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Monday, October 19, 2009

Who Killed Kennedy? Memories of a Unique Class and Teacher

Scott Shane's story in last Saturday's NYTimes on the CIA's continuing resistance to disclosing its files on its relationship with anti-Castro Cuban militant groups, including some who clashed with Lee Harvey Oswald on the streets of New Orleans in the summer before the assassination, brought to mind my happy days in Miami and a remarkable class at UM Law taught be my friend, the late John Hart Ely.  Ely, who became a giant of constitutional scholarship, was as a young man was summoned by Chief Justice Warren (for whom he was about to clerk) to serve as staff for the Warren Commission.  Ely spent years defending the Commission's results by the late 1990s he had come to the conclusion that history had shown the Commission's sources to be deeply and deliberately truncated.  He doubted that any of the more sweeping conspiracy theories were credible, but he had come to conclude that someone, Castro perhaps, or a mob boss, had indeed played a role in setting Oswald in motion.  To satisfy himself, if not history, John organized a seminar on the topic of who killed JFK? at the University of Miami Law School in or around 2000. Along with a handful of curious students and very distinguished lawyer and friend of John's (whose name is eluding me this morning), I took the class.

The University of Miami, where I served on the faculty for 11 years and John for almost as long before his untimely death in 2003, was the chief location of the CIA's largest field station in the 1960s and 1970s, code named JMWave. It was easy walking amidst the tropical garden like grounds of the campus on hot humid nights to imagine all sorts of plots.  John rejected the theory that the CIA itself had killed Kennedy (let alone a vast military industrial conspiracy along the lines of Oliver Stone's JFK).  Because Kennedy had clearly tried to kill Castro, John found it plausible that Castro might have decided to turn tables.  John may have been influenced in this perspective by his wife, Gisela Cardonne Ely, a Cuban American jurist in Miami of great intellectual force.

My own views, ran along the lines of the conspiracy sketched by novelist Don Dellilo in Libra, a plot among a small group of anti-Castro militants and their low level CIA handlers.  These folks, like Castro, had personal reasons for revenge against the handsome young President.  They had seen scores of their brothers and colleagues lost during the failed Bay of Pigs invasion which many blamed on Kennedy's decision to withhold American air support, and which the President himself accepted blame for.  Unlike Castro or the mob, they were a loose and informal network of actors who presented no major target for backlash. 

It is very unlikely, in my view, that the top leadership of the CIA would have agreed to this conspiracy.  Indeed, they would have lacked all the emotional heat about the matter that murder requires, and probably highly identified with the dashing young President who shared their belief in a James Bond like war against Communism.  However, and this brings us back to Shane's story, it is  plausible that the CIA's top management would have conspired to cover up their relationship with the individual or individuals who belonged to the conspiracy and their failure to terminate this treasonous plot, (a motivation that could be shared even by their current leaders).  I did get John to agree to that plausibility, but he did not find it convincing.  

Does Kennedy's assassination deserve a place in law school curriculum's?  Perhaps not as a regular offering, but courses that use legal skills and materials to investigate pivotal moments of history might indeed have an important intellectual and even pedagogic role to play. 

Posted by Jonathan Simon on October 19, 2009 at 10:16 AM in Jonathan Simon, Law and Politics | Permalink | Comments (2) | TrackBack

Student Centered

CatMy University prides itself on being “student centered”.  For years, I taught here without giving much thought to the phrase.  I thought it was pretty meaningless – I mean, aren’t all schools student centered?

Well, no.  I learned, when I was participating in the University 10-year plan, that student centered meant, to our University anyway, (1) a commitment to small class sizes, and (2) in response to any issue, always asking first: “what solution would most benefit students?”.

Many law schools seem very faculty centered.  We teach three or (gasp!) four courses a year, meaning either that student tuition must be raised to hire more of us or that schools must outsource much of the teaching load to adjuncts.  We zealously guard a tenure system that, for too many of us, translates not into a freedom to engage in academic discourse, but into a freedom from engaging in academic discourse.  We jealously guard this tenure system from encroachment by skills teachers and clinicians and writing teachers, notwithstanding the fact that these teachers are teaching students the material often most directly relevant to the students’ future law practice.  (As an aside, I’ve noticed that many of the tenured folks who argue most vociferously against tenure for non-doctrinal teachers are also the weakest links in teaching, scholarship, and service – they need tenure to be exclusive to maintain their own stature, because their stature isn’t so impressive on merit alone.)

I’m a strong believer in scholarship, and I believe that tenure is appropriate for faculty who are appropriately fulfilling their responsibilities of teaching, scholarship, and service.  Tenure and scholarship are not necessarily inconsistent with being student centered.  But I’ve seen many instances in which faculty members, in response to an issue, ask first what’s best for faculty (or for themselves personally), then justify that outcome by arguing that it’s also best for students.  

Is your institution student centered?

Rick Bales

Posted by Workplace Prof on October 19, 2009 at 08:37 AM | Permalink | Comments (8) | TrackBack

Choosing from Among Lower Ranked Schools

Some aspiring prawfs who commented on my Bird in the Hand post asked how to differentiate among lower ranked schools.  A basic question can be largely answered by searching JLR on Westlaw for something like (professor /s "South Podunk" /s (college school) /s law)  and dateafter(1998) which will pick up the first footnote of articles posted by that faculty in the last decade.  This will show what scholarship, if any, comes from the particular faculty.  While much of this information might be on the school's website, looking at names on the results list but not on the website will reveal something about recent lateral moves, which I regard as an important measure of quality, although I may be biased.  Also valuable is Michael Yelnosky's citation study of schools outside the top 50. 

Some commenters were concerned about finances. 

There are further steps, some of which would be regarded as aggressive, particularly on the part of an entry level.  I've not done any of these things myself, for the record, but in this environment perhaps they are sensible.  First, for those not yet in the academy, there is something called a self-study which law schools do on themselves every seven years as part of ABA reaccreditation. (Here's one.)   They contain much information of interest to one considering an investment, as does the ABA's Site Evaluation Report. (Here's one for a summer program, which is much shorter than would be typical for a reaccreditation visit).   

Also, you can register at Moody's or S & P for free, and find out the credit rating of issuers of bonds, including educational institutions, which are many.  There's a lot there that will raise an eyebrow and a few things that will make your hair stand on end (don't ask--it's not my job to make the market efficient). 

Probably also sensible to talk to the administrators responsible for admissions and placement if you are concerned about a school's prospects, again, only once you have an offer, and even then, be discreet.

Posted by Marc Miller on October 19, 2009 at 06:24 AM | Permalink | Comments (2) | TrackBack

Sunday, October 18, 2009

Random pop culture for a Sunday afternoon

This is, to my mind, one of the best commercials of all time. Yet I saw it on TV exactly once, then it was gone. Anyone know why?

Posted by Howard Wasserman on October 18, 2009 at 03:06 PM in Culture, Howard Wasserman | Permalink | Comments (1) | TrackBack

Saturday, October 17, 2009

Weekend Trivia Challenge - Next-to-Last State Without an ABA-Approved Law School

PrawfsBlawg Trivia Challenge logo

A while ago, I asked what state was the only one without a law school. One commenter panned me for coming up with questions that were too easy. Okay, this one should at least be harder than that. But maybe not much ...

The Question:

Of the 49 states with ABA-accredited law schools, which was the last state to get one? In other words, what was the next-to-last state without an ABA-accredited law school? And in what year was its first (and as yet only) law school approved by the ABA?

The Answer:

Posted by Eric E. Johnson on October 17, 2009 at 06:54 AM in Games | Permalink | Comments (0) | TrackBack

Friday, October 16, 2009

The Bird in Hand Problem

I'm in Phoenix preparing for ASU's conference for aspiring law professors, which promises to be terrific.  I am going to discuss the bird in the hand problem.  Assume an ambitious, qualified attorney committed to an academic career, who wrote a paper, consulted with mentors, and otherwise properly prepared, and gave the meat market and the callbacks their best effort.  What to do if the process results only in offers (or, an offer) on the less preferred side of the distribution?  Take the job and try to write your way up, if you still want to, or go to the AALS next year?  Except at the margins, this is not a simple question, because if you want to get to the top, it is almost certainly easier to start there than to work your way up.  Nevertheless, I say: Take the best offer rather than waiting until next year.  Better to be a tenure track faculty member at a 4th tier school hoping to lateralize than an AALS FRC repeat attender.  Why.

You are not getting any younger. Schools know if you've been on the market before.  They will wonder why, as one colleague put it with respect to the junior lateral market, you were not hot last year but should be regarded as hot this year.  That thought may even cross the minds of your references, who have their own reputational capital at stake.  Of course people do it.  But, like taking the bar more than once, it is best to avoid it.

Gracious rejections are unreliable indicator that you came close to an offer.  When a dean calls after a visit and says "you were terrific", "you had a lot of support", or even "I, for one, would love to work with you" make sure you pay attention to the "we are unable to pursue your candidacy further" part.  It may be that you came in second in X interviews at dream schools, or it may be that you were not in the running because you were perceived as not far enough along.

Many things that people do with that additional year do not materially improve their attractiveness.  Candidates don't get rejected from top schools for want of an additional year of law practice, or because they don't look as good as candidates who taught another semester of legal writing.  A really good paper is what gives you a shot at an excellent school; if you didn't close, it may well have been because readers (or listeners) weren't sold on your paper.  Another year on the market will mean looking for a job, probably in another city, while doing some other job.  These sorts of demands may not be conducive to doing a lot of high quality writing.

People are hired based on a prediction of how good they will be as mature scholars.  That's based on an extrapolation from how good they are now.  Two or three years at a lower ranked school may provide the opportunity for scholarship, mentoring, conferencing, etc. that will let you write the best paper you can, a paper that will let hiring committees think you are under-placed, and fantasize about how great you will be in the years to come.

Posted by Marc Miller on October 16, 2009 at 08:07 PM | Permalink | Comments (12) | TrackBack

Kolber Signs Off

My guest blogging stint ends today.  My thanks, as always, to Dan and the rest of the Prawfsblawg family for having me.  And my thanks to the readership for their helpful comments!  Until next time, I'll be here and here.

Posted by Adam Kolber on October 16, 2009 at 05:30 PM | Permalink | Comments (0) | TrackBack

"This is Your Products Liability Restatement on Drugs"

I noticed this piece by Lars Noah, and the title sure gave me a laugh.  It just came out in the Brooklyn Law Review, and it's (unsurprisingly) about the sections of the Products Liability Restatement that relate to prescription drugs.  It was a nice find in a stack of Westclip emails... Happy Friday, everyone!

Posted by Chris Lund on October 16, 2009 at 05:09 PM | Permalink | Comments (0) | TrackBack

When Is "Discrimination" Discrimination?

Rick has a good post below about the faith-based initiative involving "discrimination," in the sense of religious organizations receiving government money while still only hiring adherents of their religion.  Rick suggests that we really shouldn't think of this as "discrimination," because the word has such bad connotations -- people instinctively think that whatever is discriminatory is unjust and, by extension, probably illegal.  And, of course, the rhetorical use of the label "discrimination" works both ways.  A frequent defense of Rick's position is a counterclaim of discrimination:  Because the Sierra Club can hire people committed to its cause while receiving government funds, it is simple discrimination to deny a religious group the right to religiously staff.

Maybe instead we should consider accepting we need to accept the label of "discrimination" and focus on the resulting issues: when is discrimination appropriate and when is it inappropriate?  This is a hard question.  Take the frequently made claim that discrimination against gays and lesbians is sex discrimination, pure and simple.  In a sense, that's true.  I discriminated against men when I was looking for my spouse; my gay guy friends discriminated against women in looking for theirs.  But that sort of discrimination, most people think, isn't a problem, for some reason.

So a lot of hard questions.  Some traits are relevant for certain things but maybe not for others -- you can question whether felons should be denied the right to vote while not questioning the felon-in-possession laws.  Some traits are generally irrelevant but occasionally matter -- we gave up worrying about blind people as judges, though we still exclude them from being bus drivers.  Sometimes private parties have a right of intimate association that we find normatively appropriate -- I have atheistic, Jewish and Christian friends all of whom would not marry outside of their religion and I see no problem with that.  Sometimes we find discrimination morally inappropriate but stress the limits of government -- I really would not like it if a friend of mine admitted that he would not date people of another race, but I don't know if I'd want the government to come down on him for it.  One acknowledgment: I remember Larry Alexander having a great article on these sorts of issues in the Penn Law Review some years back and probably have unwittingly stolen some of this from him.

Posted by Chris Lund on October 16, 2009 at 12:51 PM | Permalink | Comments (5) | TrackBack

When Ricci Met Iqbal

Last term, SCOTUS held in Ricci v. DeStefano that a city could not use race-conscious measures disadvantaging non-minorities to avoid the risk of disparate impact litigation by minorities, unless the government had a strong basis to believe that it would lose that disparate-impact suit. The Court went on to say that, in that case, the City of New Haven did not have a strong basis in evidence to believe it would lose that lawsuit. Last week, an African-American firefighter who took the lieutenant's exam and was not promoted filed suit, alleging that the use of the exam violated Title VII.

So how does Ricci affect this lawsuit? As my colleague Kerri Stone pointed out, the Court's insistence of the lack of merit of this (at the time hypothetical) lawsuit was essential to SCOTUS's conclusion that the Ricci plaintiffs' rights had been violated. Ricci cannot be preclusive, since this plaintiff was not a party to the earlier case. It could be persuasive authority on the legal issue and the court must analyze the suit in light of Ricci. I would be troubled if it were binding authority on this point, since the lawsuit was entirely hypothetical and abstract at the time.

Here is where I think Iqbal and the new two-step pleading might come in. There is a good chance that, in doing the second-step plausibility analysis, the court's (discretionary) view of the plausibility of the plaintiff's allegations will be at least influenced by SCOTUS's insistence that recovery on disparate impact was so unlikely, and the city's fear of liability so misplaced, that its response to those concerns violated Title VII in the other direction. Iqbal suggests courts can decide whether a lawful explanation for the conduct alleged is as plausible as the unlawful explanation alleged and dismiss on its view of this "more plausible" lawful reason. So does the underlying conclusion in Ricci suggest this disparate-impact claim is implausible and thus insufficient under FRCP 8(a)(2)?

Posted by Howard Wasserman on October 16, 2009 at 12:17 PM in Civil Procedure, Current Affairs, Howard Wasserman, Law and Politics | Permalink | Comments (8) | TrackBack

Academic Abstention

I'd welcome Paul Horwitz's thoughts -- given, for example, his "Universities as First Amendment Institutions" work -- on Stanley Fish's recent op-ed, "The Rise and Fall of Academic Abstention."  Commenting, for example, on the Grutter case, Fish writes:

the majority and minority opinions in Grutter starkly present the opposing positions on the relationship between the academy and the law: “respect for universities as uniquely public minded against a demand for unbridled public accountability through law.”

“Uniquely public minded” nicely captures the nature of the claim being made while at the same time hinting at its vulnerability. What makes universities more public minded than hospitals or national parks or public radio stations? What exactly is so “unique” about institutions of higher education? These questions are sometimes answered by invoking phrases like “the life of the mind” or “the intellectual life,” which suggest a mysterious realm of value accessible only to an elite few. . .

There's more.  Any thoughts?

Posted by Rick Garnett on October 16, 2009 at 11:34 AM | Permalink | Comments (3) | TrackBack

"Faith-Based Discrimination"

The New York Times waives the red flag, and I just can't help myself. 

Put aside, for now, the questions whether (i) policies like the Clinton / Bush / Obama "faith-based initiative" are good ideas for delivering social-welfare services in an efficient and effective way; (ii) the Constitution permits such policies, and (iii) faith-based social-welfare organizations that participate in such policies should be required, as a condition of participation, to serve clients without regard to religion, etc. (I think they should).  It is not, in my view (as it is, apparently, in the view of the Times' editorial writers) useful to think of hiring-for-mission by "faith-based" associations as "discrimination." 

It is, of course, possible for "discrimination" to mean "selection on the basis of criteria".  Usually, though, in today's public-policy debates, "discrimination" means something like "unjustified, and normatively unattractive, treatment or refusal to associate."  But there is, it seems to me, nothing at all objectionable, or unjustifiable, about a religious association taking religion into account when staffing, and so I don't see why the public authority should demand that such an association *not* take religion into account as a condition of participating in (something like) the faith-based initiative.  It *is* a bad thing for governments to take religion into account when hiring, or otherwise handing out benefits.  If a government (or, I think, Wal-Mart) did this, it would be "discrimination", and public funds should not -- as the Times says -- be used to pay for such discrimination.  But when the public authority permits "faith-based" social-welfare organizations that staff-for-mission to participate in the "faith-based initiative", it is not paying for "discrimination" (i.e., something bad); it is paying for the provision of social-welfare services to the poor, by an intermediary organization that does something entirely objectionable when it staffs.

I know, I know . . . we've talked about this on Prawfs before, and most readers seem to disagree with me on this.  But still . . . 

Posted by Rick Garnett on October 16, 2009 at 11:29 AM | Permalink | Comments (1) | TrackBack

A Little Bankruptcy Karma?

Back in 2005, a number of politicians patted themselves on the back for passing amendments to the Bankruptcy Code that, among other things, made it much harder for consumer debtors to get a fresh start through Chapter 7.  One of those congratulating themselves was Rep. William Jefferson (D-La.), who claimed that it merely closed "loopholes" allowing the wealthy to wipe out their debts in Chapter 7 when they should be in Chapter 13.  Many critics of the amendments, and specifically the "means test" for excluding debtors from Chapter 7, questioned whether it was needed and suggested that it would exclude those who legitimately need Chapter 7 due to medical or other catastrophes.  

Around this same time, Jefferson became the subject of a federal bribery investigation.  His home and office were subsequently raided, he was indicted, and a jury recently convicted him on 11 of 16 counts.  

Faced with the unexpected loss of income (he lost his reelection bid) and crushing legal fees and expenses (not to mention the ultimate return of any ill-gotten gains), Jefferson filed...a Chapter 7 bankruptcy petition.

Jefferson may have had a good case for filing Chapter 7 under pre-2005 bankruptcy law.  After all, his ever-growing liabilities already exceed his assets by more than $5 million.  The means test, however, takes a different approach.  Put in overly simplistic terms, it calculates the debtor's current monthly income against a range of standard and other expenses and produces a number.  If that number is too high, there is a presumption of abuse, even if the debtor will never conceivably be able to dig themselves out of their debts.

Jefferson's Form 22A suggests that the "presumption of abuse" does not arise.  The Jeffersons (he filed jointly with his wife) claim a combined current monthly income of $11,214, which far exceeds the applicable median family income in Louisiana, but they also claim well over $12,000 of monthly expenses for secured debt, which brings the total expense portion of the calculation to just over $20,000 per month.  Down on their luck working men and women probably cannot game the secured expenses portion of the means test all that much, but disgraced former congressmen are apparently able to do so.  So much for closing loopholes for the wealthy, right?

To borrow from Lee Corso, "Not so fast, my friend!"  The United States Trustee recently informed the court that it believes that Jefferson is wrong:  the presumption of abuse arises in his case.  Looking at the figures above, it may be reasonable to assume that the UST is prepared to challenge some of the secured expenses.  Indeed, the figures seem a bit off, but we do not even need to go that far to find a problem.

The first and most obvious problem is a bit of "off balance sheet accounting," means-test style.  In reaching the $11,214.00 current monthly income figure, Jefferson lists no income from "other sources" on line 10.  This is curious because he identifies $123,227.00 in income from various sources during the six months preceding his bankruptcy filing on an "Attachment."  The Attachment claims that these amounts are excluded from the calculation because they "represent one-time receipts and do not count as regular income."  But the figure we are looking for is not "regular income;" it is "current monthly income" as defined in section 101(10A).  Current monthly income includes (A) the average monthly income received from all sources during the six months preceding the filing plus (B) payments made by others for household expenses on a regular basis.  Thus, these amounts should be averaged out across the six-month period ($123,227.00 / 6 = $20,537.83) under subsection A (which, as noted, is not limited to regular income) and included in the calculation.  If we do so, we get a current monthly income of $31,751.83 ($11,214.00 + 20,537.83).  Thus, even if we assume for the sake of argument that the secured debt figures are proper, the means test CMI minus expenses figure comes out to $11,699.59.  The means test tells us to multiply this figure by 60 ($701,975.60) and presume abuse if the figure exceeds $10,950.00 (it's more complex than this, but this is the appropriate figure here).

Jefferson may still be able to find a way around all of this if he can convince the court that "special circumstances" justify removing some income or including additional expenses in the calculation.  This will turn on whether Jefferson's self-inflicted circumstances are of the sort contemplated by the 2005 Amendments.  The guidance here is iffy, at best.  The statute authorizes adjustments based on special circumstances, "such as a serious medical condition or a call or order to active duty in the Armed Forces[.]"  Although these are non-exclusive, they may also suggest forces beyond the debtor's control.  The cases are all over the map, so it will be interesting to watch.  

Posted by S. Todd Brown on October 16, 2009 at 10:19 AM | Permalink | Comments (0) | TrackBack

Missing in Action: Innovation

America used technological innovation to attain victory in World War II and the Cold War.  Why haven't we done the same with the wars in Iraq and Afghanistan?

Jet engines, nuclear weapons, satellites and stealth planes all were born of an innovative frenzy unleashed in our drive to beat the Axis and the Soviet Union. You might think a similar technological surge might have occurred following the attacks of September 11, 2001. 

It didn't happen.

Since 9/11, we have seen the debut of the iPod; we have sent unmanned rovers to explore Mars, and we have perfected vitamin-sized capsules with tiny cameras and lights that we can swallow to investigate our intestines. Toyota has even started selling cars that parallel park themselves. 

The SWORDS robot made by Foster-Miller for the U.S. Army.

Yet we have invented almost nothing to fight Islamist extremists. I find that utterly mystifying.

For the duration of the Iraq War, the U.S. Army has been tinkering with small robots capable of heading into combat with a machine gun or a sniper rifle while remotely operated from a mile away. That sounds like something that should be a game changer. But sadly, the only significant use of these machines has been for IED disposal. The combat-ready versions have languished in a seemingly endless process of evaluation. 

A deployment of three of the combat-ready SWORD robots in 2008 ended with the Army withdrawing funding. The contractor is now trying to win back the Army with an enhanced version that can carry more payload and can do double duty with a manipulator arm for bomb disposal.

By now, we should have been sending whole armies of remote-controlled machines into insurgent-filled neighborhoods. What's our excuse? It cannot be that the technology is not feasible. That is just question begging. In a country rife with genius and research money, why haven't we made it feasible?

The paltry wartime innovation that has actually occurred since 2001 speaks more to opportunities lost than accomplishments achieved.

For instance, the most prominent technological advance employed in the wars in Afghanistan and Iraq is, without a doubt, the Predator drone aircraft. Indeed, the Predator would be a laudable example of wartime cleverness but for one thing: It started flying in 1995. 

Can you imagine what we could have made by now if we had kicked it into high gear after 9/11?

Perhaps the best example of a real wartime innovation in recent years is the MRAP – the Mine Resistant Ambush Protected utility vehicle. But ultimately, the MRAP is better example of sloth than success. Built with a v-shaped hull to deflect the blast of buried explosives, the MRAP showed a clear capacity to save soldiers' lives. Yet after years of ignoring pleas from commanders in the field, the Pentagon only made large-scale manufacture of the MRAP a priority in 2007. In 2008, in part thanks to the MRAPs, casualties from roadside bombs have dropped 88 percent. 

During World War II, the U.S. rushed newly designed bombers into the sky and manufactured them at the rate of a squadron a day. If we had put forth even a fraction of that effort with projects like the MRAP, we could have saved hundreds if not thousands of lives in Iraq. What is more, the increased effectiveness of our troops over those years in Iraq would have meant greater security for Iraqi civilians and consequently far less bloodshed among noncombatant Iraqi citizens. 

Despite the opportunities lost, it is not too late for military innovation to win, end, and prevent wars in the Middle East. The war in Iraq, though it has receded from recent headlines, is far from over. The situation for NATO troops in Afghanistan is, of course, growing worse. And Mahmoud Ahmadinejad is pushing Iran to be able to threaten Israel and other countries with nuclear weapons. 

Whatever leadership failure or bureaucratic tangle is responsible for our current torpor, we should not tolerate it. To win wars and keep the peace, we must come back to doing what America has long done best: Invent. 

Posted by Eric E. Johnson on October 16, 2009 at 09:35 AM in Current Affairs, Information and Technology | Permalink | Comments (7) | TrackBack

Michael Jackson, Abuse, and the Experiential Future

Michael-jackson-is-dead A fascinating study in Nature Neuroscience from earlier this year may have identified biological markers of childhood trauma in the brains of adults.  Researchers examined brain tissue from three groups of people: (1) 12 suicide victims who had been abused as children; (2) 12 suicide victims who had no history of childhood abuse; and (3) 12 control subjects with no history of abuse who died from causes other than suicide.  Remarkably, the researchers identified epigenetic activity in the group that committed suicide and had been abused that they didn't see in the other two groups.

The research holds out the potential that certain kinds of childhood trauma may have lasting effects on gene expression in the brain (and possibly elsewhere) that can potentially be identified.  The research is at the earliest stages, however.  There are about a million caveats (e.g., the research looks at features of groups of brains and not features of individual brains, removal of brain tissue is only practical for cadavers, the research has yet to be replicated, there were small sample sizes, any sort of trauma might trigger the epigenetic activity, etc.). 

Someday, however, we may develop more reliable markers of childhood trauma or abuse.  We currently have all sorts of methods of demonstrating physical abuse, but there is often no easily-observable physical evidence of sexual abuse.  In the future, we may be able to provide biological markers of childhood abuse that could help inculpate an alleged abuser.  (More likely, the absence of such markers might be some evidence to exculpate an alleged abuser.)  How might such a technology be relevant in a scenario similar to one raised by the death of Michael Jackson?  See here.  

Posted by Adam Kolber on October 16, 2009 at 08:39 AM | Permalink | Comments (0) | TrackBack

Thursday, October 15, 2009

Defensive Hiring

Parker A few months ago, Reed Albergotti wrote in the Wall Street Journal The Talent the NFL Turns Away.  His point was that for a given position, there is an effective height, weight, speed, etc. measure that, if a college player doesn’t meet, he has little or no chance of making an NFL roster.  Plenty of star NFL players (such as "too short" Willie Parker, left) initially were ignored because they didn’t meet the hiring criteria.

Why do coaches stick to rigid hiring criteria even if those criteria, empirically, are poor predictors of performance?  Albergotti explained that if coaches picked a player who met the hiring criteria but he turned into a dud, that was chalked up to luck of the draw, whereas if coaches picked a dud player who hadn’t met the hiring criteria, the coaches were likely to lose their jobs.  It was simple CYA.

This reminded me of a lot of faculty hiring.  We often are fixated on pedigree, but in reality many of these pedigree factors are not very effective predictors of success as a faculty member.  Perhaps we should re-think our hiring criteria.

Rick Bales

Posted by Workplace Prof on October 15, 2009 at 11:56 AM | Permalink | Comments (4) | TrackBack

The role of lawyers in making the law

Slate's Dahlia Lithwick has a (as usual) good summary of today's oral argument in Perdue v. Kenny A., which considers how far above the baseline a court can go in awarding attorneys' fees to a prevailing civil rights plaintiff. Here, the district court tacked another $ 4+ million onto the lodestar, on a specific finding that the quality of plaintiff counsel's lawyering was so great. It could lend some interesting insight into the future of civil rights attorney fees.

There were some interesting exchanges involving Chief Justice Roberts about the role attorneys play in the process of making the law and whether good lawyering truly affects the outcome and how. Roberts commented that "The results that are obtained are presumably the results that are dictated or command or required under the law." He later asked "[W]hat does a judge say when you have achieved extraordinary results. That if you weren't there, I would have made a mistake on the law?"

These exchanges connect to the Roberts view of judging (last seen in the Sotomayor hearings) as mechanical application of obvious law to fact to reach the one clear answer. But his comments seem to suggest that, in his world view, lawyers do not have a significant role to play, since what they do does not (or at least should not) affect the court finding the "right" answer. Otherwise, why wouldn't the quality of the lawyers and their lawyering matter? This view is ironic, of course, because the courts have raised adversariness to an essential component of judicial decisionmaking and one of the cornerstones of whether a case is even justiciable--courts must decide cases in concrete factual situations involving truly adverse parties. Standing doctrine insists that courts should not act unless there are adverse parties with the expertise, competence, and interest to litigate vigorously--generally with the expertise and interest coming from counsel. But why do we demand vigorous litigation? Not for its own sake. Presumably because it will be informative and convincing to the court; the better the vigorous presentation of evidence and arguments (by lawyers), the more it helps courts reach the "right" answer. If that is true, then the premise of Roberts' questions seems wrong.

I can understand Roberts being uncomfortable with the idea that the brilliant lawyer will win out, regardless of law or fact (recall the cynical saying that juries simply find in favor of the lawyer they like more). But Roberts seems to be going much further, saying that the manner and quality in which arguments are made does not affect how the court comes to view the law (because there is only one right answer to be mechanically found) and facts or the conclusions courts will reach. But if so, why bother having lawyers?

Posted by Howard Wasserman on October 15, 2009 at 08:00 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (8) | TrackBack

When Is Interrogation Torture?

This post is adapted from my new draft article, The Experiential Future of the Law.  Comments on the article are welcome at akolber “at” sandiego.edu:

Waterboarded interrogatees are strapped down on an incline, with their feet elevated above their heads, while water is poured over their faces to give the sensation of drowning.  A federal statute prohibits those acting under color of law from engaging in acts “intended to inflict severe physical or mental pain or suffering” on people in their custody or control.  Does waterboarding constitute the sort of intentional infliction of extreme pain or suffering that can qualify as torture?

We often address the question by focusing on the interrogation technique in the abstract.  Generally speaking, waterboarding probably does inflict extreme pain and suffering.  In fact, however, whether a person experiences extreme pain or suffering (and whether we can expect a person to) depends on the relationship between the person and the way he is treated.  A person who developed PTSD from having nearly drowned in a swimming pool as a child will react differently to waterboarding than will a Marine who has advanced training in how to resist waterboarding.  Defacing a religious text may constitute extreme suffering to one person but be largely inconsequential to the next. 

Despite variation in interrogatee sensitivity, we seem inclined to rely on broad categories of prohibited interrogation behavior.  Another way of safeguarding interrogatees, if we had sufficiently reliable technology, would be to limit the maximum distress an interrogatee is permitted to experience, based on certain biological markers.  For example, we can already measure several markers of acute distress, like pulse, blood pressure, levels of stress hormones, galvanic skin response, and others.  We’re even getting better at predicting which sorts of interrogation techniques are likely to lead to long-term negative effects.  (There may be an unacceptable risk of electrocution that makes it impossible to measure distress during waterboarding, but there are lots of other interrogation techniques; so the general point remains.)

The idea of measuring people’s acute distress seems disturbing, but the concern is misplaced.  The harm caused by inflicting some amount of distress is far more troubling than the comparatively slight invasion caused by measuring it.  In fact, if you’re permitted to inflict modest amounts of pain or suffering, then perhaps you are morally obligated to measure the distress inflicted to make sure it does not reach a more extreme level. 

The reason that the measurement of distress seems so troubling is that it forces us to palpably recognize and quantify the nasty business of intentionally making people suffer.  The measuring is not the principle act of harm, however.  Measuring merely forces us to confront and better quantify the real concern—the pain and suffering itself.  If it's impermissible to measure the pain of technique X, you probably shouldn't be doing X in the first place.

There are several reasons why we might rely on “categorical” methods of banning torture rather than engaging in individualized measurements.  I'll name just two.  First, we may not be good enough at measuring acute distress.  (True, though someday we probably will be.)  Second, we may be skeptical of those tasked with measuring distress levels.  We fear that they will simply rubber stamp torture.  (True again, though it is far from clear that we couldn’t adopt procedures to reduce this concern.  If people can be dishonest about measuring distress, they can be dishonest about what categories of interrogation are used.)  In any event, we should not lose sight of the fact that even if we ban certain methods of interrogation, those methods are just rough proxies for our true concern, namely the intentional infliction of extreme pain and suffering. 

Posted by Adam Kolber on October 15, 2009 at 06:52 AM | Permalink | Comments (8) | TrackBack

Wednesday, October 14, 2009

A Personal Touch

With all of the discussions about faculty recruitment, I started thinking about the documents that accompany the FAR and publications, particularly the C.V. Some candidates may have sections that highlight background information (i.e., marital status and children), while others list hobbies and personal interests. Typical C.V.’s for seasoned law professors often include this sort of information, but I can’t help but wonder about its value or appropriateness when applying for law faculty positions. I realize there’s no perfect answer, but this topic seems to be especially timely. Is personal information on C.V.’s seen as relevant and humanizing? How much is too much?

Posted by Kelly Anders on October 14, 2009 at 02:28 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (3) | TrackBack

Why The “Best Places to Live” Are Often The Worst: The Law and Economics of Cities (Part 3)

In my posts last week on the “Best Places to Live” rankings generated by leading financial magazines, I argued that these lists have some weird features.  They take the price of housing and treat it as a negative quality, instead of a sign of demand.  They then include variables related to public policy and the general job market in the region, which affect housing values, offsetting part of the information they put in relating to housing prices.  What’s left is all the qualities cities have that affect the demand for housing but that aren’t included in their list of variables (and maybe some inefficiencies in the market due to search and transactions costs, as commenter Elan notes).  Further, the lists do not address supply restrictions on housing.  Although this probably isn’t worth its own post, the cost-of-living variable used in the studies isn't a pure demand variable as it is distorted by the existence of massive supply restrictions in many metropolitan areas – zoning and other limitations on building – which according to this paper, contribute as much as half of the cost of housing in some regions.  This is why, for instance, Houston does so well in the lists, because it hasn’t distorted its housing market by imposing a high “zoning tax" (or have the benefits that come with zoning.)  This renders the lists even harder to understand.     

Probably the best way of looking at the rankings is, as Paul Gowder noted in the comments, as lists of cities that are undervalued based on the categories they use.  The question is which variables we should be used to determine a city is undervalued.   The variables the lists generally consider are largely of a type.  Specifically, they give high value to individual-level variables but exclude variables related to the richness and diversity of a city’s economy.   Things like the cost of living, the quality of public services, or average salary data are certainly very important to people – and are all given high weights in Best Places to Live studies -- but they are not the only variables that contribute to what makes a place a good (or undervalued) place to live. 

Take, for instance, the insurance and specialization effects of market size in consumption, labor and other markets, like dating markets.  Living in a city with deep markets in these areas increases the possibility for income growth during residents’ careers, provides insurance against firm/store/mate specific shocks, and reduces search costs for finding valuable goods, people and jobs.  These gains will not show up (or will only partially show up) in the variables used in Best Place to Live studies, but they will substantially affect residents’ wealth and happiness.  Similarly, the rate of informational spillovers, and resulting opportunities for human capital development (or, on the other side, non-rent congestion) are economically (and otherwise) relevant factors, but are absent from the studies.  These factors are determined by the other residents of the city, how numerous, how smart, how diverse and how chatty etc. they are, and clearly contribute to the demand for property in a city.   But the lists choose to ignore these variables.  The normative assumption of the lists is that that property-value increases induced by these agglomeration effects are somehow mistakes and hence that cities that are made more expensive due to their intellectual ferment or broad consumption opportunities are overvalued relative to their equally remunerative but less dense-and-active brethren.   The lists don't announce this, but that's the underlying message. 

What is particularly problematic about this value judgment is that these types of factors are increasingly important to the economic vitality of cities.  More thoughts on why this is so, and why the rankings exclude these variables, after the jump....

In a world where the predominant agglomerating force driving the growth of cities was a desire by firms to reduce shipping costs – which is why auto parts factories locate near car manufacturers – the economic vitality of cities is largely predicted by the feedback loops created by already having big firms.  However, domestic shipping costs are now a rounding error and manufacturing firms are more likely to locate in rural areas than they are in cities.  What cities provide, increasingly, are deep and vibrant labor and intellectual markets, and what they produce increasingly are ideas and services.  The things that make cities good at attracting talent, resilient to changes in market conditions, and predict growth (rather than merely reflect current wages) are the attractiveness of its human capital stock,  the rate of intellectual spillovers and the amenities cities provide.  Thus, the Best Places to Live studies ignore much of what makes cities useful in a modern economy.   

Why have these magazines decided that things like consumption market depth and intellectual spillovers are not as important as current wage levels and housing costs?  One is that they are harder to measure.  But I suspect something else is going on.  Most of the magazines that produce Best Places to Live studies are financial magazines, and these variables – human capital spillover rates, quality of consumption markets etc. – seem insufficiently hard-headed.  My guess is that asking how cool the consumption options in a city are, or how much residents learn from grabbing lunch with their neighbors, seems a bit silly or soft for business types, no matter how much they affect the demand for housing and the growth potential of cities.   

That’s too bad.  These “soft” variables are economically relevant and increasingly important for the future of cities.  Further, it’s not only magazines that have ignored the importance of agglomeration variables in determining when people move and why cities grow.  It’s legal scholars as well.  My next (and last) post on the subject will address how legal scholarship has ignored the importance of agglomeration in attempting to figure out the efficiency of local governmental laws, as I explore in my new paper, The City as a Law and Economic Subject.

Posted by David Schleicher on October 14, 2009 at 02:20 PM | Permalink | Comments (1) | TrackBack

A Nobel Prize that Federalism Lovers Can Applaud

Lost in the media flurry over Obama's Nobel Prize is another Nobel award that is more unprecedented and (to federalism fans) more exciting: Elinor Ostrom's winning the Nobel for Economics. The award is unprecedented, not just because Professor Ostrom is the first woman to win the prize but also because she is not an economist but a political scientist. (She is not even an especially mathematical political scientist in, say, the Positive Political Theory mold: She is actually more of an institutional political scientist whose methods -- the detailed case study of a specific government or community -- harken back to those old German-influenced institutional economists of the late 19th century like Richard Ely and John Commons).

But why should we lovers of federalism feel excited by this award? Because Ostrom and her students have been a rare source of intellectual and empirical support in a cold, cold world. Supporting federalism in a law school is generally a lonely business, as I can attest: The average law prawf is instinctively a centralizer, both because prawfs as a general matter have an intellectuals' pernicious distrust of lay judgment and, more specifically, because law prawfs' knowledge of decentralization generally is limited to a handful of dysfunctional cases like Jim Crow in the South. The law prawfs' Bible on decentralization -- indeed, often the only political science that they have ever read on the topic -- is Madison's Federalist #10. Sure, there are plenty of pseudo-federalism fans among law prawfs. But many of these are simply libertarians in federalism camouflage -- folks like Ilya Somin, Richard Epstein, and other heirs of the Buchanan-Weingast theory that federalism constrains Leviathan through residential powers of exit. They like subnational government more than national government the way a boxer prefers a featherweight to Mike Tyson -- because the former is easier to knock down.

So the Nobel for Professor Ostrom, a leading proponent of political decentralization including federalism, comes as a welcome relief to us lovers of federalism. Ostrom and her students (Roger Parks, Ronald Oakerson, David Bromley, among others) have produced a myriad of studies of common-pool resources ranging from policing in metropolitan areas to ground water in California to show that such resources can best be managed through forms of limited-access government intermediate between pure privatization and Leviathan. The Ostromites provided a counter-narrative suggesting that subnational institutions help protect private individuals not only from Leviathan but also from free riding, apathy, and other common-pool tragedies. The Ostromites also contradicted the old Federalist #10 bromide that minorities always do worse in smaller jurisdictions by providing solid empirical evidence that minorities actually benefit enormously from decentralized political power. (One of Ostrom's classic studies, co-authored with Gordon Whittaker, shows that Black residents in the St. Louis Metro area trust cops in small villages more than in large cities, even when the latter is governed by Black politicians).

So true friends of federalism should raise their glass and toast the wisdom of those Norwegians. Maybe Obama did not need the Nobel boost, but we few, we happy few, we band of federalism brothers and sisters, sure did.

Posted by Rick Hills on October 14, 2009 at 12:51 PM in Current Affairs | Permalink | Comments (4) | TrackBack

I Am Available for Comment in the Legal Matters Concerning Jon and Kate...

For those of you who have had better things to do and thus don't know (which should be everyone except me -- my wife makes me watch The Soup), developments in the Jon and Kate Gosselin saga have gone legal.  Jon and Kate are fighting over unauthorized withdrawals from their joint bank account; yesterday Jon was ordered to pay $180,000 back to Kate by a Pennsylvania judge.  Nothing in FindLaw or the ABA Journal about it yet, though they are apparently reporting on it in New Delhi and there's a nice article from Rabbi Shmuley (remember him?) in the Jerusalem Post.  Do we know who is representing the parties here?  Budding family law scholars shouldn't miss this promising opportunity!

Posted by Chris Lund on October 14, 2009 at 12:41 PM | Permalink | Comments (0) | TrackBack

"Negotiating the New Political and Racial Environment"

... was the title of Professor john a. powell's public lecture last night.  He normally teaches at Ohio State, but this semester is here at Wayne State as the Damon J. Keith Distinguished Visiting Professor.  The lecture was a generalized talk crafted for the public, and the public really came out for it.  The talk focused on myths and realities surrounding America's being a post-racial country.  I'll remember it largely for his thoughtful examples of how well-intended actions sometimes end up widening and cementing racial disparities: the Highway Act of 1956, the largest public works project up to that time, as an implicit subsidy for later white flight; the G.I. Bill as being of limited value to African Americans in times of largely segregated higher-level education.  It was a great lecture and obviously timely, with all the media talk of America being post-racial.  (Most recent example I was forwarded today by a party who shall remain nameless: here.)

Anyway, when talking to people afterward, I referred to an electoral map of the most recent election.  But no one had heard of it.  I was surprised and figured I'd post it here as a sort of public service.  The map is about how Obama in 2008 did relative to Kerry in 2004.  The blue areas are where Obama did better than Kerry (he obviously did better overall).  The red areas are where Obama did worse (Alaska and Arizona are easily explained).  A whole series of such maps is available here.  Here's the basic one:


Posted by Chris Lund on October 14, 2009 at 12:03 PM | Permalink | Comments (0) | TrackBack

da Vinci and Fingerprint Reliability

Davinci An anonymous Swiss art collector may have recently made the investment of a lifetime.  In 2007, he paid $19,000 for what may turn out to be a $150 million painting by Leonardo da Vinci.  On what grounds do they assert that it's a da Vinci? Fingerprints! An excerpt from the AP:

Biro said the print of an index or middle finger was found on the painting and that it matched a fingerprint from da Vinci's St Jerome in the Vatican. Biro examined multispectral images of the painting taken by the Luminere Technology laboratory in Paris. The lab used a special digital scanner to show successive layers of the work.

"Leonardo used his hands liberally and frequently as part of his painting technique. His fingerprints are found on many of his works," Biro said. "I was able to make use of multispectral images to make a little smudge a very readable fingerprint."

The claim that it's a da Vinci is not solely based on fingerprints.  "Technical, stylistic and material composition evidence also point to it being a da Vinci." 

The painting was purchased by Peter Silverman (who suspected it might be a da Vinci) for the Swiss collector.  The collector had already noticed that the painting didn't look like a 19th Century painting (as some had thought) and brought it to Silverman's attention.  If the art world accepts the painting as a da Vinci, you figure that the collector will be greatly indebted to Silverman.  Read the last line of the article and decide for yourself:

Silverman describes the Swiss private collector as a very rich man who has promised to buy him "lunch and dinner and caviar for the rest of my life if it ever does get sold."

Posted by Adam Kolber on October 14, 2009 at 08:13 AM | Permalink | Comments (3) | TrackBack

Tuesday, October 13, 2009

School crime prevention strategies show the difference between governing crime and governing through crime

Two excellent recent features in the NYTimes show case the subtle but important difference between what I call "governing crime," serious efforts to address real crime risks within one's actual domain, and "governing through crime," what amount to, at best, reactive responses to fear of crime that have little actual purchase on the actual risks within one's domain.  Last week Susan Saulny reported on the innovative new strategy being deployed by new Chicago public school's chief Ron Huberman (himself a former cop as well as transit official). Violence is a real threat in at least some Chicago schools, with three deaths this year and over 500 shootings in the past several.  In response, Huberman is reversing the usual focus on excluionary and punitive responses to those at risk of violent behavior, and instead focusing on the 10,000 students most at risk of being victims of violence (they turn out to be largely the same people anyway), targetting them with programming to keep them in school and less exposed to violence.  In Sunday's Times, Ian Urbina reported on the bizarre and sensless "zero tolerance" regime that has flourished in schools across the country in response to Columbine and other spectacular but episodic incidents of school violence.

Posted by Jonathan Simon on October 13, 2009 at 01:53 PM in Criminal Law, Jonathan Simon | Permalink | Comments (0) | TrackBack

Passion, Justice Scalia, and the Establishment Clause

Time has been escaping me, but I wanted to say something about Paul's earlier post about the cross case.  Read the whole thing -- that's the first time I have said that on a blog! -- but a major point of his post is how Justice Scalia's passions about the Establishment Clause are coming out in these cases.  Paul's impression was certainly not isolated; the ABA Journal has a similar take

I'd hedge a bit more than Paul does, but I too was struck by the transcript of last week's oral argument.  The rest of the Court seemed to think the constitutionality of the cross was a secondary or non-issue (because of res judicata), and wanted to focus on the land transfer.  Justice Scalia pushed the Court to address the constitutionality of the cross.  When he raised it with Solicitor General Kagan (yes, she herself argued the case), Kagan (who remember is on his side) too said that the Court should focus on the land transfer. (See p. 6-8.)  But he kept at the issue, and eventually got into the meaning of the cross with plaintiff's counsel, where he gave the "outrageous" comment that Paul and the ABA Journal mention (p. 39).

Justice Scalia is clearly frustrated with the current state of the Establishment Clause.  (Who isn't!)  And it reminded me of an interview that he gave recently, which hasn't received the kind of press I expected:

There is a quote attributed to various people from Bismarck down to Charles de Gaulle. I prefer to attribute it to Charles de Gaulle because it sounds like him.

“G-d protects,” he said, “little children, drunkards and the United States of America.” I think it may be true. And the reason may be because we honor Him as a nation. We invoke Him in our country, our Presidents invoke Him, my court open its sessions with “G-d save the United States.” Those things are not insignificant.

The Charles de Gaulle quote is nice.  But it's not new.  Justice Scalia actually put it at the beginning of his McCreary County dissent (one of the Ten Commandments cases) a couple of years ago.  Yet there is something new here.  It's the follow-up, "I think it may be true.  And the reason may be because we honor Him as a nation."  This is a suggestion that God's protection of this country may rest on the government's continued endorsement of religion.  You can see how it ties back into Salazar v. Buono.  With comments like these, I fear Justice Scalia has left himself open to charges like Paul's.

Posted by Chris Lund on October 13, 2009 at 01:27 PM | Permalink | Comments (0) | TrackBack

First World Series – A Numbers Game



My colleagues would be shocked to see me discuss anything related to baseball, but I found this bit of trivia (in contrast to baseball, generally) to be too fascinating to ignore. According to The New York Times, today is the 106th anniversary of the end of the first World Series. As the Times reports, "Held in 1903, the Boston Americans beat the Pittsburgh Pirates 3-0 to win the series five games to three." That’s quite a few “three’s,” when you consider a 3-0 win in 1903. Apparently, there’s also a World Series of Poker, and a lawyer won the $5 million prize in 2004. There’s even a book connecting the skills of the game of poker with law practice. Returning to baseball, one of the most interesting legal references was the “Eight Men Out” scandal, which was first most widely discussed in a book from 1963 (there’s that “three” again) and recently referenced in great commentary from Chicago Lawyer magazine. It was also chronicled in a popular film. What are some other connections between law and baseball?




Posted by Kelly Anders on October 13, 2009 at 12:04 PM in Sports | Permalink | Comments (0) | TrackBack

Protecting Turf


Shortly after I graduated from law school and while I was still in practice, I had the extraordinarily good fortune to be seated next to Dennis Duffy (left) at a dinner for the Houston Law Review.  Dennis at the time was a professor at the University of Houston Law Center (he now chairs the labor/employment practice of Baker Botts, at which, ironically, I was then an associate).

During that dinner, Dennis shared with me his vision of the labor and employment curriculum at UH.  He was excited about teaching labor and employment law, and he wanted his students to have the opportunity to take lots of labor/employment courses.  He was lobbying the dean to hire more labor/employment faculty, and recruited me on the spot to teach Employment Discrimination as an adjunct.  He did that even though it meant he might not get to teach that course – I believe it was his favorite – as often.  His theory: by expanding the labor/employment course offerings and staffing them with teachers who were passionate about the subjects, the student demand for the courses would expand.  Expanding student demand would mean that, in the long run, he’d be teaching at least as many – if not more – of his favorite courses.  Most importantly, his students would have access to more classes and more terrific teachers.

Turf The tendency of many faculty members, however, is the reverse.  We don’t need another person in my area of expertise because we already have that subject covered.  Don’t hire that candidate because she has my course in the third line of her FAR form and might, some day, want to teach it.  Don’t take my course off the list of required courses because my course’s subject matter is so important [translation: my enrollment will plummet].  Don’t offer students too many skills or writing courses because students might prefer to take those courses (and legal employers might be demanding that students take those courses) instead of my pet course in Antarctican Equine Law. 

Protecting academic turf is a raw deal for students.  If I want to fill my (unprotected) Labor Law course, I need to deliver a product that students want to buy – I need to bring to the classroom an engaging pedagogy, a passion for the subject, and real-world relevance.  When turf is protected, there’s little incentive to improve the product.

Rick Bales

Posted by Workplace Prof on October 13, 2009 at 08:28 AM | Permalink | Comments (2) | TrackBack

Monday, October 12, 2009

Baseballs in the stands: End of the tradition?

In light of the controversy over Ryan Howard's home run ball, as well as past disputes over ownership of other record-setting and significant balls, I wonder if we are heading towards a change in how baseballs hit into the stands (at least fair balls) are treated.

It seems to me that MLB and individual teams control this. Fans keeping baseballs is a matter of tradition and historical practice, practice that is not followed in most other sports--football, basketball, tennis. The question of how a ball should be treated under state property rules depends on the teams--the owners of the stadiums--not simply declaring that all balls remaining within the stadium (or remaining within the stadium and in fair territory) remain the property of MLB and must be returned.

Such a move would not be popular, of course, as it flies in the face of the intrinsic joy of fans catching home run balls (that several commenters mentioned on my earlier post). But I wonder if teams might find it better than getting into legal disputes with fans when players want important balls, not to mention having fans committing simple battery in an attempt to catch a ball. Simply take away any "right" to keep the balls. Of course, would this mean teams would have to enforce the rules every time, not just on important balls? Or would it be enough for the teams to reserve the right to get a ball back whenever it wished to?

I am not a property scholar, so I invite those more in the know to weigh in.

Posted by Howard Wasserman on October 12, 2009 at 07:44 PM in Howard Wasserman, Sports | Permalink | Comments (3) | TrackBack

Columbus Day Quiz

Columbus Day means many things – federal holiday, no postal mail, closed banks, etc. – but, in many law schools, it’s business as usual. According to one site, “Colorado was the first state to observe Columbus Day in 1905. Over 30 more years elapsed before President Roosevelt deemed that ‘Columbus Day’ would be a federal holiday held on the twelfth of October. It was during President Nixon’s presidency in 1971 that the celebration was changed to be observed on the second Monday in October.” Admittedly, I know the basics about Christopher Columbus and his travels, but even the “easy” version of this quiz had me stumped. I would be very impressed if someone on Prawfs took this quiz and aced it.

Posted by Kelly Anders on October 12, 2009 at 04:45 PM in Current Affairs | Permalink | Comments (6) | TrackBack

Sunday, October 11, 2009

Blogs on Westlaw?

I was in the ALLNEWS database on Westlaw, and noted that some searches brought up posts from such legal blogs as Concurring Opinions and Volokh Conspiracy.  Am I just late to the scene, but when did that happen?  And how do you get your blog in Westlaw?  I rarely use Lexis -- are legal blogs on it too?

Posted by Chris Lund on October 11, 2009 at 01:43 PM | Permalink | Comments (7) | TrackBack

Saturday, October 10, 2009

Weekend Trivia Challenge - Name this Law School


The Question:


The first law school in its state, this school’s sun-drenched Mediterranean Revival campus began life as the Hotel Rolyat in 1926. It is now the gorgeous setting for this powerhouse in trial advocacy, whose mock trial teams have won the American Association for Justice National Championship four times. Other areas of special expertise at this school are education law, elder law, and legal writing. What is this law school?


The Answer:


Posted by Eric E. Johnson on October 10, 2009 at 07:21 AM in Games, Life of Law Schools | Permalink | Comments (1) | TrackBack

Friday, October 09, 2009

"Bigger Than Jesus": An Update

Here's a statement from Italian Prime Minister Silvio Berlusconi, who was mercifully stripped of immunity from prosecution by the Italian Supreme Court yesterday: "I am without doubt the person who's been the most persecuted in the entire history of the world and the history of man."  

Posted by Paul Horwitz on October 9, 2009 at 07:39 PM in Paul Horwitz | Permalink | Comments (0) | TrackBack

The Big Game

I’m going to go to back to blogging about cities next week, but for the next few days my attention will be elsewhere.  The U.S. Men’s National Soccer team wraps up its World Cup qualifying campaigns with games in Honduras tomorrow night and at home (in D.C.)  on Wednesday.   Although the U.S. is currently in first place in CONCACAF qualifying (North and Central America and the Carribean), it has not yet guaranteed its place in the World Cup Finals in South Africa.  Despite non-fans claims that qualifying against a variety of small and poorer countries in our confederation should be easy, anyone who follows soccer understands that qualifying for the World Cup from any confederation can be tricky and even big powers are often left on the outside looking in (this year, Argentina and Portugal both could miss it, and France, Russia or Germany, and a few other countries will have to win playoff games in order to qualify). 

Anyway, here’s how it stands.  On Saturday, if we win in Honduras (a tall order) , or if Costa Rica loses at home against Trinidad and Tobago (very unlikely), we're in (or if we both draw).   Otherwise, we need to draw or beat Costa Rica in our match in D.C. on the 14th (or hope El Salvador beats Honduras, or some odd series of events happen in Mexico's games against El Salvador and Trinidad).

A few blog-relevant thoughts, after the jump

1.  The Honduras game is not on U.S. television  -- only bars with satellites will be showing the game.  In any other country in the world, a decision by private actors to make a national football team  game available only on pay-per-view  would have created an enormous  federal response (or riots).   In fact, when the US-Mexico game was  only shown in English on the barely available Telemundo spin-off Mun2, fans managed to convince the network to give most viewers Mun2 free for  24 hours so that we could watch the game.   I'm not a huge fan of the essential facilities doctrine, but I could get behind a temporary and completely unprincipled expansion of rule to force this game to be shown on tv.  Christine Varney -- Where are you when we really need you?

2.  The Catrachos (the Honduran National Team) are really, really good.   We were fortunate to come from behind to beat them when we played them in Chicago in June.  This game should be excellent -- not only is this edition of the U.S. team full of exciting young players, but Honduras has some of my favorite non-U.S. north american players  -- Tottenham Hotspur's hard tackling midfield Wilson Palacios, free kick specialist "Rambo" de Leon, and a three excellent strikers in Carlos Pavon,
  Carlos Costly and David  Suazo .  We'll play the counter-attack, hoping Landon  
Donovan, Charlie Davies or Jozy Altidore can produce goals   like  these, and rely on our stout central defense and our fabulous goalkeeper Tim Howard to stem the Honduran attack (and hope that whomever we play at left back -- all of the options are more than  a bit dodgy -- doesn't get overrun).

If you love -- or even like a little -- the beautiful game, check out this match. 

3.   Games in Central America are usually pretty rough for Americans – we have a terrible record in road games against all the Central American teams.   This is partially because some of these teams -- particularly Honduras and Costa Rica -- are often very good, and partially because the games are played in, er, less than ideal conditions, producing a huge homefield advantage.  The pitches in these stadiums are often not well maintained and the fans range from boisterous to outright brutal (This game likely will be bad – lots of projectiles (mostly batteries) and abuse thrown at the players -- but games in Costa Rica are the roughest, where visitors, particularly American players, regularly get pelted with plastic bags full of urine.  Then again, the intensity of Honduran fans should not be underrated -- problems during world cup qualifying games between Honduras and El Salvador sparked a war between the two countries in 1970, the famed Guerra Del Futbol.)

At any rate, Honduras has a substantial home field advantage.  However, given the political situation in Honduras, some people speculated that the game would have to be moved.   (According to all reports, the situation in San Pedro Sula is fine for the game, thankfully.)

However, this raises some interesting institutional design questions.  FIFA, soccer’s world governing body, has the power to decide that match has to be moved, but the rules for when this happens, and where and when to play the game are extremely unclear and ad hoc, although Honduras (among other countries) has had to have matches moved due to political unrest.   After surveying some of my soccer buddies and not getting anything particularly attractive, I'll wanted to open the question to legal experts ---  What would be the optimal FIFA rule for moving matches in the case of  domestic unrest? It would have to protect player and fan safety, not inflame geopolitical tensions, and preserve the competitive balance created by having an even balance of home games for each team.  Any thoughts?

Posted by David Schleicher on October 9, 2009 at 03:11 PM | Permalink | Comments (8) | TrackBack

California Inmates Seek Contempt Order Against Governor Schwarzenegger

California's epic prison mess is heading back into court with the inmate plaintiff's asking the three judge panel to enforce their historic August 4th call for a reduction of some 40,000 inmates over two years with a contempt order against Governor Schwarzenegger.  As Denny Walsh reports in the Sac Bee:

Saying the Schwarzenegger administration is thumbing its nose at three federal judges with a flawed plan to ease overpopulation of prisons, inmates' attorneys Thursday asked the judges to find the governor in contempt.

Rather than complying with the three-judge panel's Aug. 4 order, a defiant Gov. Arnold Schwarzenegger and Corrections Secretary Matt Cate "essentially have told the court that they will reduce the state prison population as the state sees fit, to a level the state deems appropriate, and in a time frame the state has set for itself," the attorneys wrote.

The Governor whose low approval ratings and general fatigue at governing may have already peaked with his less than cordial greeting at a San Francisco Democratic Party event (the Guv was invited to "kiss my Gay ass" by Tom Amiano, read Carla Maranucci's reporting in the SF Chron), may rightly feel that he has tried to comply since his own plan was amended by the Democratic controlled legislature which backed off many of the cuts and the promise of a sentencing commission.  But if Arnold wants to go out as an action hero he can still lead.  As governor he can stop denying parole to scores of California lifers who have served decades and demonstrated substantial rehabilitation.  He can order, as Ronald Reagan did, parole units to stop returning parolees to prison for minor violations of parole.  With these steps alone he could bring the system into compliance before leaving office.

If, as seems increasingly likely, this whole case ends up in the Supreme Court sooner than later, look for several interesting legal flash points:

  1. The three judge court in Plata and Coleman has suggested that the Prison Litigation Reform Act of 1995 (signed into law by Bill Clinton 13 years ago this month) need not be a barrier to court based structural reform of prison systems including prisoner release.  The three judge panel, in my view, has put together an awesome record that will be hard for the Supreme Court to override, but look for Justice Alito in particular to focus on the federalism, public safety, and democratic accountability concerns embedded in the strong anti judicial intervention language of PLRA
  2. I just taught the Supreme Court's 2005 Samson v. California case in which the power under California law to search all parolees without any suspicion by all peace officers (both parole and police) was upheld against a 4th Amendment challenge.  The very complex case, which throws a lot of 4th Amendment doctrine into doubt, turns heavily on a bizarre (and in my view grossly incorrect) understanding of the same California parole revocation mess that will be at the center of a Plata Coleman decision.  I will post more on this theme, but main point is that the Supreme Court in Samson took California's high revocation rate to prove that parolees were so dangerous they needed to be exempted from 4th Amendment protections (even the watered down special needs version of them).  How will that square with the current view of the State of California, that parolees are so safe that most of them can be put on a form of "parole lite"  in which revocation is not a possibility, supervision does not happen, and parole is reduced to the single fact of being exempt from search and seizure protections?

Posted by Jonathan Simon on October 9, 2009 at 12:36 PM in Criminal Law, Jonathan Simon | Permalink | Comments (1) | TrackBack

And the Nobel Peace Prize Goes to . . . David Addington, Jay Bybee, and John Yoo?

Last weekend, in addition to a brief stopover at a conference at some college in New Haven, I participated in a conference at Amherst College titled "Prosecuting Bush, Cheney and Rumsfeld: What Does the Rule of Law Require?"  As the news release I've linked to relates, the proceedings will be published, fairly quickly, in a book by NYU Press.  In addition to the chance to hang out with my co-blogger Steve Vladeck, I very much enjoyed talks by Claire Finkelstein of Penn (on whom I commented), Nasser Hussain, and others (although I was sad to miss Stephen Holmes's talk.)  The conference was not about whether Bush or any members of his administration violated the law, which would not in my view be a productive discussion.  Rather, the question was, if we assume that they did for purposes of argument (and only for that purpose, in my view, rather than out of some settled assumption), then does the vindication of the rule of law require their prosecution?  My answer was "no," for reasons I develop in a paper that I'll post on SSRN at some point.  Others disagreed in various ways, although that does not mean anyone thought that outcome was either desirable or costless.  

I raise this because of today's news about the Nobel Peace Prize, which Rick has already blogged about.  I am not one of those who gives any special weight to the Peace Prize, so it is largely a matter of indifference to me, although I share what appears to be the common consensus of both the left ("No, really?") and the right (No, really?!?, with a couple of expletives thrown in) on this one.  Like Patrick Swayze jokes, it just seems too soon (not that I think it is somehow obvious that it will be any more suitable later on).  

But it may shed light on arguments about the necessity, particularly for international diplomacy, of taking action against members of the Bush administration for alleged law violations on their watch.  Some of the panelists argued in non-consequentialist terms that prosecution was necessary to vindicate the rule of law, but consequentialist strains crept into their arguments, and one of those was that America's standing in the world had fallen as a result of the torture memos and the behavior they helped underwrite, and that some positive legal action was necessary to restore that standing and thus the efficacy of international law and human rights regimes.  But if Scandinavians are going to just start hurling medals at Obama before his administration has barely begun, and while it is still far from clear what steps he will take either to alter or to redress past administration policies with respect to the war on terror, does that not suggest that prosecution is unnecessary, at least on these sorts of consequentialist grounds?

Posted by Paul Horwitz on October 9, 2009 at 11:42 AM in Paul Horwitz | Permalink | Comments (0) | TrackBack

Jumping the Shark with Obama's Nobel Prize?

It seems that Obama's supporters are determined to humiliate themselves and him with their dog-like devotion. The decision to award Obama with what seems to be an unearned unearned Nobel Peace Prize seems to confirm either that (a) the Nobel Peace Prize has been an empty political gesture ever since it was given to Arafat or (b) Obama's supporters are really just as gaga over his sheer charisma as their conservative critics have been saying.

I write this as an avid supporter of Obama's (and Clinton's) foreign policy. But it is normally the custom to award prizes for accomplishments, not good intentions, right?

Posted by Rick Hills on October 9, 2009 at 10:50 AM in Current Affairs | Permalink | Comments (19) | TrackBack

Thursday, October 08, 2009

Armed but not Dangerous? Arizona Allows Guns very near Campus

Arizona has among the most liberal gun laws in the United States.  One that directly impacts the University of Arizona (and ASU) is A.R.S. Section 12-781, which took effect on September 30, and prohibits "a property owner, tenant, public or private employer or business entity" from banning the possession of firearms locked and out of sight in cars.  The University of Arizona strictly prohibits all firearms, even though in Arizona in general it is legal to carry a handgun openly without a permit, and concealed carry permits are easy to get (something like 3% of the adult population has one).  The University is particularly concerned about weapons because in 2002, three nursing professors were murdered by a student who then killed himself.  After September 30, there could be scores or hundreds of guns on campus in parked cars, which some fear could precipitate another mass shooting or other gun incidents. My prediction is that the new law will have no impact on safety at the University.

Allowing guns on campus will not likely make the campus materially safer.  Some argue that if students and faculty were armed, they could prevent crimes such as mass shootings.  But it seems unlikely that  gun owners will regularly be in the right place at the right time and do the right thing in an extremely unusual event like a mass shooting.  Our gun-free campus already has lower crime rates than Tucson as a whole were guns are largely permitted.  With 3 sexual assaults, 5 robberies and 8 aggravated assaults on campus in all of 2008, it would have been quite a coincidence for even one crime to have been stopped by an armed passer-by.

I also doubt that allowing guns on campus will make the campus more dangerous.  Someone bent on crime, or who is legally prohibited from possessing a gun at all would not have obeyed  the prohibition on guns in parked cars, so the only new guns allowed on campus will be owned owned by law abiding people.  However, it is not so simple to say that gun laws don't work because criminals don't obey them: In a regime where guns are prohibited, gun possessors are ipso facto criminals and thus merit a swift response.  If police detected a gun as it was being transported to the scene of a planned crime, they could intervene and prevent it.  The problem is that such intervention is a very low likelihood event.  A shooter who sees the police might well change plans, or in any event keep the weapon concealed.  So the signal "Gun = Criminal" is lost, but it was not a particularly valuable signal because criminals know to keep their guns out of sight.

If allowing guns on campus is unlikely to either facilitate or prevent premeditated crime, it could make it possible for otherwise law-abiding people to commit a crime on the spur of the moment.  Theoretically, an argument about course scheduling or a grade could now turn into a shooting incident.  But this is also unlikely.  I presume this from the fact that there are more shouting matches than there are assaults, more assaults than aggravated assaults, more aggravated assaults than homicides.  Even among those who lose their cool, even among those who commit crimes, there is often some measure of control.  The impulse to run to the parking lot to get a gun to settle an argument is the same as the one to run to the copy room to get a pair of scissors. Fortunately, this sort of thing is rare. I certainly hope it stays that way.

Posted by Marc Miller on October 8, 2009 at 11:15 PM | Permalink | Comments (2) | TrackBack

A Contracts Question

Restatement (Second) of Contracts § 68 states:

A written revocation, rejection, or acceptance is received when the writing comes into the possession of the person addressed, or of some person authorized by him to receive it for him, or when it is deposited in some place which he has authorized as the place for this or similar communications to be deposited for him.

And it offers the following quaint illustration:

A sends B by mail an offer dated from A's house and states as a condition of the offer that an acceptance must be received within three days. B mails an acceptance which reaches A's house and is delivered to a servant or is deposited in a mail box at the door within three days; but A has been called away from home and does not personally receive the letter for a week. There is a contract.

So here's my question: when is an email or a voicemail considered "received"?  I'm assuming from the language of  § 68 that once the message has been electronically deposited -- so, either the voicemail or email reaches your "in" box -- that the message has been received.  But I can't find any cases on this.  If anyone has a thought or case, I'd be much obliged.

Posted by Matt Bodie on October 8, 2009 at 06:28 PM | Permalink | Comments (3) | TrackBack

Greedy athletes or greedy fans?

It must be Sports Week for me again. I find this story really sad--as a baseball fan and as a lawyer.

Short version: Ryan Howard of the Phillies hit his 200th career homer this summer in a game in Miami; the ball was caught by 12-year-old Jennifer Valdivia. Howard reached the 200-homer mark in the fastest time in history, so he wanted the ball. Phillies officials brought Jennifer in to the clubhouse, where they got her to give up the home run ball in exchange for a ball autographed by Howard. But the family decided they wanted the home run ball because, apparently on advice of counsel, it would be worth more. So on Monday, the family sued for rescission; the Phillies gave her the ball back.

Three thoughts.

First, this seems like a bad trade for Ms. Valdivia and her family. If the Barry Bonds home run ball fiasco taught us anything, it is that "historic" home run balls do not have nearly as much value as many fans assume. Her attorney is described in the story as a "memorabilia enthusiast," so he probably knows something about value that I don't. But the ball is unique only because of the "fastest-to" mark that is a largely meaningless, made-up record. If Ryan Howard goes to the Hall of Fame (and I believe he will, at his current pace), will an autograph really be worth less than his 200th home run?

Second, Ms. Valdivia, her family, and her lawyer are hereby estopped from ever again complaining about greedy professional athletes who only care about money and not the game. Howard wanted the ball for his personal satisfaction, because it represented an accomplishment that, in the long run, is meaningful only to him. He offered something of value in return. And the girl's family sued because, in crassest terms, they wanted more money (or more value).

Third, I wonder what she did with the autographed ball the Phillies originally gave her in exchange. Did she keep it? That would give her quite a windfall, to which she is not entitled. Of course, if the Phillies had asked for it back in settling a rescission claim, we would be hearing all sorts of shouts about the greedy team/player taking back what they had given this innocent fan.

Posted by Howard Wasserman on October 8, 2009 at 03:14 PM in Howard Wasserman, Sports | Permalink | Comments (5) | TrackBack

What I Would Have Said…. Reflections on Sotomayor’s Confirmation Hearings

Eric below has a provocative post on the Sotomayor Confirmation hearings.  Here’s a snippet:

Sotomayor repeated the same refrain over and over – so much so as to cement it into the public consciousness: “The task of a judge is not to make law. It is to apply the law.”  The problem with that statement is that, at best, it is an eighth-grade understanding of the American court system.  If one of my law students wrote that on a final exam, I would probably beat my head into my desk . . .

It is no defense to say that Sotomayor was simplifying things.  Sotomayor’s statements were oversimplified to the point of being wrong.  More importantly, the Sotomayor hearings focused the country’s attention on jurisprudence and the role of judges.  It was a chance for the American public to do some considered reflection on the courts and our legal system.

I can't criticize Justice Sotomayor for saying what she said.  And I am no jurisprude.  But I too am interested in providing a fuller account of the complexities of judging that goes beyond the “make the law” / “apply the law” dichotomy.  I have been looking for a way to explain my thoughts, particularly to lay and student audiences, who want to know what we think about these things.  And I think a case last term, Abuelhawa v. United States is really good for that.  The facts and legal analysis are easy to understand.  And the case undermines, I think, some misperceptions about judging that are sometimes hard to dispel.  A discussion of Abuelhawa after the jump.

The background to Abuelhawa is this.  Buying cocaine has, for forty years or so, been just a misdemeanor.  But selling it is a felony.  Abuelhawa here was arrested for buying small amounts of cocaine over the phone.  Yet the prosecutors were clever: Why can’t Abuelhawa, as the buyer, be charged with the felony of facilitating the sale of cocaine?  (It turns out there’s actually a separate part of the Controlled Substances Act that makes it a felony to “facilitate” a drug sale by using a phone.)

So the prosecution suddenly charges Abuelhawa with felony counts instead of misdemeanors; instead of a 2 year max, he now faces a 24 year max.  The district court and Fourth Circuit affirm the conviction and uphold this underlying theory of felony-buyer-facilitation.

The Supreme Court reverses.  The Court gives a wide variety of reasons for the result, one of the biggest being that the Court simply has a hard time stomaching misdemeanors abruptly being converted into felonies across such a wide range of cases.

Here’s my question.  With what confidence can we say that the Fourth Circuit’s decision was in error?  I’m really not sure.  I mean, I disagree with it in some sense.  I think the Supreme Court’s approach is in some sense better.  When the Supreme Court granted certiorari and I read the Fourth Circuit’s opinion, I expected reversal.  But, at bottom, there is an unimpeachable logic to the Fourth Circuit’s position.  “Facilitating” means making easier.  And buyers make sales easier; you can’t have a sale without them.  That’s what the text of the statute literally means.  And if it has to be modified, isn’t that Congress’s responsibility?

I really liked an Orin Kerr post from awhile back, and wanted to follow it up here.  We can say that some cases are 50-50 cases, with each side having legal arguments of equal strength.  And we can say that some cases are 90-10, with one side having clearly better arguments.  But those numbers, at bottom, seem to be just predictions – that is, predictions of how the current Supreme Court will weigh the varying legal arguments in question.  A different set of equally well-trained judges –say, the Fourth Circuit panel in Abuelhawa – may see it differently.  And it’s not because they don’t understand or properly appreciate the legal arguments, but because they simply weigh them differently.

The Fourth Circuit here took a rigidly textualist position; the Supreme Court took one more based on structural and prudential concerns.  Unless the law somehow forbids that sort of rigid textualism (which the Court itself adopts on occasion), it’s hard to see how the Supreme Court’s position was absolutely necessitated by the law.  Indeed, if anything, the formalistic “applying the law” model here – because of its heavy emphasis on text – would suggest that the Supreme Court in fact got it wrong.  And the Supreme Court, amazingly, is unwilling to assert that they are clearly right.  Telling, I think, is the last line in the Court’s opinion.  “The Government’s position,” the Court concludes, “is just too unlikely.”  Not wrong, not frivolous, just unlikely.

And the key is this -- by all external appearances, this was one of the easiest cases of the term.  The Supreme Court opinion was unanimous.  It was short (10 pages) with no concurrences.  If the law underdetermines the result here, it raises a lot of questions.  That is a story that maybe the public would like to hear (or maybe not).  Perhaps we’ll hear it, or something like it, next time.

Posted by Chris Lund on October 8, 2009 at 02:17 PM | Permalink | Comments (8) | TrackBack

Sotomayor’s Civic Disservice

Aba_kabuki_cover“No More Kabuki Confirmations,” blares the cover of the new ABA Journal, carrying a picture of then-Judge Sonia Sotomayor taking the oath before the Senate Judiciary Committee. The article is good reading, and it does a fine job of articulating the frustrations of the modern-day confirmation process. But the article paints the confirmation process as being harmful only insofar as it wastes time. And Sotomayor’s evasive answers are presented as regrettable, but, under the circumstances, understandable. I think that assessment is too rosy. 

Sotomayor’s testimony, amplified by tremendous media coverage, strongly abetted the dumbing down of American public discourse about the judiciary. 

Sotomayor repeated the same refrain over and over – so much so as to cement it into the public consciousness: “The task of a judge is not to make law. It is to apply the law.”

The problem with that statement is that, at best, it is an eighth-grade understanding of the American court system. If one of my law students wrote that on a final exam, I would probably beat my head into my desk.

Judges have enormous power in shaping the law. I won’t belabor the point – it is manifest. And Sotomayor knows it. More to the point, lawyers and legal scholars all know that she knows. But millions of Americans across the country who were watching the hearings might not. 

The legal community appreciates all too well the dance performed in the hearings. No lawyers saw Sotomayor’s testimony and concluded from it that she is ignorant. They concluded, no doubt, that she was trying deftly to manuver the confirmation process. As she was. But we should not pretend that no damage is done when a judge, especially one widely praised for her intelligence, talks as if the work of the Supreme Court, done properly, is clear-cut and perfunctory. 

“Judges,” Sotomayor said, “don’t determine the law. Congress makes the laws.”

Why shouldn’t non-lawyers take that statement at face value? I am sure many people hearing Sotomayor’s testimony assumed what she was saying was accurate. Yet it is not. 

It is no defense to say that Sotomayor was simplifying things. Sotomayor’s statements were oversimplified to the point of being wrong. More importantly, the Sotomayor hearings focused the country’s attention on jurisprudence and the role of judges. It was a chance for the American public to do some considered reflection on the courts and our legal system. Sotomayor should have felt some burden to speak in a way that would illuminate the issues rather than obfuscate them. 

It’s not hard to understand why Sotomayor did what she did – she wanted to be confirmed. But with the current Democratic supermajority in the Senate, it would have taken a spectacular meltdown in front of the Judiciary Committee for Sotomayor to put her appointment in jeopardy. She should have risked a small flap by speaking about the law in a more sophisticated and complete way. Compared to other nominees in recent history, Sotomayor spoke from a rare position of political safety. She could have afforded to be more forthright in her responses. 

My real fear is that Justice Sotomayor may have done something worse than merely pass up an opportunity to help Americans understand something more about our legal system. I am afraid that Sotomayor may have lessened the opportunity for others to do so in the future. By bowing to a soundbite-level understanding of the law, Sotomayor may have helped to entrench it. And that is a real civic disservice.

Posted by Eric E. Johnson on October 8, 2009 at 12:24 PM | Permalink | Comments (5) | TrackBack

Bearing the Cross

Alas, I've been busy with other things, and haven't paid close attention to the Salazar v. Buono case, on which oral arguments were held yesterday; here's an account from Dahlia Lithwick.  The news accounts are focusing, rather understandably even if no one thinks he will be forming a majority, on Justice Scalia's questions about whether the cross can be understood "the most common symbol of the resting place of the dead," as a simple war memorial that honors everyone, or whether it has specifically Christian connotations.  I have three observations about this.

First, if Justice Scalia is suggesting the cross is unobjectionable because it is a generalized "war memorial" with no necessary Christian meaning, that is in some contexts not a "religious symbol," to quote Lithwick, then obviously that is incorrect.  And not just incorrect, but equally offensive to those who believe strongly in the cross and those who believe in other religious symbols or none at all.  It's another example of the problems with civic religion, ceremonial deism, and other such arguments.  (Not to say they have no merits at all; just that they're problematic.)

Second, however, I'm not sure that's what Scalia is saying, although it seems to be how the news accounts are treating it.  If he is simply observing that it is outrageous to say that the cross only honors the Christian war dead, I think he is on much stronger ground.  Clearly the erection of a monument meant to honor the war dead, particularly in a society whose context is fairly pluralistic and inclusive, and in which civic religion often does take "mildly" Christian forms (depending of course on one's perspective; from other perspectives, both Christian and non-Christian, to call the cross "mild" is to rob it of its meaning), is not directed only at the Christian war dead but at everyone in the cemetery.  Scalia is right on this as a matter of fact, I think.  That doesn't mean anything dispositive ought to follow from it.  If a sign was erected on public land in a cemetery that said, "We honor all the brave soldiers who rest herein, although given that Jesus Christ is the way, the truth, and the light, we think the non-Christians among them will burn in Hell for eternity.  Still, good job, everyone[,]" it would be quite clear that the sign honored all the war dead, Christian and non-Christian alike.  The question would be whether government is disabled from making that kind of statement.  Scalia is wrong if he thinks the cross is so nebulous and meaningless that it makes no such statement; for some, the cross itself, without more, is entirely equivalent to the statement I have suggested above.  He is right, on the other hand, if he thinks that a symbol can be both particular to a specific religion and meant to honor people of other faiths, although again it may be that the Establishment Clause bars this kind of de-haut-en-bas tribute to outsiders.

Finally, in this snippet from oral argument and in his opinion in the Ten Commandments cases, I find something strangely inconsistent about Scalia's arguments.  I'm not knocking him here for taking a particular view of what the Establishment Clause requires as a matter of text and history; I'm suggesting that on certain cases, like these and like the VMI case and Romer, his methodology, which is supposed to rescue him (and us) from his normative views, clearly fails to cabin those views or prevent outbursts that are clearly about his own views about what society ought to be like rather than his views about what the Constitution actually requires.  Although I ardently disagree with the view that the Establishment Clause places Judeo-Christian monotheism (with Islam grudgingly included) within the pale and other religious beliefs beyond it, or that it does not prevent the state from placing generalized Christian symbols at the heart of public displays, provided they form part of the general culture and do not make too specific an endorsement (a task that is made easier by his refusal, for instance, to believe that anyone could care what text the Ten Commandments display, or whether different kinds of crosses have different kinds of meaning), it is just dimly possible to construct such an argument on historical grounds without one's own views intruding into it.  

But Scalia's attitude in the Ten Commandments cases and in yesterday's oral argument, even if we accept my reading of the exchange over the public meaning of the cross, seems to pretty clearly indicate some deeper wellspring of passion operating here, one that ought to be irrelevant to what he takes to be his own interpretive role, and one that frankly I find pretty close to incoherent.  Scalia seems to want to preserve a symbol that he views as being of profound importance, at the same time to cast doubts on whether it actually has that importance by imposing his own view of what the message of that symbol is ("all war dead honored here") over others, and to take offense at the very notion that anyone not of that faith might take a different message from it.  In these sorts of cases, I think Scalia comes closer than he is willing to acknowledge to what he sees as the central flaw of his colleagues: that in some cases passion is in the driver's seat rather than constraint.

Posted by Paul Horwitz on October 8, 2009 at 10:37 AM in Paul Horwitz | Permalink | Comments (10) | TrackBack

Assessing Public Service


I mentioned in my last post the difficulty of assessing institutional service.  The same is true of public service, which my institution calls “public engagement”.  This includes service on bar committees, legal service organizations, AALS, legal blogging, and the like.

Sometimes, such service is relatively easy to assess, as when a faculty member administers a public program like VITA or drafts an amicus brief.  Other types of service, however, are more difficult to assess.  For example, a faculty member’s service on a charitable or legal-services board may be extraordinarily demanding, or may consist merely of attending one or two board meetings each year.  A faculty member who does pro bono work for a legal services organization may take one simple case a year, or several complex ones.  When assessment is difficult, the dean may have little basis for rewarding faculty members for public service work in annual faculty performance reviews.

This creates two problems.  First, faculty members who go above-and-beyond on public engagement are likely to be under-appreciated and -rewarded.  Second, some faculty members use public engagement as an excuse for doing little or no scholarship or institutional service.  The latter is not necessarily awful, so long as (a) the faculty member is working at least as hard on public service as others are working on scholarship and institutional service, (b) the public service benefits the institution (albeit indirectly, such as by enhancing the school’s reputation in the bar or local community), and (c) other members of the faculty pick up the slack on scholarship and institutional service.  But because public service can be difficult to assess, the risk is that too many faculty members will say they are overwhelmed by public service, whereas in fact they are doing little or nothing at all.

Should we keep “billing logs” of our public engagement work?  Or are there other effective assessment mechanisms?  Comments are welcome.

Rick Bales

Posted by Workplace Prof on October 8, 2009 at 08:25 AM | Permalink | Comments (0) | TrackBack

Vandy LR's new venture: Roundtable

I recently rec'd this message from the good folks at Vanderbilt's Law Review, and thought I'd share this interesting development re: online scholarship and dissemination.

Last year, the Vanderbilt Law Review launched En Banc, an online companion to the Vanderbilt Law ReviewEn Banc primarily publishes responses to articles published in the printed journal. However, today En Banc is introducing a new feature, Roundtable, which seeks to fill a void currently existing in the world of legal scholarship. Roundtable will host a debate between prominent academics and practitioners on a notable case pending before the U.S. Supreme Court (or potentially a U.S. Court of Appeals) each semester...These debates will allow for participants to voice their views in a scholarly forum while the law is simultaneously being made at the highest levels.

For the first Roundtable, the editors of the Vanderbilt Law Review have selected Free Enterprise Fund v. PCAOB, a case that likely needs no introduction. Furthermore, five leading administrative and constitutional law professors are participating: Peter Strauss (Columbia), Hal Bruff (Colorado), Steven Calabresi (Northwestern), Gary Lawson (Boston University), and Rick Pildes (NYU). The format for the Roundtable is as follows. Recently, the Vanderbilt Law Review published online Prof. Strauss’s article summarizing the key issues surrounding the PCAOBcase and laying the groundwork for the forthcoming discussion. On Monday, November 2, original pieces on various facets of the case by Profs. Bruff, Calabresi, Lawson, and Pildes will be published. Finally, on Monday, December 7—coincidentally the same day that the Court will hear oral arguments for PCAOB—the Vanderbilt Law Review will publish response pieces by all five professors. All in all, these three series of articles will add new and unique high-level perspectives on such a significant case. 

Sounds neat. Also, feel free to check out VLR's brand-new website.

Posted by Administrators on October 8, 2009 at 01:21 AM | Permalink | Comments (0) | TrackBack


Adam's post about that Times story comparing rappers and conservative talk show hosts reminded me of something modestly blog worthy.  (For what it's worth, I completely agree that the comparison is forced.)  In very exciting news, the first D.C.-based rapper to blow up in a long time -- the truly excellent Wale -- will drop his first album Attention: Deficit early next month.  One interesting thing is that his first single, Nike Boots, uses the term "the DMV" to refer to the region consisting of the District of Columbia, Maryland and Virginia. 

So, here's my question:

How is it possible that "the DMV" hasn't been picked up by either a) right-wing radio hosts looking for a replacement for "inside the Beltway" or b) liberal activists frustrated with the pace of change or heath care reform?  It's perfect for either group -- it can be used to decry red tape in D.C., as a general putdown (who likes the DMV?), or as a criticism of the speed with which things get done around here.  It's so good that I just can't believe it hasn't spread yet.  

Also, it would do a much better job of capturing life in the nation's capitol that the other names for the region -- the District, inside the beltway etc.  The "DMV" is notably  multi-nodal -- Arlington, Bethesda, Tyson's Corner and other built up parts of the region are less edge cities than they are central parts of the region's urban web.   People frustrated with the capitol's culture (or those who want to celebrate it) would do better to call attention to the centrality of places like McLean, VA or Takoma Park, MD in shaping the nation's politics.  Also, it's funnier and produces better jokes and rhymes for Wale and others.  

Win-win all around.  Can we just agree to use the "DMV"? 


Posted by David Schleicher on October 8, 2009 at 12:41 AM | Permalink | Comments (2) | TrackBack

Wednesday, October 07, 2009

Book List for New Law Professors

What books would you recommend to new law professors? Perhaps we can create a list in the comments.

Here is the thing. If you are a new professor, you will have no trouble packing your bookshelves with books. Free review copies of casebooks from the big publishers can fill up your office in no time. But what should you be filling your bookshelves with?

As a relatively newish prof (in my third year of full-time teaching), I've found a few books to suggest for the list. I suppose some people may have suggestions for books about teaching. I'm curious to hear those. But my suggestions, below, are substantive. These are the books I should have bought the first day I decided I would become an academic. They are resources for the beginning scholar looking to load up on the sort of law-professory knowledge that's good to have no matter what your subject you teach.

Friedman A History of American Law by Lawrence M. Friedman. This book is eminently readable, and it is broken down into highly digestible little sections. Each section is a brief treatment of a certain subject over a certain period of history. Care to spend a few minutes learning about divorce law in the 1800s? Friedman has you covered. His book is a ready reference with a wealth of historical context for almost any course you could teach. 

Transformation The Transformation of American Law 1780-1860 and The Transformation of American Law 1870-1960 by Morton J. Horwitz. This two-volume treatment of the story of American law is not easy-breezy reading like Friedman's book. But it is rewarding. In some places, I have found almost every sentence to be highly illuminating in its own right. Wonderful stuff. 

Canon The Canon of American Legal Thought, edited by David Kennedy and William W. Fisher III.
Law school is famously said to be about teaching law students to think like lawyers. This is the book for the course that teaches law students to think like legal scholars. It is a compilation of canonical law review articles – sort of the greatest hits in legal scholarship. Here you can read seminal works in legal realism, law and economics, critical legal studies, and more.

Anglo The Anglo-American Legal Heritage by Daniel R. Coquillette. Taking on an enormous swath of history, this book traces the roots of American law much farther back than the books listed above. It covers a little of Rome and a lot of Old England, and it brings all of it up to the present. It is also chock full of wonderful illustrations. I've never met anyone who had so much history instantly at his command as Coquillette. What he's put down on paper here is a treasure. Also distinguishing this book from those listed above is its binding. In hardback with gold lettering on a regal red spine, it will look great in your office.

I am reading all of the above books in bits and pieces -- which is how I like to tackle books of this sort. Thus, I can't say I've read them cover to cover. But I can say I am tremendously glad to have found them to get lost in occasionally. For the new law professor, I can confidently pronounce them to be value-packed bargains. 

What else should be on the list?

(And if you like reading lists, see the many PrawfsBlawg posts under the category of Research Canons.)

Posted by Eric E. Johnson on October 7, 2009 at 09:20 PM in Research Canons | Permalink | Comments (9) | TrackBack

Rap and Conservative Talk Radio

A relatively recent New York Times article in the "Week in Review" argued that rap music is an awful lot like conservative talk radio.  I don't think it's especially convincing, but I suppose it identifies a few connections one might not otherwise have seen.  Here's a sample:

Even beyond simple matters of style, rap and conservative talk radio share some DNA. Once you subtract gangsta rap’s enthusiasm for lawlessness — a major subtraction, to be sure — rap is among the most conservative genres of pop music. It exalts capitalism and entrepreneurship with a brio that is typically considered Republican. (Admiring references to Bill Gates are common in hip-hop.)

Rappers tend to be fans of the Second Amendment, though they rarely frame their affection for guns in constitutional terms. And rap has an opinion about human nature that is deeply conservative — namely, that criminals cannot be reformed. The difference is that gangsta rappers often identify themselves as the criminals, and are proud of their unreformability.

Finally, rappers and conservative talkers both speak for a demographic that believes its interests and problems have been slighted and both offer stories that have allegedly been ignored.

Posted by Adam Kolber on October 7, 2009 at 07:15 PM | Permalink | Comments (4) | TrackBack

Sandel's Justice

I am not one of the select few (roughly one in six Harvard undergrads) who has taken Michael Sandel's course on "Justice," although I've seen him speak and can imagine how enjoyable and interesting the course is.  Happily, Sandel is widening his audience.  His new book, Justice: What's the Right Thing to Do?, is essentially a fancy-dress version of his lecture notes for the course.  The course will also be the subject of a 12-episode documentary on public television, and I look forward to it greatly.  Here is an excellent article from the Chronicle of Higher Education on Sandel, the course, and the book and documentary projects, with quotes taken from interviews with, among others, Niall Ferguson, Joshua Cohen, Stephen Holmes, and Charles Taylor.  

I am about halfway through the book and recommend it highly so far.  It's extremely -- perhaps exceedingly -- well-written and smooth, and in a clear way it provides a look at dilemmas and hypotheticals that are regularly used and, with the help of the book, could easily be adapted for use across the law school curriculum.  I am, indeed, struck by how many of the moral dilemmas Sandel uses as his springboards are taken from the realm of law.  

I also wonder about the following passage, early in the book: 

Elections are won and lost on these disagreements.  The so-called culture wars are fought over them.  Given the passion and intensity with which we debate moral questions in public life, we might be tempted to think that our moral convictions are fixed once and for all, by upbringing or faith, beyond the reach of reason.

But if this were true, moral persuasion would be inconceivable, and what we take to be public debate about justice and rights would be nothing more than a volley of dogmatic assertions, an ideological food fight.

Sandel quickly adds: "[I]t need not be this way.  Sometimes, an argument can change our minds."  Maybe I'm having a Fishy reaction, but I can't help but think that he settles this point too quickly and not sufficiently persuasively.  As I said, I recommend the book highly, but he certainly has not shown me so far that our moral convictions are not "beyond the reach of reason" or that moral persuasion is not "inconceivable" and public debate not "an ideological food fight."  He certainly has not shown me that this is necessarily so.  It is true that arguments can sometimes change our minds, but less true, I think, unless we have already accepted a number of controversial moves, such that we already accept both the competing values (utilitarianism, libertarianism, virtue, Kantianism, etc.) and, perhaps more importantly, the language in which the conversation is conducted.  The book so far strikes me as an excellent example of reasonable people reasoning together reasonably, but I'm not sure it demonstrates that these types of conversation are inevitable or self-evident, or that the kinds of inclusions and exclusions he makes to his "Justice club," even if they are wide enough to allow one in six Harvard undergrads to enroll, are any more necessary or uncontroversial.  In that sense, the book strikes me as being more a kind of Robert's Rules of Order for liberals than a proof or justification of the enterprise he's engaged in.  But it is a terrific manual nonetheless.

Posted by Paul Horwitz on October 7, 2009 at 10:56 AM in Paul Horwitz | Permalink | Comments (4) | TrackBack

Why I hate the wildcard in baseball (a biennial reprise)

There is much celebrating this morning (at least outside of Michigan) of last night's amazing one-game playoff game between the Tigers and Minnesota Twins for the AL Central Division title, a 12-inning featuring three comebacks, which the Twins finally won 6-5. So let me play the curmudgeon here.

Two years ago, journalist Robert Weintraub wrote about the 1993 pennant race between the Atlanta Braves and San Francisco Giants and said "The drama of late-season baseball has been transferred from occasional but memorable all-or-nothing contests between great teams, to annual lower-stakes games between the good-to-mediocre." He blamed the wild-card system, adopted in 1995, because any do-or-die, win-or-go-home contests to win a division or wild card occur only among lesser teams, not among the top teams. I wrote in whole-hearted agreement, using the 2007 season as a perfect example.

Well, this year bears my argument out once again. Yes, last night was a great game and it was an exciting race. But it was between two teams that finished the 162-game schedule with 86 wins--fifth-most in the league entering last night's game. None of the top teams in the American League (the 103-win Yankees, 97-win Angels, or 95-win Red Sox) had any pressure at the end of the season--all were play-off bound, just as the top teams will be every year. The only other division "race" was in the National League West, where, entering Saturday's game, the Dodgers (93 wins--most in the NL) lead the Rockies (92 wins, tied at the time for second-most prior to Saturday) by a game and were playing each other, ostensibly for the division title. But the Rockies already had the wild card won and were play-off bound, since they had the second-best record in the whole league, so they had no pressure and no real incentive to catch the Dodgers and win the division.

Two years ago, I criticized the incentive structure this creates:

A wild-card system values having lot of teams in the play-off hunt and more times with post-season hopes later in the season, with a lot of win-or-else games. But it achieves that at the expense of having the best teams playing those win-or-else games. This is sound as a business decision--more fans in more cities will come out or watch in that final weekend, knowing their teams still are alive.

But as a baseball decision, it stinks that there is no chance to showcase the best teams in these high-stakes games, at least as part of a regular season that is long enough (162 games over six months) to create a meaningful competition. So while that was a great game last night, wouldn't it be nice to have a game like that played between two great teams?

Thanks for listening. Odds are, I will be back with a similar post in 2011.

Posted by Howard Wasserman on October 7, 2009 at 07:43 AM in Howard Wasserman, Sports | Permalink | Comments (9) | TrackBack