's "wishlist"

Looking through the Summer issue of the Yale Law Report -- and feeling, as I always do when I read the report, slow-moving and uninteresting -- I came across this "Wish List for the New Administration."  Heather Gerken suggests a "democracy index", or "ranking index for state election administration practices (For more about Heather's proposal, click here.); Michael Graetz urges the adoption of a value-added tax, which would generate the revenue necessary to fund a sweeping income-tax exemption; Bill Eskridge suggests a number of measures designed to better protect LGBT Americans from discrimination and violence.  And so on.

Two of the wish-list items -- Peter Schuck's and Jack Balkin & Reva Siegel's -- caught my attention. 

Balkin and Siegel hope for a "choice-respecting family policy" that "respect[s] women's choices as much as men's".  Fair enough.  One aim of such a policy, they believe, would be to "secure women's right to an abortion free from government pressure designed to coerce, manipulate, intimidate, or shame women into continuing a pregnancy they wish to end." 

First:  Maybe because I had just read Jack's blog-post calling for more "conversation" among people who disagree about abortion, I wondered, "but what if it is the case -- and many, perhaps most, people believe it is the case -- that elective abortions are morally wrong?  If this is the case, then is there any reason why government -- even in a regime with constitutionalized abortion rights -- that should not construct policy that aims to dissuade women (and men) from abortion?"  Second, Balkin and Siegel say that "[m]ost public support for women who give birth ends with birth[.]"  I'm not sure what they are getting at.  Could it possibly really be the case that women with children are eligible for fewer public-program funds than are women who are pregnant?  Third, Balkin and Siegel express regret that, at present, governments are "encourag[ing] pharmacists to deny services on religious grounds[.]"  But why should we regard legislation that would exempt conscientious objectors from certain mandates regarding the provision of abortifacients as "encourag[ing]" pharmacists to act in accord with their consciences?

The other item that jumped out at me -- and that I heartily endorse! -- was Peter Schuck's.  Here's a bit:

We cannot close [the education] gap [between rich and poor] until disadvantaged parents have the power, not just the right, to send their children to schools other than the low-performing ones to which they are now consigned.

. . . The well-documented success of the Catholic schools in educating the same kinds of low-income children . . . whom public schools have manifestly failed to reach is a strong indictment of the public system.

Every careful study of choice shows some benefits and no significant harm, with per pupil expenditures that are nearly half those in the public schools.  For people who enjoy choice to argue that low-income children must be denied choice in order to “save” those schools is not simply wrong as an empirical matter . . ., and as a historical matter . . . , It is also morally perverse, preferring the putative welfare of the school system to that of the children it is meant to serve.

I agree.

Posted by Rick Garnett on August 8, 2007 at 03:57 PM in Law and Politics | Permalink | Comments (0) | TrackBack

Teaching Constitutional Law

In the June 2006 issue of the Yale Law Journal there is a colloquium on Akhil Amar's America's Constitution and Jed Rubenfeld's Revolution by Judiciary.  (This colloquium has been mentioned and discussed before here at Prawfsblawg.)  In his review of the two books, Mike Paulsen "offer[ed] a modest proposal":

Throw out the casebooks altogether and teach the constitutional law course as a Great Books and Great Cases on the Constitution course.  Assign The Federalist and Akhil Amar's America's Constitution:  A Biography.  Then, teach, in detail, only the fifteen or twenty most significant constitutional decisions of the Supreme Court and of the political branches, unedited, as case studies touching on most . . . of the more important subject matter, doctrinal, interpretive, and history-impacting developments in American constitutional law over the course of 200-plus years.

Did anyone embrace this "modest proposal"?  Although, I admit, I cringe a bit when I think about how much work it would take to prepare and teach such a course well, I'm still tempted.  I mean, why not?  Any thoughts?

Posted by Rick Garnett on August 8, 2007 at 02:50 PM in Constitutional thoughts | Permalink | Comments (13) | TrackBack

Go Go Gadget

Yesterday, I got this for my birthday:


It hasn't arrived yet, but I can't wait until it does. I am sort of obsessed with office furniture, and with gadgets whose purpose is to make working more efficient. I often fantasize (and I mean fantasize) about what would be the perfect working environment. Those fantasies have taken me here, and to purchasing gadgets like this one, or this one.  This is the next item on my wishlist (does anyone have one?):


Do others have gadgets they recommend? Relatedly, I've been contemplating getting a Blackberry, and I am not sure whether I can justify it; I certainly don't receive as many, or as urgent, emails as I did when I was an associate. But I noticed at the SEALS conference that many prawfs use Blackberries. Those of you who do (or those of you who've fantasized about it), could you tell us whether they make you more productive, or efficient?

Posted by Liz Glazer on August 8, 2007 at 01:01 PM | Permalink | Comments (8) | TrackBack

Hi! My Name Is.

Thanks to Dan and his fellow Prawfspeople for letting me spend some time here. Since I didn't get one of those nifty introductory posts--a guest blogger for less than a day and already marginalized--I thought I would start off by introducing myself.

I'm starting my second year at the University of Arkansas at Little Rock, William H. Bowen School of Law (we're totally going to win the competition for longest law school name; bring it on University of Memphis, Cecil C. Humphreys School of Law!). I teach property, legislation, and a seminar on law and sexuality, and as one of my property students said in my teaching evaluations, I look like the love child of Andre Agassi and Dave Attell.

I'm not terribly organized, so I can't say what I will blog about during my visit.  But I'm really excited to be here and I'm looking forward to interacting with the Prawfs community.

Posted by Zachary Kramer on August 8, 2007 at 09:16 AM | Permalink | Comments (3) | TrackBack

Tuesday, August 07, 2007

Cruise. Pike. Star Trek.

I think this is kind of a good idea.  After all, Tom Cruise's acting range can easily encompass -- well, not easily, actually; it can just barely encompass it, but still -- blinking one light for yes, and two for no.

Posted by Paul Horwitz on August 7, 2007 at 05:50 PM in Culture | Permalink | Comments (1) | TrackBack

Punitive Damages Symposium

On September 7, 2007, the upstart Charleston School of Law is hosting a one-day symposium on the topic of Punitive Damages, Due Process and Deterrence after Philip Morris.  It's hard to imagine a more enjoyable American city than Charleston, SC, so I do envy those prawfs who will be propounding their views that day, including, among others, Tony Sebok, Keith Hylton, Neil Vidmar, and Cathy Sharkey.  Sadly, I won't be able to go to hear them, but now that the summer conference circuit is over and I've had the chance to workshop aspects of Retributive Damages in a few places, I'm looking forward to sharing my tentative thoughts here on Prawfs about many of the issues that will come up on the Charleston agenda. 

Posted by Administrators on August 7, 2007 at 04:34 PM in Torts | Permalink | Comments (1) | TrackBack

So, what would y'say . . . y'do here?

Recently, Rick Garnett posted about a conversation he has every year with his neighbor that got me thinking about how others perceive what we do. Rick's post highlighted a (mis)perception that is, I suspect, familiar to many of us - the perception that we have summers "off."

Related  misperceptions include the facts that we  "work" only as many hours per week that we teach; that we only have to produce [insert single digit number (or, for that matter, even low double-digit number) here] pieces of writing per year; that we don't "have to" be in "the office" as often as others do, and I'm confident the list goes on. These are others' misperceptions, and I wonder how we react to them.

For example, when people ask me what I do, I usually tell them that "I teach." After a few more sentences of conversation, the fact that I teach not kindergarten, but law school, reveals itself. After an awkward pause, during which I am convinced that my interlocutor thinks that I am both a liar and a snob, s/he explains how wonderfully stressless my life must be, now that I work a maximum of seven hours per week, and have summers off.

I wonder whether others have experienced the same conversation. I wonder, too, whether anyone thinks that my perception of others' perceptions of me is totally off-base. Lastly, I wonder whether I would avoid this conversation were I to answer my interlocutor's first question with, "I am a law professor" (there, I said it).

Posted by Liz Glazer on August 7, 2007 at 02:34 PM | Permalink | Comments (8) | TrackBack

You Write What You Read

    Liz Glazer's useful post on jargon -- which received so many funny and insightful comments -- got me thinking.  There is a saying that I heard from a prominent business person when I was on a committee once:  "You make what you measure."  He was speaking in the context of Law Schools and U.S. News. 

    You could say something similar about scholars: we write what we read.  I certainly find myself writing articles in the style of the pieces I happen to be reading.  Sometimes this is a good thing because it places me within a scholarly conversation.  But sometimes it results in plain old bad writing.  It's a familiar problem.  Law students who read badly written appellate opinions and convoluted law review articles have it.  Clerks who are reading the same materials have it. And law professors suffer from it as well.  What's to be done?  For one, read better things.  Reading good journalism might help.  One fantastic writer said she picked an article that she thought was really excellent and used it as a model for her piece.  This strategy clearly worked for her.   

    Those who write in certain areas about which its easy to tell compelling stories (Constitutional law comes to mind) may already be reading things that they want to model their writing on.  In civil procedure (a notoriously under-theorized field - and that's not just jargon - and also a rather technical one), things are a bit more difficult.   I have been trying to read things outside my topic area that were particularly well received or just seem really interesting.   My favorite piece?  Not in law at all.  It is Michael Walzer's "The Problem of Dirty Hands."  What's yours?

Posted by Alexandra Lahav on August 7, 2007 at 09:43 AM | Permalink | Comments (9) | TrackBack

Monday, August 06, 2007

In Praise of Committee Work for Newbies – If Assigned Carefully.

Fresh off the plane from the SEALS conference in Florida (or as fresh as one can be after a cross-country flight) I’m thrilled to start my new stint of Prawfsblogging with a salute to . . . committees!

Blogs are generally chock-full of advice for newly-minted faculty members on issues of scholarship and teaching, not to mention getting an academic job in the first place. There’s far less discussion and advice about committee work. No doubt this is because faculty generally view committee work as less important to a young professor’s development, and certainly less fun. At best, such work is viewed as a necessary evil.

But, notwithstanding my introductory sarcasm, this denigration of committee work is unfortunate. If writing allows the new professor to participate in the world of scholarly exchange, and if teaching allows her to shape students’ minds, then committee work allows her to participate in institution building. That’s an important function in itself. And even if were not, don’t forget that you, the newbie, may end up spending many years at your current institution; regardless of whether you end up shaping your institution certainly your institution will end up shaping you. It is also the case that committee work will often provide you with the best opportunity to get to know your colleagues, especially those who don’t share your scholarly or teaching interests or your age demographic.  You'll also avoid any whining from more senior professors that the latest bright young things are free-riding on their overworked (!) senior colleagues.

Hence, my advice to new professors: don’t grumble, even to yourself, about committee work. It may seem boring and time-consuming, but it’s important. It’s also a great way to influence how the school delivers both legal instruction and scholarship opportunities, so view it as an investment in your own interests.

But be careful.

Committee work is not an unalloyed good for a newbie, and so both the newbie and the committee assignor (usually the academic associate dean) need to be aware of potential landmines. First, committee work really can be time-consuming, not to mention dull. To the extent a new professor’s first year or two requires a lot of attention to learning how to teach and write, giving substantial time over to committee work can delay the professor’s mastering of those fundamental skills.

Second, and even more importantly, committee work can be hazardous to a new professor’s career. The dark side of faculty self-governance is that many faculty decisions – which normally have to be run through committees as a preliminary matter – are highly controversial. Indeed, to paraphrase Justice Jackson, faculty governance would be a mere shadow if faculty only made decisions that did not matter much. A new faculty member, anxious to get off to a good start at her new school, could be excused for worrying about having to sit on a committee that was considering a contentious issue. Members discuss the issue, the discussion gets heated, and finally everyone turns to the only person who hasn’t spoken, the new professor sitting off to the side of the conference table. All eyes turn to her as someone asks, “And what do you think?”

Hence, my advice to associate deans: be judicious when assigning new faculty to committees. Personally, I would never assign a newly-minted professor (or for that matter, any professor who has just arrived at the school) to an appointments committee.  Appointments issues are often, after tenure issues, the most contentious, as they are among the clearest indicators of the school’s priorities (and thus, of existing faculty’s places within that school). Depending on the school, grading and academic standards committees and admissions committes are often nearly as high-stakes as appointments, and I would think hard before throwing new faculty into those dens.

Still, a number of committees exist not only where newbies can make a difference, but where the work can assist the faculty member’s development. A great place to put someone new is on the committee that organizes workshops. Work on that kind of committee gives the faculty member a chance to exert a tangible impact on the school’s scholarly atmosphere while connecting her to the wider academic community. Committees that assist students in obtaining clerkships and teaching jobs are another great place for a new professor to start, as she is often the most informed about these issues, having just recently navigated the job and possibly the clerkship markets. And of course, committees that deal with issues of particular interest to the faculty member – international programs for an international law professor, or public interest for a civil rights professor – make a lot of sense as well.

Done carefully, committee assignments can complement a newbie’s early development while integrating her into the faculty with a minimum risk of being thrust into what is for her a no-win controversy. If done poorly, the experience can mar her career for years, maybe permanently. 

And what to do if you feel like you've gotten a bad committee assignment?  Complain to the associate dean!  I'll be posting on that topic soon.

Posted by Bill Araiza on August 6, 2007 at 09:38 PM in Life of Law Schools | Permalink | Comments (2) | TrackBack

"The Downside of Diversity"

In the Boston Globe, there's this long-ish piece, "The Downside of Diversity:  A Harvard political scientist finds that diversity hurts civic life.  What happens when a liberal scholar unearths an inconvenient truth?"  (A strange title, no?  What work is "liberal" doing?)  The piece is about Robert Putnam's ("Bowling Alone") new study finding that "the greater the diversity in a community, the fewer people vote and the less they volunteer, the less they give to charity and work on community projects. In the most diverse communities, neighbors trust one another about half as much as they do in the most homogenous settings. The study, the largest ever on civic engagement in America, found that virtually all measures of civic health are lower in more diverse settings."

I'd welcome any reactions from political or social scientists to either the piece or the study.  For what it's worth, I came away from the article wondering if Putnam's study provides some support for my intuition that some non-"diverse" institutions (e.g., some religious universities) are important in pluralist societies precisely because of their non-"diversity."  What can we learn from this study, or what should this study make us want to know, about what Paul Horwitz calls "First Amendment institutions" (like universities, etc.). 

Posted by Rick Garnett on August 6, 2007 at 02:23 PM in Constitutional thoughts | Permalink | Comments (7) | TrackBack

Improving SSRN, Part II

In my last post, I suggested that SSRN should enable us to receive personalized emails containing non-repetitive lists of the abstracts we'd like to receive.   Law professor Bernie Black, an SSRN managing director, reports in the comments that this feature and many others are already in the works.  Would that pay services like Westlaw and Lexis were half as nimble and responsive to user needs!

Frank Pasquale notes that SSRN should allow authors to enable people to add comments to posted articles.  The suggestion ties in well with Ethan Leib's suggestion that SSRN can be used as a much quicker and more flexible method of correcting errors in published works.  (I was a judicial clerk when my first full-length article was published in a law review.  When I received the printed issue, I was surprised to see that the author immediately following me attended the same schools that I did and clerked for the same judge.  When I realized that she acknowledged precisely the same people that I did, it became clear that there was a typesetting error and that my dagger footnote appeared under her name as well. The problem was eventually corrected, but I imagine it caused the author some distress.)  The proposed commenting feature is in development at SSRN, too.

Since we seem to be on something of a role here, I thought we might develop some more ideas.  Personally, I'd like to be able to revise a draft article and have the revision immediately take effect.  I'm not sure why it doesn't. (Is it to add the SSRN-style cover page?  To make sure that revisions upload properly?).  It seems, in any event, that the revisions should take effect immediately and any cover page additions or quality control checks can occur later.  It would also be helpful if I could receive an email update when an author revises an article that I have previously flagged.  Finally, it sure was convenient when SSRN converted Word files into .pdf for us.  I suspect there is some cost or licensing reason why SSRN now asks users to only submit .pdf files.  Perhaps, some day it will revert to the former method.   Other ideas to add to the wish list? 

Posted by Adam Kolber on August 6, 2007 at 10:09 AM | Permalink | Comments (6) | TrackBack


One of the perks of our job is that we need not report to an office everyday. While schools differ as to how often faculty members (particularly junior faculty members) are expected to be in the office, at many schools the fact that one is not in the office is not taken to mean that one is not working.

When I was an associate, I could very often be found here doing work. As a faculty member, I can more often be found here, here, or even here (and for those who know me, you know I mean special subway-rides for the purpose of doing work). That doesn't mean I don't like working here; it means only that when I am in my office, I am more likely to be distracted. As I suspect are many readers, I am lucky enough to work with colleagues I admire, respect, and want to chat with, and to have taught students about whom I feel the same way.  The great thing about working somewhere other than my office is that there, nobody knows my name. Perhaps, too, the nature of our work lends itself to periodic change of scenery, or a place where we only bring one document with us (e.g., when I finish a draft, I like to take it, and only it, with me to read at the Starbucks up the street).

So, where do you work? Do you have particular tasks you do only certain places?

And, if you don't mind my asking, why? A Hebrew proverb, "Meshane makom, meshane mazal," translates to mean that he who changes his location changes his luck; D.W. Winnicott wrote about the value of "transitional space," explaining that this was "the space between inner and outer world . . . where intimate relationships and creativity occur." (My colleague, Barbara Stark, has written insightfully on Winnicott and the law, in The Practice of Law as Play,  30 Ga. L. Rev. 1005 (1996).) Is the reason we work in different places (or, at least, why I do) about anonymity, luck, or transitional space? Are there other benefits to working where we do? As Linda Richman would say: "Discuss."

Posted by Liz Glazer on August 6, 2007 at 08:34 AM | Permalink | Comments (5) | TrackBack

Friday, August 03, 2007

2007 Univ. Ill. L. Rev. 1147 Is Available On-line

Issue Number 4 of Volume 2007 of the University of Illinois Law Review is now out and available on-line here.  It contains an article written by two of your permanent bloggers here at PB and one former guest blogger.  Take a look at Criminal Justice and the Challenge of Family Ties when you get a moment this weekend.  It is an investigation of just how much our criminal justice system privileges those with family ties -- and an attempt to figure out how to analyze the pervasive subsidies families get throughout the criminal justice system. 

Spoiler below the fold.

We're pretty much against families. [Ed. sort of...]

Posted by Ethan Leib on August 3, 2007 at 09:25 PM in Article Spotlight | Permalink | Comments (0) | TrackBack

Amar on Preemption

If you only surf to Findlaw's Writ from time to time, today is a good day to make a stop.  Vik Amar has a nice column on a California Supreme Court case that recently upheld a statewide ban on kangaroo imports; the defendant, Adidas, admitted it was violating the ban --  but argued that kangaroo regulation was preempted by federal laws.  Although the California high court disagreed, Amar considers whether the Supreme Court of the United States might reverse.  It seems moderately interesting to me how preemption doctrine and basic statutory interpretation rules interact in these kinds of cases....

Check it out.

Posted by Ethan Leib on August 3, 2007 at 11:48 AM in Article Spotlight | Permalink | Comments (0) | TrackBack

Disaggregating the Paradox of Robustness: An Exercise in Not Taking Ourselves too Seriously

After a few days conferencing, I am reminded of one of the ways I can laugh at myself and my colleagues on a very regular basis. What is up with the way we talk?

Every industry has its jargon. Many groups distinguish themselves by the words they use, the tones with which they speak, the inflections in their voices. But that doesn't mean that people - particularly insiders - can't make fun of them for doing it.

In my one year in the academy, a colleague and I have kept a list of terms that we use that give away what we do all day. I share it with you all for your enjoyment, but more importantly, for your feedback. This list is admittedly a work-in-progress, and I invite your suggestions, comments, and, even better, your additions to the list. Perhaps others who've been at this longer than I have their own lists that they'd like to share with the group. We shouldn't take ourselves too seriously, right? (Extra points if you use your added word in a sentence when you post.) 

And now for some words on the list, to get "the conversation" started: Discourse; Disaggregate; Conflate; Robust; Agenda; Paradigm; Paradox; Dimension; the "other;" Rhetoric . . . .

I should note that I am no less guilty of using these words than anyone else. The two papers I have been working on this summer, for example, have the following titles: (1) "Disaggregating Sex from Sexual Orientation: Evaluating Obscenity's Limitations after Lawrence v. Texas," and (2) "Plainly Presupposed? Understanding the Right Not to Associate Through the Interactive and Declarative Dimensions of Expressive Association." Any thoughts on these titles are welcomed, as well.    

Posted by Liz Glazer on August 3, 2007 at 09:38 AM | Permalink | Comments (27) | TrackBack

Improving SSRN

I'm quite pleased to be guest blogging again at Prawfs.  Last time I was here, I offered some suggestions on possible improvements to Westlaw (many of which apply to Lexis as well).  Westlaw charges non-academics a fortune for its services, even though it has not kept up with the latest technology nor made some really simple changes to make life easier for everyone. 

SSRN has faced its share of both criticism and praise in the blogosphere.  One thing is for sure: the price is right.  SSRN has also opened up legal and other forms of scholarship to millions of people who would otherwise have considerable difficulty accessing it.  I think criticism of SSRN should be tempered by these two facts.  Nevertheless, SSRN has a number of features that can be improved (see, e.g., Scott Moss's recent post at Prawfs). 

Let me mention one relatively minor suggestion in this post.  I currently receive a number of SSRN "abstracting journals" by email.  Some are subject-specific, and some are school-specific.  These emails contain author information along with abstracts of authors' recent articles posted to SSRN.  When you post an article to SSRN, SSRN allows you to suggest appropriate abstracting journals.  Most people, myself included, tend to pick several overlapping journals.  As a result, I find that when I'm reading emails containing a list of abstracts, I see the same pieces over and over. 

Technology could remedy this (relatively) easily.  Rather than sending me generic lists of abstracts in say, criminal law, send me a personalized email that contains all of the abstracts that fall into subject matters (and I suppose schools) that interest me.  This way, I would only see each abstract once (or perhaps twice if I choose to treat working papers and accepted papers differently).  This is hardly an essential innovation, but one that I think would be much appreciated.  I'll mention a few more potential improvements to SSRN in a subsequent post.

Posted by Adam Kolber on August 3, 2007 at 09:28 AM | Permalink | Comments (4) | TrackBack

Thursday, August 02, 2007

Unlawful Convictions

The New York Times ran an op-ed this morning by Prof. Richard Moran (sociology, Mt. Holyoke). He has conducted a study that found that 2/3 of wrongful convictions resulted from willful misconduct by prosecutors and/or police.  Such actions include putting witnesses on the stand that prosecutors know are lying, failing to turn over evidence favorable to the defense and manufacturing or destroying evidence to increase the possibility of conviction.   

Moran’s study looks interesting, but the story is probably better told through individual stories rather than statistics. The Trials of Darryl Hunt, a documentary about how one man was wrongfully convicted of a brutal rape and his struggle to prove his innocence, should be mandatory viewing for everyone in the profession.  It was a racially charged case in Winston-Salem and some of the same characters appear in the Duke Lacross players saga. Needless to say, although the City and State paid Mr. Hunt a pretty penny, the people involved in hiding exonerating evidence proving he was innocent were not punished.  Moran suggests that we change our rhetoric (calling these “unlawful” instead of “wrongful convictions”) and establish more specific standards for overturning convictions.  These suggestions are too weak.  The real problem, as he points out, is “the hearts and souls of those whose job it is to uphold the law.”  I am not sure whether law or ethics rules can change hearts and minds, but setting that philosophical debate aside the law surely can put fear into the hearts and minds of prosecutors by actually punishing them for misconduct.  All prosecutors who engage in such conduct should be fired and disbarred.

By the way, thanks to Dan and the other Prawfs for inviting me to blog this month!

Posted by Alexandra Lahav on August 2, 2007 at 11:58 AM in Criminal Law, Current Affairs | Permalink | Comments (2) | TrackBack

Woo Woo! (or, I'm finally blogging!)

I'm almost as excited that Dan invited me to blog as I am to be drinking Woo Woo's poolside here.  I've been blurking/blawking here for some time now, and it feels so great to (finally) be on the other side.

I've been an Associate Professor at Hofstra Law School for a year, and I teach courses in Property, First Amendment, Jurisprudence, and Transactional Lawyering (an applied contracts class which focuses on business drafting and negotiations). I am currently blogging from the SEALS conference, where I'll be until Saturday.

During my time as a guest, I'll blog some about content (e.g., my scholarship; what's in your Firefox start page folder), some about form (e.g., the elements of a good question posed to a presenter; how to flirt with academics; how much background should one include in an article before reaching the point of redundancy; how to frame a problem), and some about a mix of the two (e.g., what to, and what not to, wear to class, or eat before teaching class; finding co-authors; how prawfs organize their time, space, and files; where, and when, we write; why do all prawfs end their sentences with ", right?").

I'm really excited to be here (supra), and look forward to connecting with the community of readers from the other side of the comments page.

Posted by Liz Glazer on August 2, 2007 at 09:47 AM in Blogging | Permalink | Comments (3) | TrackBack

Wednesday, August 01, 2007

Legal Ethics, California-Style

Here’s an incident from the epic litigation over the sex.com domain name, as described in Kieren McCarthy’s juicy book of the same name. To jazz up the story for the Prawfs audience, I’ve loosely recast it in the form of an MPRE question:

Lawyer L represents Client C under a standard hourly billing agreement in a suit to recover stolen property with a value of approximately fifty million dollars. After an adverse ruling by the trial judge, C and L purchase a large quantity of cocaine and consume it together. While they are both high, C reveals to L that he lacks the financial resources to pay for an appeal. L responds by drawing up a contingent-fee arrangement, under which L is to receive a 15% ownership interest in the property if it is recovered. C and L sign the agreement, and then both pass out. Which of the Model Rules has L violated?

In an ordinary lawsuit, this would be remarkable enough. In the sex.com suit, it doesn’t even make the top ten list of “most unethical conduct by a lawyer or party.” The book may be a bit frustrating for the legal maven (McCarthy is a non-lawyer and it shows), but the story it tells is mind-boggling.

Posted by James Grimmelmann on August 1, 2007 at 11:38 AM in Books | Permalink | Comments (0) | TrackBack

Rotations and SEALS Get-together, Redux

Greetings from glorious Amelia Island, where a few of us are toiling at the arduous SEALS conference. Img002361

For the Prawfs crowd of readers, writers and friends here, I hope you'll join a few of us for an impromptu gathering of drinks tonight at the sports bar of the Ritz, after 9pm.

It is August 1st, and with that, some turnover here at Prawfs occurs.  Many thanks to all the wonderful guest bloggers we've had over the last couple months, including Lesley Wexler, Jonathan Simon, Laura Appleman, Gowri Ramachandran, Kim Ferzan, Brooks Holland, Kristin Hickman, Andy Siegel, Ann Bartow, and Jeff Lipshaw.

Rotating in we have Alexandra Lahav (UConn, complex litigation); Adam Kolber (neuroprawf from USD but visiting at Princeton this year); Liz Glazer (Hofstra); and Bill Araiza (assoc. dean at Loyola LA).  Stay tuned. And for what it's worth, now that the summer conference circuit is winding down, I expect that there will be a bit more blogging from the permaprawfs, especially from me.  Congrats in the meantime to Rick Garnett (see post below) on climbing Mt. Ranier. Awesome stuff.

Posted by Administrators on August 1, 2007 at 08:53 AM in Blogging | Permalink | Comments (0) | TrackBack