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Saturday, February 28, 2009

Law Review Submission Season Stories of Inspiration: Written Apology from YLJ!

Two years ago, the editors of The Yale Law Journal actually apologized to me, in writing, for not publishing my article.

Perhaps they will make amends by publishing my most recent piece.  Indeed, they said they hoped to see it - which has kept me going:

Dear Prof. Foley,

Thank you for submitting your work,
Guantanamo and Beyond: Dangers of Rigging the Rules, to The Yale Law Journal.  We are sorry that we will not be able to publish it.  Each year, we receive many excellent submissions from which we can select only a handful for publication. We appreciate having had the chance to consider your manuscript and hope you will continue to submit your work to us.

The Yale Law Journal

Posted by Brian J. Foley on February 28, 2009 at 11:09 PM in Life of Law Schools, Teaching Law | Permalink | Comments (3) | TrackBack

Operation Tough Love

Staying home on a Friday night and working, with occasional channel flipping or websurfing or even old fashioned just reading a book (i.e., not on a Kindle) is the tough love of my academic commuter marriage.  No wonder a segment on Dr. Phil (I swear it just happened to be on the TV when I turned it on) about the Maricopa County (Arizona) Sheriff’s Office’s recent “Operation Tough Love” seemed Tivo-worthy.

It turns out that on Valentine’s Day, Sheriff Joe Arpaio rounded up “deadbeat dads,” men who had failed to pay child support. The men were held on $10,000 bond in tents where the temperature reaches, according to Sheriff Arpaio, 148 degrees in the desert sun (Farenheit, I assume, as Sheriff Arpaio, who wears a tie pin shaped like a handgun and is known for making prisoners wear prison-stripes and pink underwear, doesn’t strike me as a Metric System sort of guy - he tends toward Medieval).

Local news reported that 72 people were arrested, but only 18 were deadbeat dads - the remaining 54 were arrested for other offenses, such as drugs (was this operation a pretext?).

This Very Public Event (read: spectacle, political stunt) seems like a waste of resources. It also seems counterproductive. What if Dad is deadbeat because, in our Meltdown Economy, he’s out of work? Will keeping him locked away unless he can pay really help his kids - given that this whole operation is (of course) “for the children”? I wonder why the sheriff isn’t instead out garnishing wages (if any) or seizing cars (if any) or homes (if any are even worth seizing these days)? Those methods seem more profitable.  The counter-productivity (and harshness) of Operation Tough Love is amplified when we consider that Dad could be injured in lockup by other prisoners, or from heatstroke, and that his brush with the criminal justice system could lead to job loss or stigma that harms his efforts to gain productive employment.  Consider also that the United States Supreme Court's expansive search-incident-to-arrest doctrine could lead to conviction for possessing various contraband found upon arrest, which under draconian drug laws could put the father in prison for years, rendering him truly unable to pay child support.

I Foley Admit that I don’t have the details of specific cases. Maybe these guys are notoriously deadbeat, and Sheriff Arpaio had tried all other means and failed.  But I wonder if the apparent political popularity of such roundups might cause them to become routine, leading to a de facto crime of poverty in our tough economic times - and yet another way for police to trigger their search-incident-to-arrest powers?

I don’t have a dog in this fight: I don’t have kids - another aspect, perhaps, of my own, two-city, Operation Tough Love.

H/T Dr. Phil.

Posted by Brian J. Foley on February 28, 2009 at 10:29 PM in Criminal Law, Culture, Current Affairs, Television | Permalink | Comments (1) | TrackBack

Friday, February 27, 2009

Will the election for Morgenthau's successor fail us?

Moments ago, the NYTimes reported that famed Manhattan DA Robert Morgenthau will not be seeking re-election. How should we think of prosecutorial elections that follow? Are they good for democracy? Criminal justice?

I was pleased to get some aid on the subject just this morning via a SSRN bulletin.  Ron Wright (WFU), a regular guest-prawf here, has just posted on SSRN a draft of what looks like a great article that will help us think through some of these issues with more clarity.

Here's the abstract.
How Prosecutor Elections Fail Us, Ohio State Journal of Criminal Law, Forthcoming
RONALD F. WRIGHT, Wake Forest University - School of Law

There are several methods for holding prosecutors accountable in this country. Judges enforce a few legal boundaries on the work of prosecutors. Prosecutors with positions lower in the office or department hierarchy must answer to those at the top. But none of these controls binds a prosecutor too tightly. At the end of the day, the public guards against abusive prosecutors through direct democratic control.

Does the electoral check on prosecutors work? 
There are reasons to believe that elections could lead prosecutors to apply the criminal law according to public priorities and values. Voters choose their prosecutors at the local level, and they care enough about criminal law enforcement to monitor the work of an incumbent. The conditions, in some ways, are promising.

Yet the empirical reality of prosecutor elections is not so encouraging. A national sample of over 2000 outcomes in prosecutor elections - described here for the first time - reveals that incumbents do not lose often. The principal reason is that challengers do not come forward very often, far less often than challengers in state legislative elections. Uncontested elections short-circuit the opportunities for voters to learn about the incumbent's performance in office and to make an informed judgment about the quality of criminal enforcement in their district.

Even in those exceptional campaign settings when the incumbent prosecutor faces a challenge and is forced to explain the priorities and performance of the office, elections do not perform well. This article surveys the typical rhetoric in prosecutor election campaigns, drawing on a new database that collects news accounts of candidate statements during prosecutor elections. Sadly, these campaign statements dwell on outcomes in a few high visibility cases, such as botched murder trials and public corruption investigations. Incumbents and challengers have little to say about the overall pattern of outcomes that attorneys in the office produce or the priorities of the office.

Posted by Administrators on February 27, 2009 at 11:31 AM in Article Spotlight, Criminal Law, Dan Markel | Permalink | Comments (2) | TrackBack

Thursday, February 26, 2009

Law Professor Travel Budgets: Ritz, or Rats?

I remember hearing a law professor tell a story a few years back about Haves and Have Nots.  He had depleted his travel budget (he'd had a good year) and was invited to speak at a law conference to be held at a lavish hotel. But his dean wouldn't give him any more travel money. So the professor scrimped and saved and laid his body down on a meager mattress at a Budget Sleep a Creep Motel. How bad was the motel? Well, it was so bad (the professor said) that drug deals were conducted a thin wall away. It was so bad, the rats were embarrassed to eat there.  It was so bad that … Indeed, to get to the conference at the lavish hotel, the prof had to bribe the (probably unlicensed) driver of the motel’s “we-will-take-you-anywhere-within-two-miles-of-this-motel” van to go the extra 0.3 miles. (Bribery was cheaper than cabfare.)  Upon arrival, this professor was stunned to see the conference hotel brimming with law professors, professors who were clearly enjoying the hotel's many luxuries. (He said he watched their enjoyments while he ate his remaining, day-old, airline crackers and nuts.)  The blown-budget prof wondered, "Do [the other law professors] all have bigger budgets? More generous deans?  Or do they draw upon personal fortunes?"

I’m interested generally in law prawf travel budget issues, beyond a more specific post by Dan Markel last fall about how state schools are faring post-Meltdown.  So, how much do you get from your school? What happens if you run out but “need” to attend a conference?  Have you devised (or heard of others who have devised) surefire ways to shake more cash out of your dean (or conference organizer)?  Have you discovered good ways to save money while traveling, so that you may attend conferences you could not otherwise attend? If so, are these cheap(er) travel practices safe, or fraught with danger?


Posted by Brian J. Foley on February 26, 2009 at 05:20 PM | Permalink | Comments (1) | TrackBack

Jim Calhoun's $1.6 million (Plus)

You may have heard about the post-game press conference exchange between a Connecticut political reporter and UConn men's basketball coach Jim Calhoun.  Here's the clip:

Calhoun raises the following justifications for his salary:

  • I want to retire some day.

Well, we all do, don't we?

  • I make a lot more than that.

So, you make a lot more than $1.6 million?  What, do you have a hedge fund on the side?  Perhaps you sell your own sculptures?  A cottage business on eBay?  Oh no, that extra money would be based on endorsements you make -- perhaps because of your state job?

  • We bring in $12 million to the university.

This argument has been getting this most play.  First off, Rick Green of the Hartford Courant offered this analysis:

Mike Enright, a UConn associate athletic director, told me Calhoun's $12 million figure is "in the ballpark." But that does not include the basketball program's $6 million in expenses. To get to Calhoun's "over $12 million" figure, take the $7 million from TV, radio and ticket revenues from men's basketball games. Then add about a third of the $20 million UConn gets from fundraising, which is roughly the amount that basketball contributes. That brings you to the $12 million to $13 million that Calhoun says he brings in, Enright said.

So, minus expenses, it's really about $6 million, largely in alumni donations.  A pretty good return.  But is Jim Calhoun solely responsible for generating that $6 million?  What about the AD?  What about the assistant coaches?  What about the University who provides the facilities?  And what about the players?  Surely, the players are in some way responsible for the $6 million?  Oh, that's right, they're fungible students -- and they're getting a scholarship.  You know, I hope that gets mentioned by someone in all this (besides me).  Calhoun is making $1.6 million (plus) and his players get scholarships. 

Of course, it's not his fault, he could argue, that the system is set up this way.  And if you look at these other salaries, he may even be underpaid by market standards.  But he didn't make those arguments.  Calhoun may be contractually entitled to $1.6 million, but he sure does a lousy job in defending it.

Posted by Matt Bodie on February 26, 2009 at 11:58 AM | Permalink | Comments (18) | TrackBack

Copeland on Obama and Religion

The University of Denver Law Review has just published, online anyway, an interesting symposium called Obama Phenomena: A Special Issue on the Election of President Barack Obama.  (I would have gone with Phenomenon, but I guess the title signals that the symposium is looking at multiple phenomena involved in the election.)  I want to give a special shout-out to one article: Charlton Copeland's piece called God-Talk in the Age of Obama: Theology and Religious Political Engagement.  It argues that Obama demonstrates an "incredible appreciation for religion as civic force in American public life."  At the same time, it argues that those who hope for a significant change in the role of American public life in the age of Obama are in for a disappointment, because Obama's solution to the dilemma of religion in public discourse is to bracket or exclude it by demanding that religious arguments be made in publicly accessible terms.

It's an eloquent and interesting article, drawing on a good deal of expertise in theology.  Read it while it's hot.  Readers may remember that I reach similarly mixed conclusions about Obama and religion in my forthcoming piece, Religion and American Politics: Three Views of the Cathedral.

Posted by Paul Horwitz on February 26, 2009 at 10:14 AM | Permalink | Comments (0) | TrackBack

Paging Stanley Fish

Via Facebook, here's a story for those who are interested in university free speech and academic freedom issues.  I will try (unsuccessfully, I suspect) to refrain from editorializing as I describe the case.  I've read some related news items, but I'm not vouching for the factual accuracy of the description of the story at the Facebook link.

University groups and assorted hangers-on across Canada and elsewhere are holding something called Israeli Apartheid Week.  A branch of this group at Carleton University, in Ottawa, attempted to put up posters around campus advertising the event.  The poster, which is being used elsewhere as well, is a cartoon depicting an Israeli military helicopter firing a rocket at a child.  It's not subtle, but neither is it unusual for heated political discourse.  The posters were apparently ordered to be taken down by the university's "Equity Services" department (I tried not to editorialize, but some things demand the use of distancing quotation marks), on the grounds that they "could be seen to incite others to infringe rights protected in the Ontario Human Rights Code" and were "insensitive to the norms of civil discourse in a free and democratic society."

The students, of course, are outraged.  And rightly so.  The posters, inflammatory as they may be, are clearly standard political speech.  They may not be civil, but they're certainly well within the norms of "civil discourse in a free and democratic society" -- or at least the kinds of free and democratic societies that value robust, uninhibited and wide-open debate.  That the Human Rights Code was cited against them suggests not only the obvious dangers of the use of human rights laws as applied to speech acts, but their obvious susceptibility to abuse and selective invocation.

There are some amusing twists, however.  The students apparently shy away from the obvious conclusion that the use of human rights codes in situations involving speech are generally suspect; rather, they argue that the "poster depicts a situation that has a factual basis and its intention is clearly to invite people to a lecture series," so the poster is neither an incitement nor a violation of civil discourse.  (I hope they will be equally forgiving of similar posters that meet the same conditions, but with the names reversed!)

Second, the group makes some additional complaints of its own.  It complains that the university is practicing a double standard because the university's president refused to condemn the Israeli bombing of a Gazan university.  And it argues that the university has "taken a biased political stand on the Israel-Palestine conflict" because the university condemned the movement for an academic boycott of Israel, and because it has rejected the request of "students and faculty at Carleton" to "hold a public debate on the issue to allow the Carleton community to determine the most responsible course of action."

This isn't quite incoherent, but it is silly.  Refusing to support the academic boycott is no more or less "biased" than refusing to take down inflammatory posters.  Both positions do indeed take a stand, but they are both stands that the university ought to take.  As for the idea that the university must bend to the will of the students and faculty and hold a public debate -- I suspect that what they actually want is a public vote -- I have to get a little Fishy here in saying, nonsense.  The university is a "community" in some important senses, but it isn't a democracy, and even to the limited extent that it is, there is no universal suffrage.  Students certainly don't get to make these decisions -- and thank God.  Nor, in many areas of university governance, do the faculty -- and I again say thank God.  Carleton should have allowed the posters, but it should also oppose the academic boycott, for the same reasons; and although I see little wrong in holding a public meeting on the issue, it is under no obligation to subject its decision to oppose the boycott to a "democratic" decision-making process.  Academic freedom is a substantive value, and that value includes opposing academic boycotts; academic freedom does not, on the other hand, require democratic deliberation by all the stakeholders in a university.  

Incidentally, I note that Israeli Apartheid Week is sponsored by, among others, the Canadian Union of Postal Workers and some units of the Canadian Union of Public Employees.  Now there's a proper use of public union resources.  

Posted by Paul Horwitz on February 26, 2009 at 10:06 AM in Paul Horwitz | Permalink | Comments (5) | TrackBack

Wednesday, February 25, 2009

House Dems trying to kill DC vouchers. Sneakily.

Ugh.  That is all. 

Posted by Rick Garnett on February 25, 2009 at 10:14 PM | Permalink | Comments (3) | TrackBack

Pleasant Grove City v. Summum

The Supreme Court handed it down today.  Summum lost.  And it was unanimous -- as one somewhat obnoxious but yet ruggedly attractive commentator predicted.  I've read through it once now.  The majority opinion strikes me as quite sensible.  It stays well within existing doctrine, and avoids unnecessary and fractious issues (which I actually go into in the above post).  One striking thing: The majority opinion completely ignores the religious dimensions of this case.  Forms of the word "religion" appear only four times in the majority opinion -- twice to describe Summum as a religious organization (see p. 2 & p. 2 n.1), once in referring to John Lennon's musical lyrics in "Imagine" (see p. 12 -- who says Justice Alito can't have fun?), and once in referring to the common museum with religious exhibits hypo (p. 13 n.5).  The majority puts aside the Establishment Clause issues, and treats this Ten Commandments display as it would any secular one. 

The concurring opinions pick up the issue a bit.  Justice Scalia writes an opinion (joined by Thomas, but interestingly not by Alito, Roberts, Kennedy or Breyer) opining that this display clearly is safe harbored by Van Orden.  And Justice Souter addresses the Establishment Clause as well.  His opinion is probably the one to really think about.  He, quite rightly in my view, recognizes the potential for disaster when the "government speech" doctrine begins to apply to government religious speech.  Here's his provocative thought:

The interaction between the "government speech doctrine" and Establishment Clause principles has not, however, begun to be worked out.  The case shows that it may not be easy to work out.

This is something too that I've written about before, and plan on working on later.  And certainly I can see this paragraph setting other pens in motion as well.

Posted by Chris Lund on February 25, 2009 at 02:40 PM | Permalink | Comments (9) | TrackBack

Swearing in class

One of the distinctive features of the dialogue in HBO’s series Deadwood was its complexity. It’s not that common to hear dependent clauses on TV, much less dependent clauses within dependent clauses. So why was the show so popular? Why were people willing to listen to characters who talk the way Jane Austen writes? The reason was another unique feature of the show’s dialogue (one that can’t be found in Jane Austen), namely the unprecedented use of profanity.  It was as if Elizabeth Bennett had been possessed by Joe Pesci.

The point is that profanity can make complex language easier to digest.  This makes it an attractive tool in the classroom. I’m convinced that if I could swear like a Deadwood’s Al Swearengen when lecturing about the Erie doctrine, my students would remember it much better come exam time.

As it is, I limit myself to language that would be acceptable on network TV, such as “No one gives a damn about service rules when choosing whether to sue in federal or state court” or “Who’n the hell knows whether a federal rule abridges, enlarges, or modifies a substantive right?” For a while I toyed with the idea of using Battlestar Galactica’s “frak,” but decided in the end that it was over the line.

But maybe I’m over the line already...?

Posted by Michael S. Green on February 25, 2009 at 12:02 PM in Teaching Law | Permalink | Comments (5) | TrackBack

Advocating Terrorism

Call me crazy, but isn't this advocating terrorism against the United States?

And why does Glenn Beck keep saying people have been "disenfranchised"?  I don't understand.  Didn't more people vote in this election than any other -- the highest percentage since 1960?  Why wasn't he talking about this in 2000, when the candidate who got 500,000 more popular votes was denied a state recount by the Supreme Court?  I know Beck expresses disbelief at what he's hearing, and he's talking about some "hypothetical" in 2014, but methinks he doth protest too much.  Even the folks at Little Green Footballs are calling this irresponsible.

By the way, that's Stephen "Going Galt" Moore who says that an upper tax bracket of 90 to 95% would mean you pay 90 to 95% of your income in taxes.  Actually, it would mean that you'd pay 90-95% on all income you make over the top threshhold (say, $250,000) -- anything below that would be taxed at a lower rate.  Of course, Obama has merely talked about raising the rate of the top tax bracket to Clinton-era 39.6% levels.  And yet, somehow we are threatened with socialism.

I don't want to go off on a rant here, but just a warning to those of you who cry "Socialism!" in a crowded theater.  Some people might take you a little more seriously than you expected.

HT: Sadly, no!

Posted by Matt Bodie on February 25, 2009 at 10:36 AM | Permalink | Comments (7) | TrackBack

Some Thoughts On Imposing Tobacco Taxes

N.B. This post is by Stephen D. Sugarman, new grandfather and the Traynor Prawf at UC Berkeley Law.

To help fund health insurance for children in working-class families, Congress just raised the federal cigarette tax from $.39 a pack to slightly over $1/pack. Both the tax and spending sides of this measure will improve the health of Americans. Future tobacco taxes, however, should be designed to even out the variation that exists from state to state. Ten states currently impose less than 50 cents-a-pack taxes, while 10 other states tax cigarettes at $2/pack or more.

A good way for the federal government to reduce this difference is to follow the strategy used to fund unemployment insurance. Congress could enact a new $2/pack federal cigarette tax that would be waived if a state’s own tax were at least $2. Surely low-taxing states like Kentucky, South Carolina, Missouri, and Mississippi would prefer to increase sharply their own taxes than have their smokers taxed anyway and the money go to Washington.

Lots of empirical studies show that these higher cigarette taxes would help reduce smoking rates in what are currently low-tax states -- most of which, like those listed above, now have among the highest smoking rates in the country.

The new revenue would help those states pay for smoking cessation programs and health care for indigent adult smokers (which might be mandated by the federal government). Furthermore, reducing the state-to-state tax differential would help shrink what today is a moderate but growing problem of interstate tobacco smuggling.

Beyond that, an assured nationwide minimum tobacco tax of $3 a pack would bring the U.S. closer toward compliance with the Framework Convention on Tobacco Control, the international tobacco treaty already adopted by most nations and which, it is hoped, the Obama Administration will soon convince the U.S. Senate to ratify.

Posted by Administrators on February 25, 2009 at 01:03 AM in Current Affairs | Permalink | Comments (4) | TrackBack

Tuesday, February 24, 2009

Salazar v. Buono...

So earlier today I mentioned the cert grant in Salazar v. Buono -- the Mojave Cross case.  It's going to be an interesting one, with difficult questions not just about the Establishment Clause, but about everything else -- from standing to the nature of the reversionary interest in property law to the courts' power to issue injunctions that impose costs on third parties.  There's a lot of messiness here, and potential for multiple fractures on the Court.  Below the fold I'll talk a little about the merits of the case; I hope to get to some of the other issues later.

Usually, in successful Establishment Clause display cases, the end result is that the government just takes the display down.  But here that didn't happen.  After the Mojave cross was declared unconstitutional (by Judge Kozinski, no less), Congress stepped in and passed a statute (16 U.S.C. § 410aaa-56), which essentially was a land exchange.  The VFW got the acre of land with the cross on it, and the government got 5 acres of land from a Mr. and Mrs. Henry Sandoz (I'm still figuring out who they are).  So in the middle of the federal Preserve, there's now this donut hole of private land with a cross on it.

I think the merits of this are straightforward, but that the standing part may create some trouble.  As to those merits, it's hard to see Congress's solution as properly curing the Establishment Clause problem.  Congress didn't just give the cross away to someone at random -- it chose the VFW because it wanted to keep the cross up.  (The SG's petition for certiorari plainly admits this; it says, on p. 19, that Congress "could have torn down the cross, but that could have been viewed as demonstrating hostility toward religion and dishonoring the memory of the service members who have long been memorialized on Sunrise Rock.")  And Congress put a reversionary clause in the statute so that Congress would repossess the land if anyone takes the cross down.  (Congress's continuing property-law interest in the land also raises a technical issue about whether, even now, it is still a "landowner" for EC purposes.)

Now the cross doesn't necessarily have to come down.  There are other possible solutions: the public forum (allowing everyone to put up what they want), the lottery (giving the property away at random to a private party), the market mechanism (selling the property to the highest bidder, although I have doubts about that one).  But this one was as far from neutral as it gets.

I'm thinking a good analogy here would be Santa Fe v. Doe.  In that case, with prayer by teachers and other government actors being unconstitutional, the Santa Fe school district arranged to have students take charge of deciding whether or not football games would be opened with prayer.  Divesting the religious exercise to private parties, Santa Fe argued, cured the Establishment Clause problem.  But the problem in Santa Fe is the problem here -- it wasn't a neutral divestment.  In Santa Fe, the district's prayer policy encouraged the students to give religious messages -- just as Congress's actions here encourage the cross to stay up.  (Btw, a number of courts in post-Santa Fe cases have held that neutral divestments do cure the EC problem -- so if a school's policy is to let the valedictorian give a speech and it happens to be religious, there's no EC problem, because the state isn't responsible for the religious aspects of the message.  I think that's right, though some disagree.)  Indeed, the plaintiff's case here seems stronger than the plaintiff's in Santa Fe.  The state action principles are the same, and even the conservative side of the Court has been relatively resolute against sectarian endorsements.  (See, e.g., Scalia's dissents in Lee v. Weisman and McCreary County.)

In the next couple of days, I'd like to say something about the justiciability and remedy issues, but who knows if time will permit...

Posted by Chris Lund on February 24, 2009 at 06:05 PM | Permalink | Comments (1) | TrackBack

The corruption of federal anti-corruption prosecutions

On Monday, the Court denied cert in Sorich v. United States, 08-410. Justice Scalia was correct to dissent: The ambiguity of the "honest services" provision of the federal Mail Fraud statute (18 U.S.C. section 1346) has for decades been an open invitation to federal prosecutors to expand their sway over the political process in harmful and even corrupt ways, all in the name of fighting corruption.

Robert Sorich was Daley's head of the Chicago Office of Intergovernmental Affairs. His heinous crime was to use this office to hand out governmental jobs to the political supporters of the mayor. The Seventh Circuit had held that Sorich and others were under a fiduciary obligation not to engage in patronage politics, because the City was under a consent decree from the Shakman litigation not to take political affiliation into account when making municipal hiring decisions. Shakman was section 1983 case in which Michael Shakman claimed that discrimination based on political affiliation deprived him and others of an equal right to participate in the political process. Sorich tried to evade this decree by picking candidates based on political loyalty and then subjecting them to sham interviews and other politically neutral job criteria. For this, he was convicted of depriving the citizens of Chicago of his honest services -- a conviction that the Seventh Circuit upheld in U.S. v. Sorich, 523 F.3d 702 (7th Cir. 2008).

That patronage politics are now a criminal offense in Chicago is surely eye-opening. That U.S. Attorneys can determine when patronage politics are criminal, based merely on their own sense of ethics laced with miscellaneous rules on disclosure and conflict of interest, is simply wacky. One can only hope that the discretion of federal prosecutors will be reigned in by the twin requirements that the indictment specify some sort of secrecy (to satisfy section 1346's requirement that there be a deprivation of "honest services") and breach of fiduciary duty (to satisfy section 1346's requirement of a deprivation of some "intangible right" to such honest services). But there are a plethora of civil rules out there on disclosure, conflicts of interest, etc. (New York City has a full-time administrative agency devoted to ferreting out such conflicts). Have all of these state and local rules now been transformed into political weapons for use by U.S. Attorneys -- political appointees themselves and often aspiring politicians -- against their political rivals?

I guess that the Court is just too darn busy to answer the question.

Posted by Rick Hills on February 24, 2009 at 03:20 PM in Criminal Law | Permalink | Comments (1) | TrackBack

Cert Grant in Salazar v. Buono

I'd like to post more later on the Supreme Court's recent cert grant yesterday in Salazar v. Buono.  There is so much going on with that case, it's hard to write a paragraph-long post.  To sum up, there was a cross in the Mojave National Preserve (government land), which is pretty clearly unconstitutional under the Court's precedents.  It was challenged.  Wanting to protect the cross, Congress intervened by giving the cross and the land under it to the VFW, in exchange for land owned by the VFW.  And the issue is (1) does that cure the constitutional problem, and (2) assuming it doesn't, does anyone even have standing to bring a challenge anymore?  Hopefully, this afternoon will give me some time to return to this...

Posted by Chris Lund on February 24, 2009 at 09:31 AM in Constitutional thoughts | Permalink | Comments (0) | TrackBack

Entry Level Hiring Report at Legal Theory Blog

For those of you with relevant information on the hiring of entry level profs, please visit the Legal Theory blog of our friend Larry Solum to share the info. Larry reports he is going high-tech this year:

This year, I will be using surveymonkey to collect the data. The data elements are similar to prior years. I am collecting information on the candidate's first law degree (JD), other advanced degrees in law or another discipline, practice experience, post-doc's/fellowships/VAPs, and areas of specialization/methodological orientation. Click Here to enter data for the 2009 Entry Level Hiring Report.  The first preliminary results will be reported in about one week.

For those lacking patience, readers of prawfs might be happy to hear that FSU has already made three hires and we are still hoping to hire more. So far, we've hired Tara Grove (HLS, Climenko); Franita Tolson (UChicago, VAP at NW); and Shawn Bayern (Boalt, Duke VAP). Prospective students (and professors) keen to learn more about FSU might want to check out our latest propaganda tool information sharing device. :-)

Posted by Administrators on February 24, 2009 at 08:31 AM in Blogging, Funky FSU | Permalink | Comments (1) | TrackBack

New Voices in Criminal Law Scholarship at Law and Society, 2009

Having survived her unsparing tutelage, I, along with my friend and sparring partner, Alice Ristroph, have put together a conference within a conference at Law and Society in Denver in late May 2009. We'll have about 8 panels with approximately four panelists per session on a variety of subjects. While we limited our efforts primarily to younger/untenured prawfs this year, I suspect there's no real reason to make the limitation in the future, assuming this one goes reasonably well. 

A little backstory. My experience with Law and Society in the past has been somewhat mixed when I ended up on a panel that I didn't help organize in some respect, so Alice and I decided we'd try to match crim law scholars roughly by topic.  Additionally, because of the open structure of Law and Society, there are rarely situations where others in the room have read the paper you are presenting -- so the likelihood of useful feedback is, to my experience, lower than it could be when there are opportunities to read the workin advance. Consequently, Alice and I are asking all the panelists to not only present their own paper but also to read the work of the other panelists on their panel. With some luck, this should enrich and elevate the conversation's depth of engagement with the work.

After the jump, you can check out our current list of panels (subject to minor tweaking). The order here is not reflective of the actual order at the conference and there may be changes to the titles, etc, but I wanted to give a flavor of who will be presenting and on what subjects in case you're a crim-type person.  One of the advantages of this structure is that the panels will be organized so as not to be scheduled in confict with each other.

Crim Law: Fed Crim Pro


Jelani Jefferson Exum (Kansas):  Dropping the Anchor: Reconfiguring Federal Sentencing after Booker

Ted Sampsell-Jones (WMitchell): Making Defendants Speak 

Carissa Hessick (ASU): Ineffective Assistance of Counsel at Sentencing

Emily Sack (Roger Williams) Federal-State Conflicts in Criminal Law 


Crim Law: Comparative Perspectives

Lissa Griffin (Pace): Study of Wrongful convictions in UK 

Shawn Marie Boyne (Indianapolis) Revisiting Damaska: Prosecutorial Discretion and the Search for Truth in Germany

Catherine Grosso (Michigan State), Military Murder versus Civilian Murder:  The Impact of Conventional Civilian Aggravators on Military Death Sentencing, 1984-2005."

Carolyn Ramsey (Colorado): "Provoking Change: Should the United States Follow Australia
in Reforming Homicide Law?".


Crim Law: Punishment Theory

Mark D. White (CUNY): Consequentialist Retributivism

Dan Markel (FSU), Should Retributivists Care About the Subjective Experience of Punishment?

Don Braman (GW), Against Punishment Naturalism

John Bronsteen (Loyola): Happiness and Punishment


Crim Law: Choice and Chance in Criminal Law

Marc DeGirolami (Catholic): Retribution and Justification

Vera Bergelson (Rutgers): Strict Liability and Affirmative Defenses

William Berry (Ole Miss): All for one and one for all?  Exploring the parallel (procedural) repudiation of capital punishment by Powell, Blackmun, and Stevens 

Vincent Chiao (HLS Fellow), Equality, Desert, and Luck in criminal law and procedure


Crim Law: Fear and Loathing in Criminal Law

 Alice Ristroph (Seton Hall), Criminal Law in the Shadow of Violence

 Mary Fan (American), The Spatialization of Fear and Fourth Amendment Reasonableness Shifting

 Russell Covey (Georgia State), Cinematic Representations of Insanity

 Melanie Wilson (Kansas): Police Lies.


Crim Law: Sex, Kids and Crime


Corey Rayburn Yung (John Marshall): The Undeclared Criminal War on Sex Offenders

Carissa Hessick (ASU): Punishing Kiddie Porn

Audrey Rogers (Pace): "Protecting Children on the Internet: Mission Impossible?"

Tamar Birckhead (UNC): Are Juveniles Entitled to Procedural Justice?

Crim Law : Domestic Violence


Melissa Hamilton (Toledo): Gender and Sexuality in Arrest Outcomes for Intimate Partner Violence.

Kim Bailey (Chi-Kent): "There is a Stranger in My House:  Re-Examining Privacy in Domestic Violence Law & Policy."  

Emily Sack (Roger Williams): critical analysis of the line of recent Supreme Court cases involving domestic violence – including Castle Rock, Crawford, Davis/Hammon, Giles.

Jennifer Collins WFU: Fathers Who Kill Their Children


Criminal Justice and the Family: A Roundtable on Privilege or Punish

How Should Family Status Be Addressed in the Criminal Justice System?

The panel will use as its springboard for discussion the new book, "Privilege or Punish: Criminal Justice and the Challenge of Family Ties" (Oxford, April 2009) by Dan Markel (Florida State Law), Jennifer M. Collins (Wake Forest Law), and Ethan Leib (UC-Hastings). Discussants will include Naomi Cahn (George Washington Law), Melissa Murray (Berkeley Law), and Elizabeth Scott (Columbia Law), Don Braman (GW), Tommy Crocker (U. South Carolina), as well as the authors.





Posted by Administrators on February 24, 2009 at 12:17 AM in Criminal Law | Permalink | Comments (0) | TrackBack

Monday, February 23, 2009

Everything You Ever Wanted to Know About Presidential Transitions

The Northwestern Law Review Colloquy has seized the moment and published several interesting new pieces on the underexplored topic of law and presidential transitions.  They're all worth looking at.  Aside from my own modest contribution on honor and the presidential oath, the Colloquy has recently published an excellent piece by Jack Beermann of BU, who has written some terrific work in this area, called Combating Midnight Regulation.   Today, it published its newest contribution to this online symposium, a piece by my friend David Fontana, a superb constitutional comparativist, called The Permanent and Presidential Transition Models of Political Party Policy Leadership.  More is on its way!  They are all available here

Posted by Paul Horwitz on February 23, 2009 at 04:37 PM in Paul Horwitz | Permalink | Comments (0) | TrackBack

Friends as Fiduciaries -- Final Version

I've learned from our competitor and friend blawg that my article, Friends as Fiduciaries, is now available in its final form at the Wash U Law Review.  Read it and weep.

Posted by Ethan Leib on February 23, 2009 at 02:04 PM | Permalink | Comments (0) | TrackBack

Monday TV Quiz (with associated legal point)!

OK, here's the quiz: name the two hour-long dramas in the history of television (I think) that were spinoffs of half hour sitcoms.  Answer, and associated legal thing, after the jump.

The answer is (1) Lou Grant, spun off from Mary Tyler Moore; and, more controversially, (2) Trapper John, MD, spun off from M*A*S*H.  Why is #2 controversial?  According to this unbelievably great website, which catalogs all of the spinoffs and crossovers in TV history (a "crossover" being when the reality of two shows intersect, like when the Bewitched characters became animated and appeared on the Flintstones), there was a legal batttle over whether people involved in the original M*A*S*H TV show would share in profits from Trapper John, and so the creators of the latter styled it as a spinoff of the original movie rather than of the TV show.  But still, come on, who are we kidding?

Anyone have any ideas for similar types of spinoffs?  I would actually like to see an example of the reverse situation: "Medevoy," a 1/2 hour sitcom spinoff of the hour long drama NYPD Blue, starring that red headed goofball detective who is always getting himself in wacky situations!

Posted by Jay Wexler on February 23, 2009 at 09:46 AM in Jay Wexler | Permalink | Comments (4) | TrackBack

Sunday, February 22, 2009

Is Kiyemba Cert.-Worthy?

My initial reaction to the news of the D.C. Circuit's decision this Wednesday in Kiyemba v. Obama, holding that the federal courts have no power to order the release of the Uighurs held at Guantanamo into the United States, was that the Supreme Court would never go near this decision, especially given the sui generis nature of the case (since, unlike most of the remaining Guantanamo detainees, there is nowhere for the Uighurs to go).

Then, I read Judge Randolph's opinion. It was mostly as expected, but one passage particularly caught my eye. Randolph rejects the detainees' due process claim because, in his words, "Decisions of the Supreme Court and of this court . . . hold that the due process clause does not apply to aliens without property or presence in the sovereign territory of the United States." He then cites a number of precedents in supoort, including Zadvydas, Verdugo-Urquidez, and Johnson v. Eisentrager (and a bunch of D.C. Circuit decisions, among others), and admonishes the district court for failing to follow binding precedent.

What's fascinating--and ironic--of course, is that he nowhere cites Boumediene in this discussion. To be sure, Justice Kennedy was extremely careful to limit his analysis in Boumediene to the particular question of whether the Suspension Clause applies in Guantanamo, and to thereby leave open the question of whether other constitutional protections apply to non-citizens detained there. But to say it's an open question is not the same thing as concluding--as Randolph apparently must have--that Boumediene in no way calls these earlier cases (Verdugo-Urquidez and Eisentrager, especially) into question. Indeed, as Orin already noted, Boumediene was the third time that the Supreme Court has reversed a Randolph opinion taking a skeptical view of the legal rights of the detainees (see also Rasul and Hamdan). At some point along the way, don't some of these precedents become worth revisiting?

All of this leads me to wonder if Randolph may have written an opinion that the Court--which might otherwise have been inclined to duck this case--cannot ignore. To say that the Due Process Clause categorically does not apply to Guantanamo is to suggest that the very review that Boumediene mandates need only be superficial. What's more, such a conclusion wasn't necessary to reject the Uighur's claims, so long as Randolph's analysis of the immigration laws is correct (my own view is that this, too, was an open question).

It's a messy case with unique facts and a very possible political solution in the offing that would moot the petitioners' claims. But I just can't see how Randolph's cursory and wholly unconvincing analysis of the detainees' due process rights can be left intact, either by the en banc D.C. Circuit or, if necessary, by his admirers on all-things-Gitmo: the Supreme Court.

Posted by Steve Vladeck on February 22, 2009 at 03:27 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (3) | TrackBack

A workable compromise on SSM/civil unions?

SSM opponent David Blankenhorn and SSM supporter Jonathan Rauch have co-authored a New York Times op-ed laying out a culture war "compromise." They propose::

Congress would bestow the status of federal civil unions on same-sex marriages and civil unions granted at the state level, thereby conferring upon them most or all of the federal benefits and rights of marriage. But there would be a condition: Washington would recognize only those unions licensed in states with robust religious-conscience exceptions, which provide that religious organizations need not recognize same-sex unions against their will. The federal government would also enact religious-conscience protections of its own. All of these changes would be enacted in the same bill.

So the federal government would support, not supplant, states' decisions on marriage and civil unions.  For someone (like me) who believes that the legal treatment of same-sex relationships should remain a state-level responsibility, who believes that the law will (and should) do more to support long-term, committed relationships among gays and lesbians, and who is concerned that the rhetoric of "marriage equality" has shown a tendency to minimize the importance of religious liberty (especially institutional religious liberty), what's not to like about this proposal?

Posted by Rob Vischer on February 22, 2009 at 11:24 AM | Permalink | Comments (12) | TrackBack

Evidence excluded in Bonds trial

Judge Illston's order is here Download USAvsBondsOpinion021909. Straightforward, but a good review for my Evidence class of a number of concepts--real evidence requires a chain of custody, the chain of custody requires admissible evidence, the search for hearsay exceptions, and the unreviewable discretion that district court judges have on procedure and evidence.

Only one part of the opinion gave me a pause: She excluded one of three audio transcripts of conversations--the one in which Bonds' trainer, Greg Anderson (the guy whose refusal to testify is the cause of all this) speaks with Bonds' personal assistant about random drug testing for the upcoming (2003) season and seems to suggest that he knows someone at the testing lab and he will be tipped in advance to when, if ever, Bonds will be tested. Judge Illston rejected the government's argument that this is admissible as a statement against interest, because "the government has not established that it was a criminal or civil offense in 2003 to help athletes evade detection by professional sports associations."

But this seems a bit too quick. If a lab employee were tipping off players (or members of their posses) about upcoming tests, wouldn't MLB have some claim against the lab and the employee (fraud, interference with business expectation, something else (help me out, tort people))? And wouldn't MLB also have a claim against the posse member (in this case, Anderson) who received the tip and passed it along, also frustrating MLB's business expectations? Maybe this just was a matter of what the government brought forward on the motion. But it seems Anderson could have gotten into some trouble by receiving and passing along these tips, such that his admission of it would be against his interest.

Posted by Howard Wasserman on February 22, 2009 at 07:23 AM in Criminal Law, Current Affairs, Howard Wasserman, Sports | Permalink | Comments (0) | TrackBack

Friday, February 20, 2009

From Choice of Law to Choice of Currency?

In their new book, The Law Market, Larry Ribstein and Erin O'Hara show that states increasingly act as hawkers of legal rules in a "market for law."   These competing systems give individuals choice over the legal regime they find most desirable.  According to Ribstein and O'Hara, parties should be able to use choice-of-law contracts in order to choose which "law" they most prefer.

Last week in the WSJ, Judy Shelton argued in favor of choice of currency -- namely, allowing competition in the market for the type of currency we use to pay our bills.

Now is the time to challenge the exclusive monopoly of Federal Reserve notes as currency. Buyers and sellers, by mutual consent, should have access to an alternate means for settling accounts; they should be able to do business using a monetary unit of account defined in terms of gold. The existence of parallel currencies operating side-by-side on an equal legal footing would make it clear whether people had more confidence in fiat money or money redeemable in gold. If the gold-based system is preferred, it means that people fully understand that the purpose of money is to facilitate commerce, not to camouflage fiscal mismanagement.

I'm not really clear, based on the article, whether Shelton would create a dueling federal gold-based currency, or whether she thinks states should do this, or whether it would be privately provided.  (Would there be federal insurance for those AIG gold-backed dollar bills?  Madoff dollar bills?)  A question for the "Law Market" folks: should we have choice of currency?  I'm guessing the answer might be: sure, but is there really a market for it?  I would imagine that this isn't really an issue.  If anything, international rather than domestic competition amongst currencies should be enough to provide contractual choice here.  Payments to the government might be another matter.  Although if you want to pay your taxes in gold, I can't say I'd stop you.

HT: Frank Pasquale

Posted by Matt Bodie on February 20, 2009 at 02:28 PM | Permalink | Comments (2) | TrackBack

Hold the Soup: a new movie in DC at the NGA

My fellow Dorot alum Faye Lederman has, over the last few years, embarked on a career of producing and directing a number of provocative and moving films. I just received word that Faye and her collaborators will be screening a new movie of theirs in Washington DC this weekend. Here's the info:

Our new documentary Hold the Soup will screen at the National Gallery of Art this weekend, Sat. Feb 21 at 2pm as part of a program of short films. The other pieces are an interesting mix, including a film by the famous experimental artist Barbara Hammer. (Avant garde meets matzo balls? who are we to question.) http://www.nga.gov/programs/calendar/cal2009-02_w07.shtm
(click on American Independents: The Black Maria)

Film Synopsis:
Jewish grandmothers will think twice about offering up seconds after watching their sacred matzo balls turn to sport in this gustatory romp. Competitive eaters from across the country face off in a sloppy race for the title of World Matzo Ball Eating Champion. These "seasoned athletes" spanning the ethnic spectrum serve up some unique perspectives on Jewish cooking and dispel our myths about who loves Jewish food and why.

Posted by Administrators on February 20, 2009 at 08:03 AM in Film | Permalink | Comments (0) | TrackBack

Thursday, February 19, 2009

Legal responsibility vs. Relational responsibility

Loyola law prof Samuel Pillsbury has posted a review essay, Learning from Forgiveness.  Here's the abstract:

Many have argued that contemporary American criminal punishment is overly harsh and unforgiving, especially in its use of mandatory minimum penalties. But what does forgiveness have to do with the criminal law? In this essay review of two recent books on the philosophy of forgiveness, I argue that forgiveness is a form of relational responsibility, in which personal interaction between judge and judged, and the value of an ongoing human relations are central features in determining personal responsibility. This contrasts with legal responsibility, which is idealized as impersonal, rule-dictated and disinterested in personal relationships. Looking at some particular uses of mandatory life sentences in California - for juvenile murderers and third strike offenders - I suggest ways that concepts of relational responsibility, including those from forgiveness, might inform how punishment decisions are made.

This sounds like another area of law that underscores the importance and insight of Stephen Darwall's work on the second-person standpoint (as brought bear on legal theory most notably by Rob Kar).  It also provides another fascinating context for exploring, as I am beginning to do, the concept of human dignity as an attribute of human relationships, not simply an intrinsic property of the human person.

Posted by Rob Vischer on February 19, 2009 at 04:51 PM | Permalink | Comments (0) | TrackBack

Wednesday, February 18, 2009

USA TODAY: Don't Investigate Bush Administration “Excesses” (read: alleged monstrous crimes)

USA Today’s editors revealed Tuesday that they oppose efforts by Democrats such as Rep. John Conyers (D-Mich.) and Sen. Patrick Leahy (D-Vt.) to form commissions to investigate the many “excesses” of the Bush team.  We’re reminded that such decisions are ultimately political, not legal.  Let’s look at the hodgepodge of points USA Today’s editors made, as these points represent conventional political wisdom. (Unfortunately, Rep. Conyers’ own argument seemed fairly weak and somewhat apologetic.)

USA Today latched onto Democrats’ calling Bush Administration misdeeds “excesses.”  That’s a pretty tame term for what, if proven, would amount to major crimes: torture; searches conducted without warrants or probable cause; aggressive war.  I was struck by the USA Today's reflexive sense that the investigation would ultimately be partisan.  It’s partisan to investigate war crimes? Democrats should not be painted as partisan for pursuing investigations.  Instead, Republicans should be faulted as partisan for not joining these efforts.

If I am ever accused of a crime, I will request a “commission” to look at my “excesses,” rather than a jury.

USA Today said investigating the alleged abominations would pose “a divisive distraction” from “rescuing the economy, controlling [the US's] exploding debt; fighting two wars and fixing other pressing problems.” Echoing President Obama, the editors said we should look forward, not backward.  I’m reminded of the workaholic who toils long and late to avoid introspection.

If I am ever accused of a crime, I will cite the crises of the day, and our need to look forward, not backward at my excesses ….

Where’s the principle here - would balmier times change the editors’ minds?  Moreover, these far-flung problems may be linked. Had the Bush Administration followed the rule of law and not wasted time and brainpower, for example, building an entirely new justice system designed to deny rights to a small number of people at Guantanamo, our leaders might have been able to think more clearly about other issues. Had the Bush Administration (and our major newspapers such as the Washington Post and New York Times, and our citizenry, for that matter) weighed the putative evidence of Iraq’s supposed WMD more carefully and followed international law, we would not be paying billions of dollars for all that unnecessary killing. 

The USA Today editors wrote, “Then there is the question of motive. Unlike Richard Nixon, whose subversion of the Constitution was meant to perpetuate his power, Bush’s post-9/11 decisions were simply his best judgment about how to keep the nation safe.” That’s reassuring, but it begs the question: Can we know motive without even a “justice lite” investigation by a commission that will ultimately end with a big group hug?  Also, the illegal methods - torture, widespread eavesdropping - are not really effective for information-gathering.  Invading Iraq did not make us safer. These post-9/11 decisions - especially endless war - unleashed methods commonly applied by governments that aim to increase their own power and crush dissent. At the USA Today, the government’s (proclaimed) ends justify the means. 

If I am ever accused of a crime, I will say I simply had good intentions.

The editors also reassured us that, “The fact is the Bush administration’s excesses are already well-documented, thanks largely to journalists, historians and Democrats who took charge of congressional oversight after 2006.”  I don’t remember lots of meaningful Democratic oversight after 2006.  I do remember continued funding for the Iraq occupation and immunity for telecoms involved in warrantless “excesses.”

If I am ever accused of a crime, I will point out that everybody already knows everything I did, and that the government now trying to bring me to justice was in power at the time of my excesses - so what’s the point?

The USA Today concluded, “Congress’s attention is better devoted to solving problems than to exacting retribution.”

If I am ever accused of a crime, I will say that government’s purpose is not to exact retribution, but to solve problems.

Maybe a deeper message lurks: If our political leaders hadn’t spent their time and our money seeking retribution for 9/11 by engaging in divisive distractions such as invading and occupying Iraq and torturing people at Guantanamo and beyond - acts that killed and maimed and harmed thousands of innocent people - maybe we wouldn’t have so many crises in the U.S.A. today.

The USA Today’s political arguments are unconvincing. The editors' tentative support for only a limited investigation into “one or two key unresolved questions, such as whether torture actually produced information that saved lives,” seems small-minded and backside-covering in the shadow of the monumental crimes alleged.  The crimes alleged are reprehensible, monstrous, among the worst crimes human beings can commit.  We owe ourselves and the world - especially our victims - a full airing, and punishment of the perpetrators.  Let’s rise above partisanship and investigate.

Posted by Brian J. Foley on February 18, 2009 at 06:58 PM in Criminal Law, Culture, Current Affairs, Law and Politics | Permalink | Comments (26) | TrackBack

A for Effort?

The Times has an article on the attitudes of college students that if they put in the time and real effort in class (doing all the read, showing up for class), they should get at least a B, regardless of the quality of their papers or exams. A recent study found that 1/3 thought showing up for every class was sufficient for a B and 40 % thought doing the reading (presumably while also showing up) was enough.

A keeper quote from a senior at the University of Maryland:

If you put in all the effort you have and get a C, what is the point? . . . .If someone goes to every class and reads every chapter in the book and does everything the teacher asks of them and more, then they should be getting an A like their effort deserves. If your maximum effort can only be average in a teacher’s mind, then something is wrong.

The story deals with undergrads, but surely the same attitudes have or soon will trickle into law schools. Apparently, the legal writing listserv has been talking about this all day today, with one commentator capturing the issue as it relates to law school: "I think putting in a lot of effort should merit not getting sued for malpractice. What else is there really than the effort that you put in?"

I have not yet had a student dispute a final grade on these grounds. But I have had a student demand to know why he received no credit for class participation (which is worth 10 % of the final grade) when he was in class and prepared every day--but never spoke once the entire semester. He did not quite seem to understand that a) you don't get credit for showing up, since that is the independently required as part of the class; b) it's not entirely clear that you "participated" in class if you never actually, you know, participate; and c) even if doing the reading were enough, how am I supposed to know that you've done the reading if you never speak.

Posted by Howard Wasserman on February 18, 2009 at 03:08 PM in Current Affairs, Howard Wasserman, Life of Law Schools, Teaching Law | Permalink | Comments (10) | TrackBack

Of Phelps and Poker

Given my interest and recent posts about Michael Phelps and professional poker, there was no way I could not link to this.

Posted by Chris Lund on February 18, 2009 at 11:14 AM | Permalink | Comments (0) | TrackBack

Tuesday, February 17, 2009

Some More Thoughts on Michael Newdow

Jay Wexler has a post below discussing how Michael Newdow will be doing the theme song for his book -- am I crazy to wonder what that means? -- and asking what people think of him.  For me, it brought back some memories about the oral argument in the Pledge case.  I remember people being frustrated with Newdow (whom I've never met, btw) as the Pledge case was going up, especially with him deciding to do oral argument himself, going heads-up against Solicitor General Olson.  But that frustration was overblown.  Oral argument wasn't going to change minds (on the Establishment Clause issue, anyway).  And Newdow broke some ground.

Within the first minute of oral argument, I remember Newdow breaking out of the jargon: "I am an atheist," he said.  "I don't believe in God."  Not your ordinary oral argument.  And I think that's what made the oral argument: the obvious hurt below the surface of Newdow's presentation, the obvious fact that he was unavoidably a religious minority, and the obvious incompatibility between the Pledge and his religious beliefs.  It led to this weird dynamic.  A couple of the memorable moments:

At one point, the Chief Justice led Newdow backwards into making a point for his side.  Rehnquist asked Newdow what the vote in Congress was for the adoption of the Pledge, Newdow responded that it was unanimous, and the Chief dryly observed, "Well, that doesn't sound divisive."  There was some laughter.  But Newdow had a response -- he said the reason why it was unanimous was because no atheist could get elected to public office.  That caused much more laughter.  And applause.  The Chief had to threaten to clear the courtroom.  Newdow went on, pointing out that several states apparently still have laws on the books barring atheists from public office.  Justice Ginsburg tried to make him feel better, pointing out that those laws were unconstitutional -- but Newdow explained that his real point, which she surely understood the first time, was just that atheists are so far outside of the mainstream that they almost don't count politically.

But the part of the oral argument I remember most was this short, relatively obscure bit with Justice Breyer that I'm sure no one else still thinks about.  The Supreme Court has these two law-and-religion cases, Welch and Seeger.  They were Vietnam-era cases about draft exemption.  The relevant statute required conscientious objectors to profess a belief in a "Supreme Being" to get an exemption.  The Court both in Welch and Seeger works fairly hard to interpret "Supreme Being" so as to include nontheists.  (The right thing to do, but hardly consistent with the statute's text.)

Anyway, at oral argument in Newdow, Justice Breyer raises these cases and asks -- well, given Welch and Seeger, don't you think that "under God" can be interpreted broadly enough to include you?  I had to look up Breyer's exact phrasing, "So it's reaching out to be inclusive, maybe to include you . . . So do you think God is so generic in this context that it could be that inclusive?  And if it is, then does your objection disappear?"  That question has always has struck me as an amazing thing to ask a person who just said he was an atheist.

Posted by Chris Lund on February 17, 2009 at 11:52 PM | Permalink | Comments (8) | TrackBack

When they say they don't want to politicize sport . . .

Shahar Peer of Israel, the # 48-ranked women's singles player, was denied an entry visa to the United Arab Emirates to play in this week's Barclays Dubai Tournament, citing security fears of having an Israeli playing in Dubai in the wake of the recent military conflict in Gaza. The denial, by the way, came on Saturday night, with Peer's first match scheduled for Monday. The Tennis Channel refused to broadcast the tournament following the UAE's decision.

The tournament organizer, Dubai Duty Free, said Peer's "presence would have antagonized our fans." The statement then added "We do not wish to politicize sports, but we have to be sensitive to recent events in the region and not alienate or put at risk the players and the many tennis fans of different nationalities that we have here in the UAE."

Sorry, folks; you cannot have it both ways. Shahar Peer is neither an Israeli political official nor a member of the Israeli military; she played no role in the events in Gaza and those events have nothing to do with her--and certainly nothing to do with her as a tennis player. You have banned an Israeli player from the tournament (the country, actually) explicitly on the ground that her mere presence as an Israeli (playing for herself, not even on behalf of her country) would "antagonize" and "alienate" people and be insensitive of recent (political) events. By definition, you are politicizing sports; you are incorporating socio- and geo-political considerations having nothing to do with sport into decisions decisions about who gets to participate in a sporting event. And it is insulting and dishonest to claim otherwise.

This is not necessarily to criticize politicizing sport. If you believe that the actions of Israel are such that its citizens should not be permitted to participate in international competitions, make that argument; but acknowledge that you are being explicitly political--and take the hit when others respond to those political positions, as by (perhaps) pulling the event off the WTA schedule.

Interestingly, this whole thing might be repeated at next week's men's tournament. Andy Ram, an Israeli doubles specialist, still is waiting for his visa.

Posted by Howard Wasserman on February 17, 2009 at 08:06 PM in Current Affairs, Howard Wasserman, Sports | Permalink | Comments (5) | TrackBack

Religious Liberty and Conscience at Villanova

Readers might be interested in attending Villanova Law School’s third annual Scarpa Conference on Law, Politics and Culture this Thursday, February 19, 2009, at the Connelly Center on Villanova’s main campus.

The theme of the conference is “Liberty of Conscience and Religious Equality,” and the all-star speakers include Martha Nussbaum from the University of Chicago, Patrick M. Brennan from Villanova, Jesse Choppr from Berkeley, . . . Kent Greenawalt from Columbia, John McGreevey from Notre Dame, Roderick Hills from New York University, Very Rev. Richard Schenk, OP from the Dominican School of Philosophy and Theology at the Graduate Theological Union at Berkeley, and Geoffrey Stone from the University of Chicago.

HT:  First Things

Continuing legal education credit is available for attorneys, and more information can be found here (PDF).

Posted by Rick Garnett on February 17, 2009 at 03:08 PM in Religion | Permalink | Comments (0) | TrackBack

Lawyers out of work? Time to relax the conflicts rules!

Yesterday the ABA house of delegates voted to revise Rule 1.10 to allow the screening of lawyers whose past representation of a client would otherwise create a conflict that would be imputed to any firm that the lawyer joined -- i.e., conceivably I could be representing plaintiff, then switch in the middle of the case to the firm representing defendant.  As long as my new firm puts in an adequate screen, I do not need the plaintiff's consent.  Several states already allow this, and there are good arguments on both sides of the debate.  The timing is not ideal, though.  This is the only major policy change emerging from the mid-year conference, so news accounts will undoubtedly highlight the ABA protecting its own when times get tough.

Posted by Rob Vischer on February 17, 2009 at 11:04 AM | Permalink | Comments (4) | TrackBack

Workshops and Wine

Like many schools, we at BU have a weekly workshop in which someone from the faculty or someone invited from outside presents a work-in-progress, takes questions, defends their arguments, says "So . . ." and then reformulates the question to suit their purposes before responding, etc.  But one thing I've noticed over the past 8 years is that, while lunch is regularly provided, we never have any booze.  I've always wondered how the workshop would be different if people were drinking.  I remember in graduate school I took a workshop-like class that met at the professor's house and there was wine.  The class was still terrible, but I'm pretty sure the wine made it slightly less so.  I'm wondering whether workshops at other schools involve alcohol.  If so, what type?  Just wine and beer, or the hard stuff as well?  And if the latter, is it top shelf or rotgut?  How does the booze affect the discussion?  Does the speaker drink as well as the audience?  Any information would be greatly appreciated.

Posted by Jay Wexler on February 17, 2009 at 08:10 AM in Jay Wexler | Permalink | Comments (10) | TrackBack

Monday, February 16, 2009

Monday Afternoon Music Blog

Yesterday's New York Times had a nice profile of the musician M. Ward.  Ward's new and really cool album is coming out tomorrow (Tuesday).  You can hear bits and pieces here and here.

And I'm a huge fan of She and Him, Ward's collaboration with actress/singer Zooey Deschanel (more tracks here). 


Posted by Zak Kramer on February 16, 2009 at 04:08 PM in Music | Permalink | Comments (2) | TrackBack

What do you say to the book buyer?

What is the upstanding law professor's proper response to the book buyer who periodically darkens our doorway?  Is there something unethical (or even illegal?) about selling review copies of casebooks that we never asked for and cost us nothing?  If there's nothing wrong with selling them, should we at least feel some sort of obligation to give the proceeds to some worthy law school-related cause?

Posted by Rob Vischer on February 16, 2009 at 11:49 AM | Permalink | Comments (14) | TrackBack

What is the Second Amendment for? (Part Four)

This multi-part post canvasses possible accounts of the Second Amendment’s purpose (a matter that I have discussed in greater detail in a recent article). Justice Scalia’s opinion in District of Columbia v. Heller doesn’t answer this question, beyond saying that the right to bear arms is tied to a natural right of self-defense. This does not tell us what interest stands behind the right of self-defense and how bearing arms is connected to that interest.

After discussing one failed argument for a relationship between arms possession and a right of self-defense, I then discuss what is probably the most popular interpretation of Scalia’s statement – namely that a legal system in which there is a right to self-defense makes us safer from violence at the hands of our fellow citizens and that the right to bear arms can be justified on the same basis. I argue that even if it is true that a system of private arms possession makes us safer than one in which we are forcibly disarmed, this is insufficient to justify a right to bear arms – that is, a limitation on the authority of the government to disarm the population. 

The primary goal of my article is to explore autonomy arguments that I believe are occasionally voiced by Second Amendment advocates (often without their being even aware of the difference between these arguments and those that appeal to safety). The idea that there is a natural right to bear arms – that is a right to bear arms when living independently of any governmental authority – makes a good deal of sense. In the Lockean state of nature we each have an entitlement to defend and enforce natural rights privately. Each of us is like a private police force. This is true even though private enforcement leads to feuding. The likelihood of feuding does not put on us a duty to submit to governmental authority. We have an autonomy right to enforce our vision of natural rights and bear the costs of our mistakes. But, in the interest of avoiding conflict, we may choose to submit to governmental authority (something we presumably have done).

A natural right to bear arms can be derived from this natural entitlement to private enforcement of rights, because arms allow us to execute our judgments about natural rights more effectively. This is true even though feuding becomes more deadly when we are armed.

But it does not follow from the fact that we have this right to bear arms in the state of nature that we have a right to bear arms against the government. We relinquish our entitlement to private enforcement when submitting to governmental authority. Since the right to bear arms is tied to this entitlement, it appears that we would also alienate our right to bear arms.

Last time I considered an anarchistic argument for the Second Amendment, which claims that we have a right to bear arms against the government because we have returned to the state of nature to some extent. One benefit of this argument is that it could work even if the collective exercise of our rights to bear arms makes us less safe than we would be if we were forcibly disarmed. Under this theory it is not safety that justifies the Second Amendment, but Lockean autonomy.

But there is another autonomy argument that does not depend upon the anarchistic assumption that we have escaped the authority of the government. There are a number of rights that we take ourselves to have against the government that appear to preserve part (although not all) of the entitlement to private enforcement that we possess in the state of nature. One example is the privilege against self-incrimination (which I have analogized to the Second Amendment here). Someone asserting the privilege appears to claim an autonomy right to make her own assessment about her possible wrongdoing. Although this idea is deeply attractive, it is also in tension with governmental authority, which exists to keep people from relying on their own judgments about the scope of their own and other people’s wrongdoing.

A similar problem exists with the right of a plaintiff to bring a civil lawsuit. This right has many of the “feuding” costs that we associate with the state of nature. People bring more suits than they should because they tend to read the scope of their rights in their own favor. Although the idea that we have a right to a civil suit is also deeply attractive, once again it is in tension with governmental authority.

The idea, then, is that the right to bear arms is like these rights to private participation in rights-enforcement that we retain even within a system of governmental authority. The complete entitlement to private enforcement that we possess in the state of nature is not retained of course (or we would be back in the state of nature, with all its costs). But part of it is retained, not because we are made safer as a result, but out of respect for Lockean principles of autonomy and individualism.

The trick, of course, is determining just how much of the natural right to bear arms is reserved. I discuss these issues, once again, in the recent article.

Posted by Michael S. Green on February 16, 2009 at 11:02 AM in Constitutional thoughts | Permalink | Comments (0) | TrackBack

Mike Newdow is Doing My Theme Song, etc.

Hello.  I would like to echo Dan's Happy Valentine's Day or Not message.  Unlike Dan, though, I didn't get to the movie theater.  Indeed, the last time I actually saw a movie in a theater was about a year ago when I saw the awful "21" in the theater on the bottom floor of the Palace of Culture and Science in Warsaw.  I did rent Miranda July's "Me and You and Everyone We Know" and I have to say that I've since been wondering whether I want to live in a world where that movie did not get nominated for best picture.

I would also like to apologize for falling down on my guest blogging duties and being silent for a while.  I was busy giving talks on evolution-related topics at Liberty University and West Virginia University, where the faculty I must say consists of some of the friendliest and funniest people I've ever met in legal academia (or anywhere else, really).

I have an announcement regarding my book that leads to a general question.  I'm delighted to say that Mike Newdow, the guy who sued (successfully, for a time) to have "under God" removed from the Pledge of Allegiance, and who is also a musician in addition to being a lawyer and a doctor, has agreed to write and perform the theme song for my book Holy Hullabaloos.  I'm a big fan of Mike's, and I think he gets a bad rap in the media.  If you go to his website, I think you can tell that he's not interested in anything like establishing an atheist country; he simply wants the government to stop discriminating against atheists like him (and me).  You can also buy some of his very funny (to me, anyway) CDs, of which I own and enjoy two.  My question, I guess, is am I wrong about Mike?  What do people in law school and the academy think of him?  Isn't he just a guy who is standing up for the rights of a minority?  Don't we generally approve of that sort of thing?

Posted by Jay Wexler on February 16, 2009 at 10:43 AM in Jay Wexler | Permalink | Comments (3) | TrackBack

Final and New Drafts

I hope everyone had fun celebrating Valentine's day, or not, if that's your preference. Among other things, I had the chance to see the Clint Eastwood movie, Gran Torino.  I thought the acting was a bit forced at times (I'm not sure growling counts as acting), but the movie crescendoes in a very powerful way, especially, I imagine, for fans of Christology. Eastwood's movie-making the last decade or so has been reliably beautiful and so this might be one worth visiting the cinema for, rather than waiting for Netflix. I have it on good authority, by contrast, that Confessions of a Shopaholic and He's Just Not That Into You are ones that can wait until their release on cable.

In any event, I thought I'd just post a quick note to say that the final version of Retributive Damages: A Theory of Punitive Damages as Intermediate Sanction is now available on SSRN or in your local January 2009 issue of the Cornell Law Review.  I will at some point soon be writing a short version of it for the new collaboration among law reviews called The Legal Workshop.*  I hope and invite others to respond to the final version in that forum (or elsewhere).  I've also just posted on SSRN a new working draft of the successor piece to Retributive Damages, entitled "How Should Punitive Damages Work?"  This piece will be coming out later this spring and I only have a couple weeks left before I have my last chance to touch it again, so if there are any folks who have written on or near the subject and wish to weigh in with comments or suggestions for further reading/citations, I would welcome your input via email. 

Last, I've also posted a newly revised and working version of Executing Retributivism: Panetti and the Future of the Eighth Amendment up on SSRN. As with the other working paper, I welcome comments by all and especially from those who have worked in or near the area (of the death penalty, Eighth Amendment generally, and/or punishment theory) and might wish to provide comments or suggestions for further reading and citations (including your own!). My apologies in advance if I neglected to address your work or those of your colleagues--please help me out before it's too late...
*This is what I heard about this new enterprise: Legal Workshop, a new online project, is a free electronic resource created and controlled by many of the nation's top Law Reviews, including the Harvard Law Review, the Stanford Law Review, and the NYU Law Review.  Its chief goal is to increase online exposure of published articles. For the Legal Workshop, all of our authors now prepare, with the help of the Executive Articles Editor with whom they are paired, a shortened version of their Article (1500-4000 words), without footnotes, analogous in style to a very brief essay or newspaper op-ed.

Posted by Administrators on February 16, 2009 at 12:55 AM in Article Spotlight, Dan Markel, Retributive Damages | Permalink | Comments (0) | TrackBack

Eight is Enough.

N.B. This post is by Naomi Cahn (GW) and Jennifer Collins (WFU).

If children are cheaper by the dozen, then how much for 14?  Nadya Suleman is the mother of the new California octuplets (and 6 other children, all under the age of eight). She loves children, and she is very happy about the situation.  She is fielding offers to appear on talk shows to tell her story, and carefully evaluating her next steps, according to her spokesperson.

      The public response, however, has been far less enthusiastic, to put it mildly.  Nadya Suleman has allegedly received death threats, and commentators have begun to call for increased regulation of fertility treatment.  These calls for increased regulation fall into two main categories.  First, some commentators have called for increased regulation of the in vitro fertilization procedure, which is the fertility treatment that led to Ms Suleman’s pregnancy, and in particular the number of embryos that can be transferred during the procedure.  Others, however, have called for restricting access to the procedure itself.  For example, Margaret Somerville, writing in the Ottawa Citizen newpaper, suggests that we need to consider whether prospective users of fertility treatment would be “suitable” parents, taking  factors like family size and financial resources into account.

      Let’s start with questions about increased regulation of the IVF process.  How did Ms. Suleman’s particular procedure result in 8 babies?  

We can try to imagine the conversation between Ms. Suleman and her doctor about how many embryos should be placed in her body.  As the doctor might have told her, the American Society for Reproductive Medicine (the ASRM is a membership organization of more than 8000 professionals involved in the fertility field) has developed guidelines for the number of embryos that should be returned.  Limits on the number of embryos protect the health of the mother and of the children.  Twins and triplets are at higher risk than single babies for a variety of health problems: they are more likely to be born early, to suffer from cerebral palsy, and to die in infancy.  The ASRM takes credit that its guidelines have helped reduce the number of embryos transferred and therefore resulted in a decrease in the number of multiple births.

      For a woman under the age of 35, like Ms. Suleman, the recommendation is that the physician return no more than 2 embryos.  In a statement that it issued on January 30, the organization affirmed, “we can say that transferring eight embryos in an IVF cycle is well beyond our guidelines.”   We know that most fertility doctors respect the ASRM’s guidance in this area, and many would refuse to transfer too many embryos.  They know the risks, and they’ve seen what happens when too many embryos are transferred.  But the guidelines are not binding, unlike in some other countries, they are not laws that are backed up with penalties, and fertility doctors don’t need to follow them. 

      We suggest that we need to pass laws that support the fertility industry while also protecting the interests of patients, children, and the public. Artificial reproductive technology has provided enormous comfort to people who want children.  There are over 400 fertility clinics in the United States, and more than 1 million women have a fertility-related medical appointment each year.  Upwards of 50,000 children are born each year through artificial reproductive technology. But that doesn’t mean that we can’t prevent doctors and their patients from creating instant families of eight – plus.  But there are relatively few national laws that apply to fertility clinics, and state regulation is piecemeal. 

      Governments in other countries have placed mandatory limits on the number of embryos that can be transferred.  In England, no more than 2 embryos can be transferred; in Switzerland and Germany, it is 3.  We need to follow their lead, and set limits.  In addition, we need to increase insurance coverage for these procedures, which will reduce the pressure that many women feel to transfer a large number of embryos because they may be able to afford only one shot at the procedure.

      As we think about how much leeway to give patients undergoing fertility treatments, and the doctors who advise them, we need to consider the consequences.  Yes, this affects the doctor/patient relationship.  And it might seem harsh to say no to people who are desperately wishing for babies and begging for more embryos.  But these limits protect the health of everyone involved.  Mandatory limits also protect doctors, requiring them to say no even if they are pressured by patients who want as many chances as possible to have a child, and who are willing to risk a multiple birth pregnancy. 

      Although we support limits on the numbers of embryos transferred during any single procedure, we cannot support proposals calling for restricting access to fertility treatments based on the financial resources of the prospective parents and/or the number of children they already have.  We do not set limits on family size for parents who are able to bear children without the aid of medical technology, and we do not require them to pass some sort of financial litmus test.  We also worry that evaluating the “suitability” of prospective users of fertility treatment will lead to the exclusion of individuals who are not part of a heterosexual married couple, certainly a phenomenon that we have seen in the adoption context.  We explore these issues further in a forthcoming essay. 

Posted by Administrators on February 16, 2009 at 12:51 AM in Current Affairs | Permalink | Comments (3) | TrackBack

Sunday, February 15, 2009

No moralizing in the pharmacy! Please moralize in the fertility clinic!

In recent years, there has been widespread resistance to the suggestion that a health care provider's own moral convictions should limit or otherwise shape the services she provides.  Whenever a pharmacist refuses to dispense the "morning after" pill, to cite a well-known example, most academic and media commentators have been quick to condemn the refusal.  As the governor of Wisconsin explained when vetoing a bill that would have extended conscience rights to pharmacists, "you're moving into very dangerous precedent where doctors make moral decisions on what medical care they'll provide."

The conversation has gotten more interesting with the news that a fertility doctor implanted a single parent of six with six more fertilized embryos (two became twins).  Some might insist that the criticism of the fertility doctor is different than the criticism of the pharmacist, because the pharmacist is engaged in paternalistic moralizing, while the fertility doctor violated the harm principle by disregarding the well-being of the children to be born.  It's not quite so simple, though, since concern for the children to be born also motivates the objecting pharmacist.  (Another stream of criticism focuses on the octuplet mom's "wasting" of taxpayers' money, which is another story.)

I'm not suggesting that there are no persuasive distinctions between the pharmacist and the octuplet mom's fertility doctor, but I do think we need to be careful before we diminish health care providers' own sense of moral agency.  I do not favor a legally cognizable conscience right for individual health care providers, but I also oppose efforts to render all health care providers morally fungible via state edict.  My own view, outlined in this paper and explored further in a forthcoming book, is that providers' moral claims should be free to operate in the marketplace as long as access to goods and services deemed essential by society is not threatened.  (For these purposes, I defer to the political process to determine which goods and services qualify as "essential.") 

One objection to my argument would be to say "We're not criticizing the octuplet mom's fertility doctor; we're just saying that the law needs to be changed so that what he did becomes illegal."  That's a coherent and logical argument, but I think we're headed down a troubling path if we reject the possibility of non-legal grounds on which to criticize a provider's exercise of professional judgment.

Posted by Rob Vischer on February 15, 2009 at 07:38 PM in Current Affairs | Permalink | Comments (7) | TrackBack


Howard Wasserman and Richard Esenberg have blogged about the matter before, but now the New York Times is picking up the story (Prawfs gets results!):

FOR the backers of Proposition 8, the state ballot measure to stop single-sex couples from marrying in California, victory has been soured by the ugly specter of intimidation.

Some donors to groups supporting the measure have received death threats and envelopes containing a powdery white substance, and their businesses have been boycotted.

The targets of this harassment blame a controversial and provocative Web site, eightmaps.com.

I have to admit, I don't know what to think about this.  Intimidation, bad; transparency, good; engaged political participation, good; preventing information gathering-and-flow in today's world, probably impossible; etc.  Thoughts?

Posted by Rick Garnett on February 15, 2009 at 04:09 PM in First Amendment | Permalink | Comments (4) | TrackBack

Saturday, February 14, 2009

Crazy Week

I would have posted more this week.  But it was a little hectic at my law school.

Posted by Sam Kamin on February 14, 2009 at 12:19 PM in Life of Law Schools | Permalink | Comments (2) | TrackBack

Friday, February 13, 2009

Fostering Inclusion

Cynthia Tucker wrote a very thought-provoking editorial last Sunday about how officially setting aside one month of the year as Black History Month simply reinforces that the history and achievements of those of African descent in this country somehow isn't a part of American History. The same could be said of Women's History, and probably other groups. The goal initially was important--to raise people's awareness of that history, but the process ends up perpetuating the "otherness" of that group.

I have been struck recently by a similar phenomenon at events. Sponsorship by an organization linked with race or gender leads to attendance almost exclusively by members of that group, despite wide advertisement and the clear communication that the subject of the event would focus on issues of wide interest. Few men come to the women's bar group seminar on communicating effectively across generations. Few white people come to the same seminar sponsored by a group of minority lawyers. Even worse, sometimes when broad-based organizations hold events to commemorate or celebrate something linked with a non-Anglo race/ethnicity/national origin, women, or sexual minorities, white people, men, and straight people tend not to go. And even though it's probably not due to any intentional slight, often the non-attendance seems to be a rejection of the group or the thing commemorated.

So how might we foster inclusion in the face of what is well-meant, but counterproductive, in the case of Black History Month or the events I mention, or because of inertia, as may be the case for at least some types of events?

Posted by Marcia L. McCormick on February 13, 2009 at 05:15 PM in Culture | Permalink | Comments (4) | TrackBack

"Hands Off" Religious Doctrine

In January 2008, the AALS Law and Religion Section's program examined the rule, or claim, that the Constitution requires government to adopt a "hands off" approach to religious doctrine.  The papers -- by Kent Greenawalt, Sam Levine, Andy Koppelman, Chris Eisgruber & Larry Sager, Bernie Meyler, and me -- have been published in the Notre Dame Law Review, and are available here.  Take a look!

Posted by Rick Garnett on February 13, 2009 at 12:05 PM in Constitutional thoughts | Permalink | Comments (1) | TrackBack

"Best practices" in health care

Last month the UK's Department of Health issued a guide on religion for British health care providers.  Much of it is unobjectionable and unsurprising (proselytizing=boo! raising awareness=yay!), but one section stopped me in my tracks.  In the section headed "trans people," the Department notes that because some religions "do not embrace" "trans people," providers "may be faced with a situation where a member of staff objects to working with or treating a trans person on the grounds of their religious beliefs."  In such cases, "anti-discrimination and bullying and harassment policies should be equally applied."  Fair enough, but then the Department gives the following "Good practice example," quoting from a recent news story:

"A bishop gave his blessing yesterday to a vicar who is to have a sex change operation before resuming his ministry as a woman.  The Rev Peter Stone, 46, who will be known as Carol, is the first priest serving in the Church of England to have 'gender redesignation' treatment.  The Bishop of Bristol, Rt Rev Barry Rogerson, said there were 'no ethical or ecclesiastical legal reasons why the Rev Carol Stone could not continue in ministry in the Church of England.'  He said he had researched the issue of trans and consulted Lambeth Palace before approving Mr. Stone's continued ministry.  Mr. Stone has the 'overwhelming support' of his congregation . . . ."

Why exactly is the Church of England's decision to allow a transgendered priest to continue his/her ministry an example of best practices cited by the government to guide all British health care providers?  Seems to be a not-so-subtle suggestion that providers who have religious objections to sex change procedures are not just potential threats to patient autonomy (which is the traditional, and understandable, concern), but that their religious objections are groundless.  Isn't this a remarkably illiberal stance for the state to take, or is there some other rationale that I might be missing?  And for those who know more about these issues than I do, is this part of a broader trend?

Posted by Rob Vischer on February 13, 2009 at 11:15 AM in Current Affairs | Permalink | Comments (0) | TrackBack

Trans Fat

The Spring law review submission cycle is (almost?) upon us.  My contribution to the mass of submissions is Trans Fat, a book review co-authored with Liz Glazer.   In the paper, we review Professor Anna Kirkland's wonderful book Fat Rights: Dilemmas of Difference and Personhood (NYU Press 2008).  The abstract is below the bump.

Liz and I welcome comments.  Thanks!

In her book, Fat Rights: Dilemmas of Difference and Personhood, Professor Anna Kirkland uses fat discrimination as a case study to examine the ways in which we talk about difference in antidiscrimination law. She argues that the proper way to frame questions of difference in antidiscrimination law is not in terms of protected traits or categories, but rather in terms of what she calls "logics of personhood." The logics of personhood are narratives that enable us to talk about which differences matter in a given discrimination case. In other words, they are ways of talking about what happens when people do or do not have rights, as well as whether certain people should be protected by antidiscrimination law. After applying the logics to the case of fat discrimination, Kirkland joins a growing community of scholars seeking to transcend antidiscrimination law's categories. By identifying in the logics of personhood the presumptions that lay beneath the surface of antidiscrimination law, Kirkland creates an entirely new way to talk about differences among people.

In this Book Review, we extend Professor Kirkland's discussion of fat plaintiffs to a discussion of transgender plaintiffs. Much like fat plaintiffs, transgender plaintiffs' only hope of articulating actionable discrimination claims is to map their claims onto existing antidiscrimination norms. As Kirkland demonstrates in Fat Rights, fat plaintiffs must cast themselves as disabled in order to state an actionable discrimination claims. And as we demonstrate in this Book Review, transgender plaintiffs must cast themselves as gender-nonconformists in order to state actionable claims. While both fat and transgender employees may be willing to negotiate their identities to win lawsuits against their discriminatory employers, the purpose of this Book Review is to ask whether they should have to. We use Kirkland's logics of personhood to demonstrate that fat plaintiffs and transgender plaintiffs share a common frustration with respect to antidiscrimination law's protected categories, namely, that antidiscrimination law sees both fat people and transgender people differently from how they see themselves. And we argue further that this is a significant harm to a plaintiff's dignity and that antidiscrimination law should take into consideration such dignitary harms.

Posted by Zak Kramer on February 13, 2009 at 11:14 AM in Article Spotlight | Permalink | Comments (0) | TrackBack

Books All Law Professors Should Read - the PrawfsBlawg Research Canons Project

I had a short-lived post here asking readers to list books and articles that all law professors should (have) read. Dave Hoffman (Temple Law) pointed out that Prawfs Blawg has already done this in its "Research Canons Project" that Matt Bodie started back in September, 2006. Ah, the joys - and surprises - of "preemption." (Thank you, Dave!)  Anyway, if you were ever wondering about a general canon for all law professors as well as canons for individual subjects, as I was, your answers are here and here.  I believe the project continues ...

I was thinking of turning this post into a request for readers' preemption stories, but I think I'll check to make sure no one's done that already ...

Posted by Brian J. Foley on February 13, 2009 at 08:09 AM in Research Canons | Permalink | Comments (0) | TrackBack

I'm leaving (Texas) today . . . New York, New York

A year and a day after the suit was removed to federal court, Judge Ellison of the United States District Court for the Southern District of Texas has dismissed the main chunk of Roger Clemens' defamation action against former trainer Brian McNamee. The suit contained three claims, arising from statements made: 1) to the Mitchell Commission; 2) to SI reporter Jon Heyman; and 3) to Andy Pettitte. The first two claims were based on statements made in New York about conduct occurring in New York and Toronto (and not Texas). Any action on these claims must be brought in New York.

The order is here: Download Clemens_v._McNamee. A few thoughts after a quick read:

1) The personal jurisdiction analysis as to the Mitchell Commission and Sports Illustrated claims takes a very narrow approach to Calder v. Jones, which is not necessarily a bad thing. The court took the requirement that the defendant's contacts be directed towards the forum to be about more than the plaintiff's home state and whether the story was published in the state; much depended on the locus of the comments and the events described in the comments, which meant New York (and certainly not Texas). I do wonder about the decision as to the statements made to SI. He was speaking to a national magazine with a substantial circulation in Texas, so McNamee surely knew that his statements about a Texan would be heard and would sting in Texas. It is hard to think that his statements were not "directed to" Texas.

2) I wonder if Clemens is going to stick with his claim based on the statements to Pettitte. It is properly in Texas and it survived summary judgment on a statute of limitations defense, but the court held that the claim as stated is not libel per se, thus Clemens had to plead actual damages, which he was granted leave to do. But given that he is going to bring the big claims (the statements to Mitchell and SI) in New York, he probably will bring the whole thing there.

3) A couple of things for my civ pro teaching purposes: Including a nice explanation of converting motions to dismiss into motions for summary judgment and a largely unexplained demand for more (and more specific) facts in the complaint, namely facts showing actual damages on the defamation per quod allegations.

Finally, I have gotten several e-mails and comments from Columbia 1Ls who had Jack Greenberg for civ pro in the fall and dealt with this case on the final exam, with an Erie issue thrown in. Any Greenberg students out there who can tell me what the Erie issue was?

Posted by Howard Wasserman on February 13, 2009 at 12:19 AM in Civil Procedure, Current Affairs, First Amendment, Howard Wasserman | Permalink | Comments (0) | TrackBack

Thursday, February 12, 2009

What would it mean to be the #1 law school for ethics?

I'm at the ABA's mid-year meeting in Boston, and today I learned that some legal ethics types have been talking with Bob Morse of U.S. News about the possibility of adding an "ethics" component to the law school rankings.  It sounds like the conversation is at a very early stage, so specifics are lacking.  There was some suggestion that the component could be based on course offerings and whether there are required courses beyond PR, such as courses on professionalism or law office management. 

Count me, at least at this stage, among the skeptics.  I'm all in favor of serious institutional commitments to ethics and professional formation more broadly (a big reason why I came to St. Thomas), but I have no idea how such commitments could be quantified and compared in any meaningful way.  Course offerings will often reflect the interests of the faculty and student body, and whether a course is required may say as much about the deference the school gives to student choice as it does about a commitment to ethics.  If U.S. News was to look at the output side of the ledger, helpful benchmarks are also lacking.  For example, if the ranking was to incorporate the percentage of graduates subject to disciplinary proceedings, lower-ranked schools would be unduly penalized since clients of lawyers in small firms or solo practice utilize the disciplinary process much more frequently than clients of large firms.  Those numbers, I'm guessing, would also vary significantly by jurisdiction. 

Basing the rankings on reputation would be a little better, but not much.  If U.S. News surveyed the PR profs as to which schools are best in the field, there might be some meaningful divergence with the overall rankings,  (E.g, I'm guessing that Fordham and Georgetown would outperform their overall rankings, while Yale and Chicago would underperform.)  At the same time, PR folks will not necessarily know about (or care about) creative, non-traditional approaches to ethical formation that do not fit within the traditional PR framework, and I don't think the point of the rankings would be to measure which school is best in the academic field of professional responsibility.  

Am I missing something -- are there some criteria by which we could sensibly measure how seriously a school treats the "ethical" component of legal education?  (Let's put to the side, for the moment, the question of whether current criteria sensibly measure overall law school quality.)

[Cross-posted at Legal Ethics Forum.]

Posted by Rob Vischer on February 12, 2009 at 03:29 PM | Permalink | Comments (6) | TrackBack