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Tuesday, July 15, 2008

The En Banc Fourth Circuit Decides al-Marri, Sort Of...

I suspect very few people will make it all the way through the en banc Fourth Circuit's 216 pages of opinions handed down today in al-Marri (who is the one non-citizen held as an "enemy combatant" in the United States), so here's the short, short version:

One 5-4 majority held that the AUMF authorizes al-Marri's detention. But Judge Traxler, who was in the majority on the authorization question, joined the four dissenters from that holding in concluding that al-Marri received constitutionally insufficient process to challege the determination that he is an "enemy combatant." Importantly, Judge Traxler's 36-page opinion (which probably controls on this point) concludes that the Supreme Court's analysis in Hamdi does not control for individuals captured and held within the United States, and that more process is required.

There is every reason to suspect that this case is headed to the Supreme Court, and that al-Marri will seek certiorari on the first of the en banc court's holdings (i.e., that the AUMF authorizes his detention if he is who the government says he is). But I wonder what the impact will be of Judge Traxler's conclusion (along with Judges Michael, Motz, King, and Gregory) that al-Marri received constitutionally inadequate process (and that more process than that required by the Hamdi plurality is warranted)?  Might that holding mitigate -- at least to some degree -- the significance of the Supreme Court hearing al-Marri's case now, as opposed to after remand?

I still happen to think that the dissenters on the authority issue have the better of the argument, and I'd still prefer to see that issue go to the Supreme Court sooner rather than later. Still, for a majority of the en banc Fourth Circuit to express the degree of skepticism concerning the evidence marshaled to date against al-Marri is immensely significant in its own right.

Posted by Steve Vladeck on July 15, 2008 at 02:53 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (1) | TrackBack

Media starting to rethink their Icahn summer romance

As I've noted several times before, I've been surprised about the kid-gloves used when discussing  Carl Icahn's Yahoo proxy bid.  His Time-Warner proxy bid flamed out so spectacularly that I expected folks to remember when he started up at the same game.  But instead, Icahn was hailed as a savvy corporate alchemist who would turn Yahoo shares back into gold.

The tide is finally starting to turn.  The tipping point appears to have been Microsoft's 24-hour sudden-death search-engine offer -- an offer allegedly crafted by Icahn and Steve Ballmer.  Here are some reactions to the bid:

  • Andrew Ross Sorkin: "The deal was so ridiculous — it called for Yahoo to sell its search business to Microsoft and for Mr. Icahn to take over the board of what was left of the company after assets were spun off and dividends paid out — that when the moguls here started to learn the details, it actually began to change the perception of Mr. Yang’s predicament."
  • Henry Blodget: "In our opinion, this was not a serious offer. We think it was designed simply to give Microsoft and Icahn more to complain about in the weeks leading up to the shareholder meeting."

And in turn, this is leading to reassessments of Icahn:

  • Sorkin: "Think about it: 'What global company in their right mind formally teams up with Mr. Icahn?' as one invitee asked. Mr. Icahn may be a brilliant investor — he actually doesn’t get enough credit or respect for that [!] — but let’s be honest, he doesn’t use a computer, let alone know how to run Yahoo. And what does it say about Microsoft? The notion that Yahoo’s board would sell the crown jewel, its search business, to Microsoft and then hand over the scraps of the company to Mr. Icahn is, as Roy Bostock, Yahoo’s chairman, said, 'absurd and irresponsible.'"
  • Blodget: "So here's what we think happened: We think Carl Icahn's personal agenda screwed up what otherwise might have been a reasonable search offer from Microsoft. (This is one hazard of having a deal-broker who also has major skin in the game.) We think Microsoft has since recognized this and is running as far from Carl as it can."

Blodget delivers this final analysis: "It's over: Carl Icahn has lost. Yahoo will win the shareholder vote."  Hopefully, Yahoo can now turn its attention to righting its storm-tossed ship.  Perhaps Yang will resign or be kicked upstairs into something akin to the Bill Gates role.  Perhaps a merger or sale will take place.  But it's unlikely that Yahoo shareholders will reminisce fondly about Icahn's endeavor.

Posted by Matt Bodie on July 15, 2008 at 11:38 AM in Corporate | Permalink | Comments (0) | TrackBack

A Short Guide To Answering A Business Organizations Essay Question

A couple of my former students mentioned that they were covering business organizations in BarBri this week.  I was reminded that many Bus Orgs students have a hard time getting their heads around the course as a whole.  Bus Orgs is a big survey class, and it can be hard to pull out comprehensive themes.  I tell my students that a good way of tackling a Bus Orgs essay question is to identify (a) the specific type of organization; (b) the roles of the people involved in the problem; and (c) the nature of their dispute.  With these three data points, it is relatively easy to focus in on the handful of issues that come up in a given scenario.  Below the fold, I've pasted my very short guide to taking a Bus Orgs essay exam, which also hits the major substantive points of the class.  But first, the usual caveat:  if you are a student, remember to focus on what your professor taught you, not what I have to say.

Ben Barros

This is a class in business organizations, so one way of organizing the course is by type of organization.

With an exam question, the first thing to do is figure out what type of organization you are dealing with.

The second thing to do is to categorize the parties to the dispute.  Is it between:

Partners and partners?

Partners and creditors?

Shareholders of a corporation and creditors?

Principal and party seeking to bind principal to actions of an agent?

Shareholders and directors?

Majority shareholder v. minority shareholder?

Agency is not an organization per se, though you can think of an agent and principal as a two-person organization of sorts.

Agency is fundamental to everything else in the course.

The basic concepts of fiduciary duty created in agency law run through all of business organizations law.

Two broad fiduciary duties – duty of care and duty of loyalty.

These were introduced in the agency section, but run throughout the course.

Note that modern corporations law uses a more lenient concept of fiduciary duty (esp. duty of care) than traditional agency and partnership cases.

In a sense, business organizations can be seen as networks of people linked by fiduciary relationships.

Authority is the single biggest issue in agency.  Authority usually comes up when someone is trying to enforce a contract.

Remember that the same set of facts might present multiple ways of establishing authority

Also remember that organizations can’t act on their own – they have to act through agents.

In a general partnership, the partners are all agents of the partnership. In a corporation, officers are the agents of the corporation.

Of course, an organization can also appoint other agents to do other things.  As an attorney, you will be an agent for all of your clients.

Even where someone acting for a business organization does not have actual authority, the organization might be bound by the person’s actions on the basis of another type of authority – e.g., apparent authority, estoppel and/or ratification.

Say a corporate officer only has actual authority to sign contracts worth up to $100,000.  There might be other circumstances where a court would hold, e.g., that the officer had apparent authority to sign larger contracts.

Another big issue is the principal’s liability for torts of an agent.

The law of respondeat superior is not particularly clear - be especially ready to argue both sides.  The two biggest issues are (a) control (servant v. independent contractor) and (b) scope of employment.

General partnerships are the most basic business organization.

Each partner is an agent of the partnership.

Each partner is individually liable for the debts and liabilities of the partnership.

Some of the issues that typically come up in the partnership context:

Creditor v. partner

Was a partnership formed?  If so, all partners generally liable for partnership debts.

Partner v. partner:

Was the partnership dissolved?

General rule is that partnerships are terminable at will.

What are the rights, duties and liabilities of departing partners?

What are the rights of partners in management?

General rule is that all partners have an equal right to manage the partnership by majority vote.

When can a partner be expelled?

Limited partnerships offer limited liability to some partners.

A limited partnership always has at least one general partner.  General partners have unlimited liability.

Limited partners have limited liability, but must be passive.  They can become generally liable if they get involved in the management of the partnership.

LLCs offer the limited liability of a corporation and the tax treatment and flexibility of a partnership.

Should know the basics, which is pretty much all we covered.

The most important point – LLCs are the business organization of the future.  As we’ve mentioned throughout the course, they avoid many of the problems of other corporate forms.


Creditors v. the corporation

Likely to present authority issues.

Creditors v. the shareholders.

The whole point of a corporation is to limit shareholder liability.

But do the facts warrant piercing the corporate veil?

Shareholders v. directors and officers.

Basic structure is that the shareholders are the passive owners; they elect a board of directors to oversee management of the corporation; the directors in turn appoint officers to run the corporation on a day-to-day basis.

Say a shareholder objects to something that the directors have done.  What can the shareholder do?

Bring a direct or derivative action.

Derivative = injury to corporation.

Must shareholder post bond for costs?

Must shareholder make demand first?

Can corporation kill the suit by appointing an independent committee?

Direct = injury to shareholder.

Doesn’t have the procedural hurdles present in a derivative action.

Try to have a proposal included in the corporation’s proxy.

When does a corporation have to include a shareholder proposal in the proxy?

Substantive areas of shareholder claims can vary widely.

The first thing to ask is whether there has been a breach of fiduciary duty.

If no, then business judgment rule applies.  Corporation generally wins.

If yes, the business judgment rule does not apply.

This clearly is the case with a breach of the duty of loyalty.

Need to be careful with the duty of care, because the duty of care has been so watered down in the corporate context.

Duty of care:

Standard is not traditional negligence; rather, focus is on neglect of duties.  E.g., did directors fully inform themselves of the relevant facts before making a decision?  Can the directors rely on what the officers tell them?  On what experts tell them?

Can be limited by statute.

Duty of loyalty:

Common problems:

Corporation – director contracts.

Conflicts of interest.

Does ratification fix the problem?

Disclosure claims:

Securities laws come up most often with corporations.

But they can come up in connection with other business organizations when the definition of a security is met.

Know the Howey test.

Securities fraud in an initial prospectus:  ’33 Act Section 11.

Due diligence defense?

Securities fraud in the secondary market:  ’34 Act Section 10(b); SEC Rule 10b-5.






Distinguish between failure to disclose/fraudulent disclosure and insider trading.

Short-swing profits:  ’34 Act Section 16(b).

Officer or director v. corporation.

Indemnification and insurance.

When are corporations obligated by statute to indemnify their officers and directors?

What are the statutory limits on ability of corporation to indemnify?

Shareholder v. shareholder.

Closely held corporations are unique in this context.

Under what circumstances can a minority shareholder force a buyout by the majority?

Posted by propertyprof on July 15, 2008 at 10:46 AM in Teaching Law | Permalink | Comments (9) | TrackBack

With friends like this...

Jonathan Alter, trying to set the record straight on Obama's religion, writes in Newsweek that:

“Obama's father, whose name was also Barack Hussein Obama, was born to a Muslim family in Kenya but become an atheist long before he came to Hawaii in 1959, where he met Obama's mother.”

Thus, in an effort to debunk persistent rumors that Obama is a Muslim, Alter manages gratuitously to link Obama’s name with perhaps the only belief more unpopular than Islam – atheism. One can almost hear David Plouffe's teeth grinding.

Posted by Rick Hills on July 15, 2008 at 10:44 AM in Current Affairs | Permalink | Comments (0) | TrackBack

The Educational Quality of Law Schools: What's the Relevant Data?

Yesterday, I laid out conceptually how we might think about comparing the "value added" for students across law schools in order to fill out the U.S. News survey. A critical component of this, of course, will be relative educational quality, and one obvious question is how exactly to get at that.

In talking about the rankings as part of a 2000 symposium on law schools and the legal profession, Stanford's Deborah Rhode, a leading ethics and gender-and-the-law scholar as well as a former president of the AALS, answered the question this way: "Prospective students need more comparative data, and schools need more incentives to compete, across a broader range of characteristics than current rating systems address. So, for example, applicants might benefit from approaches adapted from undergraduate education that evaluate schools by reference to "best practices" in teaching. Such approaches can provide comparative data on students' experiences on matters such as faculty contact, effective feedback, skills instruction, and collaborative projects."

With that and other scholarship on teaching and learning in legal education in mind, below is a first stab at the kind of information that one might want in an "Voters' Guide" to the U.S. News survey of law professors, lawyers and judges.

And before you say, "Wait a second, how can this possibly be objective?" remember, U.S. News is not asking law professors, lawyers and judges for objective information -- they've got that already. They’re asking for our expert opinions (rate from 1 to 5) as to the quality of different law schools' programs – and they’re not asking about reputation. We make evaluative judgments about quality all the time in the absence of precise quantitative formulas -- we compare the quality of doctors, restaurants, books, and movies. Most law professors and many lawyers are fortunate enough to be in the income bracket where we can ask: "Is the local public school good enough for our kids? Or should we spend the money to send them to private school? If so, which private school is the best?" Are you really telling me that we can assess the relative educational quality of elementary schools, but not law schools?

Let me also be as transparent as I can about the assumptions relied upon here. First, the overall concept: to a certain extent, Korobkin is right. In today's legal education marketplace, it is difficult to distinguish among the legal education that one gets at one law school versus another. Most law schools have a similar curriculum, with the new exceptions of Northwestern and Washington and Lee, and existing innovators like Georgetown's first year, the University of Dayton and others. One could say that all law schools have a mix of teachers that use techniques that engage students more or less, etc.

So the idea here is to focus on the areas of likely distinction. We have two recent, comprehensive reports on legal education – and in many ways, as these reports acknowledge, their assessment of the relative strengths and weaknesses of legal education are those that have been made for years, going back to the Carnegie Foundation’s 1921 study by Alfred Reed, Jerome Frank's call in the 1930s and 40s for a lawyer school, etc.

We know what the weaknesses are. The question is: which schools are currently doing the most to address the long-identified weaknesses of legal education? Those schools are doing a better job to prepare their students for the practice of law that those who are not. That's the theory. The other meta-point reflected below is to listen to students and recent graduates -- yes, surveys of student satisfaction, student evaluations, are imperfect. But students have a good sense of when they are more or less engaged, when they are getting excellent or subpar help from student and career services, etc. And in the aggregate, this can help us compare schools on these measures.

The specific assumptions below are drawn mostly from the recent landmark studies of legal education done by the Carnegie Foundation ("Educating Lawyers") and Roy Stuckey and others ("Best Practices For Legal Education"). Obviously, the assumptions are open to challenge; but I don't think you can challenge the people who spent years digging into learning theory, professional education, and the connection between the two without a real theory or research of your own. I.e. "I've been a law professor for a while, I've been a law student, I don't think the case method is overused" doesn't cut it.

So the conclusions from the Carnegie Report, Best Practices, and elsewhere are:
(1) Active learning leads to better outcomes than passive learning.
(2) The Socratic case method, focusing on the in-class dissection of appellate cases, is overused in the second and third years of law school, leading to student disengagement.
(3) Student-faculty contact helps increase analytic ability. (LSSSE 2006)
(4) Law students are generally undertrained in skills like interviewing, counseling, factual investigation, and negotiation. (this goes back to the MacCrate Report, at a minimum)
(5) Just as we would be shocked to allow doctors to practice medicine without first having seen a patient, we should expect law students to have experience dealing with clients before they do so "for real." Relatedly, law students are too infrequently put in the "role" of lawyers.
(6) Feedback is critical to learning. Law schools tend to be terrible at providing feedback.
(7) Coursework that integrates doctrine, skills, and issues of professionalism is better than coursework that deals with these on an isolated basis.
(8) The opportunity to specialize in a particular area of law is important, and leaves the student who specializes in a significantly better position than someone who does not and goes into that area of law.
(9) The work that most lawyers do can be broken down into three categories: litigation, transactional, and regulatory (Rubin 2007). Law schools tend to do a decent job at preparing students for litigation, but a bad job at preparing students to do transactional and regulatory work.

So here are some pieces of data we might use to evaluate relative educational quality -- where there is an existing data source, I indicate it. The ABA data is all on the Web here (can search by school); one question is how exactly one could use The Princeton Review’s Best 170 Law Schools data.

I. Education
A. Teaching Quality
-- Princeton Review ratings: Profs Interesting/Accessible
-- mean or median “contact hours” per professor
-- learned-ness -- Leiter rankings on scholarly impact

B. Classroom Experience
-- participation in LSSSE, and use of the data to increase student engagement (LSSSE)
-- average class size in 1L yr (ABA)
-- small section in 1L year (ABA)
-- number of upper-level courses with enrollment under 50, excluding seminars (ABA)
-- study hrs/day (Princeton Review)
-- # of feedback opportunities per course in the first year

C. Curriculum
-- what are courses required (school websites)
-- is there a statutory requirement? (school websites)
-- strength of 1L research and writing program (U.S. News, Princeton Review data), including # of credits and broader “lawyering” skills (school websites)

Upper-level Curriculum:
-- simulation-class slots per 100 students (ABA)
-- clinic slots per 100 students (ABA)
-- drafting or advanced-writing (but not seminar) course slots per 100 students (school websites)
-- transactional-course slots per 100 students (school websites)
-- course slots per 100 students in classes that use small-group work
-- opportunities to specialize -- is there a business law or criminal justice track, for example? (AALS Curriculum Committee Survey on Innovations)
-- skills curriculum – factual investigation, interviewing, counseling, negotiation (school websites)
-- indicators of chronic problems with insufficient course offerings (look to Princeton Review, law student blogs, etc.)

D. Bar Prep
-- Actual bar passage rate +/- that predicted based on mean LSAT score (either compare within jurisdiction, or use MBE score instead of passage as dependent variable)

II. Extra-and Co-curricular Activities
-- journal slots per 100 students (ABA)
-- moot court/mock trial opportunities per 100 students (ABA)
-- externships/field placements (ABA/school websites)
-- pro bono requirement (school websites)

III. Career Advising and Assistance
-- career services staff per 100 students (school websites)
-- student satisfaction with career services (Princeton Review)
-- loan repayment for public-interest (school websites)
-- starting salary +/- that predicted based on median LSAT score (I’m nervous about this one because discourages schools from encouraging students to go into public interest)
-- number of OCI interviewers

IV. Alumni network, present and future (associative good)
-- alumni giving participation rates
-- concentration in particular geographic region (assumption is that more concentration = stronger alumni network)
-- alumni career-advising network – yes/no (school websites)
-- Alumni Network National Reach (done by MoneyLaw guestblogger and entering Michigan 1L Michael Shaffer)

I would very much welcome thoughts on this, as it is really a first cut, but also keeping in mind that "it takes an alternative" to improve upon a suggestion. Thanks.

Posted by Jason Solomon on July 15, 2008 at 10:42 AM in Life of Law Schools | Permalink | Comments (5) | TrackBack

New Yorker Cover

People are talking about this week's New Yorker cover, too many to try to link to. Both Barry Blitt, the cartoonist, and New Yorker editor David Remnick responded to the immediate outcry on Huffington Post. The Obama campaign called the cartoon "tasteless and offensive." Remnick insists the cartoon "hold[s] up a mirror to the prejudice and dark imaginings" of some on the right about the Obamas, that it is a satire not of Obama, but "about the distortions and misconceptions and prejudices about Obama." And Obama supporters are threatening to cancel their subscriptions or to stop buying the magazine. Jack Shafer offers comments at Slate, noting that people from all institutions--both campaigns, the press, and the public--seem to be offended by this.



Of course this is satire. It is obviously a ridiculous mash-up of all the inconsistent and incoherent smears about the Obamas. In fact, standing alone the notion of Barack as a bin-Laden-supporting Muslim fundamentalist sharing political sensibilities with Michelle as a 70s-era Black Panther militant is absurd. I can imagine Saturday Night Live or Jon Stewart or Stephen Colbert doing something like this. But I join with liberal blogger John Cole in admitting to being tone deaf for these sorts of issues. For my part, my free-speech instincts kick-in. And one fundamental principle of free speech is that we ought not censor speech because some in the audience may misinterpret it--especially when it takes a certain amount of ignorance or willful blindness to misinterpret this. And especially with cartoons, a medium whose purpose is to "mock and dismiss the content" of its target. Shafer quotes a great line from Boss Tweed, who was more concerned with Nast cartoons lampooning him than with written criticism--"My constituents can't read. But, damn it, they can see pictures!"

Some thoughts after the jump.

First, in trying to identify this as satire or not (and thus to decide whether it truly is tasteless and offensive), context matters. Our experience with the New Yorker, its cartoons, and Barry Blitt cartoons in particular squarely pegs this as satire, especially combined with the magazine's left-leaning politics. In fact, in context, it should be clear that the cartoon supports Obama and mocks those who spread or believe the crazy noise about Obama's religion, politics, and patriotism. And I think this responds to the "what would have happened if this had been on FoxNews or the Weekly Standard or the National Review" objection. The same image has a very different meaning in those contexts, both because of political leanings and because of the magazine's history with the cartoon medium. This cartoon is making fun of Fox and Limbaugh and those who get their information from them.

Second, the problem seems to be a fear that a lot of people will see the cartoon and believe it an accurate depiction rather than a joke. More sinisterly, the lefty blogosphere fears that the GOP, conservative media and blogs, and GOP true-believers will use this to perpetuate the worst rumors, fears, and smears about the Obamas among those easily fooled among the masses--"see, even the New Yorker is reporting this stuff about the Obamas, so it must be true." But none of this renders the picture tasteless and offensive; what is tasteless and offensive is how some ill-informed people might understand the cartoon. Again, this is an argument that the New Yorker should watch what it says (or how it says it) because people are stupid and may misinterpret or misuse it. Shafer puts it succinctly: "Calling on the press to protect the common man from the potential corruptions of satire is a strange, paternalistic assignment for any journalist to give his peers, but that appears to be what The New Yorker's detractors desire."

Third, in his well-received speech to AIPAC in June, Obama said the following:

I also want to mention that I know some have been receiving provocative emails that have been circulated throughout the Jewish communities across the country and a few of you may have gotten them. They’re filled with tall-tales and dire warnings about a certain candidate for President and all I want to say is let me know if you see this guy named Barak Obama because he sounds pretty scary.

I think this got a laugh line, as intended. It seems to me this cartoon is a visual representation of all those tall tales, ridiculing them precisely as Obama did in the speech, only visually rather than verbally.

Fourth, and somewhat related, the Obama campaign last month made a show of establishing a rapid-response area on its web site, where false slams about Islam and lapel pins and the Pledge of Allegiance could be quickly addressed and rebutted. Some asked whether this was a good strategy, since in order to rebut the falsehood the campaign must repeat the falsehood, and may, incidentally, help it spread. This cartoon again seems to be doing the same thing--rebutting the stories (through humor and ridicule), but perhaps incidentally calling attention to them. So what is the difference? Is it the use of humor as opposed to a direct, serious response? Again, the objection becomes "people won't get the joke." Is it the source--the campaign itself as opposed to an outside commentator?

Fifth, I think the worst thing that can be said about the cartoon is that it does not work--it is not funny or biting or out there. That is Drum's basic point. But that is the great risk when using humor as a rhetorical device--a point that came out in the comments to Dave's discussion last week about judges and professors using humor in legal writing. The question is whether failed humor morphs into serious comments, and thereby becomes offensive and outrageous, or whether it simply remains bad humor. I hope the latter. Humor and satire fails all-too-often. If the satirist must hesitate less the satire fail and be taken as a serious, thus offensive, assertion, satire will disappear as a mode of criticism.

Finally, the image on the right is courtesy of Napsterization, responding to Drum's suggestion that a really gutsy cartoon would have featured McCain imagining the scene as the way he wants the country to view Obama. This version would have made it clearer that the target of the satire was the right-wing belief in, or hope for, this image of the Obamas, and not at the Obamas themselves. I do like the remixed version. But the need for it reflects a different version of the stupid-people-are-going-to-misunderstand-this criticism--don't withhold the image, but make the image so much more obvious and less subtle so people can't misunderstand.

I welcome anyone to tell me why I am wrong.

Posted by Howard Wasserman on July 15, 2008 at 07:20 AM in Current Affairs, First Amendment, Law and Politics | Permalink | Comments (14) | TrackBack

Monday, July 14, 2008

The Law and Economics of "Thomas the Tank Engine"

One of the nice things (one of the only nice things) about recovering from surgery is that my two-year-old daughter has been very sweet and patient about my "boo-boo," and is happy to spend time on the bed with me watching TV -- provided she gets to control the program. We've been watching a fair amount of Thomas the Tank Engine lately, thanks to On Demand. And I've gotta say, it's fascinating, from a historical/law-and-economics perspective.

What is the lesson of Thomas the Tank Engine? It strikes me as being a pro-market show, but a genuine, Hayekian coordination-of-information free-market type of capitalism, with maybe a dose of TR-ish trustbusting spirit. Simultaneously, surely it is also a critique of the kinds of market imperfections that arise in a more oligarchical, monopoly-permitting market. Think about Sir Topham Hatt for a bit. He is a caricature of a robber baron, but he's not simply an unrestrained successful capitalist in an open and competitive market, a Gates or Carnegie. Rather, he runs everything on the island of Sodor: the railroads, the towns, all other means of transportation, etc. He's not villainous, exactly; but his tentacles extend over the entire economy of the show. On Sodor, Hatt truly controls all the means of production.

Now, it would be easy to think of the show as having some kind of socialist subtext. After all, the heroes here are the engines, and usually not the good ones, but the slightly clunky old ones -- the kinds that would be on the losing end of the from-each-according-to-their-abilities equation. At the same time, no sound system of socialist central planning would permit the kinds of inefficiencies that the show seems almost to champion. I mean, the engines don't even obey the brakemen!

No, I think the real lesson is ultimately that Hatt, however endearing he may be, is the misbegotten result of a society in which aristocracy and capital are too closely linked, such that these kinds of inefficiencies are allowed to flourish. Surely, in any sensible free-market economy, we wouldn't see the kinds of outrageous behavior we see here: competent but mediocre trains like Thomas allowed to keep their jobs indefinitely, all sorts of accidents occurring without apparent market consequences, and good, efficient, modern engines generally only kept on if they are willing to regress to the mean and quit achieving their potential. Surely, in any sensible economy, Hatt would be exposed to meaningful competition, and Thomas would be destined for a children's park somewhere, or directly to the scrap-heap. In that sense, I think the show champions neither socialism nor oligarchy, but serves by (bad) example to champion a sound, open, properly functioning market. I'm not sure whether the show is strongly anti-monopoly as such, or whether it merely opposes the kinds of social environments in which even lousy business people can rise to a position of market dominance by virtue of nothing more than an accident of birth.

In any event, it's good for hours of thoughtful contemplation. Surely it's the kind of lesson I'd be happy to have my daughter learn and reflect on, even if she may ultimately disagrees. Currently, she has not shared any of her economic conclusions about the show, and is more focused on the music and pretty pictures; but I'm sure that day will come. When she learns how to read and write, she is of course welcome to use the comments section if she sees things differently; we don't play favorites around here.

Doubtless someone out there can point me to better and deeper Thomas-related economic analysis. In the meantime, this blog post not only offers some of its own views, but also takes on the troubling questions raised by Bob the Builder. Food for thought, folks.

Posted by Paul Horwitz on July 14, 2008 at 08:52 PM in Paul Horwitz | Permalink | Comments (13) | TrackBack

Piety vs. Originalism

Nate Oman has a nice post at CoOp talking about originalism and the "virtue of constitutional piety."  Referring to a recent address by Larry Kramer in which Kramer denies that he is an originalist "if by originalist you mean that we should do something just because that is what the founders said or intended," Nate says that Kramer is responding to "a straw man in so far as judicial or academic originalists are concerned," but thinks that there might be something to be said in defense of this kind of piety, in the broader context of "popular originalism."  He adds:

If we want the constitution to act as a real bulwark against this or that popular whim, then it seems to me that it needs something of the mysterium tremendum, a sense of the sacred that ought not to be profaned by transgression. I don't see that constitutional theory has much to offer in terms of maintaining that popular awe. . . . Hence, it seems to me that there is a case to be made for doing at least some things simply because they were done by the Founders, if only to preserve the awe felt by candidates for city dog catcher toward the Founders and the institutions about which law professors spin their impious theories.

Nate's commenters almost immediately respond by talking about originalism as an interpretive method.  That seems to me to miss the point.  Although he does try to distinguish this from constitutional piety in his first paragraph, I do think these comments echo my own first reaction to Nate's post: that it tends somewhat to conflate the question of respect for the framers with the question of originalism as an interpretive method.  So let's be clear:  There is a world of difference between constitutional piety -- that is, an approach or attitude to constitutional interpretation based on respect for the framers -- and the current judicial/academic version of originalism as an interpretive method.  For one thing, originalism is not based on respect for the framers as such; instead, it's grounded in a different set of arguments, usually centered around contractarianism, or legitimacy, or arguments about what constitutes a valid approach to legal interpretation.  Second, originalism no longer focuses on the original intent of the framers or anything like it; rather, as Heller reminds us, it focuses on the original public meaning of the constitutional text. 

Thus, one could think that the framers were jackasses or knaves (or, say, slaveholders), but still believe that originalism is the only valid method of constitutional interpretation.  Conversely, one could have a very high regard for the framers, and incorporate this regard into one's interpretive approach, without necessarily being an originalist.  Although I do not "worship" the framers, for reasons I expand on below, my own interpretive approach is firmly rooted in great respect for them, and yet is not originalist in any thorough-going way.  Originalism, in short, is not and need not be "ancestor worship" -- and vice versa.

By way of a more direct response to Nate, let me say that I'm not opposed to maintaining some sense of the "mysterium tremendum" with respect to the framers, whether as a matter of "popular originalism" or otherwise.  I do think that a far more fruitful way to think about these issues is not in terms of piety toward the framers.  Instead, we should think in terms of recapturing and thinking hard about the kinds of background virtues that animated the founding generation, and thinking about the ways in which we can rededicate ourselves to them, while surely repurposing them somewhat, in the modern era.  I explore these themes in this short piece.  But however you characterize this approach, one should make clear that there is a crucial difference between an acceptable level of filio-piety and a permanent sort of self-infantilization.  The framers are worthy models in many senses.  But if we are to prove ourselves their inheritors rather than mere idol-worshippers, if we are to embody the framers' virtues rather than merely parroting them, we shouldn't become so overawed that we are unable to reason for ourselves and take responsibility for our own decisions. 

For those interested in these issues, let me recommend a lovely piece by Mike Dorf, Integrating Normative and Descriptive Constitutional Theory: The Case of Original Meaning, 85 Georgetown Law Journal 1765 (1997), and the responses thereto.  My review essay, The Past, Tense: The History of Crisis -- and the Crisis of History -- in Constitutional Theory, 61 Alb. L. Rev. 459 (1997), also deals with these issues; it should be available via Google Scholar as well as via the online research databases.

Posted by Paul Horwitz on July 14, 2008 at 05:21 PM | Permalink | Comments (1) | TrackBack

Detainees and judicial minimalism

The Supreme Court's decision in Boumediene v. Bush was almost a month ago and most the good commentary already has been made. But a thought I had while running this morning (I know, I know, I need to get some music on my iPod) leads to this a-bit-late post.

To what extend does do the detainee cases and the long march from Hamdi to Hamdan to Boumediene--illustrate a drawback to the idea of judicial minimalism, of courts deciding nothing more than is absolutely required to resolve the case before it? Or at least a conflict between minimalism and the idea of an "interbranch conversation." In Hamdi, the Court insisted that Gitmo detainees were entitled to some process with respect to status determinations; the President provided that process by executive order; in Hamdan, the Court insisted that the President could not do this without Congress; Congress provided for process by statute Military Commissions Act; and in Boumediene the Court said that process was insufficient, that full habeas was necessary (or at least something more than what the MCA provided). This opened the door to Chief Justice Roberts' criticism that "Congress followed the Court’s lead, only to find itself the victim of a constitutional bait and switch." But could the Court avoid that charge if, departing from minimalism, it tried to do more at the outset, perhaps even getting to the ultimate point that, yes, full habeas is required or come up with grounds for a valid suspension?

Now, maybe Roberts' charge, although significant, is not a big deal. Maybe defending against that is better than the charge of judicial overreaching that would have accompanied the jump to habeas rights in 2004. Maybe (likely) the Court and the public were not ready in 2004 (before the war had taken a turn, before the word about torture got out, before public opinion turned, before the realities of Gitmo were revealed) for a recognition of full habeas rights for detainees. If it is true that the Court follows more than it leads, such a dramatic step might not have been possible. Maybe minimalism reflects a convergence with the interbranch-conversation idea. The Court had to leave Congress some room to act in response after Hamdi, then Congress responds to the Court and the Court considers the congressional response--that is the point of the conversation. In a sense, perhaps, there was no constitutional bait-and-switch. The Court kicked the issue to Congress (twice) for Congress to reach the "right" answer on this, but it remained for the Court to evaluate that answer (which it found wanting), which it finally did in Boumediene. The real problem was not minimalist decisions, but decisions that did not give Congress enough guidance.

Maybe this is how it should work in a constitutional democracy. But it looks like an awfully long way to get to an important constitutional point.

Posted by Howard Wasserman on July 14, 2008 at 03:17 PM in Constitutional thoughts | Permalink | Comments (2) | TrackBack

Sports and National Pride

Europeans love their football (i.e., American soccer) teams. The lasting effects of an international victory on the collective spirit were evident last week when I spent a few days roaming the streets of bubbly Barcelona. A German friend who was showing me around the Catalan city described the link between spectator sports and national spirit as even more significant for the new Germany.  For obvious reasons, for many years displays of national pride, “Nationalstolz,” associated with the Nazi regime, were frowned upon in Germany. When Germany won the World Cup in 2006, the country was altered with a renewed patriotism.

My friend described how for the first time in his lifetime (he is 37), he and he friends felt right about hanging and waving the national flag. He talked about how he found this change to be a highly significant, positive development for a generation that grew up schizophrenic. I tend to agree with his observations that Germany by and large was forced to deal with its past in a way that other European nations were not and that allowing the return of patriotic joy is better than brewing bitterness among a young generation that felt a continued shame of expressing their identity.

As someone who has always much preferred playing than watching sports, I find the power of these international events to transform national and international moods fascinating. The events surrounding the upcoming Beijing Olympics are of course an excellent example of the highs and lows that sports events can bring to countries.

Posted by Orly Lobel on July 14, 2008 at 10:35 AM in Orly Lobel | Permalink | Comments (5) | TrackBack

How To Compare Value Added Across Law Schools

Last week, I made the case for creating a race to the top of the law schools on "value added" for students by using the U.S. News survey of academics – and lawyers and judges, for that matter -- to assess schools on this basis. The basic reaction I’ve gotten so far has gone quickly to the second-order questions about how exactly to do this, with skepticism about it even being possible. As Russell Korobkin (UCLA), a leading scholar on the rankings, once said: "no one has the foggiest idea how to judge objectively the quality of legal education across law schools." But Korobkin’s view, though I’m sure commonly held and reasonable, turns out to be close to 100% wrong.

First, let's state what should be obvious: the purpose of a legal education is to prepare students to practice law. So how to figure out which schools fare better and worse in achieving this goal? Ideally, what we would want is a large data set that included information about inputs, both the incoming credentials of students and educational inputs, and outcomes (bar passage rates, lawyer effectiveness, job satisfaction, salaries, etc.), and we could conduct an analysis that might be able to isolate the school-level impact on these outcomes.

In the absence of such data, what we can do -- and what many do in the undergraduate context, for example -- is assess educational institutions in part based on their use of "best practices" that are correlated with higher learning outcomes. One thing that we know, for example, is that increased "student engagement" is associated with better outcomes -- that is, graduates who are better prepared to practice law -- which is precisely what the excellent Law School Survey of Student Engagement (LSSSE) has been helping 148 law schools measure and work to improve since 2004. And student engagement is affected significantly by an institution’s programs and practices.

So overall, how do we compare "value added" for students? I thought surely someone had written on this in the law school context, but a search revealed little -- so unless and until someone points to other references, let's start with the following proposition:

The value added of one school versus others for a student is a product of four basic elements:
- the relative educational quality (60%),
- quality of and participation in extra- and co-curricular activities (10%),
- quality of the career advising and assistance (15%),
- the alumni network, present and future (15%).

Are these the right elements? I would welcome thoughts. But how did you get these percentages? I made them up; let’s talk about how they should be different. And yes, they’re going to be somewhat rough – but remember, all we’re trying to do is reason our way to a 1-5 assessment and relative ordering in a particular market.

Okay, but how are we even going to begin to deal with the big enchilada, relative educational quality? Again, please point me to existing research if you know it (I didn't find much on law schools specifically), but let's start with the following proposition on relative educational quality:

The relative educational quality of one school versus another for a student is a product of four basic elements:
- the relative pedagogical skill of the faculty (20%);
- overall classroom experience and student engagement (20%);
- strength of the curriculum, particularly the degree to which it adequately prepares students to practice law in the 21st-century, using "best practices" in legal education identified in the report by the same name and the Carnegie Foundation report (40%); and
- efforts to prepare students for the bar (20%).

Note that the relative weight of this last element probably ought to vary considerably between schools with high and low bar passage rates.

I’m sure this can be strengthened in various respects -- for example, the first two elements clearly overlap -- and I look forward to your views (including and especially students and lawyers). What do you think?

Posted by Jason Solomon on July 14, 2008 at 09:55 AM in Life of Law Schools | Permalink | Comments (9) | TrackBack

Michael Heller's The Gridlock Economy

This past weekend, I read Michael Heller's new book The Gridlock Economy:  How Too Much Ownership Wrecks Markets, Stops Innovation, and Costs Lives.  The "this past weekend" part of the previous sentence says a lot of good things about the book -- I have two young kids, and not a lot of free time on the weekends.  The Gridlock Economy is one of those rare books that makes important theoretical points while being an easy, enjoyable read.  Like Hernando de Soto's The Mystery of Capital, The Gridlock Economy is clearly written and illustrates its points with engaging examples.  You could assign the whole book for a week's reading in a class and not feel guilty about overwhelming your students.

The book's core points build on insights that Heller first developed in The Tragedy of the Anticommons: Property in the Transition from Marx to Markets.  The basic idea of the anticommons is that highly-divided ownership of property can lead to the underutilization of resources.  If too many people have control over a resource, decisionmaking gets gummed up, transaction costs multiply, and resources are underused.  Heller's iconic example of the anticommons is Moscow storefronts, where the right of many "owners" to veto various uses led to stores that remained vacant while kiosks thrived on the sidewalks just outside.  If the tragedy of the commons can be seen as being caused by an absence of property rights, the tragedy of the anticommons can be seen as being caused by an overabundance of property rights.  Heller argues that we should be seeking the sweetspot between too much and too little property:  "Well-functioning private property is a fragile balance poised between the extremes of overuse and underuse." (p. 19).

The Gridlock Economy explores this theme in a number of interesting settings, including biotech patents, broadcast spectrum, land use regulation, and land assembly.  My one quibble is that the book occasionally crams problems that don't seem to fit into the anticommons category.  One example is the fiasco of underutilized broadcast spectrum owned by television broadcasters. (p. 96)  If the broadcasters had stronger property rights in this spectrum, it probably would not be underutilized to such a degree.  This particular problem therefore seems to be more about too little property, rather than too much property.  Another example is the problem of highly-fractionated interests that results from multiple generations of a family passing property through intestacy.  After a few generations, a single plot of land can have scores of owners.  These multitude of owners can lead to real anticommons problems -- just imagine trying to get the consent of thirty cousins to do anything with a piece of property.  As a remedy for this sort of multiple-ownership problem, the law allows the property to be partitioned.  For property with many owners, partition is usually achieved through a judicial sale of the property, with the proceeds divided among the owners.  As Heller describes (p. 121)the partition process has a ton of flaws, and needs to be reformed.  But Heller's complaints about partition are about the flaws in a remedy for an anticommons problem, not the anticommons problem itself.

As noted, these are just quibbles.  This is a great book.

Ben Barros

cross posted to propertyprof blog

Posted by propertyprof on July 14, 2008 at 09:49 AM in Books, Intellectual Property, Property | Permalink | Comments (0) | TrackBack

Mark Your Calendars: Prawfs! Happy Hours on July 24th and July 31

Greetings! If you're in NYC on Thursday, July 24th, I hope you'll come join a group of prawfs to raise a glass of good cheer at one of the seasonal Prawfs happy hours.  At least a dozen or so of us who are participating in Prawfsfest! at Hofstra will be there.  Please feel free to bring a "+1" or a colleague. We will announce a venue in the next few days but it will be in Manhattan, around 9ish. In the meantime, please mark your calendar and watch this space for more information. And if you think you're interested in attending and/or bringing an extra person, please shoot me an email so I can make sure that the venue is size-appropriate.

A week later on Thursday, July 31, Prawfs will also organize another such happy hour for those of you in Palm Beach attending the SEALS conference (or if you're in the neighborhood). As of now, the location will be the Stir Bar at the Ritz, at 9pm. Again, please let me know if you are interested in coming in case I need to make any adjustments for time and place. Yours in bivende, Dan.

Posted by Administrators on July 14, 2008 at 09:36 AM in Life of Law Schools | Permalink | Comments (2) | TrackBack

Sunday, July 13, 2008

Trial lawyers' beef with my "pact"

I should have seen it coming: Scott Greenfield, over at Simple Justice, takes my proposed pact on judicial nominations to be a slight on trial lawyers with experience in the trenches. This is what comes of treading near to the edge of the Culture War between Academia and the Bar: One risks being misunderstood. In this case, Greenfield assumes somehow that I think law profs make better judges than street-smart lawyers.

Just for the record: I'd presumptively prefer a street-smart, experienced trial lawyer over a law prof as a judge any day. This is especially true for the trial courts, but my preference holds also for the appellate bench as well. In general, the trial lawyers that I know have been wiser, quicker, and more intellectually open-minded than my law prof friends.

Just to show my sincerity, let me urge that President Obama draft Micheal Pitt (former President of the Michigan trial Lawyers Association, of Pitt McGehee Mirer Palmer & Rivers PC, in Royal Oak, MI), Deb La Belle (veteran civil rights litigator of Ann Arbor, MI), or Bridget McCormick (University of Michigan Clinical Prof) to be federal judges. Any of these three would beat out any law prof I know as extraordinary federal judges. (Whether they'd want the job is, of course, a mystery to me).

But, Greenfield, here's the difficulty (and I had thought I had been clear about this point in the first go):

Presidents do not typically nominate ace trial lawyers, because ace trial lawyers are not generally Senatorial or Presidential insiders. Aces are too busy trying cases. Instead, the political economy of judicial selection favors discrete and well-connected political animals -- people whom I term "blanks." On top of the political obstacles to appointing the ace lawyers, there is the question of salary: Many top trial lawyers make several times what a federal judge earns, and inducing them to make that sort of sacrifice to spend a lifetime refereeing drug conspiracy cases, immigration appeals, and much of the other often dull business of Article III courts is not always easy.

I urge that we profs put a heavy thumb on the scale of our fellow profs not out of academic elitism (do I really have to prove my bona fides on that score after this post?) Rather, profs should endorse profs simply because (a) profs face a headwind, in that they are paid to write edgy pieces about difficult issues that nix them come confirmation time and (b) the likely alternative to a prof is a blank, not an ace.

But I am happy to accept a friendly amendment from -- or a joint cartel with -- the trial lawyers: We profs will agree to support any nominee for the lower federal courts who is an "ace trial lawyer" (definition to be negotiated -- but I'd say, anyone with roughly 15 years of experience litigating cases and with a great reputation with the ACTL and analogous organizations) if you trial lawyers agree to support analogous law profs.

The absolutely essential aspect of this pact is that neither group should give a whit what any nominee thinks about actual doctrine: On the lower courts, the stakes of such ideological disputes are low enough that we can pocket our preferences about Roe, etc.

Is it a deal?

Posted by Rick Hills on July 13, 2008 at 10:59 AM in Current Affairs | Permalink | Comments (2) | TrackBack

Reflections on the politics of SCOTUS and personhood of its members

As one might expect, Linda Greenhouse's (last?) New York Times column about covering the Supreme Court for 30 years is lovely and moving and insightful.  And, as we all look ahead to a new occupant in the White House (who might have a chance to appoint more Justices than any President since FDR), I found two passages from the piece especially significant.  These two passages highlight the importance and impact of politics and personhood regarding the Court's work.

Concerning politics, consider these astute observations from (soon to be Professor) Greenhouse:

Watching the back-and-forth between a state legislature and the Supreme Court of the United States had given me a real sense of the court as an active participant in the ceaseless American dialogue about constitutional values and priorities, not a remote oracle....

The court can only do so much.  It can lead, but the country does not necessarily follow.

In fact, it is most often the Supreme Court that is the follower.  It ratifies or consolidates change rather than propelling it, although in the midst of heated debate over a major case, it can often appear otherwise.  Without delving into the vast political science and legal academic literature on this point, I’m simply offering my empirical observation that the court lives in constant dialogue with other institutions, formal and informal, and that when it strays too far outside the existing political or social consensus, the result is a palpable tension both inside and outside the court.

I consider these observations are exactly right, and they help explain why the Supreme Court's work on so many punishment and sentencing issues has been so dynamic and unpredictable and controversial in recent years.  In some ways, a group of Justices want to lead (see Blakely) a country not full ready to follow, in other ways the Court is still sorting through developing political or social consensus about modern sentencing realities (see Booker et al. and the Court's capital jurisprudence.)

Concerning personhood, consider these more personal recollections from Professor Greenhouse:

The court I began covering in 1978 was populated by men who were, for the most part, older than my father.  Thurgood Marshall, William J. Brennan Jr. and Byron R. White were historic figures.  Harry A. Blackmun had only a few years earlier been propelled from obscurity when he wrote the court’s 7-to-2 majority opinion in Roe v. Wade.  Nine new justices joined the court during my time there.  Of the original group, only John Paul Stevens remains. Three members of the court are younger than I am.

Amid all that change, nothing touched me as much as the arrival in September 1981 of Sandra Day O’Connor.  I had never heard her name before President Ronald Reagan nominated her that summer to succeed Potter Stewart.  Although I covered her confirmation hearing, she remained to me basically a blank slate. That didn’t matter. The first time I looked up from the press section and saw a woman sitting on the bench, I was thrilled in a way I would never have predicted.  Her presence invaded my subconscious. I had recurring dreams about her.  In one, she asked me my opinion on a pending case (something no justice ever did in real life). But mostly, she just had walk-on roles in ordinary nighttime dramas, her presence signifying what it meant to me to know that there was no longer a position in the legal profession that a woman could not aspire to.

These comments and other passages in this great piece reinforce the importance and value of a distinctive focus on personhood and personal background when it come to Supreme Court appointments.  As I have suggested in prior posts urging a broader perspective on SCOTUS short lists, there is a symbolic importance and long-term impact that can come from the appointment of Justices whom even savvy court-watchers have never previously considered.  I hope that in the coming years, lots of people who've never before seen a Justice like themselves have the same opportunity to have a new member of the Court invade their subconscious and "signifying ... that there [is]no longer a position in the legal profession that a [certain type of person] could not aspire to."

Some related posts (from SL&P):

Cross posted at SL&P

Posted by Douglas A. Berman on July 13, 2008 at 10:05 AM in Law and Politics | Permalink | Comments (0) | TrackBack

Saturday, July 12, 2008


I guess I'm not convinced by Rick's post that there's any particular need for a "non-aggression" pace for law professors who are judicial nominees.

I certainly would like to see the heat turned down on judicial nominees in general -- not off, by any means, but down. And that is true, too, for professors who are nominees. I also agree that our nomination process, not just for judges but for all manner of federal appointments, has focused too much on "blanks" -- on nominees whose noses are unnaturally clean and who have little record behind them. Anyone who spends enough time in Washington or among federal employees at all levels of government knows that there is, in fact, a surprising number of people who have literally led entire lives of public and private virtue in which they have done nothing the least bit scandalous. The pool of such individuals is large enough that we could substantially select just among them. But these are not the only traits we should be looking for, whether in judges or any other position; there is also room for creativity, risk-taking, and even past "naughty" behavior. A diversely staffed judiciary, or any other federal agency, needs at least some oddballs and different drummers, and shouldn't just be composed of Stepford spouses. Law professors might add to that oddball mix, although it strikes me as a questionable proposition that most law professors are in fact unconventional thinkers. So I share some points of agreement with Rick. But my disagreements outweigh them.

For one thing, I am not sure what basis Rick has for saying that "literally any law prof . . . is likely to be as good as, or even a better than, the typical nominee to a lower court, whose qualifications typically amount to being a Senator's friend or staffer." Certainly Rick has correctly picked up on the old saw that the definition of a "judge" is a lawyer who knew a governor. But why assume that literally any law prof is likely to be as good or better than the typical Senator's friend or staffer? That might be more likely to be true if the Senator picked an out-and-out hack from practice; but can't law professors be hacks too? And why assume that all law professors are more likely to be high-performing lawyers? All we know, usually, about law professors is that they were high-performing law students; everything else in their careers usually follows from those early credentials. Not many law schools ask or even care how a professorial candidate actually performed in practice, as long as they check off the usual box -- elite law firm or government office, etc. Shockingly, many superb lawyers either didn't have stellar law school grades, or did but had no interest in the cloistered life of the academy -- and some of them will be candidates for the bench. So why just assume the profs are more qualified?

Moreover, Rick's statement begs the question: as good or better at what? A professor might be likely to be knowledgeable about the law, and skilled at legal manipulation, and those are both valuable traits for judges. But they are not the only valuable traits, especially for district court judges. Other traits we might want to select for would include a knowledge about the real world of litigation, experience in dealing with lawyers and litigants and the full flurry of human limitations, a sense of the institutional needs of the courts and the wherewithal to defend them, and so on. I don't see any basis for thinking that law professors are likely to be better at these things than practicing lawyers or even congressional staffers.

It is possible that law professors are less likely to be "corrupt" than these other lawyers, depending on how you define the term, if for no other reason than that they are less likely to be worldly, or at least successfully worldly. But there are all kinds of ways for judges to be corrupt. One of those, and the most important, is to lack impartiality; and I see no reason for assuming that law professors will be impartial than any other lawyer, particularly once you factor in partiality based on political ideology. That is especially true once you factor in the possibility that the profs most likely to be selected for judicial positions are not the best law professors as such, and certainly not the most monkish and insulated professors, but precisely those professors who have had some worldly contact with the environment of political parties, ideological stalking-horses like the ACS or the Federalist Society, etc. Indeed, to that extent, it is perhaps more likely that the professors selected for judicial nominations will have been precisely those professors who, whether or not they would see it this way, at some point showed a demonstrable willingness to sell out their scholarly obligations in the service of some set of ideological or jurisprudential goals or another. And we should exempt these folks from criticism because . . . ?

A few other objections: It is true that professors are more likely to have a paper trail that might cause them trouble, although all too few professors really say much that is controversial in their writings. But it is less clear why those remarks should be completely insulated from collegial criticism. To be sure, most of that criticism is likely to be either mistaken or unfair or, quite simply, ideologically driven. But what if a professor says something in his or her writing that is genuinely and deservedly controversial? Why should it get a free pass? Certainly, as I have made clear, we should be more willing in general to allow all nominees to say something(s) controversial over the course of their career, at least if we want something other than drones or stealth candidates filling the bench; but why single out professors? In any event, it seems to me that we already have effectively given a largely free pass to at least those professors who are the most respected across the academy. Rick mentions Judge McConnell. But Judge McConnell was confirmed, despite having said a career's worth of arguably controversial things; any holdup to his confirmation was certainly not owing to anything law professors said, those professors having by and large championed his confirmation, sometimes in ways that seemed inconsistent with the broader views of some of those professors.

Also, and am I am just speaking for myself here, but I think Rick overstates the value and importance of having a coherent legal "theory." That certainly is a nice thing for professors, who love writing about judges with theories; but I am not convinced that having a theory is a more important quality for judges than having a good dose of common sense, judgment, and other such traits. Moreover, I think legal theories are far less constraining than Rick suggests, at least for the average judge; and I think it is perhaps going too far to say that the average law professor has a "coherent" legal theory. And even if such theories are somewhat constraining, it must be pointed out that they very well could have been tailored ex ante to give the theorist in question most of whatever ideological outcomes he or she prefers, while "constraining" him or her only on matters he or she doesn't value all that much and is thus willing to sacrifice. Maybe Justice Scalia is willing to give criminal defendants something on the Sixth Amendment front as long as he is able to oppose abortion and gay rights in a way that is consistent with his "theory" (and vice versa for some liberal theories of judging, of course). Is that really a meaningful "constraint?" Does it really make us better off than searching for some more untethered "pragmatist" judge who, on the whole, displays better judgment and greater genuine restraint?

Finally, I guess I just don't see the point of a blanket rule of non-aggression here. I would like to see people behave better in general, but not because they are locked into some formal rule that wouldn't necessarily make sense in particular cases. In some strange way, this reminds me of discussions I've had about word limits in law review articles. We used to have a proxy rule that assumed that long articles were better, because those doing the selecting didn't necessarily have the skills or experience to make qualitative judgments about submissions. Now we have a proxy rule that assumes that articles over 35,000 words are worse, or at least less suitable for publication. There may be beneficial results to this, but really it is just another proxy rule that both substitutes for and suggests the editors' inability to make qualitative judgments in the first place. The same thing goes here. I would rather that there be fewer, or at least smarter, controversies about judicial nominations, but to get there I would rather increase everyone's good sense -- not impose a blanket rule of "non-aggression." I'm no pacifist; sometimes a little aggression is a good thing.

Posted by Paul Horwitz on July 12, 2008 at 02:46 PM in Paul Horwitz | Permalink | Comments (2) | TrackBack

John McCain and Natural Born Citizenship

So it turns out John McCain was not a citizen at birth, and therefore is not a natural born citizen.  My analysis is in this essay, reported on by Adam Liptak in The New York Times.  The essay responds to the 0pinion of Professor Laurence Tribe and former Solicitor General Theodore Olson that Senator McCain was a natural born citizen, both 1) by statute, and 2) by birth under the allegiance and loyalty of the United States.   The second argument seems to have been an oversight of some kind.   People whose sole claim to citizenship is birth in the Canal Zone are regularly deported from the United States, so this argument is not consistent with existing law.  It was apparently not pressed when they spoke with Adam Liptak.

People born to U.S. citizens in the Canal Zone in 1936, as was Senator McCain, were not covered by Revised Statutes S. 1993, the only statute granting citizenship to persons born out of the territorial United States then in effect.  By its text S. 1993 applied only out of the "limits and jurisdiction" of the United States.  The Zone was out of the "limits" but in the "jurisdiction" of the United States.

In 1937, Congress passed a specific statute granting citizenship to those born in the Canal Zone since 1904 to U.S. citizen parents.  The New York Times article states: "The 1937 law, Mr. Olson said, was not a fix but a way to clarify what Congress had meant all along."  The legislative history does not support the view that the 1937 Act was a clarification of S. 1993.   Instead, House Report 75-1303 from the House Committee on Immigration and Naturalization explains that the law was necessary because under S. 1993, "[e]ven children born within the limits of the Zone which is under the jurisdiction of the United States are not citizens.  .  .  .  Children of American parents in the Canal Zone are not outside the jurisdiction of the United States, nor are they within the limits of the United States."

However, the Committee wanted to grant this class citizenship; as most were children of U.S. workers "they are citizens in every sense except as a matter of law."  (This was a crib from Secretary of Labor Frances Perkins).  As Rep. John Sparkman explained on the House  floor, "The Canal Zone is a 'no man's land.' Every place in the world except the Canal Zone has been covered by either the law of 1855 [S. 1993] , which applies to foreign countries, or by the fourteenth amendment."  81 Cong. Rec. 7769 (1937).  In the Senate, Senator Clark said that under the bill's terms, "existing law is changed."  The 1937 Canal Zone act was not confirmatory.

Professor Tribe was quoted as saying that "Reading the 'limits and jurisdiction' clause as Professor Chin does, Professor Tribe said, 'is to attribute a crazy design to Congress' that 'would create an irrational gap.'”  But this language in S. 1993 was unchanged from the original version of 1855,  before there was a Canal Zone or any other large overseas territory not incorporated into the United States.  Just as it would be plausible that an 1855 transportation statute might not cover Segways, it is not crazy or irrational that an 1855 citizenship statute failed to account for overseas land holdings that not only did not yet exist, but were not even imagined.   In addition, as the American Bar Association Journal reported in 1934, "Probably no branch of the law in this country is more open to criticism on the grounds of instability, inconsistency and irrationality than that governing nationality, or citizenship." 20 ABA J 780, 780.  Bad drafting was Congress's specialty.   

Professor Tribe and Mr. Olson, like many others, contend that "the Framers did not intend to exclude a person from the office of the President simply because he or she was born to U.S. citizens serving in the U.S. military outside of the continental United States," so they must be natural born citizens.  But this idea is, again, not consistent with the actual actions of Congress.  The 1790 citizenship statute made overseas-born children of citizen fathers "natural born citizens."  The 1795 statute repealed the 1790 statute and made them "citizens", for some reason removing the natural born designation.  The 1802 statute repealed the 1795 statute and made them aliens.   As Montana v. Kennedy, 366 U.S. 308, 311 (1961), explains, under the 1802 law passed by the 7th Congress, which included several Framers,  "Foreign-born children of persons who became American citizens between April 14, 1802 and 1854, were aliens."  For the offspring of female U.S. citizens (including, e.g., U.S. Army and Navy nurses serving overseas in WW I) who had children with aliens, the no-citizenship policy remained in effect until 1934.  It is not merely that Congress did not want such children to be eligible to the presidency, Congress determined that they would not be citizens at all, not even if a parent was in the military or other government service.  The 1937 House vote to  grant citizenship to children of U.S. citizens in the Canal Zone was 146 aye-144 nay--the bill came within one vote of failing because of a tie.  That is, almost half of the House voted to leave John McCain and other children of U.S. citizens born in the Canal Zone without citizenship (knowing they could make individual application under the general naturalization laws).   These harsh provisions are inconsistent with what we might imagine a just Congress should have done, but in fairness to Congress, much of this legislation is entirely consistent with the suspicion of foreigners embodied in the natural born citizen clause.

Of course, it is silly that John McCain is caught up by bizarre technicalities of immigration policies afflicted with racial and religious biases; as I explain in the essay, fear of granting citizenship to "half-breeds" and "negroes" in the Canal Zone apparently delayed legislation that would have made him a citizen at birth.   The natural born citizen clause should be repealed, and people who become citizen after birth should be eligible to the presidency.  But the natural born citizen clause remains part of the Constitution that we have, and Senator McCain does not satisfy it.  I reject the idea that provisions of the Constitution can be ignored if one concludes that 1) they no longer make sense and 2) one can get away with violating them.

Posted by Marc Miller on July 12, 2008 at 01:28 PM in Legal Theory | Permalink | Comments (19) | TrackBack

Developing an innovative pre-law school summer reading list

Lbcover_2_1 An always useful topic for collective discussion is what should a person read the summer before starting law school. 

Of course, One L by Scott Turow is the modern classic, and it is still probably worth a read even though it is now a bit dated.   One of my favorite recommendations is  Broken Contract by Richard Kahlenberg, which does a nice job exploring how law school turns motivated public-spirited individuals into amoral solvers of legal problems.   And for a lighter read, future law students might check out the new Lawyer Boy by Rick Lax, which amusingly explores the experience of someone who was essentially fated to go to law school by accident of birth.

Eugene Volokh covered this question here last year, and I especially liked the commentor who recommended a cover-to-cover reading of the Constitution.   Helpfully, New York Law School's Library has this on-line multimedia bibliography of "Books & Films on Law & Law School" providing lots of ideas.

OhpBut perhaps folks through the comments might aspire to be a bit more innovative.  In a world heavy with law and legal ideas, there are surely lots of fiction and non-fiction works that may not immediately spring to mind, but still would be especially valuable for a future law student to consume.  Seeking to be innovative, I'd probably recommend some piece of legal or social history such as the collection of essays in The Oxford History of the Prison.

Any truly innovative suggestions, dear readers?

Cross posted at Law School Innovation.

Posted by Douglas A. Berman on July 12, 2008 at 12:14 PM in Life of Law Schools | Permalink | Comments (8) | TrackBack

Professors' non-aggression pact on judicial nominations?

Since Andy Siegel has proposed the "summer parlor game" of speculating about whom President Obama might appoint to the SCOTUS, this seems like as good a time as any for me to promote my perennial hobby horse -- a professorial non-aggression pact on judicial nominations of professors. Here are the terms of the pact: Law profs agree to support any academic appointment to the federal district or appellate bench, full stop. Left law profs will endorse, say, Professor Doug Kmiec for the Ninth Circuit when a Republican occupies the White House; Right law profs will endorse, for instance, Dean Elena Kagan for the D.C. Circuit when a Democrat occupies the White House.

The reason for the pact? Law profs -- literally any law prof -- is likely to be as good as, or even a better than, the typical nominee to a lower court, whose qualifications typically amount to being a Senator's friend or staffer. Yet law profs face an enormous headwind in securing a nomination, because they have paper trails on controversial issues. It does not help that law profs testify against their own when a professorial nominee has particular positions that the profs oppose. But eliminating profs in this manner actually is self-defeating in every sense of the word: It is not as if the professorial nominees are replaced with nominees that are ideologically simpatico . Instead, they are replaced with "blanks" -- nominees with no paper trail and no discernible judicial philosophy at all but fully equipped with "spatial attitudes" that are likely to be just as dangerous to the values and beliefs of the people who opposed the prof that the blank replaced. In the meantime, the bench becomes less articulate, less knowledgeable about the long-term ramifications of the precedents that they hand down, more ad hoc in its reasoning -- in short, less "academic."

I proposed such a pact back when Bush nominated Michael McConnell for the Tenth Circuit, thinking that McConnell's nomination was a spectacularly easy case for Left profs to endorse -- but I got a mixed response. The typical skeptic had one of three objections: (1) Profs are not the only good candidate for a judgeship: Pols are useful too; (2) If I endorse a nominee with an ideology I oppose, what assurance do I have that other academics will endorse nominees whose ideology I favor? and (3) Who cares about doctrinal coherence, anyway?

Here are my reasons for why these are not persuasive objections.

First, the Pols can take care of themselves: We are guaranteed horse-doctors' doses of pols. Donors, staffers, politicians' golfing buddies, state officials term-limited out of a job -- they are the routine source for the district and appellate bench. It is the Prof who needs profs' help, not the Pol.

Second, that's the point of the pact -- to solve the game-theoretic problem of being the first mover.

Third, please, please, please, law profs -- stop the self-hate masquerading as Legal Realism! The notion that doctrinal and policy coherence does not matter lacks even the virtue of being novel, let alone true. Try teaching some of Rehnquist's more murky opinions -- say, Morrison v. Olson -- and then sincerely tell me that reasons do not matter. (By the way, I agree with the result in Morrison - -but would it not be nice to have a theory explaining why, for instance, offices designed to address the narrow problem of Presidential conflicts of interest form a special category of "inferior" officers?) In the interests of bi-partisanship, I could just as easily invoke Justice Brennan's opinion in Penn Central v. New York as an example of a theoretically vapid opinion that has left the doctrine in shambles.

But even if you suffer from self-loathing and care only about results, consider that it might be more difficult for an academic with a coherent legal theory to bend with their "spatial" ideology. My colleague, Rachel Barkow, has documented how Justice Scalia's originalism really does constrain him from adopting pro-government results in criminal procedure cases. The same holds true for Scalia's opinions on punitive damages. Since we are inevitably going to get a nominee whose views some of us will dislike, why not get an ideological opponent whose flexibility is constrained by a legal theory? In short, even self-hating, legally cynical profs should sign my pact.

So -- do I have any takers?

Posted by Rick Hills on July 12, 2008 at 10:29 AM in Current Affairs | Permalink | Comments (3) | TrackBack

Friday, July 11, 2008

Spatial Attitudinalism & Phillip Morris v. Williams

It is routine for political scientists to employ a "spatial attitudinalist" model of judicial decision-making, in which a judge's votes are predicted by the judge's non-legal ideology (often measured by the political party of the President who appointed the judge). I tend to think that the model is not helpful for lawyers who have to write briefs rather than poli sci papers. (How exactly does one insert a plea to a judge's "attitudes" into the brief? Write a special little section for Kennedy, appealing to his desire to look good at the next Bellagio conference? Ask Scalia to look to Catholic values?) Moreover, I suspect also that the model is predictive on such a crudely aggregate level that, in any particular case, it is not helpful for figuring out how a marginal justice is likely to vote.

Therefore, it is a source of pleasure to me whenever members of SCOTUS confirm my prejudices and rise above their "spatially" situated values. Observe, as a case in point, Justice Scalia's and Thomas' joining Ginsburg's dissent in Phillip Morris v. Williams. Could any attitudinalist model predict that these two conservative Republicans would be making a stand against the National Association of Manufacturers in favor of state power over punitive damages? Loyalty to federalism and hostility to judicial discretion in interpreting the due process clause surely explain their votes more than any constitutionally irrelevant "attitude." Likewise, Breyer's championing restrictions on juries surely rests on his love of technocracy over decentralized juries more than any fealty to the values of the Democratic Party or love of Big Tobacco.

Of course, one might ask whether federalism, suspicion of substantive due process, and a penchant for constraints on state juries count as non-legal "attitudes" or rather as legal principles. That distinction is the Achilles heel of attitudinalism: Political scientists have such a crude notion of law that they have a hard time figuring out how to model loyalty to legal principles, as opposed to "non-legal" ideology.

Until the poli sci types figure out how to draw this distinction with more refinement, I think that it is fair to say that Breyer's, Scalia's and Thomas's votes all count as evidence against the attitudinalist model. This is a cause for celebration to us lawyers who want to believe that "the Law" (whatever it might be) matters. So take that, Ted Ruger! Score one for the lawyers!

Posted by Rick Hills on July 11, 2008 at 12:39 PM in Constitutional thoughts | Permalink | Comments (5) | TrackBack

Best Fiction for Conferences

Greetings from a plane somewhere over Europe. I am on my way back to Tel-Aviv after a week in Barcelona and Paris. In Barcelona, I attended a conference different from the ones I usually go to. It was the XIII International Conference on the Foundations and Applications of Utility, Risk and Decision Theory (FUR), which took place at the IESE Business School, University of Navarra. Most of the conference attendees were either economists or b-school types. It was a great way to get the direct scoop on developments in behavioral economics and decision making research unmediated or filtered through by law. The talks were also full of useful insights for life in general, such as a panel on emotions, in which one speaker described his forthcoming book called “The Mathematics of Happiness.” He suggested a mathematical model for not adapting to high consumption reference levels, so that you still enjoy them, arguing that one needs to alternate between times of consumption for optimal pleasure utility. Because the conference had a relatively high percentage of Europeans, it was also interesting to observe cultural differences in “the art of conferencing”. Incidentally, the book I am reading is exactly about that. I am sure many of you are well familiar with the books of David Lodge and have read this classic one as well a while back. But I have only recently gotten hooked on Lodge’s keen eye for academic follies and have recently finished reading the first of his “Morris Zapp series” – Changing Places (1975). For those unfamiliar with the books, Morris Zap is an American English professor at the University of the state of Euphoria (“a state between northern and southern California”, i.e. Berkeley). Lodge has admitted, and Fish takes pride in this fact, that Zapp’s character is inspired by Stanley Fish (who I am happy to report will be once again teaching a course at USD Law this year). The book is about the contrasts between British and American Academics in the 70s. Now, reading the Small World (1984) it occurs to me that it is the perfect fiction to bring along to a conference. Lodge captures the search for trendy talks, the unmet expectations, the snobberies, and the absurdities that are often encountered in such settings. The book, which begins in April, the beginning of conference season, and moves throughout the globe, from the provincial to luxury settings of academic conference. The book begins at as characters convene at a disappointing conference in a run down British University. Morris Zapp is the keynote speaker and he has just begun the second stage of his career, moving from conventional literary critique to post-structuralism. After the jump is a taste of his talk, which is not very well received by the participants. Warning, the talk contains sexually explicit language unsuitable for children or those with post-1990s sensibilities (indeed, as the cover of Small World states, Lodge was writing his satires when “the sun has not quite set on the sexual revolution, while political correctness has not yet reared its humorless head.”

Morris Zapp’s keynote:

“…[the activity of reading is] an endless, tantalising leading on, a flirtation without consummation, or if there is consummation, it is solitary, masturbatory. [Here the audience grew restive.] The reader plays with himself as the text plays upon him, plays upon his curiosity, desire, as a striptease dancer plays upon her audience’s curiosity and desire. Now, as some of you know, I come from a city notorious for its bars and nightclubs featuring topless and bottomless dancers. I am told – I have not personally patronized these places, but I am told on authority of no less a person as your host at this conference, my old friend Philip Swallow, who has patronized them, [here several members of the audience turned in their seats to stare and grin at Philip Swallow, who blushed to the roots of his silver-grey hair] that the girls take off all their clothes before they commence dancing in front of the customers. This is not striptease, it is all strip and no tease, it is the terpsichorean equivalent of the hermeneutic fallacy of recuperable meaning, which claims that if we remove the clothing of its rhetoric from a literary text we discover the bare facts it is trying to communicate. The classical tradition of striptease, however, which goes back to Salome’s dance of the seven veils and beyond, and which survives in a debased form in the dives of your Soho, offers a valid metaphor for the activity of reading. The dancer teases the audience, as the text teases its readers, with the promise of an ultimate revelation that is infinitely postponed. Veil after veil, garment after garment, is removed but it is the delay in the stripping that makes it exciting, not the stripping itself; because no sooner has one secret been revealed than we lose interest in it and crave another. When we have seen the girl’s underwear we want to see her body, when we have seen her breasts we want to see her buttocks, and when we have seen her buttocks we want to see her pubis, and when we see her pubis, the dance ends – but is out curiosity and desire satisfied? Of course not. The vagina remains hidden within the girl’s body, shaded by her pubic hair, and even if she were to spread her legs before us [at this point several ladies in the audience noisily departed] it would still not satisfy the curiosity and desire set in motion by stripping.”

and Zapp continues on to develop his thesis. The conference attendees debate structuralism, continental theorizing and merit hiring…in short, excellent conference reading!

Posted by Orly Lobel on July 11, 2008 at 09:35 AM | Permalink | Comments (3) | TrackBack

Revisiting Cost Internalization and Punitive Damages after Philip Morris

More than a year ago, the Supreme Court handed down its decision in the Philip Morris case. I blogged about it at least a couple times. It's on my mind again, since I'm spending this month, among other things, revising my  Retributive Damages article (coming soon to a Cornell L. Rev. near you), and trying to finish drafting the successor article in the trilogy, Implementing Retributive Damages.

What I want to provoke here is some discussion about whether what Tom Colby (GW) and others call "total-harm" damages  extra-compensatory damages are permissible after Philip Morris if they are characterized simply as augmented damages for the purposes of cost-internalization or optimal deterrence (let's run those two notions together here, shall we?).  In Tom's latest work on punitive damages, which is forthcoming in Yale LJ, and is available in draft here (SSRN version of June 27, 2008), he argues that cost-internalization damages would and should be an available option (constitutionally speaking) so long as state legislatures or courts said they were not engaged in awarding "punitive damages," which is to say, so long as language of condemnation or language of punishment is not explicitly used.

My own view is that Colby's reading of the implications of Philip Morris for augmented or "total-harm" damages could logically be correct. But it seems a weird and ultimately, to my mind, wrong way to read what the litigants and the majority of the Court thought they were up to in the Philip Morris dispute and in this opinion. My extended thoughts are after the jump, and basically excerpted from my rough IRD draft. I invite your thoughts about the future of optimal deterrence/cost-internalization in the comments. (Btw, I will probably have more to say on Tom's article in other posts or perhaps in a response I might draft.)

Update: I made the mistake of conflating Tom's conception of "total-harm" damages with cost-internalization. As Tom kindly reminded me, his notion of "total-harm" damages, as used in his 2003 article, included a retributive component in addition to a deterrence signal.

To my mind, the proponents of the cost-internalization approach now face substantial difficulties on account of the Supreme Court’s recent decision in Philip Morris USA v. Williams. Implicitly repudiating the language of its TXO decision, which permitted punitive damages awards to consider the harm or potential harm from the conduct “as a whole,”[i] the Court reversed course. Writing for a 5-4 majority, Justice Breyer held that the Due Process Clause forbids punishing a defendant for harms to nonparties to the instant litigation because the defendant would not have the ability to “defend against the charge,” depriving the defendant of notice and imposing a substantial degree of arbitrariness and uncertainty in punishment.[ii] Thus, in assessing the putative excessiveness of punitive damages in a given case, a court must scrutinize whether a jury is punishing a defendant an amount of punitive damages that considers the harms actually suffered by strangers to the litigation.

By restricting the permissible scope of harm and potential harm, the Philip Morris decision now raises questions about whether full cost internalization is forbidden when establishing the amount of punitive damages. The ambiguity is subtle and has been brought to my attention by Professor Tom Colby’s forthcoming article on the subject.[iii] Professor Colby argues that states could constitutionally pursue “total harm” damages meant only to achieve cost-internalization so long as the state said there was nothing “punitive” to this cost-internalization approach. That would leave punitive damages, in his view, to pursue only the goals associated with what I have been calling "victim vindication" or "aggravated" damages.[iv]

The problem with Colby's narrow reading of Williams is that it reads the Court’s holding into, effectively, a nullity, giving with one hand a right that defendants would want and have fought repeatedly for and then stripping away the value of that right with the other hand. It’s hard to believe that the Court and litigants would be divided so sharply on an issue with such apparent lack of consequence--by letting total harm damages erupt without any procedural or substantive safeguards so long as the courts or legislatures say they're not punishing, they're just regulating. And unlike United States v. Booker -- which did recognize a defendant’s right only before demolishing its significance -- there aren’t separate opinions in Philip Morris regarding the “merits” and the “remedy.” Philip Morris is just one opinion and therefore susceptible to less plausible charges of schizophrenic reasoning.

To my mind, the better reading of the case undermines the feasibility of a cost-internalization agenda, but for two reasons, it does not destroy the agenda in one fell swoop.

First, the goal of achieving cost internalization remains feasible to the extent that jurisdictions make available class action or other aggregative litigation strategies that protect the rights of defendants; once a class is certified, at that point, nonparties become parties to the litigation. That said, more class actions will only permit the consideration of actual litigants, not the “quasi-parties” on whose behalf Professor Sharkey also advocated.

Second, the prospect of obtaining augmented damages outside the class action also continues to survive Philip Morris to the extent the defendant caused potential harm to the plaintiff(s). In other words, under my proposed reading of the case, the operative question (for purposes of cost-internalization) is now: what harm or potential harm did the defendant cause this particular plaintiff (rather than what harm or potential harm of this sort did the defendant cause)? The potential harm to the plaintiff, which the Court still permits as a consideration, plausibly encompasses the likelihood that the defendant would escape compensating this particular plaintiff. And to those that worry that Philip Morris eviscerates optimal deterrence, consider cases like those presented in the Supreme Court’s TXO decision, where an augmented damages award could be justified based on potential harm to the particular plaintiff on account of the tortfeasor’s concealment or deceit. If we assume a situation where a plaintiff faced a 1/3 chance of discovering that it was this defendant who caused the harm to the plaintiff, then that should, in theory, allow a jury pursuing cost internalization to impose augmented damages that are double the compensatory damages. (Per Polinsky and Shavell, “the total damages imposed on an injurer should equal the harm multiplied by the reciprocal of the probability that the injurer will be found liable when he ought to be.”[v] Thus, if a harm of 10 is caused and there is 1/3 chance the D will be held liable, then augmented damages should be 20 in addition to the 10 in compensatory damages, for a total of 30, or 3 times the harm.)

In sum, under my reading of Philip Morris, if a multiplier were based solely on the likelihood that the harm or potential harm to the plaintiff would be detected and compensated, it would pass constitutional muster, as suggested in Justice Breyer’s concurring opinion in BMW v. Gore.[vi] But Professor Colby is correct to emphasize that augmented damages need no finding of reprehensibility to warrant their award, and in such a situation, they should not logically be thought of as part of the punitive damages constitutional analysis.[vii] Instead, they involve a fact-finding determination, much like the amount of compensatory damages. And because augmented damages are essentially a regulatory tool to facilitate cost-internalization, states should be permitted to pursue different regulatory strategies, with tort law as one of several instruments to pursue that goal. A jury verdict form that reflects this ambition simply has to limit the jury’s consideration appropriately. The Appendix to [the IRD and RD articles] makes such an effort though it does so based on my reading of Philip Morris’s implications for cost-internalization, not on what I think would be logically required on a blank slate.

I should add that I don’t particularly have a dog in the fight; if it turns out Colby’s reading of cost-internalization after Philip Morris is regarded as correct, then I’d be happy to have the jury instructions I offer in the Appendix to my article -- the ones dealing with cost-internalization -- adjusted accordingly.

Standard of Review for Augmented Damages


What’s important about this decoupling of purposes (separating out the retributive purpose from the cost-internalization perspective) is that it logically calls for a different standard of review on appeal. In Cooper Industries, the Supreme Court announced that in federal cases the amount of punitive damages should be reviewed de novo, and that decision was predicated in part on the claim that determinations of punitive damages involve a moral component that has to be weighed against a defendant’s due process rights. That holding is only true for the retributive (and arguably the complete, not optimal, deterrence) part of extra-compensatory damages; by their nature,  augmented damages for the sake of cost-internalization involve only matters of empirical estimation (ie, what’s the likelihood the defendant would escape having to compensate this plaintiff), and thus are no different than compensatory damages (which ask, among other things, what kind of pain and suffering did the defendant’s action cause?), and thus determinations of augmented [total-harm] damages deserve greater deference when reviewed on appeal.

[i] Gore, 517 U.S. at 584 (indicating punitive damages award may reflect harm caused to all in-state purchasers);

[ii] Philip Morris, 127 S.Ct. at 1063 (slip op. at 6).

[iii] Thomas B. Colby, Clearing the Smoke from Philip Morris v. Williams: The Past, Present, and Future of Punitive Damages, 118 Yale L.J. (forthcoming 2009; manuscript on SSRN).

[iv] Professor Colby thinks, based on his understanding of the constitutional issues, that a public interest in retributive justice cannot be pursued outside the criminal law because of the absence of procedural safeguards. In this respect, he seems to agree with the view articulated by Redish, Emory L.J. But this perspective, to my mind, requires a finding that an intermediate sanction cannot be imposed even if it is accompanied by intermediate levels of procedural safeguards. My view is that with some basic safeguards, we can tolerate and embrace the use of intermediate sanctions. And given what the Supreme Court has repeatedly said in the last thirty years about the “quasi-criminal” purposes of punitive damages, there’s no reason to suspect that a space for an intermediate sanction cannot be carved out.

[v] See Polinsky & Shavell, supra note, at 889.

[vi] BMW of N. Am. Inc. v. Gore, 517


559, 562 (1996) (Breyer, J., concurring).


While the Court has in the past referred to deterrence as a goal of punitive damages, cost-internalization is about optimal or efficient deterrence, whereas what’s probably being adverted to by the Court is the goal of complete deterrence. The goal of complete deterrence signals that the conduct is prohibited whereas the goal of cost-internalization suggests that the defendant’s conduct is “priced.” Because cost-internalization refers to a different kind of deterrence (optimal) than the one (of complete deterrence) probably subsumed under the Court’s pronouncements in the constitutional analysis, Colby’s conclusion is highly plausible as a matter of theory and logic; but for the reasons I mentioned in the text, I doubt this conclusion is what the Court meant in Philip Morris.


Posted by Administrators on July 11, 2008 at 08:49 AM in Article Spotlight, Criminal Law, Current Affairs, Dan Markel, Retributive Damages, Torts | Permalink | Comments (1) | TrackBack

The Legacies of U.S. News's Robert Morse, AALS's Susan Prager, and Us

Can we use the annual U.S. News survey of law professors to create a race to the top in legal education? In prior posts, I've explained why we should do it -- now I want to talk about who can do it and how.

At the 2007 AALS workshop on rankings, one of the breakout sessions was entitled: "if you can't join 'em, beat 'em," referring to the creation of rival rankings systems to U.S. News. But not only can we join U.S. News, we already have. U.S. News sends surveys each year to four professors at each of the 184 ABA-approved schools (deans, associate dean for academic affairs, chair of hiring committee, most recently tenured professor). Last year's response rate was 70%; by my fuzzy math, that's more than 500 law professors a year filling out these surveys. How are they doing it? By what criteria?

We don't know, but we do know that in the aggregate, all we are doing is spitting back the previous year's rankings. We all know it's time for a change, and here's who can help make the race to the top in legal education happen.

U.S. News's Robert Morse: To the methodology czar, all you have to do is add one word -- "educational" -- to clarify that when you are asking law professors (and practitioners, for that matter) to assess the quality of each school's program on a scale of 1 to 5, that you are referring to the educational program. Please also remind us that you changed the call of the survey question; I think you used to ask about a school's "reputation," but no more. Now you actually want us to assess the quality of each school's "program." We could use your help in creating this race to the top on education that your ranking system makes possible.

AALS's Susan Westerberg Prager: A few months ago, former UCLA Law Dean Susan Westerberg Prager was named the new executive director of the American Association of Law Schools (AALS). You are no doubt in the process of charting a course for your tenure there, and you can use this as an opportunity to define your legacy. As I understand it, the AALS's basic position since U.S. News started has been to fight to destroy the rankings. That may well have been the best strategy in 1990; it's not now. Rankings are here to stay, and U.S. News has no challenger in sight.

You can help take back the rankings by identifying an institution or firm that might be able to provide some useful information to survey respondents who are far too busy to fill out the survey responsibly, but are trying to do the right thing -- think of what we need as a "Voters' Guide to the US News Survey," or as Nancy Rapoport put it, a Law Schools Rated Almanac.

To start, here's a modest suggestion: Dean Prager, you can appoint a new AALS committee on rankings, which might have as part of its charge coming up with "best practices" for law professors filling out the annual U.S. News survey. If I were on the AALS rankings committee, I'd be inclined to recommend a few "best practices":

(1) Rate schools based on the degree to which it "adds value to the personal and professional lives of its current and former students." Much of this, then, should be an assessment of relative educational quality, but it also should include some sense of help in getting jobs, and the strength of the alumni network.

(2) Rate schools relative to one another in the relevant market in which they compete for students, and in which employers choose whom to hire. It does no good to compare Harvard to Baylor, or give Harvard, Yale and Stanford all a "5." You must differentiate among schools in the relevant market.

(3) When you are filling out the survey, remember your audience -- students trying to choose among schools to attend, and employers choosing from which schools to hire -- and try to give them some useful information. All things equal, Baylor or Texas Tech? Stanford or Yale? William and Mary or Washington and Lee?

Law Professors: We complain about U.S. News, but we essentially control the rankings -- 25% is our survey, the biggest piece by far. Right now, we're throwing a good opportunity away. We talk about alternative rankings, and multiple rankings are good. But we have a ranking system that everyone uses, and we're already participating. Let's take advantage.

I don't mean to blame past U.S. News voters -- no one has the time to realistically assess the quality of each school. It's a collective action problem, Prisoner's Dilemma, really-serious-game of-Twister issue, whatever. The point is: some institution or group of people needs to do a "Voters' Guide to the U.S. News Survey: Adding Value for Students" so that busy law professors and deans who want to fill out the survey in a responsible way can do so.

By failing to do anything with our 25% of the rankings except replicate the previous year's rankings, we are ensuring the competition takes place on buying LSAT scores and other stupid law-school tricks. Without real competition based on quality, changes like those of counting part-time students' LSAT scores, or the ABA changing how it asks for job placement numbers, are magnified. With a real competition in quality, such changes become much less important.

We've got some work to do, and the next survey is just a few months away. Will you help? ([email protected]) I'll commit a bit of time on this if others are interested, but I can't and won't do it alone. People can help in different ways -- to make this happen, for example, it will help to have support from prominent scholars and former deans who say this is a good idea. I'm guessing there are only so many crazy junior law professors at non-elite (though terrific) schools willing to get involved, and it's not clear that anyone will follow.

More next week about how one might construct a "Voters' Guide to the U.S. News Survey" based on a relative, within-market assessment of each school's capacity to add value for students. Have a good weekend.

Posted by Jason Solomon on July 11, 2008 at 08:23 AM in Life of Law Schools | Permalink | Comments (8) | TrackBack

Selling Partners on the Job Market

A query from a job candidate reader:

When you go on the market, what is the best way to raise the issue of a partner who'll need to find a university-related job outside of the law school?  Suppose the partner is a sociologist, an investment analyst, or a radiologist. What is the best way to ask whether the law school can help with finding a spot in the sociology department, the university investments office, or the affiliated hospital?

The only advice we could call to mind was on timing: "Don't bring this up until after you have an offer."  Is that advice right?  Doesn't the school feel sandbagged if you say, only after receiving an offer, "Great news!  I love your school and the town it's in.  But I have hitherto neglected to mention that my partner is a philosopher, and unless he can get a position in your philosophy department there is no way I can accept your offer.  He'll contact the department right away, but can you put in a word on his behalf please"?

Another wrinkle involves contacting schools independent of the FAR distribution.  With the partner-needs-a-job issue out there, is there any good way to contact schools that you're interested in but that are outside of your current geographical area?  Consider this example: You grew up in the South and would love to move back there for good. However, your CV screams northeast – college in Ithaca, law school in Boston, clerkship in New Haven, and a now working as an AUSA in New York City.  For all anyone knows from reading your CV, you've never been south of Battery Park.  You are not limiting your search geographically because it is possible for you to move anywhere so long as your partner can find a job there.

You want to notify schools in the South know that you are really excited about the prospect of teaching there and have roots in that region.  At the same time, you know that at some of the Southern schools you're interested in the only way you can take an offer is if the university investments office hires your stock analyst partner (or Econ department hires your economist partner, hospital hires your surgeon partner, etc.).  Is it improper or misleading to send a letter to schools in the region explaining your interest?  When and how do you bring up the importance of a position for the partner, if you ever bring it up?

My instinct here is that many schools will prejudge your geographical preferences through your resume (though the best schools -- and some but not all mediocre schools in big cities -- will assume that you will be willing to move for them), so it can help to explain to Southern schools (in the example) that you are into the idea of coming south. 

I suppose I do think that it is premature to try to negotiate for a partner pre-offer -- and it may even hurt your chances of getting an offer in the first place.  But if the sociology dept or investment shop is public about a search that your partner is a good match for, then it might be worth making your move pre-offer.  For a variety of reasons, this sort of strategy can actually improve both of your chances, I'd guess.  But fishing for a sociology appointment for your partner when the sociology dept isn't independently conducting a search is likely to get you nowhere fast -- and might hurt your chances.

Just my two cents, which I would revise accordingly if someone asked me a non-hypothetical question.  For example, some schools affirmatively like doing these things and see it as a good investment because they can then keep you longer.  Indeed, some smaller schools try to create community in just this way and wouldn't be put off at all by the early request to have your partner get in touch with job prospects.  So my comments are to be taken as "on average" ones, with an admitted bias for larger top-50ish schools.

Posted by Ethan Leib on July 11, 2008 at 12:11 AM in Life of Law Schools | Permalink | Comments (4) | TrackBack

Thursday, July 10, 2008

Where's the "Zazz?"

I enjoyed Dave's post immensely, even if I'm not sure I've ever heard the word "zazz" before.  I would note that Dave doesn't distinguish too much between legal writing that has operative force in the real world, such as a court's order, and legal advocacy, such as a brief, and legal scholarship.  He notes the distinction, but I would make more of it.  There are reasonable limits to the degree to which writing in category one should engage in too much free-wheeling humor, particularly humor directed at the parties; although, as he notes, judges like Posner and Kozinski, who are already skilled writers, manage to add a good deal of liveliness to their writing without generally crossing the line.  Those judges show that you can write perfectly seriously without writing pompously -- that there's a difference between having real substance and putting on a show of having gravitas.

But Dave's argument that good humor has to be "not terribly serious," while "law is, at its core, a pretty serious endeavor," strikes me as incorrect on both sides of the equation.  While there is plenty of good light and absurd humor, it strikes me that great humor (and, in fairness, maybe there's a difference between good humor and great humor) should be very serious indeed, in the sense that it should strike at the heart of our own worst and weakest moments and those of others, and flirt with some very serious lines -- not for the sake of being "transgressive," and certainly not because doing so is conducive to social change, or any such rot, but because that's where the best humor lies. 

Contrariwise, I am not sure I agree with the proposition that law in general, at least if you're talking about academic legal writing, is an especially serious endeavor.  Is it, really?  Even if it were, that has nothing do do with what kind of wit you can bring to the enterprise.  It's possible to take an enterprise perfectly seriously, invest all your heart and all your intellectual rigor in it, and still wear your work, and your sense of self, lightly.  Indeed, if you love your work and take joy in it, I should think it would often be shot through with a sense of gentleness, grace, and bemusement -- not least self-bemusement. 



Of course, that doesn't excuse sloppy, boring, or out-of-touch pop culture references or bad jokes; maybe it's thus safer to be "weighty" than light. But I tend to think of the absence of genuine lightness and humor in legal academic writing as one more symptom of the legal academy's endless crisis of authority (maybe the human condition's endless crisis of authority; I'm not sure, but I'll start with a narrower sample just to be safe). Writing with an intentional air of gravity isn't that different from using unnecessary big words in a manuscript, or making the manuscript look all fancy and law review-ish, or making extravagant claims about the novelty of your work, or using fancy letterhead, or acting as if you know more than you do, or insisting on being called "Doctor" even though you're a mere academic (although I trust that no law professors indulge in that particular petty sin). It's just one more means of asserting, claiming, or pretending to authority in an environment in which the criteria for substantive evaluation or so contested, and the judges of those criteria often so unqualified, that one may be better off, and get further, by looking "authoritative" than by merely making good arguments. That's true both in the sense that you may get more validation from others by acting "serious," and in the sense that you may feel better about yourself if you can convince yourself that you are a "serious" person engaged in "serious" work.

Posted by Paul Horwitz on July 10, 2008 at 03:21 PM in Deliberation and voices | Permalink | Comments (4) | TrackBack

Davis Through a Religious Liberty Lens

Since the Supreme Court last month struck down the so-called “millionaire’s amendment” to the Bipartisan Campaign Reform Act, a provision that had loosened campaign finance restrictions on opponents of self-financing candidates, debates have been proliferating over just how much the Davis v. FEC case will affect the election law landscape. I haven't yet seen anything though that looks at Davis through the lens of the religion clauses, in the way that Pam Karlan's fascinating new piece, "Taking Politics Religiously," 83 Indiana L.J. 1-20 (2008), suggests could importantly illuminate our understanding of the law of democracy.

As a thought experiment, imagine the regulatory scheme at issue in Davis transposed into an Establishment Clause case involving vouchers. State X considers a law creating a voucher program through which each student can spend $2,300 at the school of her choice. Any school participating in the program has to agree to derive all of its current revenue from the vouchers rather than from other sources. In legislative hearings, a number of individuals express concern that, because Church Y is the only one that has already set up educational institutions and is well financed in the region, students would only be able to opt out of the public school system by attending Church Y's schools and the result would be a de facto, if not de jure, establishment of religion. Would it then be permissible, under the Establishment Clause, for the state to allow new competitor schools to receive private funding above and beyond their voucher receipts until they, like the pre-existing religious schools, had enough money to ensure their continued existence? 

Reasoning from Davis, the answer would be “no.” Now, envision Davis translated into the language of the Free Exercise Clause. This effort, I believe, points up the disparity between the Davis majority’s construction of the individual right at issue in that case and its usual approach to rights in other contexts. Imagine that, after the U.S. Supreme Court’s decision in Employment Division v. Smith, the Supreme Court of Oregon, based upon state constitutional protections for religious liberty, decided to judicially grant Native Americans an exemption for peyote use from generally applicable drug laws. In the aftermath of this decision, other religious institutions in the vicinity that had ceased drug-related activities central to their religious beliefs because of their illegality lobbied the state legislature for an exemption from state laws regulating such substances. If the state did indeed create such statutory exemptions, could we envision the Native American Church succeeding in a free exercise-based claim that permitting these other groups to engage in religion-related drug use diluted the symbolic meaning of their own religious practices and thereby generated a constitutionally impermissible burden?

It is difficult, in the free exercise area, to contemplate the Court treating an exemption granted to one individual’s or group’s religious practice as in and of itself imposing a burden on others’ free exercise rights. It is, however, precisely this kind of competitive and zero-sum conception of an individual right that Justice Alito adopted in Davis when he explained that the “millionaire’s amendment” imposed a “potentially significant” and “unconstitutional” burden on the self-financing candidate’s “First Amendment right to use personal funds for campaign speech” (Slip. Op. 12, 14). Given this discrepancy, it will be interesting to see how far beyond the campaign finance arena the Court will be willing to extend Davis’s understanding of a right.

Posted by Bernie Meyler on July 10, 2008 at 02:44 PM in Constitutional thoughts | Permalink | Comments (1) | TrackBack

Taking Law Lightly

Howard’s very interesting post from a couple days ago spurred me to think more about the style of legal writing more generally. I suspect I’m not alone in thinking that most legal writing, however smart and insightful it might be is … well, rather dry. That’s not to say the subject matter is necessarily dull, and if you’re interested in what you’re reading, it may engage you regardless of tone and style. On the other hand, if you’re reading a paper or an opinion because you have to, it can seem like a real chore, and I think this is in large part because the standard tone of legal writing tends to be ruthlessly expository—or less charitably, as arid as the Sahara. (And this is certainly something of which I have been guilty, as I often realize when going back over my own work.)

So does this mean humor is the way to vivify what can be a moribund style of writing, in opinions, or briefs, or articles? For a couple of reasons, I am skeptical. For one thing, judges may be able to get away with it because they’re often the final word on any given subject, but lawyers writing briefs and academics writing papers can’t take that chance, because there’s every chance that the judge or colleague whose evaluation is crucial to their success will find the humor inappropriate, and take a dim view of the work. (Especially true given the risk-averse breed that law folks are.)

There’s another reason it may not be a good idea, as some commenters in Howard’s thread gestured at. There’s something invariably demeaning about having an authority crack wise while also rejecting or challenging your position. So even if that overly long complaint really is frivolous, to set it aside with a joke means not only that you’ve lost, but that you haven’t even merited being taken as seriously as other litigants. I experienced a variation on this during this past year, when I found that students liked my sense of humor okay when I was making fun of the litigants in a case or, better, of myself (easy targets are always appealing). By contrast, any wisecrack made when I was answering a student’s question tended to meet with a chilly reception. Even though I never made a joke at a particular student’s expense, the idea that I was being even a little facetious gave some students the (mis)impression that I wasn’t taking their inquiry seriously. So perhaps there are contexts in which humor, however humane and well-meaning, just doesn’t work (e.g., “Your death penalty appeal merits only rejection/Go get in line for your lethal injection.”).

But the final, and in my mind the most compelling, reason to avoid humor in legal settings is that it’s usually just awful. One familiar form of legal humor isn’t really humor at all, but more a form of self-identification. Putting a Death Cab lyric (or Star Trek reference or Lebowski quote) into the footnote of your latest article on Hamdan is usually a stretch, and is less funny than merely a way to signal to your audience that you’re a hipster (or Trekkie, or Lebowski fan). As for the rest—the opinions written as Dr. Seuss rhymes or what have you—they generally seem to me more corny than actually funny. To use an Office analogy, they’re more in the vein of Michael Scott than Jim Halpert. It may be because in most legal writing there’s no room for the kind of twisted ironic sensibility that makes humor work. Really good humor has to be surprising and weird and not terribly serious, while law is, at its core, a pretty serious endeavor. The reasoning is often challenging, and a lot hangs in the balance (for lawyers and judges, though perhaps not for academics), so briefs and opinions and articles have to be crystal-clear first and foremost, and the best way to do that is to be expository and nothing more. Plus, the plain truth is that humor is not the gift of most law folks, just as most poets would likely not pass the bar and most comedians would struggle to write a passable villanelle.

And yet this is all unhelpful in thinking about the problem of legal writing’s lack of zazz. (Or am I wrong in thinking this? Is there zazz there that I just don’t see? Perhaps others are sufficiently entranced by their love for law that the love itself is zazz enough for them.) To be fair, some writers manage to persuade but do so with grace and style. I invariably find Carol Rose’s writing a delight to read, and Kozinski’s opinions are undoubtedly full of life (regardless of whether one agrees with him). What these authors share seems to be a willingness to deviate a bit from the traditional strictures of legal writing (admittedly a scary prospect for a pre-tenure academic, or a lawyer composing a brief for a yet-to-be-named panel of judges) as well as a willingness to infuse their work with something of their personal style (rather than blindly imitating the expository style that sucks most legal writers in like a tractor beam). This approach takes some courage and extra effort, but then again, as the man says, no guts, no glory.

Posted by Dave_Fagundes on July 10, 2008 at 11:50 AM in Odd World | Permalink | Comments (5) | TrackBack

The Rise and Fall (and Rise Again?) of a Law Professor

Last fall I stood dumbfounded in front of my law school mailbox, a copy of the Supreme Court Economic Review in my hands.  The first item in the table of contents of this illustrious, Chicago-based annual law journal was a note from the editors retracting in full a previously published article.  The offense: substantial portions of the earlier article were lifted from another article without attribution.  The plagiarizing author was George Mason University School of Law’s Michael O’Neill, who apparently included in his article passages that were nearly identical to an earlier article published by another law professor in the Virginia Law Review. 

I had never before seen a complete retraction of an article in a law review, so I assumed that the plagiarizing was extensive.  When I looked up Michael O’Neill’s George Mason web page, the significance of this misconduct was implied by his bio.  O’Neill, it said, was on leave from the law school “to serve as Chief Counsel for the United States Senate Judiciary Committee.”  What?  A plagiarist serving as chief counsel?!?  Couldn’t be, I thought.  The Senate Judiciary Committee would never stand for such dishonest behavior.  Well, I was right and I was wrong.  Turns out O’Neill had long ago quit the Committee.  George Mason just didn’t know what to say about a professor on permanent leave – he gave up his tenure when the plagiarism charges arose – and maybe it just sounded good to list such an illustrious position.

One might be forgiven for thinking that such substantial plagiarism to earn a complete retraction – rather than, say, a correction for an omitted citation or two – would be a significant hurdle to O’Neill. But guess what? O’Neill has now been nominated by President Bush to become a lifetime tenured federal district court judge!

Now I’m always happy to hear a law professor elevated to the bench. And Michael O'Neill may be a great guy. But this is remarkable. Michael O’Neill has plainly violated basic rules of legal ethics. ABA Model Rule 8.4 quite clearly states that “it is professional misconduct” to “engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” Those four words capture O’Neill’s conduct in this case perfectly. Plagiarism is dishonest, fraudulent, deceitful, and misrepresentative. And, it turns out, O’Neill has done it before; although O’Neill claims his copying was am inadvertent mistake, several other instances of his plagiarism have since been uncovered.  Even worse, President Bush was made aware of this pattern of dishonesty before nominating him.

Isn’t it remarkable that the standards for a judicial appointment are less demanding than the standards to maintain tenure at a law school?

Posted by Adam Winkler on July 10, 2008 at 11:05 AM in Current Affairs | Permalink | Comments (9) | TrackBack

I Kissed a Girl

According to NPR, the catchy pop song "I Kissed a Girl," sung by Katy Perry, is the current number one song in America. You know, the one with the refrain:

I kissed a girl and I liked it
The taste of her cherry chapstick
I kissed a girl just to try it
I hope my boyfriend don't mind it

Anyway, for the record, I'm not turned on at all by the prospect of two girls making out--it's not my scene--but I do love the fact that this is a big hit among teens, those voters-in-waiting. There is a reason for the generation gap in attitudes about same-sex marriage and LGBT rights: culture. Which is all a way of saying that "I Kissed a Girl" has gotten me thinking, yet again, about the intersection between law, culture, and norms. Can the law ever really change norms in a positive way? And if we were to compare their impact, can we really say that Lawrence v. Texas (outlawing the criminalization of same-sex sex), or Goodridge v. Dept of Public Health or In re Marriage Cases (Lockyer) (finding a constitutional right to same-sex marriage in Massachusetts and California) have had more of an impact on the everyday lives of LGBT folks (their interaction with employers, co-workers, relatives, neighbors, etc.) than Will & Grace, Ellen, Buffy the Vampire Slayer, and "I Kissed a Girl"?

Posted by Bennett Capers on July 10, 2008 at 10:16 AM in Culture | Permalink | Comments (7) | TrackBack

Do We Need to Further Incentivize Scholarship, not Education?

In prior posts, I've been trying to figure out how to fill out the U.S. News survey of academics. I'm inclined to think we should be assessing the quality of a school's education, or more broadly, the "value added" for students training to practice law.

My impression, though, is that this is a minority view in the legal academy. The dominant view is that we should rank schools based on scholarship, using, say, Brian Leiter's rankings. Leiter's argument seems to be that we should be evaluating scholarly and educational excellence, and the former serves as a proxy for the latter. So by using faculty citations, we get a good, if necessarily imperfect, sense of what we're after. I disagree.

I've found one other argument for using faculty scholarship, from Russell Korobkin at UCLA, who was tapped to give the keynote address at the Indiana symposium on rankings. Korobkin had written a 1998 essay on the topic, and when Leiter did his first comprehensive study of the "academic distinction of law faculties" in the late 1990s, he said the study was undertaken in a "Korobkinesque spirit." (Leiter, Measuring the Academic Distinction of Law Faculties, 29 J. of Legal Studies 451, 454 (2000))

Korobkin's argument is basically this: rankings serves a "coordination function" between students and employers. Employers look to the rankings to figure out how to find the best future lawyers; prospective students look to the rankings to see where the most desirable employers will hire from. So it actually doesn't matter what the rankings are based on.

We could, for example, fill out the U.S. news survey according to The Sporting News's preseason college football poll -- and, hey, look at that, Georgia is #1! So the best students would start going to Georgia, the most desirable employers would focus their hiring there, and so on (not clear how much we'd increase our Supreme Court clerkships, as we've had four in the last five years, but anyway).

For Korobkin, the mere existence of rankings serves its function; its content is irrelevant to achieving the "coordination function." This seems like an important insight, and I have no quarrel with it.

It's the next step that is the weak link. Korobkin argues that since we can do basically whatever we want with rankings, we might as well use it to provide incentives to produce a "public good" that might be underproduced otherwise. And that public good is... legal scholarship.

He puts it this way: "Rankings can be used optimally, from a social standpoint, by directing the energy that will inevitably go into competition for high rankings for the creation of a socially desirable benefit that would otherwise go unproduced. Scholarship fits this description and, as such, this essay proposes, should be promoted explicitly by rankings systems."

So we need to encourage schools and their faculty to focus more on scholarship. Really?

Before I consider this claim more, let me make my own priors, commitments, and whatever elses clear. I love doing scholarship. Research and writing have been the focus of my professional life since I began my career more than 15 years ago, and it would take a lot to change that. I love engaging with other people's work, and when others engage with mine. I love SSRN downloads (to experience the rush as it floats effortlessly into your briefcase, see here). I abandon my wife and kids on nights and weekends all the time to produce scholarship, just ask them. I'll pit my stacks of unread law review articles against yours any day of the week; bring it on.

Moreover, I agree that faculties should be ranked by scholarly excellence to provide incentives for broadening and deepening our understanding of law, and Brian Leiter has performed a huge public service by doing this.

But my question is: what should we be doing with the U.S. News survey that exists (no one seriously disputes) for prospective students and employers? And my answer, contra Korobkin, is: create a race to the top on education, not scholarship, number of books in the library, or anything else.

Korobkin considers the possibility of ranking by the quality of education, and rejects it. His argument is: the education at one law school versus another is indistinguishable. And even if it was distinguishable in theory, we in the legal academy are not capable of distinguishing as a practical matter. Therefore, a race to the top would produce little marginal social benefit.

I'm no expert, but I think the research is at odds with both parts of this claim. Though I agree that at the moment no one has done the necessary work to aggregate the data and make comparisons among schools, thereby making it possible for busy deans and faculty to rank on educational quality, that doesn't mean it can't be done. It can.

Korobkin, though, thinks we should provide additional incentives for scholarship. But there is already a pretty strong incentive for faculty at most schools to focus as much of their time on scholarship, and as little as possible on education: the labor market. Which is all about scholarship -- that's how law professors get lateral mobility, raises, the good life.

Perhaps Korobkin means that without such incentives, schools will focus too much on hiring promising educators, as opposed to promising scholars. My sense is that we're in no real danger of that any time soon -- if that happens, let's talk in 10 or 20 years and revisit. But maybe I'm wrong -- what do you think of Korobkin's argument?

If you agree with me that the leading arguments out there -- Korobkin's and Leiter's -- are less than compelling for doing the U.S. News survey based on faculty scholarship, then we're back to trying to assess the quality of the educational "program" by school -- which I'll start to tackle in posts next week.

Posted by Jason Solomon on July 10, 2008 at 08:18 AM in Life of Law Schools | Permalink | Comments (3) | TrackBack

Wednesday, July 09, 2008

The New York At-Any-Times

The New York At-Any-Times

Continuing my Times blogging, there was a story the other day that reminded me of a game a few friends and I played in college. The Times has never had the type of facility with snappy headlines that encapsulate a story like good tabloids (For a list of the best ever tabloid headlines, click here, with the New York Post’s “Headless Body in Topless Bar,” and the Daily News’s “Ford to City: Drop Dead” vying for the title of all-time best).

At any rate, we would look for headlines in the Times that could have appeared at any point in recent history. The idea is that headline writers get lazy and produce headlines that strive for the universal and portentous but end up lacking any information at all. Headlines like “Israelis, Palestinians Dispute Territory,” “Environmentalists, Developer At Odds Over New Building,” or “Parents Appalled by New Teen Dance Craze" would all count. An example of a real one appeared in 2006, "African Children Often Lack Available AIDS Treatment" .

Anyway, the one from the other day was a true beaut: "Ancient Tablet Inspires Debate on Messiah and Resurrection" However, I don't think this one can beat the all-time best, which was also about a debate between religious scholars and appeared last September.

"Irreconcilable Differences in Bible's Interpretations"

The best thing about this one is that it not only could have appeared in any issue in the history of the New York Times but also would have been good in publications like the Holy Roman Empire Post-Dispatch of the early 1600s or the Toledo Talmudic Scholarship Review of 1304.

Can anyone beat that one? Or have any suggestions for ones that are just pretty good?

Posted by David Schleicher on July 9, 2008 at 10:42 PM in Current Affairs | Permalink | Comments (1) | TrackBack

Why Doesn't Bloomberg Have a Successor

There is a fascinating story in the Times today about the efforts of New York City business leaders to find someone to run on roughly the same platform as incumbent Mayor Michael Bloomberg, who is barred by term limits for running for a third term These leaders – including superlawyer Marty Lipton, financier Steven Rattner and developer Jerry Speyer – are having difficulty finding a viable candidate who espouses the same set of policies as Bloomberg.

This is amazing. Bloomberg was overwhelming re-elected three years ago and continues to have an astounding level of popularity eight years into his Mayoralty, despite widespread worries of a serious economic downturn in a city that is extremely dependent on Wall Street. And they can’t find anyone with similar credentials to run on the same platform.

What gives?

These titans are running into the basic problem of urban politics, a lack of fit between national political parties and urban affairs. My paper, “Why is There No Partisan Competition in City Council Elections? The Role of Election Law” explores this very question. You can download it here.

First, some ground needs to be cleared. As noted in the Times article, a number of city leaders are worried that Bloomberg’s policies – although popular – won’t be followed in a new administration. Normally, we have a solution for this problem; if a set of policies is popular, voters can just vote for a candidate from the same party as the incumbent if the incumbent isn’t running. The link isn’t necessarily perfect, but it’s quite good. If you liked Bill Clinton, voting for Al Gore was probably a good idea, just as if you like George Bush, it’s quite likely that you’ll get a lot of the same things from John McCain (all protestation to the contrary notwithstanding). This is the genius of party governance – you don’t need to know a lot to vote, only which party you favor. This is a good thing, as voters, well, don’t know a lot (some, like my colleague Ilya Somin, dispute that people even have enough relevant knowledge about parties to vote retrospectively). But to the extent voters know anything, they are able to keep a running tally of which party they like and because the party name is on the ballot, they can use this information to guide their voting decisions. As a result, most voting is partisan voting.

This effect is most strongly felt “down-ballot.” For reasons that I explore in the paper but that are reasonably well-settled, the effect of party on voting is stronger as elections become less prominent. Again, this makes a lot of sense – you might have information other than party about a candidate for
Governor that effects your decision, but unless you are a total wonk, you are not going to have the same type of information about a candidate for Public Advocate or County Assessor. To the extent that preferences about the President track preferences about policy at another level of government, this isn’t a problem.

However, in urban politics, it is unlikely that preferences about national politics closely track preferences about urban policies. The group of people who comprise the Democratic Party at the national level have a relatively closely-linked set of preferences about national policies – there are some diivides, but by finding out that a candidate (or just a person) is a Democrat, you are likely to be able to guess their beliefs about a whole host of issues (abortion, the war in Iraq, progressive income taxation etc.). On local issues, this isn’t the case. There is a bunch of data in my paper I use to show this, but just ask yourself the following question. On issues like Mayoral control of the school system, broken windows policing or using public funding for sports stadia, can you name the Democratic or Republican position? What about on phonics v. whole language techniques for teaching reading, permitting construction of towers in residential neighborhoods, or congestion pricing? Beliefs about local issues are largely, if not entirely, orthogonal to preferences about national ones.

Because parties provide voters with information about candidates, and because this information isn't very good at the local level, voters are left adrift. The bulk of the paper is an effort to explain why local parties are not able to strategically change their public perception for the purposes of city council campaigns. I develop a model that tries to explain the problem, but the basic logic is something like the following. Due to the low information available in local elections, voters will use the information provided on the ballot so long as it is not entirely useless (and, although finding out someone is a Democrat or a Republican doesn't tell you much about their preferences about local issues, it doesn't tell you absolutely zero either, particularly because some issues overlap between local and national politics). Individual candidates have trouble developing brand identities due to the lack of information available in local elections. The party that is in the minority in national elections -- which we would ordinarily expect to come up a new platform in order to compete for votes -- cannot develop an independent local political identity because its membership didn’t sign on to do so. People become Democrats or Republicans on the basis of national, not local issues, and hence do not necessarily share beliefs about local issues, resulting in standard bearers that are inconsistent on local issues. Election laws governing party membership, ballot access, primary elections and campaign financing all make it difficult for parties to change their local perception and for new local-only party entrants. The local majority party is not forced to develop a coherent agenda because it faces no electoral pressure -- it just wins all the time -- and even if it did, it would face the same problems doing so as the minority party. The overall result is non-programatic parties (i.e. parties without consistent platforms on local issues) and one-party dominance, at least as long as one party dominates national elections in the city. (Where national elections are close, so are local elections, as is the case in Indianapolis). The lack of competition is really startling. For instance, despite Bloomberg’s popularity (and Giuliani’s before him), Republicans have only 3 out of 51 seats on the New York City Council (and are happy they’ve been able to keep that many!) Further, non-partisan elections (and primary elections in cities that do have partisan elections) are even less competitive, and for similar reasons -- in partisan elections, there is at least some information about candidates on the ballot, whereas in non-partisan election and primary elections there is none whatsoever. Ultimately, local elections tell us a great deal about which party locals favor for President, but little about anything else. (There are exceptions to this, like very high profile Mayoral races or situations where someone can spend enough money to overcome informational problems, both of which permitted Bloomberg to succeed.)

Regardless of whether I am right about why, this story shows that local political parties do not adapt to adopt even the most popular set of local policy preferences. Leaders and voters who support Bloomberg can’t count on either of the local major political parties to espouse a Bloombergian set of policy positions. The result is that the preferences of locals about local issues – the popular Bloomberg policies – are not likely to be continued after 2009.

Posted by David Schleicher on July 9, 2008 at 09:47 PM | Permalink | Comments (0) | TrackBack

The anemic spending power of the States

As the resident federalism nut on this blog, I feel obliged to offer a federalism scorecard for the Roberts Court's '07-'08 term. My tentative assessment is that the Court has gutted the states' spending powers Exhibit A for this thesis is a comparison between the Court's opinion in Chamber of Commerce v. Brown (about which I posted an anticipatory comment before the Court handed down the opinion).

In a 7-2 decision, the Court held that Machinist preemption bars California from requiring that contractors receiving money from the state not spend that money on anti-union activities. In short, the state may not look for the union label: When it purchases goods or services, it has to turn a blind eye to what it might regard as egregiously unjust anti-union behavior by the contractor.

Brown is an astonishingly nationalistic opinion in the three following senses:

(1) Brown gives states less power than the most ordinary consumer who remains free to boycott anti-union businesses. One can, therefore, make a respectable argument that Brown does not qualify as a "generally applicable law" Printz and thereby arguably encroaches on constitutionally protected state autonomy by commandeering the states' budget to serve some federal end of insuring that employers' anti-union activity remains unregulated.

(2) Brown rejects arguments for a broad state spending power that the Court has accepted in adopting a broad federal spending power. California argued that it was not "regulating" employers but merely placing conditions on state money. The Court did not buy this argument: The conditions, according to the Court, were tantamount to preempted regulation. But note that the Court routinely accepts precisely the same argument when the feds argue that their conditions on federal grants do not exceed Congress' enumerated powers, because those conditions are really not regulations at all but merely a non-coercive quid pro quo in return for federal money. The Court accepts the federal version of this argument even when the conditions bear only the most attenuated relationship to the expenditure of federal money -- indeed, even when the conditions primarily affect how the states spend their own revenue, as the Court held in Sabri v. United States, 541 U.S. 600 (2004).

(3) The most astonishing aspect of Brown is that the underlying federal statutes -- the NLRA and Taft-Hartley Act -- say nothing whatsoever about preemption. Machinist preemption is purely a piece of purely judge-made common law. The Court was, therefore, at liberty to think a bit about the constitutional and policy implications of the gaping hole that it was carving in state powers. Instead, the Court mechanically applied some old precedents without mentioning that the importance of giving states control over their own fiscs.

If it were not for Kentucky Dep't of Revenue v. Davis (on which I posted earlier), I'd say that this term had been an unmitigated disaster for state spending power. Kentucky Dep't of Revenue, however, loosened dormant commerce clause limits on state spending powers. It seems that the Court is more willing to cut states slack when they compete with each other for business than when they compete with federal labor policy.

Posted by Rick Hills on July 9, 2008 at 07:58 PM | Permalink | Comments (2) | TrackBack

An American in Paris: Why I am mystified by the French Government’s attitude towards the Lisbon Treaty

As I noted in an earlier post, all of the biggest constitutional news this summer comes from abroad. Apart from the Turkish Supreme Court’s apparent coup d’etat against the AKP in the name of secular Kemalism, the constitutional fight that tops all other stories is the rejection of the Lisbon treaty by Irish voters. The Lisbon Treaty is a set of complex proposals designed to strengthen the European Union by (among other things) limiting the unanimity rule in the European Council such that individual states will no longer be able to veto proposals. The treaty would also make the charter of fundamental rights binding on member states. The Treaty must be ratified by all of the member states, but only one state – Ireland -- held a popular referendum on the Treaty’s ratification.

To any red-blooded, true-blue American, that last fact is the second-most shocking aspect of the EU’s approval process. The EU’s leadership is essentially building a federal state by accretion – but it has made no substantial effort to enlist European citizens in the project. We Yankees, of course, took special care in Article VII to provide for popular (convention) ratification of our Constitution, rejecting mere legislative approval. Even the most elitist Federalists realized in 1788 that big legal changes require big efforts to mobilize the people affected by them. Therefore, to a Yankee, the absence of any systematic effort to insure popular participation in the Lisbon approval process is simply wacky – as if one could create a nation on the sly, by dozens of incremental and invisible decisions.

But the absence of conventions, plebiscites, or other general popular mobilization, is only the second most appalling aspect of Euro-constitutionalism. The most appalling aspect is the attitude of the Sarkozy government towards the Irish’s rejection of the treaty. The Irish have been among the EU’s biggest fans. If they reject a treaty strengthening the EU, then one would think that the proponents of the treaty would think long and hard about the deficiencies in their salesmanship and, in a larger sense, the democratic legitimacy of the whole EU enterprise. Instead, Sarkozy has been demanding a re-vote and refuses to budge on the contents of the treaty. What is most appalling about Sarkozy is that he is supposed to be a populist, contrasting with the ENS-style elites who normally govern the French: he is allegedly France at its most democratic.

Of course, there are other opinion leaders in Europe who share my distaste for the arrogance of the French leadership. But these opinions seem curiously absent from the Eurocracy. (For a survey of reactions, see here).

Sarkozy’s attitude encapsulates everything that I find repulsive about European constitutionalism – dirigiste arrogance towards outlying provinces, elitist indifference to popular opinion, and sheer bureaucratic incompetence at speaking intelligibly to constituents. If this attitude runs deeper in international constitutionalism, then I’m with Scalia in trying to purge it from American law and quarantine it in some Eurocratic watering hole in Davos or Bellagio.

Posted by Rick Hills on July 9, 2008 at 10:33 AM in Constitutional thoughts | Permalink | Comments (5) | TrackBack

What Would Leiter Do?

I've been considering here and here how we ought to fill out the US news rankings survey that asks us to rate the "quality" of the "program" of each school. It seems like there are three basic possibilities: rate the school's scholarship program, educational program, or some combination. And given that the purpose of the rankings is to coordinate between students and employers, education seems like the answer. But maybe I'm wrong, so I thought I'd look to perhaps our leading critic of U.S. News and ask: what would Leiter do?

The answer might seem to be obvious -- Professor Leiter ranks schools by faculty scholarship, therefore we should use his rankings for 100% of our rankings when we fill out the survey -- but it's not clear this is his view.

In his recent "open letter" to Bob Morse, U.S. News's methodology czar, who is to be commended for opening a dialogue on such issues on his blog, Leiter says:

"I suggest you switch to an on-line survey system with academics (your response rate from academics is already quite high, and I imagine that for an on-line survey it will be even higher), in which evaluators are presented with concrete information about each school, rather than simply a school name: e.g., a current faculty roster, numerical credentials of the student body, a list of distinguished alumni (let the school provide a list, limited to 50 names, say), and so on. Ask academics to evaluate the scholarly and professional excellence of the school, not simply the "reputation" they associate with a name."

OK, first, unless what U.S. News currently has on its website is wrong, they don't ask faculty to assess the "reputation" of the schools; they ask faculty to assess the quality of the "program." So that piece of Leiter's criticism appears to be off-base -- and if faculty are treating it as a "reputation" survey, that's our fault, not U.S. News's.

Leiter says academics should evaluate the "scholarly and professional excellence of the school" and use the composition of the faculty, "numerical credentials" of the student body, and an alumni list to make such an evaluation. Okay, so he wants scholarly excellence to be a part of it, and that's what the faculty roster is for -- that's no surprise, given the focus of his own rankings. Then he wants students' "numerical credentials" to be used by faculty as well -- why? Sure, stronger colleagues likely means a stronger education, but LSAT scores and GPA are already part of the U.S. News rankings -- it doesn't seem to make sense to double-count it this way. If you think LSAT scores should count more, then just say that and do it directly.

What about the list of 50 distinguished alumni? That's an interesting thought, but what is it trying to get at? It could be trying to give prospective employers and students a look at past outcomes to predict future outcomes: if there is a current University of Georgia alum, for example, serving as the General Counsel of the FBI (Valerie Caproni), then future UGA students might reach such levels. Alternatively, it could be a signal of the strength of the alumni network, something that prospective students might want to consider in assessing the value added that one school might provide versus another.

In his contribution to the Indiana symposium on rankings a few years ago, Leiter said this about how schools ought to be ranked: "rankings of academic institutions should emphasize and reward academic values: scholarly excellence, pedagogical skill, and student ability and achievement." And shortly before saying that, he indicates this about "pedagogical skill":

"I am still attracted to the old-fashioned view that those are who smarter and more learned can provide higher-quality instruction.... [T]his is not to say that the best scholars are the best teachers: that plainly is not true, since there are a variety of pedagogical skills that are unrelated to intellectual acumen. But it is to say that no set of pedagogical skills can compensate for lack of intellectual depth in one's subject-matter, and I am reasonably confident, based on experience on both sides of the podium, that this is true.... [I]f the old-fashioned view is correct, then it will affect educational outcomes. With all that in mind, I think an assessment of academic institutions ought to weigh heavily the intellectual and scholarly caliber of the faculty, not to the exclusion of other factors, but as a way of putting education at the center of any evaluation of institutions in the business of educating."

This passage, I think, helps clarify the likely answer to the question: what would Leiter do? I think he would have us fill out the survey based on the quality of the "knowledge production" program -- that is, faculty scholarship -- because it both measures scholarly excellence, and serves as a proxy for the quality of the "education" program, thereby (one assumes) providing students and prospective employers with the information they're looking for.

I disagree. The question, I think, is how to assess for students and prospective employers the quality of the educational program of a particular school versus another, or as Bill Henderson put it in a slightly different context in this fantastic post, to assess on a relative basis how much the school "adds value to the personal and professional lives of its current and former students." If we borrow Henderson's formulation, we might include more than just assessments of the education itself, but also things like assessments of a school's career services function, academic advising, and the strength of the alumni network.

And, assuming this "value added" is what we should be after in filling out the survey, either in whole (as I tend to think) or in part (imputed-to-Leiter), then I'm quite skeptical that assessments of faculty scholarship serve as a decent proxy. The principal mistake Leiter makes here, in my view, is focusing too much on, well, the individual talents of law professors. Curriculum matters to the quality of the education. Student culture matters to the quality of the education. And pedagogical skill certainly matters a lot as well.

Nonetheless, even if we are to assess pedagogical skill, faculty scholarship is a poor proxy. Interestingly, Leiter used to include "teaching quality" in his "educational quality ranking" based on the student surveys done by The Princeton Review, which includes ratings by school for "professors interesting" and "professors accessible," but he stopped using this data -- I'm not sure why.

I'll talk more next week about how we might actually assess and compare the "value added" or the quality of the educational "program" across schools, but for now: am I right about what Leiter would do? And is he right about what we should do?

Posted by Jason Solomon on July 9, 2008 at 06:34 AM in Life of Law Schools | Permalink | Comments (2) | TrackBack

Tuesday, July 08, 2008

The First Line of the FAR and Other Thoughts About the Teaching Market

Over at Co-op, Deven Desai has a good post on filling out the FAR.  Those readers going on the market should read both the post and the comments.  The discussion reminded me of some comments that I made in response to a post here at Prawfs by Orin Kerr three (gasp!) years ago.  Orin's post was about the role of specialization in law school hiring.   Orin noted that:

In my experience, specialization matters -- a lot.    Believe it or not, most law schools feel it is important to offer students a wide range of courses staffed by knowledgeable full-time professors.   Achieving that goal imposes a subject matter diversity requirement on faculties; every school tries to have a particular number of contracts professors, tax professors, international law professors, property professors, etc.  Professors come and go every year, which means that a school's subject matter needs can change on an annual basis.  Schools often look to the  entry-level market to fill these gaps.  This means that a candidate's chances of getting hired at a particular school are heavily contingent on that school's particular needs in that particular year.

The rest of his post (read the whole thing) gave some advice on how entry level candidates can market themselves in a specialization.  I had these comments in response:

(1) The "top line" on the AALS form (your top three teaching choices) is very important. The truth is that most schools are hiring to fill a specific need. If the school wants to hire, say, a property person, that school will choose to interview someone who has property in their first three choices over someone who has listed property as something they would be willing to teach if asked. My top two slots were property (what I write about) and corporations (I worked at a big firm). All of my interview schools were looking for either property or corporations. And, surprise, I now teach property AND corporations.

(2) Most schools looking to fill a specialized slot will probably be looking for someone who is truly a credible expert in the area. If you have some tangential experience in a hot area, it might not hurt to list it, but in most cases I doubt it will help a lot.

(3) Your freedom w/r/t the courses you list depends a lot on your credentials. If your resume glows in the dark, by all means list things like con law, law and econ, jurisprudence, etc. (Consistent with Orin's view, pretty much all of the people I've met at new teachers events who were hired to teach jurisprudence have PhDs). If you just have a really strong resume (like pretty much everyone on the teaching market) give some real thought to supply and demand. First year courses and core upper level are always a good bet.

(4) Look hard at your experience and think about how you can best market yourself. I've been stunned at the number of big firm associates who go on the market wanting to teach con law. How about corporations, contracts, secured transactions, sec regs, bankruptcy, UCC etc.? Sure, everyone really wants to teach con law. But this is a _really_ good job. People who really want to be law professors have a better chance of getting a job than people who only want to teach con law.

(5) Crim law/crim pro is an okay market, but not super strong. The issue here (as elsewhere) is supply and demand. There are a lot of prosecutors/crim defense lawyers hitting the market every year, and the demand is static. If you fit this profile, also think about adding evidence to your package.

In response, Orin commented that "I'm with Ben Barros -- I agree with him on all fronts."  I've been hoping to have the chance to use this out of context for the past few years.  Maybe this guest stint at Prawfs will give me the opportunity.   Orin also noted, with respect to my point (5), "if you're a crim law/ crim pro person, how about adding a cool new subject like computer crime law instead of something boring like evidence? I hear there is a casebook coming out soon, hint, hint."

The only point I'd add now is that it is a good idea to get someone who is currently a law professor (preferably one who is or has recently been on the hiring committee) to take a look at your FAR before you submit it.  There are a lot of candidates who make basic mistakes that could be corrected with a little advice.

Ben Barros

Posted by propertyprof on July 8, 2008 at 10:40 PM in Teaching Law | Permalink | Comments (4) | TrackBack

Icahn's Twelve (now with special guest star Steve Ballmer)

Carl Icahn's crusade against the Yahoo board has taken another bold step forward with his release of a letter yesterday to Yahoo shareholders in support of his slate.  In the letter, Icahn reveals that he has "spoken frequently with Steve Ballmer, CEO of Microsoft," and that "[s]everal of our conversations have lasted as long as an hour."  (Gulp.)  The upshot is that Ballmer & co. are unwilling to deal with the current Yahoo board, and thus the only way to the land of Microsoft and honey is through an Icahn victory.  Microsoft has backed this up with a press release of its own (waiting at the ready?), stating that "[w]e have concluded that we cannot reach an agreement" with the current Yahoo board but that "after the shareholder election Microsoft would be interested in discussing with a new board a major transaction with Yahoo!."

Icahn could not have planned this any better -- for Microsoft.  Part of me thinks he must have a huge hidden position in the Borg.  At every turn, his machinations have worked in Microsoft's favor:

  • Icahn only got into the mix after Yahoo had successfully killed the Microsoft offer.
  • He immediately made it clear that selling the company to Microsoft was the only viable opportunity.
  • He trumpeted that Yahoo's board had "botched" the Microsoft opportunity, and he set about undermining the board at every opportunity.
  • He proposed a full board slate with a somewhat hodge-podge collection of directors, including a man who had been humiliated when Icahn proposed him as a potential Time Warner CEO.
  • He claimed that Yahoo shares were worth $34.75 -- a number seemingly picked out of thin air.
  • In a surprising reversal, Icahn claimed that Yahoo's proposed deal with Google "might have some merit" before apparently changing his mind once again.
  • In the two months Icahn has been waging his battle, Yahoo shares have dropped from the $28 range to the $20-24 range.

And now comes the worst part -- he is buddying up to the person that he will be negotiating against should his proxy battle prove successful.

I just don't understand how Icahn can think that prostrating Yahoo before Microsoft helps Yahoo shareholders.  Here are the possibilities -- the fruits, as it were, of Icahn's laboring in the Yahoo vineyards:

  1. Icahn's proxy slate fails.  If this happens, the Yahoo board has been sufficiently bloodied that the stock will probably drop even further.  And who has done the bloodying?  Yahoo will then limp along, hoping for some change in its public perception, or it will be taken over (de facto or de jure) by Google, Microsoft, News Corp., or some other entity for 50 cents on the dollar.
  2. Icahn's proxy slate wins!  Then what happens?  Apparently, Icahn's plan is to immediately start negotiating with Microsoft.  (From his letter: "If and when elected, I strongly believe that in very short order the new board would, subject to its fiduciary duties, be presenting to shareholders either a purchase offer for the whole company or a very attractive offer to purchase 'Search' with large guarantees.")  But what will Microsoft do?  Ballmer knows that Icahn is backed into a corner -- Yahoo would have to accept whatever Microsoft offers.  Microsoft would probably try to buy the search engine on the cheap.  Will Icahn see anything close to his $34.75 per share?  As Henry Blodget put it: "[D]on't think for a minute, of course, that even if Microsoft is persuaded to buy Yahoo outright, that it will do it for $33. Microsoft refused to speculate about price, but at this point, there's no reason in the world they should pay more than $25-$27."

Common sense compels me to acknowledge that, hey, he is Carl Icahn and I'm a professor.  But for the life of me, I can't understand why Icahn continues to get good press.  One recent article explains "Why Yahoos [sic] shouldn't underestimate Icahn".  I would agree, if the meaning is underestimate the damage Icahn can do to the company.

One final note.  Oddly enough, Icahn's big argument for his proxy slate is that it can get a deal done with Microsoft.  But -- according to Icahn -- this is the reason why Microsoft won't deal with the Yahoo board:

Steve [!] made it abundantly clear that, due to his experiences with Yahoo! during the past several months, he cannot negotiate any transaction with the current board. His logic is simple. If and when a transaction was consummated, Microsoft would be guaranteeing a great deal of capital at closing. However, a transaction could take at least nine months and perhaps longer to obtain regulatory clearance in the U.S., Europe, and elsewhere. During that period, if the current board and management team of Yahoo! mismanage the company (and their recent track record is far from reassuring), Microsoft would be putting its money at risk and a great deal could be lost.

So here's my question for Yahoo shareholders.  Suppose Icahn's slate wins.  Are you prepared to live with the Icahn board for at least nine months?  Nine months in which Microsoft may well be looking to chip down the price as much as possible?  (You can bet Microsoft wouldn't repeat the Time Warner "no collar" mistake.) And that's assuming a deal is struck immediately.  Nine months?

Well, I guess Yahoo shareholders could look forward to this, from potential Icahn director Mark Cuban: "Is there anything more fun than sitting around, growing your hair, drinking a Bud while listening to Jethro Tull and pondering how to change the balance of power in the search world and unseat Google?"

Posted by Matt Bodie on July 8, 2008 at 05:21 PM in Corporate | Permalink | Comments (0) | TrackBack

Enforcing the Federal Rules in Rhyme

From NPR comes this story of Judge Ronald Leighton of the United States District Court for the Western District of Washington, who sua sponte dismissed (and ordered refiling of) a 465-page complaint as follows:

"Plaintiff has a great deal to say
but it seems he skipped Rule 8-a.
Hiis complaint is too long, which renders it wrong.
Please rewrite and refile today.

Two questions:

1) Is this sort of light-hearted, not-quite-serious, jocular approach from a judge appropriate? This question arises frequently whenever judges throw humor (jokes, rhymes, tangents about sports, entertainment, pop-culture references, etc.) into their opinions--how much creative license are judges allowed in their writing?

2) Was Judge Leighton correct to dismiss an overly long complaint simply because it was overly long? Rule 8(a)(2) requires a short, plain statement as a minimum that a pleader must provide. But it does not necessarily mean that anything more than a short, plain statement is improper under the rules simply because it is long (apart from what is contained in the complaint).

Posted by Howard Wasserman on July 8, 2008 at 02:40 PM in Law and Politics, Odd World | Permalink | Comments (16) | TrackBack

State law as the basis for federal constitutional doctrine

Kennedy v Louisiana was the latest SCOTUS decision to survey state legislation as a basis for inferring American constitutional norms. Aside from the Eighth Amendment cases that use state legislation as the basis for inferring a national “consensus” supporting or condemning a practice, there are several important Due Process cases that survey state laws to infer whether some particular state’s law offends some evolving norm of decency, including Glucksberg, Lawrence v Texas, and Troxel.

As a certified federalism nut, I'm inclined to support this method of filling in vague constitutional provisions -- “cruel and unusual punishment,” “due process,” etc. It is easy to see how such a state survey can be an ersatz substitute for the Article V amendment process, thereby legitimizing what would otherwise be pure judicial ipse dixit. But Kennedy suggests to me that the practice presents two, perhaps insurmountable difficulties. First, by effectively nationalizing and constitutionalizing the legislative outcome in some critical mass of states, the SCOTUS raises the stakes of individual state’s legislation enormously, inducing national interest groups to exert enormous pressure on what would otherwise be purely state concerns. Second, it is a difficult business trying to interpret the sound of state legislative silence -- states' failure to enact some challenged law -- and I am doubtful that SCOTUS is equal to the task.

I’ll say a bit more about both of these two difficulties after the jump. But I should declare up front that I find myself in the unusual state of having no opinion on this issue -- yet I have promised to produce an essay on the topic by next Wednesday. Any thoughts, citations, or advice on this topic, therefore, would be even more appreciated than usual.

First, is it a good idea to nationalize state legislative debates? By counting up states to resolve federal constitutional controversies, SCOTUS raises the stakes of individual state’s legislation enormously. A proposal in the South Dakota legislature to, say, impose the death penalty for child rape or expand grandparents’ visitation now has federal constitutional consequences. The likely result is that national interest groups, Right and Left, will descend on the state house to exert pressure on the state legislative outcome wildly out of proportion to the immediate legislative stakes. I am not sure that this is a desirable outcome: When national mass-mail outfits (NARAL, the NRA, etc) battle it out in a state, the states are arguably transformed into echo chambers for D.C.-based groups, not independent assessors of local opinion. Compare the effect of giving state legislatures the power to choose federal Senators. This practice often caused state legislative elections to turn on the state legislative candidates’ pledges to support one of the state’s candidates for U.S. Senate and the national issues on which those candidates run. By the time that the Seventeenth Amendment was ratified, numerous state legislatures were effectively selected on the basis of a state-wide Senate election – destroying the ability of any state legislator to campaign on a local platform. Rather than provide state influence over Congress, state legislative selection nationalized the state legislatures.

Second, when state legislatures fail to enact some measure, this failure might be due to circumstances having nothing to do with public opinion regarding the measure – for instance, the press of more urgent business or the belief that existing SCOTUS precedent prohibits the measure. (Justice Alito plausibly complained that the latter motive – belief that Coker prohibited child rape statutes -- explained why states had not enacted such laws. If Alito was correct, then, by inferring a consensus against child rape death penalty from state inaction, the Court was simply looking in a mirror and finding its own opinions reflected back). One might usefully compare the problem of interpreting state legislative inaction with the problem of inferring whether congressional inaction suggests acquiescence in administrative agencies’ decisions not to regulate. The efforts by Massachusetts v. EPA (on pages 8-9 of the slip opinion) to distinguish FDA v. Brown & Williamson indicate how evaluating such inferences can be a colossal headache. I doubt that SCOTUS could make such inferences about legislative silence for fifty state legislatures with any degree of plausibility.

As I noted above, I really do not have any firm opinion on this topic, and I need to get one soon. So your comments are, even more than usual, very welcome.

Posted by Rick Hills on July 8, 2008 at 11:03 AM | Permalink | Comments (6) | TrackBack

Umpires, Judges, and Interpretation

Like many commentators, I thought John Roberts' suggestion at his 2005 Senate confirmation hearing that judges are simply baseball umpires--calling balls and strikes and not making any value or policy judgments and exercising no discretion-was, at best, fatuous. It was, at worst, demeaning to judges and judging, which is a far more difficult task, demanding interpretation, discretion, and value judgment, than Roberts would acknowledge. And, it turns out, Roberts' comments may have been demeaning to umpires, who must do a lot more than simply call balls and strikes. Consider the following examples.

In June, in a Class-A minor league game, a switch-hitter faced an ambidextrous pitcher. When the batter stepped in to hit right-handed, the pitcher set up to pitch right-handed. The batter then switched to bat lefty, so the pitcher changed hands again. The batter switched one more time and so did the pitcher (watch the video--the fun starts at about the 2-minute mark). Finally, the umpires gathered to figure something out.There are rules in place for switch hitters and when they can switch sides during a single at-bat, usually in response to a pitching change. And there are rules for changing pitchers during an at-bat. But nothing that specifically covered one pitcher able to change hands multiple times. The umpires conferred and decided that both batter and pitcher were allowed one switch per at-bat after the first pitch, but that the hitter had to declare a side first.

To resolve this, the umpires had to do what we think of as judging. They applied a set of generally applicable rules to a unique, probably-unthought-of factual scenario. They necessarily made a value/policy judgment in giving the pitcher an advantage by making the batter declare a side first--which goes against the de facto usual situation of the pitcher declaring first (because typically everyone knows which hand he throws with). Why make hitter-first the default rule--some value or policy judgment must have been in play. By the way, the Professional Baseball Umpire Corporation last week announced specific rules for the situation, allowing one change for each side per at-bat, but requiring the pitcher to make the first move.

This past weekend at Yankee Stadium, a batter hit a long drive that the left-fielder had in his glove momentarily, then lost when he crashed into the fence; the ball popped in the air and landed on top of the fence, where it bounced a few times and came to rest (remember the putt at the end of Caddyshack?), before finally falling back onto the field, by which time the batter was standing on third.

Calvin Massey wonders what would have happened if the ball had remained atop the wall. The ball did not go "into the stands" or "over the fence," although it was not on the playing field. The ball sort of left the playing field, at least for the time it was atop the fence. Had it gotten there "on the fly," when it hit the fielder's glove first? Massey wonders how a Justice Thomas or Scalia would view the situation, given their interpretive approaches. But the important broader point is that we recognize the need for interpretation of text, intent, and context is indeed required even in baseball. The rules clearly account for what happens a) when ball goes over the wall (home run), b) where a ball hits the wall and comes back into play (no home run), and c) where the ball goes under or through the wall (ground-rule double). The rules do not mention a ball stopping atop the wall. Figuring out that situation requires the umpire to engage in an act of judging--what is this situation most like and how does it match the words of the rules? By the way, the umps said it remained a live ball and the batter had a triple. And I think that would have been the correct call even if the ball had remained atop the wall.

There is nothing rote or automatic about what umpires do. Nor is there anything rote or automatic about what judges do. And we do a public and political disservice when we pretend otherwise, especially when used as a dodge to avoid questions about the jurisprudential theory of a Supreme Court nominee.

Posted by Howard Wasserman on July 8, 2008 at 07:45 AM in Article Spotlight, Culture, Current Affairs, Legal Theory | Permalink | Comments (3) | TrackBack

What are we voting about in US News?

The element of the US News rankings which is far and away the most heavily weighted (25%) is the school's quality assessment from law professors. Right now, it's unclear what criteria faculty use individually, and in the aggregate, the assessment simply replicates previous US News rankings, as Indiana's Jeffrey Stake has shown. We can do better than that.

So as a future (I hope) US News voter, I’m trying to figure out what exactly I’m voting about – and what audience I’m voting for -- in assessing the quality of a school’s “program,” as U.S. News appears to instruct.

I guess the way the rankings work is this: they're designed to help employers figure out from where to hire, and then the idea is that students would use the rankings derivatively -- that is, not as an actual sign of the quality of the school, but as a sign of what employers will think of the quality of the school and therefore how it will affect their career prospects. Russell Korobkin of UCLA, whose 1998 essay on rankings led in part to him giving the keynote address -- framed as a response to Cass Sunstein and Richard Posner's contributions -- at the excellent Indiana symposium on rankings a few years ago, has called this the "primary purpose" of rankings: to "coordinate the placement of law students with legal employers." This seems right to me.

If that's the case, then when I fill out the US News survey as (again, I hope) a newly tenured professor at the University of Georgia in a few years, I’m going to be evaluating each school's "program" for future employers directly, and indirectly for prospective students.

So what do employers want to know, and how can I help?

Let's look at the whole picture. Overall, U.S. News basically provides information in four categories (as described by them): quality assessment, student selectivity, faculty resources, and placement success. The survey we fill out is most of the quality assessment piece, along with the practitioner survey. Of the rest, student selectivity must be in there to give employers some rough sense of the graduates' abilities before law school, placement success could be either designed to give new employers a signal about student ability or to give students a sense of how they're going to do in the market. Then there's faculty resources, which most think is noise or worse, but must be designed to get at some measure of the quality of the education itself.

So given what employers and prospective students are told from the other three categories, what "program" ought we be assessing when doing surveys? I think the choices are: our program of knowledge production, lawyer education, or both. Well, what would employers and prospective students want to know? Certainly, if employers already have some sense of student abilities coming in from the numerical credentials, they would probably want to know, as Nancy Rapoport has put it, about the "value added" that the particular school provides the future lawyers they're considering hiring. They want to know about the quality of the educational program, not knowledge production.

I can't imagine why employers (or most prospective students at most schools, for that matter) would care about the quantity and quality of knowledge production at a particular institution. I care, society ought to care, universities and law schools ought to care, but employers don't and shouldn't care much -- and I don't think anyone has seriously made a case otherwise.

Well, I've convinced myself of the best way to do this, and it wasn't a close call -- evaluate the quality of the education "program," and use that for 100% of the score I give each school. How exactly I do that is a separate matter, but I'll save that for another day. Scholarship won't count at all.

But one thing does give me pause: I've just gone through this quick and dirty exercise of arguably Dworkinian interpretation -- trying to decide what to do, how to decide, by figuring out my role and trying to bring some coherence to the social practice of voting for the US news rankings. But maybe this was a silly exercise. Maybe the easiest thing to do, is just to look to the leading voice in the legal academy and the media on how to make the US News rankings better.

Maybe I should just ask myself: what would Leiter do? Professor Leiter, if you're out there and have a chance, I'd love to hear from you and others (including students and lawyers who hire law school graduates!) -- and even if not, I'll try to answer the question tomorrow in my next post.

Posted by Jason Solomon on July 8, 2008 at 12:16 AM in Life of Law Schools | Permalink | Comments (4) | TrackBack

Monday, July 07, 2008

Heller, IP, and the interpretive significance of preambular language

It's always a pleasure to do a guest stint at Prawfs. Thanks to Dan et al. for inviting me back. I thought I'd kick things off by adding yet another post to the deluge of Heller-related thoughts in the interest of making sure that absolutely everything possible has been said about the case. So, question: does the Supreme Court’s interpretation of the Second Amendment in Heller have any implications for intellectual property law? At first blush, the answer would appear to be no. But on closer examination there actually is an interesting connection. The Constitution’s Intellectual Property Clause, like its Second Amendment, begins with what has often been called preambular, or prefatory, language. In the case of the Second Amendment, the power to keep and bear arms “because a well-regulated Militia is necessary to the security of a free state”, and in the case of the IP Clause, Congress’s power to confer limited monopolies on patent and copyright holders is given “to Promote the Progress of Science and the Useful Arts”. Writers in the blogosphere have expressedconcernthat the Court’s dismissal of the relevance of preambular language in Heller portends poorly for any future attempts for the Court to take seriously the preambular language in the IP Clause. But for a couple of reasons explained below the fold, I think this concern is unfounded.

First, equating the introductory clauses of the Second Amendment and the IP Clause as “preambles” misses crucial differences in the operative significance of each clause. Imagine three kinds of constitutional language: grants, limitations, and explanations. Grants and limitations give and take away power; explanations provide context for why the powers are given or taken away. The Second Amendment’s militia language might plausibly be described as a preamble because it represents merely an explanation of the reason that the framers chose to limit congressional power. The Second Amendment consists of an explanation + limitation, or to crudely paraphrase, “because militias are important [explanation], Congress may not infringe the right to keep and bear arms [limitation].” Viewed in this light, the first phrase of the IP Clause looks very different. In fact, despite its being described as a preamble by the D.C. Circuit and Supreme Court alike, the “promote the progress” language does not appear to be a preamble at all, but rather the very power conferred on Congress by the Constitution. So rather than being an explanation + limitation, the IP Clause can be paraphrased as a grant + limitation (as the Court described it in John Deere): “Congress can promote the progress of science and art [grant], but only by means of limited-time exclusive rights [limitation].” Bill Patry does a great job of elaborating this argument in more detail. The implication of the distinction is that Heller does not spell doom for future interpretations of the IP Clause. Even if the case suggests that the Court tends to dismiss preambular language lightly, this should not mean the Court will take the "Progress" element of the IP Clause lightly, because that language is not merely preambular, but operative.

Second, while the Court’s description of the militia language in the Second Amendment appears dismissive, this masks the extent to which the Court actually took that language quite seriously in deciding Heller. In his majority opinion, Justice Scalia wrote that “a prefatory clause does not limit or expand the scope of the operative clause”. In isolation, this seems to divest prefatory language of any interpretive significance. But despite this apparent dismissal, the Court went on to consider the meaning of the militia language in some detail—a strange move if one thinks that prefatory language is relevant only insofar as it can resolve ambiguities in related operative clauses. Justice Scalia’s explanation for considering the preambular clause after the operative clause also seems to invest the former with more significance than his earlier dismissal let on: “while we will begin our textual analysis with the operative clause, we will return to the prefatory clause to ensure that our reading of the operative clause is consistent with the expressed purpose”. This is a much broader notion of the significance of prefatory language than merely a tiebreaker in the case of ambiguity. It (along with the Court’s detailed analysis of the militia language and its later explanation that the prefatory and operative language “fit[] perfectly” together) suggests that prefatory language does in fact serve as a limit on operative language, if only insofar as it means that operative language may not be interpreted in a manner radically inconsistent with prefatory language. The implication is that even if courts continue to (wrongly) regard the “Progress” language in the IP Clause as a mere preamble, a close reading of Heller doesn’t necessarily yield the conclusion that preambular language is devoid of interpretive significance.

Posted by Dave_Fagundes on July 7, 2008 at 06:13 PM in Constitutional thoughts, Intellectual Property | Permalink | Comments (0) | TrackBack

Summer Parlor Game: Predicting the Next Justices: Obama Edition

With election day less than five months away and the Presidential nominees seemingly chosen, I was going to begin a discussion of prospective Supreme Court nominees, but Doug and the various commenters beat me to the punch.  Most of the names that are on my list have come up before, either in the comments to Doug's post, in Tommy Goldstein's extensive discussion last summer, or in other media speculation.  Still, I'm curious what people think of my analysis.  Without further ado, here is my highly subjective lists of the ten people most likely to find themselves on the Supreme Court at the end of a first Obama term (with a McCain list to follow later in the week).  I encourage all who desire to procrastinate to play along.

(1) Diane Wood--One of the two or three most often mentioned candidates in the press.  It's hard to find a knock on her candidacy.  She has the credentials, the experience, the intellectual heft, fits demographically, and as woman from Chicago would make a neat substitution for either Justice Stevens or Justice Ginsburg.

(2) Elena Kagan--Another candidate who seems to have nearly perfect credentials.  She certainly has the stature, has high level Washington experience, is the perfect age for a long run on the Court, and is respected across the political spectrum for her handling of hiring issues at Harvard.  About the only fly in the ointment is the fact that she would either have to accept a short stint on the Court of Appeals or join the Court as the first Justice since Lewis Powell and William Rehnquist without any judicial experience.

(3) Merrick Garland-- With David Tatel aging out of the contest, widely considered to be the leading contender among white male sitting judges and--hey--that group has done pretty well in prior nomination contests.  Also, happens to be smart and well-connected.

(4) Cass Sunstein--Most of the career academics who make these lists are completely implausible but there are reasons to think that Sunstein might be the exception that proves the rule.  After all, how many academics are there who have written as much high-quality scholarship as Sunstein without saying any single disqualifying thing (though, we need to keep an eye on the recent controversy over Justice Scalia's use of his article on the death penalty and deterrence)?  He's one part liberal powerhouse and one part technocratic moderate.  That combination has worked pretty well for Justice Breyer.  And--unlike most of the other candidates--we already know he has Obama's ear.

(5) Teresa Wynn Roseborough--If, as is widely expected, this African-American former Stevens clerk/Gore lawyer/ACS founder is appointed to the Court of Appeals in the first months of a Democratic Presidency, she will complete her goldplated resume and become a fixture on Democratic shortlists for decades to come.

(6) Leah Ward Sears--Chief Justice, Georgia Supreme Court.  Of all the new names I have encountered through the Great Mentioning Game, the one that is most plausible.   A Southern African-American woman of the right age with strong academic credentials and--from what I can tell--an excellent judicial record/reputation.

(7) Sonia Sotomayor--If the pundits are right, she has already locked down the first nomination.  I am a bit more skeptical.  She will probably get an interview, but she will still have to out-interview a couple of equally stellar candidates with more sparkling personalities.  Plus, her record on the bench is cryptic enough that she might well incense the right without exciting the left.

(8) Deval Patrick--Was already on a lot of lists before we knew his friend was going to be the nominee.  The rare elected official with all the right legal credentials.  Would be much higher if not for the rockiness of his term as governor.

(9) Eric Holder--The likely favorite for Attorney General in the Obama administration is not often mentioned as a high court candidate, but he has the credentials, including a stint as a judge in DC, and might be an appealing inhouse option for a second or third seat.  Involvement in the controversial pardon of Mark Rich would be an obvious target for confirmation attacks.

(10) Barrington Parker, Jr.--A bit on the old side, but an incredibly credentialed, connected, competent, and confirmable African-American appellate judge.

Posted by amsiegel on July 7, 2008 at 04:43 PM in Current Affairs | Permalink | Comments (15) | TrackBack

Are courts like military dictators? The case of head scarves & judicial review in Turkey

Truly foundation constitutional decisions are (thank God) no longer made in the United States. To witness life-or-death constitutional decision-making, one needs to go abroad. It is a tribute to the parochial character of American legal academia that the major law blogs have mostly ignored one of the world’s most important constitutional controversies -- the Turkish Supreme Court’s decision to hear a prosecutor’s indictment asking that the ruling AK (“Justice & Development”) Party in Turkey should be banned because it violated Turkish principles of secularism. Compared to this monumentally important constitutional moment, Heller and Boumediene come off as relatively technical bagatelles.

As commentators and the European Union have noted, the Court’s likely decision to ban the AKP amounts to a coup d’etat -- one that has the active complicity of the military. With so much hanging in the balance, it seems frivolous to note that the Turkish case provides a lovely real-life reductio ad absurdum of ideological stances popular among in American legal academics, forcing all of us to confront the logical and, indeed, practical, implications of our wilder hypos for 1l students. For those who believe, like Judge Bork, that politicized judicial review constitutes a sort of military coup, the Turkish case provides ample confirmation. But it also highlights the difference between judicial and military coups – differences that attacks on judicial “activism” conceal, because they do not really take the “coup” analogy seriously. Likewise, for those who are enamored of secularism and separation of church and state, the Turkish case highlights the oppressive nature of “separationism.” But it also forces the anti-Lemon "neutralists" to think carefully about the ways in which crude statements about the harmlessness of "private" decisions depend on empirical assumptions that we seldom make explicit.

But, first, a little background on the case.

The Turkish case began when President Gul, fresh from a landslide victory in last summer's special election, pressed for and obtained amendments to the Turkish Constitution permitting female students to wear head scarves in public universities. Although the amendments were enacted according to the proper procedures, the Turkish Supreme Court disallowed them on the ground that they were inconsistent with the spirit of secularism that has governed Turkey since Kemal Ataturk founded the modern Turkish republic in the 1920s.

The decision to forbid a properly ratified constitutional amendment might strike an American as taking the anti-democratic possibilities of judicial review to new heights never scaled by SCOTUS. (When Elihu Root pressed such an argument against the 18th Amendment in 1920, the SCOTUS essentially laughed him out of court). But the Turkish Supreme Court is prepared to go much farther. At the request of a prosecutor who cites the AKP’s support for the head scarf amendments as evidence that the AKP is disloyal to Kemalist secular ideals, the Court has agreed to hear an indictment seeking to ban the AKP and 71 specifically named AKP politicians from Turkish politics.

The decision to indict the sitting government for violating “secularism” suggest confirmation of Robert Bork’s famous claim that there is no normative difference between politically motivated judicial review and military coups. (The Tempting of America: The Political Seduction of the Law 265 (1989)). In Turkey, the court has literally and not merely rhetorically assumed the role of the joint chiefs of staff. Under the 1961 and 1982 Turkish Constitutions, the “national security council” – literally a committee of generals – reviewed political decisions to exercise an informal veto over reforms deemed insufficiently secular and nationalistic. As a secular Istanbulli told me last summer, “our military coups are just like your Supreme Court decisions: The military protects the Constitution from popular government.” In response to pressure from the European Union, the Turkish Assembly gave civilian officials a majority on the Council in 2003 and reduced its policy-making influence. Naturally, the role for protecting Kemalism has, therefore, been transferred to the Turkish Supreme Court, a body dominated by Kemalists.

For those who are inclined to dismiss Bork’s claim that military and judicial rule are fundamentally similar, the Turkish case provides a cautionary tale: In Turkey, at least, the military and the judges belong to the same social class and operate on largely the same ideological (Kemalist) principles. Those principles include ultra-nationalist enforcement of linguistic uniformity (including suppression of Kurdish language and culture), censorship of speech critical of the Kemalist establishment or anything Turkish (honest appraisal of the murder of Armenians can land one in jail), and enforcement of a version of secularism that, in America, would be an grotesque deprivation of the free exercise of religion.

On the other hand, the Turkish case also provides a riposte to Bork’s rhetorical sally by taking it seriously. Bork declared that “[t]he man who prefers results to processes has no reason to say that the Court is more legitimate than any other institution capable of wielding power. If the Court will not agree with him, why not argue his case to some other group, say the Joint Chiefs of Staff, a body with rather better means for enforcing its decisions? No answer exists.” Actually, lots of reasons exist. For starters, courts do not hang the politicians that they depose. For another, courts operate with relative transparency, giving the government a chance to make its case and offering reasons that exhibit dissension in the ruling elite’s ranks. (Four justices of the Turkish Supreme Court, for instance, dissented from the decision to hear the indictment of Abdullah Gul himself). Moreover, the AKP will almost certainly survive the judicial coup in altered form: Erdogan (the prime minister and head of the party) will simply create a new party that he will control behind the scenes. (It has happened before).

“Coup by court” in other words, is progress of a sort over the military variety.

But one might wonder why the Turkish establishment cannot do a bit better. The paranoia of the Kemalists suggests a second respect in which the Turkish case illuminates American constitutional ideologies by exaggerating their absurdities. There is an under-theorized tendency among Americans on the Left to associate secularism with something vaguely identified as “progressivism” – openness to foreign values, democracy, freedom of expression, etc. Turkey exposes the arbitrariness of this assumption: In Turkey, secularism goes hand in hand with military dictatorship, ruthless censorship, and suspicion of anything foreign. It is the AKP that has proposed repeal of the infamous Article 301 of the Penal Code penalizing insults to “Turkishness.” It is the AKP that has lobbied hard to gain entry into the EU. Even the AKP’s endorsement of the individual’s right to wear a head scarf sounds far more protective of civil liberties to an American than the Kemalists’ wildly Jacobinical notion that every student who sets foot in a public university thereby becomes an agent of the state who must wear secular attire.

The old Lemon test has a whiff of such Kemalism to some American legal scholars. After all, if the government cannot spend money on religious expression, then how can the government give a scholarship to a student who wears a religious headdress? Even if the course is pristinely secular, all money is green: The money saved on math books might go to buy the hiqab or niqab. These are, of course, the sorts of hypos that generations of law profs have offered to law students to poke fun at Lemon's effects test. But the Turkish Kemalists actually bite the bullet and enforce Lemon more honestly than we do ourselves.

But there is another side to the story: In the eyes of the secular Istanbullis and Kemalist bureaucratic and military elite, private decisions by head-scarf-wearing women will informally force the minority of secular Turks into an Islamic mold. (For an example of such an attitude, see here) On this account, private decisions to wear the head scarf become a form of public intimidation. (Compare the efforts by the Socialist government of Weimar-era Prussia to ban the wearing of uniforms by Nazis and Communists during the early 1930s, as a way to control street violence).

Whether the Kemalist interpretation of head scarves is plausible, of course, depends on a myriad of factual details. How many people wear the scarf? What are the chances of private violence or discrimination against those who refrain? How costly is it for Islamic women to doff the scarves? Can they get a dispensation from the relevant religious authorities? Do they wear the scarves on their own initiative, or because of pressure from mosque leaders? How powerful are the latter, and what is the source of their power -- violence, moral suasion, parental pressure, or individual choice? How mobile are consumers of education and laborers? Can secular women avoid peer pressure by fleeing the rural Anatolian religiosity for the Big City?

Answers to these sorts of intensely factual questions are the basis for true religious and secular liberty. But members of different ideological groups answer them differently. All of these issues are, therefore, “judicially unmanageable,” meaning that judges decide them without revealing the true basis for their opinions. In American law, these questions tend to be buried under stale metaphors about “walls,” empty rhetoric about “neutrality,” and truly meaningless citations to utterly irrelevant historical documents. (e.g., Jefferson’s 1801 letter to the Danbury Baptists, which was, as a historical reality, little more than a club with which to beat new England Federalists but somehow has become a double-barreled anachronism -- an 1801 source on the meaning of the 1791 First Amendment or the 1868 Due Process clause). Buried underneath this detritus, the real work of judicial opinions will be done by the gut instincts of the judges about the empirical consequences of different rules. (As Jim Ryan and John Jeffries have argued, those judicial instincts changed when evangelical Christians abandoned their old anti-Catholic ideology against vouchers in the late 1970s, dragging along the Republican Party and judicial appointments towards the eventual adoption of the “neutrality” position of Zelman).

By comparison, the Turks deal with these issues in a refreshingly honest way. Two factions, secular and religious, make rival empirical predictions about the autonomy that individuals will enjoy if one or the other side prevails. The factions then battle it out in the public eye, using military-judicial and electoral mechanisms to reach an accommodation. Here's my prediction: The Court will ban the AKP for offending Kemalist fears, and the AKP will re-emerge under a new name and probably be re-elected by the Anatolian Turks who outpoll the secular Istanbullis. The Kemalists will have to weigh the costs and benefits of forcing their vision of secularism down the throats of a people who reject it. The AKP will have to weigh the costs of offending several million secular Istanbullis loyal to the Kemalist status quo.

It is essentially military constitutionalism. But perhaps ours is as well. We just have more practice in hiding the old struggle between Arminian-secular elites and Antinomian-Pietist plebes behind a legalistic curtain. We also have less of a tendency to take conflicts to the brink of civil war. Thank goodness for that -- but I confess that, as a result, our constitutional doctrines are more boring and less honest to me than the donnybrooks that one sees abroad.

Posted by Rick Hills on July 7, 2008 at 01:23 PM in Constitutional thoughts | Permalink | Comments (5) | TrackBack

And Then There Were Four

As near as I can tell, there are at most four law reviews that do not allow submissions through ExpressO or a website.  The Washington Law Review is the most blunt, refusing to accept electronic submissions of any sort.  The Texas Law Review website says that it accepts ExpressO submissions, but this appears to be news to ExpressO -- the reference may be to ExpressO's hard copy mailing service.  The Vanderbilt Law Review's website says that it "does not accept electronic submissions. We strongly prefer submissions through ExpressO."   I'm not sure what that means.  The Rutgers Law Review accepts e-mail submissions, but not ExpressO submissions.

It's time to get with the program, folks. 

UPDATE:  I received a thoughful e-mail from Scott Goldman, the Editor in Chief of the Vanderbilt Law Review, who clarified that they do accept ExpressO submissions.  Their website now reads:  "On August 22, 2008, Vanderbilt Law Review will resume accepting submissions electronically through ExpressO."

Ben Barros

Posted by propertyprof on July 7, 2008 at 11:55 AM in Life of Law Schools | Permalink | Comments (3) | TrackBack

Stanley Fish, Heller, and Intentionalism

I'm sick of reading about Heller, but then again I'm not, which is probably why I read with interest Stanley Fish's take on Heller in the NY Times. In "What Did the Framers Have in Mind?", Fish observes, "Whatever side of the Second Amendment controversy you may be on, the clear winner in District of Columbia v. Heller (striking down a Washington, D.C., ban on hand guns) was intentionalism, the thesis that a text means what its author or authors intend." In short, he notes that all of the justices, even Breyer with his "urban environment" dissent, agreed that their task was to ascertain the framers' intent; they just disagreed with what that intent was.

So here's my question, which I begin with a few assumptions.

First, let's assume that Scalia's interpretation of the 2nd Amendment is correct, and that as citizens we each have “an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”

Second, let's assume (bear with me here, this is just an assumption) that enforcing the 2nd Amendment--assuming that it applies to the states as seems likely--will result in x (5? 10? 100? 1000?) more deaths per year (through gun violence, suicides, accidents) than would occur if the 2nd Amendment were not enforced, and unfettered state regulation of the use of firearms was permitted. Nina Totenberg on NPR, for example, recently did a segment in which mayors and police chiefs voiced their disagreement with the decision and predicted that the decision will result in a significant increase in gun violence.

Third, let's assume that in light of the foregoing, we conclude that the 2nd Amendment is stupid. Or to put it less bluntly, inconsistent with our contemporary concerns.

Question: Is the only option before us another amendment repealing or modifying the 2nd? Or do we accept the number of extra deaths as a cost outweighed by the benefit of gun ownership? In short, what's a conscientious judge/legislator/citizen to do if it's not the interpretation that's wrong, but the amendment itself?

Posted by Bennett Capers on July 7, 2008 at 11:34 AM | Permalink | Comments (5) | TrackBack

Preparing to Vote...for U.S. News

Having just finished my third year at the University of Georgia, I'm very much looking forward to the prospect of getting tenure.  For one reason only.  Because if I'm lucky enough for it to happen, I will be a "most recently tenured" and therefore be eligible to vote for the US news rankings.

This is a big responsibility, I know.  I want to be a responsible citizen of the greater law school community, and frankly, I haven't paid a whole lot of attention to the debates about the US News rankings.  People seem to think it's screwed up, Leiter's got his thing, that's about all I know -- it does not affect my life much.  But that might change.  Sure, it's a few years away, but I'd better get ready.

So I went to the U.S. News site to see what I'm supposed to be voting on.  It says here in Question #10 that we're supposed to rank from 1-5 the "quality" of the "program" for each school.  As far as I can tell, that's the only guidance and criteria we get.  Please, someone, who has actually done this before or has a copy of the questionnaire itself -- tell me we get more help than that.    Bob Morse, U.S. News's methodology czar, are you out there?  Can you help?

If that's all we get to go on -- evaluate the quality of each school's "program" -- what criteria are we supposed to use?  As I see it, law schools have two fairly distinct "programs" -- the production of knowledge, and educating future lawyers.  Which one should we evaluate?  Both, and weight each program 50-50? How do we know? I'll take a  first stab at this in the next post, but would welcome thoughts in the meantime.

Posted by Jason Solomon on July 7, 2008 at 06:38 AM in Life of Law Schools | Permalink | Comments (4) | TrackBack

Sunday, July 06, 2008

More on Hate Speech from Canada

To no one's surprise, the Canadian Human Rights Commission has dropped its bizarre investigation of MacLean's magazine for printing a chapter of Mark Steyn's book, America Alone. The Commission had brought the case before the Human Rights Tribunal, charging that Steyn's chapter constituted "hate speech" under section 13 of the Canadian Human Rights Act, S.C. 1976-1977, c. 33, because it might tend to "expose a person or persons to hatred or contempt" because they were Muslims. Steyn's book did not remotely resemble "hate speech," if that term means "speech intended to incite hatred or contempt." Steyn had merely argued -- accurately -- that many Fundamentalist Muslims did not share, and therefore might threaten, the liberal and secular values of many Europeans, if the numbers of the former increased more rapidly than the numbers of the latter. The notion that such speech could be suppressed because it hurt someone's feelings had inspired widespread outrage from Canadians and Americans.

I had noted in an earlier post that, despite its goofy and oppressive investigations, the Human Rights Commission might not be a serious threat to freedom of speech in Canada. Canada's political and journalistic elites, I predicted, would bring the bureaucratic censors at the Commission to heel, because those elites would not tolerate violations of Canada's culture of a free press. The Canadian Supreme Court has done little to restrain the Commission, but the Conservative Government of Canada has moved for an investigation by Parliament's Justice committee of the Commission's enforcement of section 13. My prediction: The Commission's powers will be severely trimmed following such an investigation. (Merely giving successful respondents their reasonable attorneys' fees would go far to eliminate the threat posed by run-amok investigations).

The dismissal of the Steyn case is a small data point tending to bear out my prediction. The continued attacks on the Commission suggest that more data will be available soon. Some will say that, in the mean time, the Commission will "chill" speech in Canada. I have yet to see the slightest indication of such chilling: To the contrary, the provincial and federal commissions' ham-handed investigations seem to have provoked an extraordinary degree of very vocal ridicule and contempt from Canadians, including at least one columnist's begging the commission to investigate the author. (As one envious writer noted, the commission's investigation of Steyn has been pure gold for his book sales).

In short, I continue to think that free speech is alive and well in Canada -- sustained not by courts or constitutional doctrine but by a political culture that values a free press and a press that loves a donnybrook.

Posted by Rick Hills on July 6, 2008 at 10:22 PM in Constitutional thoughts | Permalink | Comments (3) | TrackBack

Technology, porn and a quote for the ages (or should I say the aged)

The New York Times magazine today included this interesting little article about the relationship between technology and porn.  Though many parts of the piece could launch many high-brow conversations about technology and human interests, one particular quote reminded me of a not-too-distant past that perhaps only those of a particular generation can fully appreciate:

Not getting the chance to quite see porn is the story of anyone’s life who grew up when the adult channels were scrambled.   You learned to be turned on by partial views.

Posted by Douglas A. Berman on July 6, 2008 at 03:24 PM in Information and Technology | Permalink | Comments (0) | TrackBack

Obama, the Roberts Court, and the Four Horsemen Analogy

With Senator Barack Obama leading in the polls and general economic conditions favoring the Democrats, speculation has turned to what type of relationship a President Obama might have with the conservative Roberts Court. In what is quickly becoming a common comparison, both George Washington University Law Professor Jonathan Turley and Washington Post columnist E.J. Dionne analogize to Franklin Roosevelt’s New Deal battles with the Hughes Court. “Both the Hughes and Roberts courts ruled during periods of economic difficulties and political shifts in power,” Hurley adds. “Both courts had four conservatives who maintained a united voting bloc on most major issues. . . . With a country in economic crisis and a world in upheaval, Obama,” like FDR, “would face a court with a near majority of ideologically hostile justices.” Dionne concurs: “The spate of 5 to 4 conservative decisions during the Supreme Court term just ended should stand as a warning that we may soon revisit the fights of 70 years ago."


Is this analogy to the Hughes Court apt? I must confess to finding it a bit strained. True, a President Obama would, like FDR, inherit a dire economic situation. And like FDR, Obama would likely have relatively strong support in Congress for his policy agenda. (Come November, Democrats are expected to solidify their majorities in both the House and the Senate.) And as in the 1930s the Court would be the one branch of the federal government controlled by the opposition party.


So why do I find this analogy unpersuasive?


The most obvious reason is that unlike FDR Obama’s is not proposing a constitutional revolution. The power of the Hughes Court analogy lies in the specter of a grave constitutional conflict between the branches. The New Deal was premised on a fundamental reordering of the constitutional structure, centralizing authority over the economy in Washington contrary to decades of settled – if controversial – precedent. FDR's conflicts with the Hughes Court resulted from the passage of successive pieces of major legislation that ran afoul of Lochner era decisions.


Obama’s agenda has been criticized for being a bit too ambiguous and flexible, but it hardly breaks new constitutional ground. No significant piece of Obama’s health care or economic recovery policies is at odds with longstanding constitutional precedent.


Of course, there will be conflicts between President Obama and the Court -- just as George W. Bush has had and a President McCain will have. One area where there might be conflict is executive power. Although a progressive, Obama may pursue a broad vision of executive power once he becomes the executive empowered by that broad vision. But presumably it won't be the conservatives on the Court who will fight against broad assertions of executive power. If there is a conflict with the Court, it will be with the same moderate majorities that conflicted with President Bush.


There is, however, one area where a significant constitutional battle might arise: the environment. Obama apparently intends to push forward an aggressive agenda to protect the environment and fight global warming, and the Roberts Court has all but declared war on federal environmental laws. In 2006, the Roberts Court watered down the Clean Water Act's protections and left many seasonal streams and small rivers, especially in the west, open to development. And recall that Chief Justice Roberts is one of the very few federal judges to hold that the Endangered Species Act was unconstitutional as applied to purely instate species. Yet, because most environmental laws are clearly regulations of interstate commerce, even an aggressive Court is unlikely to challenge the heart of Obama's agenda. 

Posted by Adam Winkler on July 6, 2008 at 11:48 AM in Constitutional thoughts | Permalink | Comments (3) | TrackBack