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Friday, March 11, 2011

Private Lives of Public Concern

I recently spoke with a group of gay rights advocates -- lawyers and laypersons -- about the First Amendment, gay rights and LGBT law, in general. One comment/question struck me, especially in light of the Supreme Court's recent decision in Snyder v. Phelps. "With all due respect, Mr. Waldman, you seem to be justifying anti-gay hate speech in the name of protecting esoteric concepts of free speech." My interlocutor continued: "What I don't understand is how conservatives' bigoted attacks on my private life are entitled to the greatest First Amendment protections as 'matters of public concern,' as you say, when they are the ones who are making my private life a matter of public concern. They're tired of hearing about my gay life? Well, then stop talking about it. I want nothing more than to live a simple life with my family. Why does their hate become political speech when they're the ones making my life a political matter?"

Dan (a pseudonym) used slightly more colorful language, noting at one point that my lack of grey hair and otherwise youthful countenance make me untrustworthy. But, in any event, Dan raises an interesting point: Should it matter who creates the political issue when determining if given speech is political speech?

First Amendment law does not care who starts a fight when determining if the fight is public or private. And, gay rights in general are clearly matter of public concern and raised by both sides -- progressive gay advocates seek state recognition of our unions, our rights to serve our country and our right not to be fired simply for who we are, and anti-gay conservatives use the political sphere to fight and take away those rights.

But, should anti-gay invectives be granted the same vaunted status as political speech when conservatives are the only ones inserting hate into an otherwise political discourse?

In Snyder, the Court stated as follows:

“[S]peech on public issues occupies the ‘ “highest rung of the hierarchy of First Amendment values” ’ and is entitled to special protection.” Connick v. Myers, 461 U. S. 138, 145. Although the boundaries of what constitutes speech on matters of public concern are not well defined, this Court has said that speech is of public concern when it can “be fairly considered as relating to any matter of political, social, or other concern to the community,” id., at 146, or when it “is a subject of general interest and of value and concern to the public,” San Diego v. Roe, 543 U. S. 77, 83–84. A statement’s arguably “inappropriate or controversial character . . . is irrelevant to the question whether it deals with a matter of public concern.” Rankin v. McPherson, 483 U. S. 378, 387.

It is clear from Snyder that hateful anti-gay rhetoric, though "inappropriate," is still "relat[ed] to any matter of political ... concern to the community." Dan does not seem to think that is fair. Why should private matters -- what we do in our bedrooms, whom we love and how we consecrate that love -- be grounds for accepted hate in the public sphere? I imagine Dan is wondering if the Court would have been as welcoming to the Phelps' hate if they made racist comments about African-Americans or anti-Semitic comments about Jews.

My response to Dan was unsatisfying to both of us. The First Amendment permits a broad swath of speech and it includes often hateful comments, and just because you think something should not be discussed does not mean that everyone else agrees with you. I think what Dan misses is that the state has an interest in allowing this inveterate hate in the public sphere, if only to alienate the haters. Reasonable public discourse may even benefit from the Phelps clan like the Yankees benefit from the Redsox, or Duke needs UNC, or Itchy need Scratchy. Good needs evil, right needs wrong.

Posted by Ari Ezra Waldman on March 11, 2011 at 01:24 PM | Permalink | Comments (7) | TrackBack

Some hints (or further confusion) about the state of pleading?

File this under "Always Read the Whole Opinion Carefully": I read this week's SCOTUS decision in Skinner v. Switzer with an eye towards how I will use the case in Fed Courts (because it considers the scope of Rooker-Feldman abstention) and Civil Rights (because it considers the line between § 1983 and habeas and whether some claims seeking DNA evidence are cognizable under the former). But I missed how it may relate to Civ Pro and pleading requirements (H/T: Adam Steinman, who obviously reads more carefully than I do).

The case was decided on a 12(b)(6) motion, where the lower courts found the complaint legally insufficient because a claim for post-conviction DNA testing is not cognizable under § 1983, but must be brought under habeas. In reversing (and finding that some DNA-testing claims are cognizable under § 1983), the majority (per Justice Ginsburg) said the following about the sufficiency of the complaint:

     Because this case was resolved on a motion to dismiss for failure to state a claim, the question below was “not whether [Skinner] will ultimately prevail” on his procedural due process claim, see Scheuer v. Rhodes , 416 U. S. 232, 236 (1974) , but whether his complaint was sufficient to cross the federal court’s threshold, see Swierkiewicz v. Sorema N. A. , 534 U. S. 506, 514 (2002) . Skinner’s complaint is not a model of the careful drafter’s art, but under the Federal Rules of Civil Procedure, a complaint need not pin plaintiff’s claim for relief to a precise legal theory. Rule 8(a)(2) of the Federal Rules of Civil Procedure generally requires only a plausible “short and plain” statement of the plaintiff’s claim, not an exposition of his legal argument. See 5 C. Wright & A. Miller, Federal Practice & Procedure §1219, pp. 277–278 (3d ed. 2004 and Supp. 2010).

     Skinner stated his due process claim in a paragraph alleging that the State’s refusal “to release the biological evidence for testing … has deprived [him] of his liberty interests in utilizing state procedures to obtain reversal of his conviction and/or to obtain a pardon or reduction of his sentence … .” Complaint ¶33, App. 20–21. As earlier recounted, see supra , at 5–6, Skinner had twice requested and failed to obtain DNA testing under the only state-law procedure then available to him. See Complaint ¶¶22–31, App. 14–20. 7 At oral argument in this Court, Skinner’s counsel clarified the gist of Skinner’s due process claim: He does not challenge the prosecutor’s conduct or the decisions reached by the CCA in applying Article 64 to his motions; instead, he challenges, as denying him procedural due process, Texas’ postconviction DNA statute “as construed” by the Texas courts. Tr. of Oral Arg. 56. See also id. , at 52 (Texas courts, Skinner’s counsel argued, have “construed the statute to completely foreclose any prisoner who could have sought DNA testing prior to trial[,] but did not[,] from seeking testing” postconviction). 8


A couple things are noteworthy here. First, the Court still spoke in terms of a "plausible 'short and plain statement' statement of the plaintiff’s claim, not an exposition of his legal argument." Thus, plausibility is required, but the complaint need not lay out its complete legal theory with detail or precision. In fact, the Court here dug through the complaint to identify the "gist" of the argument from the noise that would have barred it under either Heck or robbed the court of jurisdiction under Rooker/Feldman.

Second, the Court cited Swierkiewicz, a pre-Twiqbal case that actually cited Conley and rejected a requirement of factual detail in an employment-discrimination complaint. This clarifies a point that had been somewhat unclear and had been something of a contentious point among scholars--Swierkiwicz remains  good law and Twiqbal must be read in light of Swierkiwicz to form a consistent whole. Adam is one of the leading proponents of that point.

Third, the Court did not cite Twombly or Iqbal. What does that mean? Perhaps that those cases really do most of their work in certain types of cases, such as discovery-intensive/expensive cases (Skinner will not be particularly discovery-intensive). Or perhaps Twiqbal works best where the challenge is to factual sufficiency--the amount of detail in the complaint--rather than legal sufficiency. I actually think this could have some force, particuarly if (as Emily Sherwin argues) Conley itself was really about legal sufficiency. Or (although this is a longshot) perhaps it is Justice Ginsburg's way of trying to walk back Twiqbal a little bit, but in a quiet way where the pleading standard and pleading details were not at the heart of the case


Posted by Howard Wasserman on March 11, 2011 at 09:21 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (7) | TrackBack

Thursday, March 10, 2011

How to Present and Answer Questions at Conferences and Colloquia

My thanks to all those who commented here and here on my last post, "How to Ask Questions At Conferences and Colloquia."  I was asked if I had any thoughts about presenting a talk and answering questions.  Here are five (possibly obvious) tips:

(1) Seek first to understand, then to be understood: I gave this suggestion to those asking questions, and it was very well-received.  The same principle applies to those answering questions.  You cannot give a good response to a question unless you understand it.  If the question is well-put, you needn't restate it.  But often, the speaker has more familiarity with his topic than the questioner and can clarify a rambling or muddled question.  In such cases, it is frequently helpful to say, "You are asking me X.  Here is why the concern you are expressing is valid/invalid/irrelevant/etc."  If the questioner criticized some aspect of the paper, try to state the criticism even more clearly and persuasively than did the original questioner.

(2) Stick within the time guidelines: If your initial presentation is supposed to be 20 minutes long, be sure to finish no later than 20 minutes after you begin.  I can't believe how many talks I have seen where a speaker spends 50 minutes giving a paper synopsis that was supposed to take approximately 20 minutes.  Similarly, moderators should be sure to end a Q&A period no later than the scheduled time period.  People may love a one-hour talk for the first 60 minutes but practically explode in rage when it hits the 63 minute mark.  Obviously, informal conversation can continue after the talk ends.

(3) Don't assume everyone has read the paper: In my last post, many people expressed their frustration over colleagues who ask questions without having read the paper being presented.  I'm sympathetic to those concerns.  If their failure to read the paper is obvious to those who read it, it's quite possible that they are asking poor questions.  Some schools have so many speakers visit, though, that it is impractical to read the paper of everyone who comes to present.   Perhaps non-readers should skip those talks or at least not ask questions unless the queue is empty. 

On the other hand, just as scholarly interchange can take place in short blog posts, perhaps meaningful scholarly interchange can occur in a twenty-minute oral presentation.  In my view, the merit of some piece of scholarship (be it an article, book, presentation, or blog post) largely depends on how interesting the ideas are per unit time I must spend to digest the piece of scholarship.  On that score, brief presentations can potentially score well.  (Incidentally, ideas can be interesting for many different reasons, including their creativity, analytical rigor, empirical support, and so on.)

The real problem may be that norms about paper reading are ill-defined.  If your institution has a clearly-defined norm, then follow it.  Norms are arguably ambiguous, however, when talks begin with a twenty-minute synopsis.  Why have the synopsis if you're expected to read the paper? (Indeed, in some contexts, introductions are deemed unnecessary and eliminated).  If you want to create a norm of paper-reading, then I suggest actively reinforcing the norm by announcing it or at least announcing that those who haven't read the paper should ask questions last.  

(4) Take notes on multi-part questions: If you receive a two- or three-part question, try to take brief notes so you remember the different parts.  Doing so is more impressive and time-efficient than asking to have a question repeated.  Perhaps multi-part questions should be out of bounds.  But until that day, you may as well answer them smoothly.

(5) Don't give a half-baked presentation: There are indeed "half-baked" workshops designed for projects that are truly unfinished works-in-progress.  But don't take the "half-baked" moniker too seriously.  There is something to be said for scholarly interchange while an idea is being developed, but don't embarass yourself.  You can always bat around truly half-baked ideas with a small number of colleagues over lunch or email before presenting to a larger audience.  In #3, I said that the test of a piece of scholarship largely depends on how interesting its ideas are per unit time it takes to digest those ideas.  Unless you expect to give audience members a pretty good return on their time investment, keep baking.

Posted by Adam Kolber on March 10, 2011 at 02:58 PM | Permalink | Comments (0) | TrackBack

Wednesday, March 09, 2011

Where is Tipper Gore When You Need Her?

Not so long ago, David Zaring directed us to an article suggesting that having daughters tends to make judges more liberal on gender issues.  As a parent of three daughters – aged 10, 8, and 8 – let me also hypothesize that it might tend to make one more conservative on First Amendment issues.  A little introspective psychology after the jump.

One thing that having kids has sensitized me to is the coarseness of much of our national conversation.  It’s not that I’m especially prudish.  I’m fluent in the language of sailors, and it generally takes some doing to offend me.  I fully recognize that this is the world my daughters will have to live in, and that it is important that they be prepared for it rather than walled off from it.  (I should also note that I sincerely hope that my reactions would be the same were I to have three sons instead of three daughters.)

We watch very little TV in our house, but for the last couple of years my oldest daughter has been very interested in football (to the point where she’s been more interested in watching it than I have).  There are, of course, all sorts of reasons not to care for much of the advertising that accompanies NFL broadcasts.  But I really, especially could do without the Viagra ads.

And then there’s popular music.  For a while, I felt like I was holding my own in the war against the pop industry.  My iPod still has the playlist we listened to (at their request) whenever I’d drive my daughters somewhere, which featured a pretty nice assortment of appropriate Americana/folk-type songs.  All it took to undermine my efforts, it turns out, is a friend with a sister in middle school.  And now the request is for Top 40 radio.

So what’s the big deal?  Well, here is the Billboard Top 10 from 1978, when I was 10:

01. Shadow Dancing » Andy Gibb

02. Night Fever » Bee Gees

03. You Light Up My Life » Debby Boone

04. Stayin' Alive » Bee Gees

05. Kiss You All Over » Exile

06. How Deep Is Your Love » Bee Gees

07. Baby Come Back » Player

08. (Love Is) Thicker Than Water » Andy Gibb

09. Boogie Oogie Oogie » A Taste Of Honey

10. Three Times A Lady » Commodores

To a ten-year-old ear, sustained listening to these songs would likely create the impression that the really, really important thing is dancing.  The Exile tune, which I don’t remember ever having heard before I tracked it down online today, is considerably more adult-themed, but also seems likely to strike the ten-year-old ear as boring.  And while I understand that maybe some of the dancing referred to is, you know, metaphorical, any of that shot way over my ten-year-old head. 

Here, for comparison purposes, is the current Billboard Top 10: 

  1. Tonight (I’m Lovin’ You) – Enrique Iglesias
  2. Grenade – Bruno Mars
  3. F**kin’ Perfect – Pink
  4. Hold It Against Me – Britney Spears
  5. Born This Way – Lady Gaga
  6. Firework – Katy Perry
  7. F**k You (Forget You) – Cee Lo Green
  8. Rocketeer – Far East Movement
  9. Hey Baby (Drop It To The Floor) – Pitbull
  10. Yeah 3X – Chris Brown

The bottom half of the top 20 includes Avril Lavigne’s “What the Hell,” Rihanna’s “S&M,” and two tunes by Ke$ha, who’s not really my top choice for a role model. 

A quick skim of the lyrics to these songs reveals that dancing (often less-subtly metaphorical) remains a high priority for the youth of America.  But still, if I may, WTF?  Would it kill us to draw a line somewhere short of F-bombs in the titles of the Top 40?  (All manner of questions getting begged in that sentence, I realize.)  Their presence makes my screening job easier, sure, but my daughters can also read and turn out to be curious about what it is, precisely, that F.U. stands for, which is not really a conversation I expected to be having this early in their lives.  I don’t mean to dissuade any kids from coming onto my lawn or anything, but maybe this is a handbasket and is that some sort of flame-filled region we seem to be headed toward?

As the recent blogospheric discussions of Tiger Mommery seem mostly to conclude with respect to parenting generally, one does one’s best in the face of all of this.  I listened to my share of garbage as a kid, and that very same iPod contains bad words aplenty and lots of music that I expect my kids will enjoy later in life even though they are not ready for it now.  The FCC appears not to have my back, and so the discussion of what F.U. stands for will have to take place, whether I am ready for it or not.  Even so, from where I sit it’s quite tempting these days to wonder where Tipper Gore is when you need her.


Posted by Chad Oldfather on March 9, 2011 at 02:13 PM | Permalink | Comments (14) | TrackBack

Does your school have "SSRN Norms?" What are they?

A friend from another law school wrote to ask the following interesting questions:

I’m trying to get a sense of what other schools’ and scholars’ “norms” are regarding SSRN, and would really welcome and appreciate your thoughts.  So, at your school:  

-          Is every member of the faculty expected to be a listed author and, if so, is there a staff person or administrator who arranges this?

-          Is there a working sense about what kind of papers should / should not be put up?  Working papers only, or do people arrange to put older published work up as well?

-          Is it “not done” for faculty members, when assigning their own papers, to send students to SSRN to download the paper?  (I gather that some faculty are known for racking up big download numbers by doing this?)

-          Do you allow students who have published scholarly papers to be included in your school’s SSRN author-list and download totals?



Posted by Administrators on March 9, 2011 at 01:11 PM in Life of Law Schools | Permalink | Comments (13) | TrackBack

Two Models of Sociolegal Change

Thanks to Dan and the PrawfsBlawg crew for inviting me back to guest-blog and for allowing me to go overtime to wrap up my posts. You can catch me at either of my two regular blogging spots, the Marquette Law Faculty Blog (surprisingly active for a faculty blog!) and Madisonian.net. Just one more post before I go, this one not on copyright law, but on variable rates and directions of social change in a federal system.

I have a new article, Constitutional Safety Valve: The Privileges or Immunities Clause and Status Regimes in a Federalist System, out in the current issue of the Alabama Law Review. The article represents the end point of a fairly long process that began with a seminar paper in law school. In 1996, I was impressed with the tenor of the debate in Congress over the Defense of Marriage Act; there were several statements to the effect that failing to wall off the status of legally married same-sex couples would lead to the downfall of society. It reminded me strongly of the rhetoric in Dred Scott that recognition of Scott's citizenship would have calamitous effects. As I dug into it, I found even stronger parallels in antebellum debates in Congress over travelling black Northern citizens in Southern states, and the extension of slavery to the territories. Congress seemed, then as now, appeared alarmed at the prospect of a state-recognized social status to destabilize the societies of states that didn't recognize that status, merely by virtue of individuals with that status travelling.

The antebellum debates were ultimately resolved by the Fourteenth Amendment, and in particular the Privileges or Immunities Clause. So I wrote a paper about how the Privileges or Immunities Clause had a forgotten purpose that would mediate an entrenched conflict between states over an inconsistently codified sociolegal status. Of course, that argument will have the most contemporary relevance if such a conflict in fact develops. But it's not at all clear that we are heading that way. There's another model of sociolegal change when it comes to anxiety over travellers bearing destabilizing statuses: divorce.

There is, I think, a fairly interesting article yet to be written on the history of the conflict in the early twentieth century over interstate recognition of divorces. The Supreme Court decided no fewer than 17 divorce cases between 1901 and 1957. The controversy over one of those cases, Williams v. North Carolina, 317 U.S. 287 (1942), prompted Justice Robert Jackson to write a book about such interstate conflicts, Full Faith and Credit: The Lawyer’s Clause (1944). A number of states, with Nevada leading the way, eased their divorce laws in the early twentieth century, and with the increasing ease of travel, married individuals were travelling to such states with the purpose of getting a divorce they could not secure at home. This caused conflicts over whether such status determinations needed to be recognized by other states. The conflict concerned not only the changing view of marriage, but also the role of women in society. The women's movement was a part of the Progressive program of the early twentieth century, culminating in the right to vote.

But the conflict over divorce never became entrenched; instead, it dissipated. It turned out that the friction over divorce was due to a different rate of change in divorce law in the various states, but that change eventually became uniform, and with it the conflict disappeared. It is possible that same-sex marriage and gay rights generally are heading toward this conclusion; the difference between now and just 15 years ago is striking. If so, the second coming of the Privileges or Immunities Clause that I describe in my article will have to wait for another day.

Posted by Bruce Boyden on March 9, 2011 at 08:30 AM in Constitutional thoughts, Gender | Permalink | Comments (1) | TrackBack

Monday, March 07, 2011

Prawfs challenging jurisdiction all over the place

Steve highlights the scholars' brief he filed today in Virginia v. Sebelius (which I was happy to sign on to) arguing that Virginia lacks standing to challenge PPACA's individual mandate. Also filed today was a separate amicus brief authored by Kevin Walsh (Richmond) for himself. He argues there is no statutory federal jurisdiction under § 1331 over 1) claims by a state for a declaration of the validity of its own law or 2) over claims that could not be raised in a similar enforcement action between these parties. The brief contains the arguments Kevin made in an essay (which I previously discussed), which has been accepted in Stanford Law Review.

Good stuff. Although, as one of my more-cynical senior colleagues argued, arguments like these could work at the Court of Appeals, but will not stop SCOTUS from getting to the substantive of the mandate.

Posted by Howard Wasserman on March 7, 2011 at 05:44 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (4) | TrackBack

Fill in the Blank Scholarly Productivity

In gauging scholarly productivity, a book is worth ___ law review articles.


The back story: A colleague and I were discussing this topic, and my answer was two and the colleague's was five.  Upon discussion, we agreed that it mattered whether the book was assembled from previously published articles or whether it was "from scratch," and I revised my answer of "two" up a bit.  On further reflection, I realized that my initial answer diverged so much from my colleague's because my (outdated, misguided?) conception of a law review article is still based on the ideal of what (I thought) they were supposed to be when I started teaching long ago: namely, a mini-book of 50-100 pages that answers every question one can conceive about one's chosen topic. In fact, I found myself criticizing an article recently because it only defined "the problem" and didn't provide "the solution," though it promised to provide one in a future article.  Though it was a very good piece, it seemed to me like only half an article rather than a whole. Was I wrong? [It seems so.]

After more reflection on "productivity" (which is surely a scholarly term of art) , I had more questions. Is it nonsensical to try to gauge productivity by measuring the numbers of pages written or amount of time spent writing?  Shouldn't we gauge productivity by actually reading the works in question to try to decide how much they "count"? Are we uncomfortable with "quality" measures because they are too subjective, especially where the scholarship lies outside our own area of competence?  Is "productivity" somehow a matrix of quantity and perceived quality? Should one good article count more than three mediocre ones (assuming we could agree what "good" is)? Are citation counts a better measure of what we mean by productivity than number of articles published? Have most faculties reached consensus on these issues?

Posted by Lyrissa Lidsky on March 7, 2011 at 05:41 PM in Life of Law Schools, Lyrissa Lidsky | Permalink | Comments (9) | TrackBack

Aggressive C&D Letters: Turbulence in the Copyright Phase Transition (Part 3 of 3)

Last week, Nobutoshi Kihara, "the wizard of Sony," died at the age of 84. Kihara was the engineer responsible for a large number of the early electronic gizmos that put Sony on the map: one of the first tape recorders, the transistor radio, 8mm film cameras, digital cameras, and one of the biggest of them all, the Betamax videocassette recorder. In other words, Kihara helped to bring recording and copying to the masses. He was thus a significant figure in what could fairly be called the Information Revolution, the one we're all living in right now.

What does all this have to do with cease and desist letters like the one Jeffrey Koons's lawyers sent to Park Life Gallery? I think it helps explain the sense that something about copyright law has shifted in a way that is generating more such controversies. A number of scholars have tried to locate that shift in the law somewhere: in additions to copyrightable subject matter, the length of the term, changes in fair use doctrine, anticircumvention rules, statutory damages. I believe that search is misguided. I think the relevant shift is not in the law, it's in the landscape.

The Raustiala and Sprigman Freakonomics article I linked to at the start of this series tried to link a change in C&D letter practices to some sort of change in statutory damages. But for the reasons stated in the prior two posts, this seems unlikely. Statutory damages have been the way they are for more than a century (with one important difference that's not relevant to letters like Koons's). And it's hard to see how the possibility of statutory damages by itself would drive aggressive claims in copyright law to a greater extent than that seen in other areas. After all, the claim is not that copyright is just like the rest of the law, but that it's importantly different somehow. How?

There are many differences between copyright now and copyright 40 or so years ago, but only one really explains the profound sense among many that copyright has gone off the rails: copyright simply, as a practical matter, applies to more people than it once did. Copyright 40 years ago was a regulation of publishers and distributors. That is, businesses and institutions, as well as professionals such as authors. Repeat players. Those were the only entities that had to worry about copyright.

The technologies invented by Nobutoshi Kihara and his cohort changed all that. They brought copying and distribution--the bread and butter of copyright law--to the masses. That is, ordinary individuals are now authors, publishers, and distributors, and are increasingly being subjected to the law applicable to those entities. However, individual users had over the course of decades, if not centuries, abided by a different set of rules for goods containing creative works: if it's in my physical possession I can do anything I want with it. To the extent there has been a change in the claims copyright owners make in cease-and-desist letters, it has been occurring in the context of this clash. Practices or users that previously never would have come to the attention of copyright owners, and thus were de facto outside the scope of copyright law, now fall within that scope, and are having claims directed against them -- and thus not only do small shops like Park Life Gallery come to the attention of major copyright owners like Jeffrey Koons, but that attention comes to everyone's attention as well, as it plugs into a battle narrative taking shape.

Copyright law was not built for this sort of conflict. That fact was made clear in one of the first cases involving copying technology, one that pre-dated Nobutoshi Kihara: photocopiers. In Williams & Wilkins v. U.S., famed copyright practitioner Alan Latman crucially relied on the de facto scope of copyright law in the 1970s in his oral argument before the Supreme Court:

Only a few minutes remained in the half hour allotted for his argument, and Latman had so far been able to sidestep the question he feared most. But now Chief Justice Burger returned to the question of Library of Congress practice. “It’s not uncommon for judges, members of this Court and others, to call on the Library of Congress for a book, sometimes perhaps it’s a book, of which they have only one or a very few copies, at least I assume that, because frequently we get a request, ‘Will you please return the book.’ Well, sometimes instead of returning the book if we are not finished with it, speaking personally, I have Chapter 13 or Chapter 14 copied on the Xerox machine. As far as I know the Library of Congress has never sent photocopies of anything. They send the original.” Is such a borrower, Burger wanted to know, “running up against this statute and these claims by making a copy for his own use, copyrighted material?” . . .
Latman responded, “That is a harder question, which we think is quite different from this case.” After circling briefly, he gave his well-prepared answer: “Nobody would sue. And I think that’s quite significant here, because it’s impractical for anyone to sue.” . . .
The Chief Justice smiled, deciding not to press the point, deflecting it instead with what in the Supreme Court passes for humor. “Is it your opinion that nobody would sue the Chief Justice or nobody would sue anybody?” The courtroom burst into laughter.

Paul Goldstein, Copyright's Highway 94-95 (rev. ed. 2003). [Actually, listening to the audio, I've just noticed that it's Justice Rehnquist that made the joke at the end, not Chief Justice Burger. Burger then seemed to accept the de facto distinction and let the argument move on.]

The irony is that copyright owners and critics alike look backwards for a solution. Copyright owners want to bolster the old framework applicable to publishers and distributors and apply it to the new publishers and distributors: individuals. But copyright critics likewise look to the old framework as well, for defenses. Those defenses, like copyrightability and infringement doctrine, took shape in a world of costly physical limitations and the large-scale enterprises needed to overcome them: fair use (a game for repeat players), insanely detailed statutory exemptions (ditto), first sale (disposing of physical copies), personal or noncommercial uses, use of physical goods in the home. But those concepts are all fading into irrelevancy. The angst expressed at aggressive cease-and-desist letters is the angst of staring into the void and not knowing what is there.

Posted by Bruce Boyden on March 7, 2011 at 04:07 PM in Intellectual Property | Permalink | Comments (6) | TrackBack

Does Virginia Have Standing to Challenge the Individual Mandate?

In an amicus brief (that I co-authored) filed today in the Fourth Circuit in Virginia ex rel. Cuccinelli v. Sebelius, a group of pretty distinguished Federal Courts professors says "no," and rather emphatically at that.

The brief itself lays out the argument in far clearer detail, but the short version is that states can't (and shouldn't be able to) overcome the bar on parens patriae standing against the federal government merely by passing a state law that provokes a conflict with the allegedly unconstitutional federal law. Because the constitutionality of the individual mandate in no way turns on laws like the Virginia Health Care Freedom Act, Virginia is, in fact, simply suing to vindicate the rights of its citizens -- something that decades of settled precedent bars it from doing, and (as we explain) for good reason.

This doesn't mean that the various challenges to the individual mandate won't (or shouldn't) go forward; it just means that, when they do, private parties, and not states, should be the plaintiffs...

Posted by Steve Vladeck on March 7, 2011 at 03:23 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (0) | TrackBack

"Let Them Use Laptops"

I've weighed in here at Prawfs a few times on the "laptops in law-school classes" issue, sharing my view that, on balance, using laptops the way they (seem to be) used in class is not very good for student learning. 

Well, Kristen Murray disagrees, in this paper, "Let Them Use Laptops:  Debunking the Assumptions Underlying the Debate Over Laptops in the Classroom."  I'm not sure the study she describes actually "debunks" my working assumptions on the matter, but the paper certainly is making me think and reflect about them.

Here's the abstract:

 Law professors have struggled with the issue of laptops in the classroom since students started bringing laptops to class almost fifteen years ago. Some believe they are a powerful educational tool while others believe that they inhibit learning. Many balance these competing thoughts when deciding how to handle the issue; some decide to ban laptops altogether.

What has troubled me about this debate is that both sides make arguments based on untested assumptions about student laptop use and without taking account of existing knowledge about today’s law student learners. Thus, I decided to survey law students about how they use their laptops to support their learning. The results, when combined with knowledge about how today’s law students learn, show that many of our assumptions are incorrect and that laptops provide a tremendous opportunity to enhance student learning in an age of changing classroom dynamics.

Thus, I conclude that law professors should allow students to use laptops in lecture courses. In the article, I analyze five assumptions that arise in the laptop debate — what I call “laptop myths.” I first set forth the arguments commonly made in the laptop debate. I then provide background on generational research, including the modern law student’s relationship with technology. I then summarize my survey and use the survey data and learning theory to challenge some of the assumptions that underlie the laptop debate. Ultimately, I conclude that students’ self-directed learning makes good use of laptops and therefore laptops should not be completely banned from law school classrooms. Finally, I offer some thoughts and examples of alternatives to all-out laptop bans.


Posted by Rick Garnett on March 7, 2011 at 03:18 PM in Rick Garnett | Permalink | Comments (10) | TrackBack

Stevens and Snyder, empathy and sympathy

In my immediate response to last week's decision in Snyder, I argued that the decision had to be seen as of a piece with last term's decision in United States v. Stevens (striking down a ban on the sale of videos depicting animal cruelty). And I think there may be something to this. The starting point for the comparison, of course, is the line-up: Chief Justice Roberts writing for an eight-person majority (Kagan replacing Stevens in the recent case) and Justice Alito as the lone dissenter. Paul last week discussed Steve Shiffrin's argument that one similarity is Roberts' too-simplistic approach to the First Amendment and his refusal to grapple with the competing interests at stake.

Now Michael Dorf argues that what is at work in Alito's lone dissents is empathy. More than his colleagues, Justice Alito feels for those (human or otherwise) injured or harmed by speech and his feelings play a role in that analysis. Dorf attributes this, in part, to Alito's pre-judicial experience as U.S. Attorney--a theory also expressed by a friend and colleague who  is a former Alito clerk and prosecutor--where direct experience with concrete impacts makes one more attuned to them and thus more emphathetic. Dorf also uses his post to make the point--too-often lost--that conservative justices are as influenced by feelings for someone involved in the case as are liberal justices, just at different points.

If that is what is going on for Alito, it is, once again, not empathy at work, but sympathy (although the former is often the starting point for the latter). Alito is not only understanding what the victims feel, but deciding out of compassion or affinity for those feelings. Either way, the words of the First Amendment, and even First Amendment doctrine, are not doing all the work for either Roberts or Stevens. This may have some interesting explanatory force.

A quick, unrelated point: If Dorf is right that Alito's experience as a prosecutor is affecting his First Amendment views, it lends an additional perspective for Marc's idea on the more-limited role that speech plays in the criminal context.


Posted by Howard Wasserman on March 7, 2011 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (1) | TrackBack

Inflicting Verbal Pain: Criminal Law and FA Law In Tension

At the risk of overstaying my welcome, and asking for your indulgence, I hope you'll forgive me for sneaking in one last post:

In the wake of the decision in Snyder v. Phelps, I have been thinking a little about the contexts in which law recognizes the pain that words can inflict.  There are interesting tensions across various spheres of law -- collisions of values -- between the good of speech and the evil of speech. 

Consider criminal law.  One might think that criminal law is totally unconcerned with speech -- what difference does it make that someone says something nasty insofar as the criminal justice machine is concerned?  But actually it can make a big difference: words can be highly relevant.  Hate crimes are one example.  So are crimes of heat of passion upon adequate provocation.  The old common law rule was that words alone, no matter how outrageous or provocative or painful, could never transform a killing that would otherwise constitute murder into manslaughter.  That category of mitigation was restricted to very specific situations, one of which was the discovery of one's spouse in flagrante delicto.  Perhaps surprisingly, the modern trend is to admit the possibility that words alone might well be enough to render an ordinary intentional killing a different sort of killing -- one which is punished much less severely.  And states that follow the Model Penal Code approach take an even more liberal view of the evil of words: so long as a jury concludes that a defendant acted with extreme mental or emotional disturbance when he killed, he will be convicted of manslaughter, not murder.  The onset of extreme emotional disturbances is frequently actuated exactly by the infliction of verbal pain.

Why is the criminal law concerned with the infliction of verbal pain?  What is its relevance?  I know of two explanations, both of which may have interesting implications for the law of free speech.  The first is that people who are provoked by words that they find exceptionally painful, and who react to the infliction of verbal pain by killing, are weak people -- people acting out of a kind of akrasia.  Given our collective fallenness -- our post-lapsarian wretchedness -- we can understand empathetically how a person might succumb to the animal urge to violence in response to the infliction of verbal pain; we can excuse such acts.  The second explanation is quite different: the infliction of verbal pain warrants some sort of response, justifies it.  It is wrong to inflict verbal pain, and he who is wronged in such a way is entitled to have the wrong righted.  Of course, he is not entitled to kill the provoker, but his killing in response to the infliction of verbal pain is less wrong -- and therefore more right -- than it otherwise would have been.

Here is the puzzle for the law of free speech as well as criminal law: generally (with only a handful of exceptions -- pornography, fighting words, and a few others), we assiduously protect the content of speech, particularly when it deals with a matter of public or common concern.  We do this because of the goodness of speech -- its familiar and much touted intrinsic and instrumental benefits.  But how do we square this near-absolute protection for the content of speech with the rule that words alone can and often will mitigate murder to manslaughter?

It is often said that the most absolute protection for speech is warranted where the content of the speech concerns political or moral issues.  Speech critical of the United States or the Catholic Church, as in Snyder, for example, merits the strongest and most absolute sort of protection.  But notice that criminal law (as reflected in the more modern rule) makes no such distinctions.  If A is an extremely devout Catholic who takes insults about the Church very badly, and B says, "Your church is a damnable abomination" with attendant comments about pedophilia and the like, and A, in response, kills B, it will make no difference at all to the criminal law that B's speech was on a matter of public concern.  The question whether A's reactive killing warrants mitigation will be put to the jury just the same as if B had directed some highly personal and embarrassing insult at A. 

The puzzle is that while in the free speech context, we say all of these wonderful things about the good of speech on matters of public concern -- how democracy-enhancing it is, how Millian in all the best and most rational ways -- in the criminal law context we are generally inclined to recognize the evil of speech, even speech that is concerned with core First Amendment matters.  The disjunction is most difficult to square up if adequate provocation mitigation is taken to be a partial justification -- if we feel that inflicting verbal pain is a wrong that deserves to be righted, not by exonerating the defendant but by mitigating his punishment.  How could it be right, good, to react violently to something for which we are in other contexts prepared to offer the most absolute and unrestricted protection?  But the tension remains even if we think of adequate provocation mitigation as an excuse.  For if speech is really so good, so truth enhancing, so unqualifiedly beneficial, such an unambiguous blessing, why should an ordinary, fallen man react to painful speech with violence -- and not just any violence, but the worst kind?  And why should we excuse him for it? 

Below the glassy surface of our sunny encomia to free speech, especially speech prototypically protected by the First Amendment, our real feelings and intuitions about it are actually much more mixed -- speech can be, and often is, just as evil as it is good.

Posted by Marc DeGirolami on March 7, 2011 at 08:18 AM | Permalink | Comments (0) | TrackBack

Sunday, March 06, 2011

Will Organ Donation "Save" Death Row?

I just came across this fascinating oped in today's NYT by Christian Longo. Longo is on death row in Oregon, and as, he says, he is guilty of killing his wife and children. As an ostensibly contrite murderer, he is trying to make the best of his situation: he has abandoned his appeals and is trying to persuade  prison officials in Oregon to allow him to donate his organs upon his execution. The officials, however, have said no.

The officials have invoked several rationales for denying his request so far. Among them: increased likelihood of diseased organs, safety, inability to give informed consent, etc. Longo, however, has an interesting website, and the site addresses these various concerns. Importantly, Longo is not the only person on death row who would like to volunteer his organs. Nonetheless, there are no protocols in place to allow this life-saving altruism to unfold. 

Notwithstanding the substantial attention it receives, the death penalty itself is slowly dying in the United States as an imposed punishment. (So sayeth Columbia's Jeff Fagan at least, and it is a demise I welcome as a retributivist against the death penalty.) Nonetheless, I wonder whether the institution of the American death penalty would be "healthier" if death row inmates were permitted to donate their organs. If they were, my suspicion is that death penalty advocates would find a whole cluster of new supporters. Conversely, I worry that opponents of the death penalty will oppose organ donation efforts simply because it will politically imperil the demise of the death penalty.  Perhaps these worries are misplaced, but I can't quite put them aside after reading Longo's eloquent oped and interesting website--which, by the way, raises its own many questions of how a death row inmate becomes a policy entrepreneur with a paypal account anyway, but that's a topic for another day.

Posted by Administrators on March 6, 2011 at 08:22 PM in Criminal Law, Culture, Current Affairs, Dan Markel | Permalink | Comments (6) | TrackBack

Are We Happy To Say...

I was recently asked to write a paper and present a talk on the general, amorphous and ephemeral concept of happiness. Hedonic economic theory would be an easy discussion point, but as a student of the First Amendment, and given our post-Tucson fleeting interest in so-called civil discourse and the recent Syder decision, I asked myself the following questions: Given the fact that consistent polling shows that we use words like "frustrated," "bad," "mean," "childish," and "corrupt" to describe our government, elected officials and state of politics today, why are we unhappy with politics and do we even have a right to be happy or satisfied with our politics in the first place?

More capable historians than I have argued that a litany of factors explains our disaffection with government -- Vietnam, Watergate, President Nixon, the assassination of President Kennedy, endless sex and influence peddling scandals, moral hypocrisy among conservative senators who sleep around, and so on. But, I am interested in a more subtle point. There is evidence to suggest that we are not only dissatisfied with government, the men and women who populate government and the waste that results, but we also find political discourse -- partisanship, negative campaigning, loud debates in the body politic -- distasteful and disillusioning.

Is the ideological drift of the First Amendment -- or, Professor Belkin's description of the First Amendment's broadening reach -- to blame? If so, is that a bad thing? Did the Framers ever expect us to be happy with raucous American republicanism? Or, did they, like John Godfrey Saxe, see laws like sausages -- we will never want to see them made.

This will be the first in a series of posts as I explore these ideas. I look forward to any thoughts/comments/concerns you may have.

First, we must discuss First Amendment "drift." In his article in the Duke Law Journal in 1990, Professor Belkin noted that "all around [him, he] see[s] the American left abandoning its traditionally libertarian positions" when it comes to the speech protected by the First Amendment. Free speech, Belkin notes, is being invoked more by conservative groups speaking about conservative ideology or fringe groups spouting hate.

I am moved to ask two questions: Is Professor Belkin's observation correct? And, if so, is the First Amendment's ideological drift toward protecting hate, nasty or, at a minimum, unpleasant speech related to our dissatisfaction with partisanship, politics and government?

It is difficult to disagree with Professor Belkin; his and other articles contain a number of examples of the ideological shift. Snyder may be another example. But, I am not sure the "drift" to the right of the First Amendment is unexpected or contrary to the Framers' intentions and expectations. Perhaps the early progressivism of the First Amendment's reach was anomalous (and I offer this early theory without regard to my own political views). Without joining the chorus of originalists who believe that the words "Congress shall make no law" automatically requires free speech absolutism, I hypothesize that the historical record shows that the Framers and the early Republic felt that nasty, brutish and hateful discourse was all part of the marketplace of ideas protected by the First Amendment. I am currently at this stage of my research, but the writings of Madison (if not the writings of Hamilton), not to mention the hoary campaigns of the early Republic, lend some credibility to my hypothesis.

I would love to hear your thoughts...


Posted by Ari Ezra Waldman on March 6, 2011 at 03:02 PM | Permalink | Comments (6) | TrackBack

Stuxnet and PsyOps

After reading this post by Jeff Goldberg on the risk of Iranian psyops, I was reminded of this indelible exchange involving Wallace Shawn as Vizzini in the Princess Bride. And this fun Gladwell article on spying in the New Yorker. Happy Sunday.


Posted by Administrators on March 6, 2011 at 01:19 PM in Blogging, Culture, Current Affairs | Permalink | Comments (1) | TrackBack

Good News from Paris

Following up on my post from last week, I'm happy to report that Joe Weiler's travails are more or less over. There's still an avenue of appeal open to the "plaintiff" but the court has ruled in favor of Weiler; moreover, Weiler has even won some ostensibly punitive damages from the plaintiff based on the abuse of process claim. Weiler's reaction is here. (H/t to Matt Kramer via FB.)

Posted by Administrators on March 6, 2011 at 12:22 PM in Culture, Current Affairs | Permalink | Comments (0) | TrackBack

Friday, March 04, 2011

Chief Justice Roberts and the Ostensibly Boring First Amendment

A propos of this week's decision in Snyder v. Phelps, Steve Shiffrin has an interesting post on the Mirror of Justice blog arguing that Chief Justice Roberts's opinion in that case lacks integrity, because it fails to acknowledge the extent to which the case raised new and/or difficult issues and pretends instead that "nothing new under the sun is contained in the opinion."  He writes that Roberts's opinion fails to "accurately state what is at stake in the case[ ] presented" and does not "face up to hard issues when they are presented instead of glossing past them."

This is strong language -- perhaps too strong.  Like Roberts, I thought this was a relatively easy case.  No one in the business, of course, was surprised by the outcome.  But I agree with Shiffrin that it appears to be characteristic of Roberts's writing in the First Amendment area, if not elsewhere (he has certainly been accused of similar behavior in other constitutional fields), that he makes an overriding virtue of simplicity, to the relative exclusion of other virtues, such as facing up to the potential complexity of a case.  His approach has the seeming benefit of offering clarity and guidance to lower courts and citizens.  But superficial clarity sometimes comes at the expense of genuine guidance.  It may be that Roberts's First Amendment opinions at times provide only the appearance of clarity, while brushing aside many difficult issues that will still have to be resolved by other courts and litigants.

Shiffrin's complaint on this score reminds me of another comment about a similarly lopsided opinion.  A few years ago, Jack Balkin wrote about Roberts's opinion in Rumsfeld v. FAIR that Roberts "makes the result look easy, and he makes it look easy by artfully dodging every interesting constitutional law question in sight."  Others said similar things about the opinion at the time.  Like Snyder, the result in Rumsfeld was easily anticipated by everyone.  And perhaps like Snyder, Rumsfeld emphasized everything that was intuitively easy about the case to the exclusion of everything that was, given the actual theory and doctrine of the First Amendment, more complex and difficult.  One might say the same thing about Roberts's recent opinion in the Stevens case, another relatively easy First Amendment case in which Roberts even more explicitly makes new law while treating the case as wholly preordained by prior law.  

Perhaps Lyrissa, who spoke about the Roberts Court and the First Amendment at the AALS conference, will weigh in with her thoughts.  But this does seem to me to be the general tendency of the Roberts Court, and Roberts himself, on the First Amendment: a kind of complacent, easy-going (if sometimes brusque) formalism and doctrinalism that avoids balancing, but also avoids any deeper confrontation with the complexities and contradictions that are a seemingly unavoidable part of current First Amendment doctrine given everything the Court has said in this area.  (Contrast this with Justice Breyer, whose First Amendment writing is all about balancing, and who focuses on heightening a sense of the conflicts in First Amendment law while then seemingly consulting his inner muse to say which side of the conflict should win; and contrast this too with Justice Alito, whose opinions in this area seem as formalist and impatient as Roberts's but, as in Snyder, sometimes come out on the opposite side.)  

In a sense, Roberts promises to offer greater clarity and simplicity to First Amendment doctrine by cutting to the quick and hewing to the essentials, without mucking about in the underbrush.  But it may be only a seeming clarity and simplicity.  The underbrush is still there.  If he is unwilling to do the work of clearing it out openly, he may leave us with a sense of false confidence and a failure to do the hard work of reconciling and rationalizing First Amendment law.  

Shiffrin detects an air of the advocate in Roberts's opinion in Snyder, and although I agree with Roberts's opinion I can see why.  His opinions may reach the right results, and he may be right to think of these as easy cases.  But he is not content simply to say that these cases are easy, while acknowledging the nagging difficulties around the edges; nothing less will do than to treat them as the easiest cases imaginable, even when that's not so.  The Roberts Court seems intent on giving us a boring First Amendment.  But it is cleaning up the First Amendment much the same way I clean up my bedroom: by putting all the messes in the closet.  Open up the door a crack, and the debris will spill out.      

Posted by Paul Horwitz on March 4, 2011 at 09:30 AM in Constitutional thoughts, Paul Horwitz | Permalink | Comments (5) | TrackBack

Class is for the prawfs?

Something I thought of but did not mention in my post about how SCOTUS arguments are increasingly dominated by justices' questions and Justice Kagan's suggestion that oral argument is the chance for the justices to speak (to the parties and to one another): While I do not disagree with her point, there feels like a show-off quality to that attitude. Oral argument is the only part of the job that the justices do in public and they are, to some extent, "performing." And that performative idea is ever-increasing as more attention gets paid to oral arguments. Not that there is anything wrong with that. But it seems self-aggrandizing. It also makes the institutuional opposition to cameras in the courtroom more puzzling. Wouldn't they want a broader audience? Or are they saving themselves from themselves--the presence of the cameras would cause the justices themselves (not the attorneys) to amp-up that performance for the cameras.

A comenter then offers the following:

I think about it as analogous to being a professor. Many of us like it when our students engage with the material and interact with us--at least in class if not in our offices or at all hours via email. We do hold class for the students, but it's partially our chance to interact with a captive audience about stuff we find really interesting.

I agree with the analogy and I had the same thought as I was writing the original post: Class is for us. It is where we get to hold forth on what we enjoy and what we like to talk about, often trying out new ideas or new ways of approaching or talking about the material. Indeed, that is (in part) why many of us enter the academy in the first place--an unlimited opportunity to talk about what we love. And most of us do it in the form of a colloquy/interrogation similar to how justices conduct oral argument, where students react and respond to us and we are driving the train (at least in the traditional/common way of conducting a law school class). And everyone is left wondering whether the event is actually doing what it is supposed to be doing--elaborating on briefs or imparting substantive knowledge.

Of course, I immediately recoiled from that idea, for fear the Carnegie Report Cops would come beating down my door. Wouldn't they say that everything wrong with legal education is captured in the idea that the classroom is about the professor and not entirely about the students and how best they learn and the practical experience they need to become practicing lawyers? Wouldn't they say that truly good and experiential legal learning--what law students really need--is lost while professors "show off" for their students?

Posted by Howard Wasserman on March 4, 2011 at 08:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (6) | TrackBack

Thursday, March 03, 2011

How to Ask Questions At Conferences and Colloquia

The question-and-answer session that follows most academic talks can surely be improved.  Here are five suggestions:

(1) Thesis, Thesis, Thesis: While not all good scholarship is driven by a central claim, that's the standard model, and one that you should not depart from lightly.  In my view, high quality questions speak to an author's thesis (or its subsidiary claims and the evidence for those claims).  Too frequently, audience members focus not on the claims a speaker makes but rather on the general "flavor" of a speaker's claims or (worse yet) the general subject matter of the talk.  I admit there can be good questions that speak to something other than the author's thesis and its subsidiary claims, but all else being equal, questions that focus on the speaker's claims are preferable.

(2) Seek First to Understand, Then to be Understood (with thanks to Stephen Covey):    The best questions, in my view, should begin with "You assert X."  Then, you can move on to (2a) Asserting X is problematic for the following reason(s), or (2b) Claim X can be made even stronger by considering such and such.  In some cases, you may have to begin with, "Are you asserting X?"  The key, though, is to begin by focusing on the claim you seek to address.  Doing so helps the speaker diagnose whether or not there is a substantive disagreement with the questioner or whether there is a miscommunication (frequently, there is both).  Starting with a demonstration of your understanding of the speaker forces you to hone the question so that it speaks more directly to the speaker's assertions.  It may also reveal that the speaker has been insufficiently clear about his thesis and its subsidiary claims.  Perhaps most importantly, it helps other audience members understand your question because they know more precisely what you are addressing.

(3) Shorten Your Question:  Most questions are too long and disjointed.  If you begin by clearly stating the assertion you are addressing (see principle #2), you will naturally improve your questions.  Moreover, you should have a good sense of what your question is before you start speaking.  If you find yourself formulating the bulk of your question as you speak, you may well be wasting people's time.  No one can demand that every question be crisp and spot-on, but that's what you should aim for.

(4) Time Allocation: Just as speakers should honor pre-established time guidelines, audience members should remember that other people have questions and insights as well.  When the end of a session approaches, I've seen the following approach work well:  Have the remaining people on the queue (or who have their hands up) ask their questions in succession without giving the speaker an opportunity to respond.  Then, in whatever time remains, the speaker can try to address the final round of questions together or in quick succession.  It is frustrating to have an interesting question to relay but not have the opportunity to do so because the floor was hogged by earlier questioners.  By allowing the remaining questions to get off the ground, those questions at least become part of the discussion, even if they don't quite get their due.

(5) Allow one follow-up:  Though I think that questions should be succinct and due care given to the time remaining for other audience members, I have also seen speaker's dismiss interesting questions too hastily.  The opportunity to make a quick follow-up point can discipline speakers and encourage important interchange.  Allowing a follow-up also takes advantage of the face-to-face interaction that you cannot get by just circulating a paper to a group of people and emailing around feedback.

Posted by Adam Kolber on March 3, 2011 at 04:19 PM | Permalink | Comments (11) | TrackBack

Saying and Staying

thanks to Dan for his generous invitation to take part in this great law blog.  Sorry for my slow start.

I hope to chime in on varia, including the ongoing Prop 8 litigation and attendant issues of state constitutional law & politics, state constitutionalism more generally, property & governance, and legal education . . . that is, a bunch of stuff yoked together loosely, and largely by my own interests.

For now, let me just point to "stay" orders in two high profile matters involving ambitious (I'll leave to others to say "activist") judicial rulings, the Prop 8 case from California and the Health Care ruling by way of district court in Fla.  We get a one-sentence order from the Cali S Court saying, essentially, we won't be hurried in our consideration of the certified standing issue (the import of which is that the stay of J. Walker's order remains in effect indefinitely) and we get 20 pages from the Fla district judge "clarifying" his ruling, http://graphics8.nytimes.com/packages/pdf/health/20110303-vinson-health-order.pdf, yet also staying the decision to await the circuit court's decision.

Can't help but wondering whether the different political vantage points of the state and federal court explain the comparative fulsomeness (?) of the courts' opinions.


Posted by dan rodriguez on March 3, 2011 at 04:03 PM | Permalink | Comments (0) | TrackBack

Redyip, Expresso, and the Rite of Spring

I’ve reached a point where Redyip’s call and the February/March law review submission season no longer bring the torment that they brought me not all that long ago.  But given the angst unfolding in the comments below, I thought I might dip into my Expresso archives to provide one small set of data to those trying to get a feel for the how the process might unfold.  That information, plus a few scattered thoughts on (and an invitation to discuss) Expresso, after the jump. 

Apart from the two pieces I’ve got circulating now (note to law review editors: get ‘em while they’re hot!), I’ve submitted four traditional-sized articles via Expresso during the Spring season.  (Before that we used to make copies and stuff envelopes.)  In each case, I sent the article to roughly the “top 50” general law reviews.  Here’s how they shook out in terms of time to first offer:

Article                        Date Submitted                        Date of First Offer

   1                                       2/22                                         2/28

   2                                       2/26                                         3/24

   3                                       3/14                                         4/4

   4                                       3/2                                            3/13

 All of these were what we referred to back in my Articles-Editor days as pieces that came in “over the transom.”  In other words, there was nobody “walking it down the hall” or otherwise serving to flag the articles on my behalf.  I accepted one of the four offers on the spot.  Expedites of the remaining three yielded an additional offer for only one of them.  (Only once has an expedite request generated multiple offers for me.  That was back in the days of paper submissions.)  At least once I received a post-acceptance e-mail from a journal to which I had directed an expedite request asking whether the piece was still available.  (To the best of my recollection it came well after the deadline.) 

I don’t think there are any grand lessons here, other than that sometimes it takes a while.   It certainly wasn’t the case that the strongest pieces went the most quickly.  In fact, I think the best piece is the one that took the longest to generate an offer. 

With respect to Expresso, I’ve often thought that it could be made more useful as a one-stop-shopping spot, at least on the author side.  It’s nice that I can use it to see when journals have acknowledged receipt, and to track when and where I’ve expedited.  It would also be useful for me to be able to see what journals have already taken a pass when it comes time to expedite.  To be sure, I’ve already got that information in the form of e-mails from those journals that send them.  But it would be convenient were it automatically aggregated in one place.  I’m not familiar enough with how things look on the journal side to know whether a change like this would increase the odds that a journal that has decided to pass would inform authors of that, but if so that, too, strikes me as potentially valuable.  As I noodle on it, it seems like a "confirmation of receipt of expedite request" function would be useful, too, insofar as it would provide a sense of who's really taking a look.

It might be worthwhile to revisit the conversation started in this post by Lawrence Cunningham.  Authors, how could Expresso improve from your perspective?  Editors?


Posted by Chad Oldfather on March 3, 2011 at 02:43 PM in Life of Law Schools | Permalink | Comments (3) | TrackBack

My own thoughts on Snyder

I continue to endorse everything Neil said , which is spot-on. Let me add a few additional thoughts of my own.

First, this case is going to be considered of a piece with last term's decision in United States v. Stevens (striking down a ban on video depictions of animal cruelty). Both were 8-1 decisions authored by Chief Justice Roberts with Justice Alito alone in dissent. In both, the Chief wrote fairly broad opinions applying a basic libertarian understanding of the First Amendment to protect highly offensive,  generally disgusting speech, in the face of public perception that the speech ought to be proscribed. In both, the Chief was unwilling to recognize new categories of unprotected speech or to expand existing unprotected categories. And in both Justice Alito showed a greater willingness to find morally objectionable or offensive expression to be unprotected, even if it did not precisely fit within previously recognized limits on speech. This is an interesting fault line.

Second, the analytical focus was on the nature of the speech (whether it was of public or private concern) rather than the nature of the plaintiff (Snyder and his late son both were private persons), as it is in defamation cases. This is a significant shift, to the extent it applies to "speech torts" generally. In the early years after New York Times, several justices (lead by Justice Brennan) pushed toward having the actual malice standard depend on speech being on matters of public concern, an effort that ended in Gertz v. Robert Welch. The public-concern of the speech was part of the analysis for assigning burdens of proof, but the key element of actual malice depends on the identity and nature of the plaintiff. The Court followed that approach in Hustler, emphasizing that Falwell was a public figure (although that essentially made the parody there a matter of public concern).

Not here--constitutional protection turned entirely on the nature of the speech and it being directed at broader socio-political issues, which entitled it to "special" protection from tort liability. There was no discussion of the nature of Mr. Snyder or Matthew (both of whom plainly are/were private persons).

This split the majority and Justice Alito along several axes. First, whether the protest occurring at Snyder's funderal--particularly recognizing that the point of targeting the funeral was to draw maximum public attention to the protest--rendered the speech private; the majority said no, Alito said yes. Second, that certain signs ("You're going to hell" or "God hates you") seemed to have been related to Snyder specifically did not matter to the majority, because the "overall thrust and dominant theme of Westboro's demonstrations spoke to broader public issues." The majority's view was significant, because it justified not remanding and giving the jury a chance to consider the nature of any of the speech. Third, the Court did not explain why the proper question should be "overall thrust" of the speech rather than statement-by-statement.

Third, the role (or non-role) in the case of the so-called "epic," Westboro's internet rant about Matthew Snyder that Mr. Snyder saw sometime after the funeral, is interesting. The majority ignores it, explaining in a footnote that Snyder did not refer to it in his cert petition or briefing, which focused only on the speech that occurred at the funeral. Which makes sense, because focusing on the on-line speech would have undermined his privacy claims, which were location-based. On the other hand, Alito treated the epic as evidence that Westboro's speech was, at least in part, directed at Snyder, and that the jury could have used to conclude that the speech was private rather than public.

Fourth, the majority made no mention of Milkovich v. Lorain Journal, the case on which the Fourth Circuit largely relied for the proposition that the speech could not be the basis for liability since it could not be understood as making any demonstrable statements of fact. On one hand, this makes sense, since Milkovich was a defamation claim rather than a privacy claim. On the other hand, there is something appealing about a principle that tort liability cannot attach to hyperbole or exaggeration, a path the majority chose not to follow.

Fifth, the Court did not provide any guidance (beyond broad definitions) of when speech is on a matter of only private concern. But the tenor of the opinion suggests this will be a fairly narrow category. And "mixed" public and private likely will be treated as public, in the interest of providing "breathing space" to the First Amendment.

Finally, Roberts made the typical move of including nice rhetoric recognizing the pain caused by the speech, but looking to the Constitution itself as demanding a different balance:

Speech is powerful. It can stire people to action, move them to tears of both joy and sorrow, and--as it did here--inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation, we have chosen a different course--to protect even hurtful speech on public issues to ensure that we do not sifle public debate.

Downright Brandeisian or Brennanesque.


Posted by Howard Wasserman on March 3, 2011 at 08:31 AM in First Amendment, Howard Wasserman | Permalink | Comments (2) | TrackBack

Wednesday, March 02, 2011

Someone else's thoughts on Snyder

I just finished reading Snyder v. Phelps and am still gathering my thoughts on the decision (beyond "amen" and "how strange was the oral argument in the case that no one predicted this outcome"). For now, let me recommend Neil Richards' comments, with which I fully concur. More later (I hope).

Posted by Howard Wasserman on March 2, 2011 at 10:36 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0) | TrackBack

Two Other Papers About Federalism: On Sale Now(ish)

Before I ride off again into the prawfs sunset, let me mention two other projects I hope readers might find of interest.  The first tries to tie together three literatures--federalism, charities, and privatization-- that don't usually go together.  The basic point is that, while the acccepted rationale for charity assumes that we need the nonprofit sector to give us diversity, experiments, and public goods the median voter wouldn't want, in fact by most accounts federalism can give us that, too.  So any account of why we should have charity has to tell a different story.  My story is that federalism has some predictable failings (e.g., tax competition makes redistribution difficult), many of which can be overcome by combining federalism with a robust nonprofit sector. 

I've dithered an unusually long time in getting this piece ready -- first adding lots of math, then spinning the math off into a separate paper.  But, finally, it's out and should be on law review editors' desks at this very moment.       

The second piece won't be ready for a few weeks, but might be of interest to both of the readers who enjoyed the series on UI funding.  It considers the political economy of state savings, argues that state "rainy day funds" are the best way to overcome the crippling effects of state budgets on the national economy, and offers design options for rainy day funds that would actually work.   Look for it in a few weeks.  Thanks again to the prawfs community -- ciao. 

Posted by BDG on March 2, 2011 at 08:51 PM in Article Spotlight | Permalink | Comments (0) | TrackBack

Are Meritless Claims More Prevalent in Copyright? Part 2 of 3

This is the second of a series of posts considering whether something about copyright's statutory damages remedy is driving an increase in meritless cease-and-desist letters. In Part I I considered the origins of copyright's statutory damages remedy, and concluded that it's not really possible to draw a straight line from movie studio or record label lobbying to the statutory damages we have today. That matters because it means that nothing about statutory damages has recently changed that might explain a recent change in C&D-letter practices. But what about other changes in copyright law? It could be that something else is occurring that, in combination with statutory damages, is producing more strike suits, or at least "strike" cease-and-desist letters, than are seen in other areas of the law. In this post, I'm going to consider copyright's well-known vagueness problem.

2. Copyright's vagueness. Although Raustiala and Sprigman didn't raise it, one possibility is that the vagueness of copyright law, in conjunction with the availability of statutory damages, encourages owners to send meritless cease-and-desist letters that they would not otherwise send if the law were clear. If the law clearly bars liability, then the amount of damages is irrelevant. If I get a letter tomorrow demanding that I cease my habit of drinking coffee because that will make the moon explode, I'm going to ignore it, even though the damages from causing the moon explode would be astronomical, so to speak; and no one has an incentive to send such a letter because they know that no one would respect it.

There's three forms this concern about unpredictability or vagueness might take: 1) copyright contains more claims that are clear to lawyers but counter-intuitive for non-lawyers; 2) copyright contains a greater proportion of claims where liability is more or less clear but the resulting damages are unpredictable; 3) copyright contains more claims where liability is inherently unclear to everyone.

First, one class of vague claims is the set of all claims that are clearly meritless to lawyers--that would be Rule 11 sanctionable if raised in a court filing--but not to non-lawyers. That is, legal rules that do not conform commonly held beliefs. Cease-and-desist letters might exploit this gap by getting putative defendants to stop practices that in fact do not violate anyone's rights. Copyright certainly has its fair share of counterintuitive rules. But it's worth noting that this is a problem more with the substance of copyright law than the precision with which that substance is identified in the doctrine. Clarifying the law therefore won't do much good, because the claims are already legally frivolous by definition. Nor is changing the law to make it more intuitive to laypersons necessarily the right response. Outcomes that are counter-intuitive to laypersons abound in the law generally--indeed, it's probably to a large degree what "thinking like a lawyer" is all about. The phenomenon is driven by the fact that the law has, in many areas, an internal logic that eludes easy synopsis for nonlawyers. As a result, it is possible to bluff one's way to a settlement when dealing with an unrepresented or poorly represented party. But this is not a problem that is particular to copyright law. It might be the case that copyright produces results that are unnecessarily counter-intuitive to laypersons, and therefore unnecessarily creates such opportunities. But it's not at all obvious that this is the case. In fact, my own discussions with non-lawyers shows that, in many cases, their view of the exceptions and defenses to copyright infringement claims are often excessively cramped. Nonlawyers often believe that titles are copyrightable, that attribution is a defense, that fair use has strict percentage-based limits, that digital copies are always infringing. I don't know that we should be altering the law to match those expectations.

A second category of uncertainty is not uncertainty as to liability, but uncertainty as to damages. That is, the argument might be that statutory damages produce such an extreme variance in the amount of damages available, seemingly unconnected to the actual harm produced by wrongdoing, that calculating legal risk is impossible. It is true that statutory damages produce a extremely wide range of awards, particularly when dealing with a defendant infringing on numerous works. But the typical cease-and-desist letter is not sent to a peer-to-peer filesharer, it's sent to someone like Park Life Gallery allegedly making use of a particular work. The range of potential statutory damages against Park Life was from $200 to $150,000.

The problem with this argument is that you don't need a statutory damages provision to get damages awards that are hard to predict. Any punitive damages award is going to have, by its nature, an extremely wide range of variability, although less now that the Supreme Court has placed due process limits on it. Even actual damages can be difficult to predict. Personal injury plaintiffs and defamation plaintiffs often claim huge amounts for pain and suffering or damage to reputation. And there may also be a claim of consequential damages. At the initial stages of a dispute, a plaintiff in any number of areas of law may be claiming huge amounts of damages ultimately far out of proportion to whatever award they ultimately collect. Obviously some have decried this situation; the point here is that it's not immediately obvious that copyright's statutory damages provision--outside of the peer-to-peer context--makes it any worse.

The final class of unpredictability consists of those claims that fall into a neutral zone between violating and not violating the law. Some of those will ultimately win, and some will lose, but the neutral zone represents an area where the outcome is difficult for anyone to predict--parties, lawyers, or even judges. The concern is that some claimants will send letters with respect to claims in the neutral zone that would ultimately lose. If copyright has a wider neutral zone than other laws, then assuming an even distribution of claims, more such claims will fall in that boundary zone.

But while copyright undoubtedly has a wide "neutral zone" between clear liability and clear absence of liability, it's not obvious how the width of that zone by itself could drive more C&D letters. Consider two areas of law:

The law on the left is copyright--it has a small core of certain liability, a thick zone of uncertain liability (becoming progressively less probable the further out you get), and then finally certain lack of liability in the white area. The law on the right is something else--tax, let's say. It has a large zone in the middle of clear liability, a thin zone where liability is difficult to predict, and then passes into clear non-liability. Not that in either case, the amount of potential liability is identical. The only difference is that copyright has fewer claims that yield certain liability. Why would this generate more C&D letters? I don't see how it would. In fact, it seems like it would generate fewer. More claimants would be deterred from bothering with an uncertain claim. The mere width of the zone of uncertainty, by itself, shouldn't generate more threats of litigation.

Of course, it might be that copyright reaches too far--that some of what's in the uncertain zone on the left should be (according to some theory of how copyright should properly function) clearly outside any potential liability. But that's not really an argument about the harm of uncertainty--it's an objection to the current scope of copyright law. The solution there is not to clarify the law, or reduce statutory damages, but change the substance of the law to match the theory.

In Part III I'll consider a third possibility for what might be driving an increase in copyright C&D letters that seem overly aggressive.

Posted by Bruce Boyden on March 2, 2011 at 06:09 PM in Intellectual Property | Permalink | Comments (0) | TrackBack

Snyder v. Phelps Decision Alert

Today the U.S. Supreme Court held 8-1 in Snyder v. Phelps that the state could not impose liability for intentional infliction of emotional distress on Phelps and the Westboro Baptist Church for picketing the funeral of deceased soldier Matthew Snyder, at least where "Westboro addressed matters of public import on public property in a peaceful manner, in full compliance with the guidance of local officials."

At first glance: The decision contains an important discussion of how to distinguish speech of public concern from speech of purely private concern.  The decision defines public concern broadly to encompass the Westboro Baptists Church's commentary on the "political and moral conduct of the United States and its citizens. . . ."  Procedurally, the Court clarifies that courts must "make an independent examination of the whole record" to evaluate whether the speech is of public concern. (7-8). Alito's dissent stresses several times that the plaintiff in the case was a private figure "brutalize[d]" by speech on a matter of private concern.

Posted by Lyrissa Lidsky on March 2, 2011 at 01:26 PM in Constitutional thoughts, First Amendment, Lyrissa Lidsky, Torts | Permalink | Comments (9) | TrackBack

Language Arts 101

Thank you to Dan and the PrawfsBlawg community for giving me the opportunity to share in your discussions and for inviting me onto your desks (or desktops), laps (or laptops) or into your hands (or handheld electronic devices). It is indeed a great honor, and I hope we can stimulate discussion and have some fun.

Speaking of fun, I thought I would start with a little snark.

Yesterday, the Supreme Court unanimously shot down AT&T's argument that corporations have "personal privacy" that allows them to withhold information under one of the exceptions to the Freedom of Information Act (FOIA). The opinion, available here, is notable not for its unanimity (Justice Kagan did not participate), but for its nod to everyone who did well in language arts as a child and to those who like to see some humor -- sarcastic or genuine -- in court decisions.

Some linguistic flair and Chief Justice Roberts's sense of humor AFTER THE JUMP.

Confronted with a FOIA request from its competitors, AT&T wanted to withhold some documents under FOIA Exception 7(C) as protected by the "personal privacy" rights of the corporation. It argued that since a corporation is a "person," a corporation has "personal" rights; after all, the adjectival form of a defined word should refer to the defined word. The Third Circuit agreed.

Chief Justice Roberts must have found this amusing. For the next few pages, he gives AT&T and the Third Circuit a lesson in the complexity and nuance of American English:

Adjectives typically reflect the meaning of corresponding nouns, but not always. Sometimes they acquire distinct meanings of their own. The noun “crab” refers variously to a crustacean and a type of apple, while the related adjective “crabbed” can refer to handwriting that is “difficult to read,” Webster’s Third New International Dictionary 527 (2002); “corny” can mean “using familiar and stereotyped formulas believed to appeal to the unsophisticated,” id., at 509, which has little to do with “corn,” id., at 507 (“the seeds of any of the cereal grasses used for food”); and while “crank” is “a part of anaxis bent at right angles,” “cranky” can mean “given to fretful fussiness,” id., at 530.

Hilarious. And, a welcome lecture to those of us who have argued the plain meaning of statutory, regulatory or constitutional terms before panels of judges. One of the many things that makes the study of law so incomprehensible to the average American is our oft incomprehensible (mis)use of the English language. We create terms of art that do not always mean what they sound like they should mean and make seemingly arbitrary liguistic distinctions that have great impact. At least when it comes to the strange notion of corporate privacy, common sense wins out.

But, it is worth discussing the importance of FCC v. AT&T not only for the language it includes, but for the words it omits. The word "citizens" never appears, which means that the Chief Justice never referenced Citizens United, the widely criticized decision that used the personhood of the corporation to allow for unlimited election spending. When the Court handed down Citizens United, many scholars wondered what kind of effects that decision's broadening of corporate free speech rights might have. But, Chief Justice Roberts avoided that lightning rod with his linguistic analysis. There was less a discussion of the legal nature of "corporate personhood" than an English professor's discussion of the differences between "person," "personal" and "personhood." Also omitted from the discussion was any analysis of the intent of Congress when passing FOIA, but perhaps that was a strategic omission to obtain unanimity and bring on board those justices who find legislative history as awkward as multivariable calculus.

Some commentators have already suggested that AT&T is the Court taking a step back from Citizens United. I disagree. The fact that we are not required to ascribe all "personal" rights to a "person" -- however that word is defined -- does little damage to the Court's free speech analysis in Citizens United.

Your thoughts?

Posted by Ari Ezra Waldman on March 2, 2011 at 11:19 AM in Constitutional thoughts, Corporate, Current Affairs | Permalink | Comments (0) | TrackBack

Tuesday, March 01, 2011

Oral argument is for the justices?

Interesting article in today's Washington Post about the way oral argument is becoming even-more dominated by justices' questions rather than attorneys' answers to those questions. One explanation is that Justices Sotomayor and Kagan are more aggressive than the justices (Souter and Stevens) they replaced. Another is the statement, originally attributed to Kagan, that oral argument is for the justices, not for the advocates:

Lawyers have their say in the briefs they file with the court, she said, and oral arguments are for the justices.

"The argument is for us to say, 'Well, yes, we've read your brief, we know what you think of the case, but here are the questions that that inspired in us,' " Kagan said, noting that the justices do not discuss a case beforehand. "So oral argument provides the first chance for you to see what your colleagues might think about a case, what's worrying them about a case, what interests them about a case."


Posted by Howard Wasserman on March 1, 2011 at 08:02 PM in Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (1) | TrackBack

Tri For Gey 5!

Long-time readers of this blog know about the heroic defiance of my colleague, Steve Gey, against ALS (aka Lou Gehrig's) disease. I just received this email from one of favorite former students, Kristie Klein, who has been a terrific friend to Steve and a relentless foe of ALS. Please live and give generously.

Despite being told in 2006 that he only had three years to live, Professor Gey has defied the odds and continues his battle against ALS.  Gey fights on, We fight on - and on April 9, 2011, I'll be competing in the TRI-FOR-GEY-FIVE … yes, that’s right, our fifth year of Tri For Gey! In honor of Professor Gey, and the Tri For Gey Five team, please consider donating $5 to the Professor Steven G. Gey Endowment for Civil Liberties.  To do so, follow these three steps:

 (1) Go to:  https://foundation.fsu.edu/community/SSLPage.aspx?pid=815&srcid=838

 (2) Under the "Designation" drop down menu, choose “Gey Endowment for Civil Liberties”

 (3) For tribute information, please indicate that you're donating "in honor of"  me or any of the other awesome members of Team Gey. 

 Professor Gey will see the names of everyone who donates – and now, more than ever, it’s important that we show him some support.


Posted by Administrators on March 1, 2011 at 03:08 PM in Funky FSU | Permalink | Comments (0) | TrackBack

Schragger on the Beneficent Underenforcement of the Establishment Clause

Before I shuffle off, I want to note a very interesting recently posted piece by Richard Schragger, The Relative Irrelevance of the Establishment ClauseI am a big fan of Professor Schragger's piece on localism in religious liberty from a few years back in which he claimed, in part, that decentralized decisions that benefit or burden religious liberty ought to be given greater deference than analogous federal, centralized decisions.

The current article sounds related notes about the advantages of underenforcement of the disestablishment norm.  From the introduction:

This Article argues (1) that a pervasive feature of the Court’s Establishment Clause jurisprudence is that the Court’s stated doctrine is underenforced or is irrelevant to a whole range of arguably pertinent conduct; (2) there are some legitimate reasons for this judicial underenforcement or irrelevance; and (3) to the extent the Court is capable of enforcing its stated nonestablishment principles, it can only do so indirectly by managing establishment in the political/legal culture that exists beyond constitutional law.  How the Court does or fails to do (3) is the main subject of this Article.

Thanks, Dan and Prawfs.  I enjoyed being here.


Posted by Marc DeGirolami on March 1, 2011 at 02:00 PM | Permalink | Comments (0) | TrackBack


Happy Beer and National Pig Day!

It's March 1, and so we have thanks to extend to our wonderful, just wonderful, group of February bloggers, some of whom will be staying on to get some remaining posts finished. And we must also welcome a group of new and returning voices to the Prawfs cabaret. Joining us for the first time we have Dan Rodriguez, the former dean of USD law school who is now at Texas (though this semester at Columbia LS), and Ari Waldman, who teaches at CWSL in San Diego. Hmm, unwitting San Diego connections there. Anyway, we also have Jeremy Blumenthal returning from Syracuse, Adam Kolber at Brooklyn (though formerly of San Diego), Chad Oldfather (from Marquette) and the inimitable Michael Waterstone from Loyola LS in LA. Welcome all.

On a sad note, I regret to inform readers that Peter John Gomes, one of America's great and distinctive voices, passed away last night. One of my favorite Peterisms was his penchant for referring to professors and preachers as people who earn their daily bread by the sweat of their jawbones. I still remember his senior sermons urging us to seek passion in whatsoever our hands find worthwhile and to find serenity as a form of stability in the absence of security. His passing, at the age of 68, is unspeakably sad. He was a beacon of joy and a fount of insight and laughter. I will miss him terribly. May his memory be a blessing for all those who learned from and loved him.

Posted by Administrators on March 1, 2011 at 09:29 AM in Blogging, Deliberation and voices | Permalink | Comments (1) | TrackBack

"Resistan[ce] to Change"

"As They Ponder Reforms, Law Deans Find Schools 'Remarkably Resistant to Change'".  That is the headline for this piece, in the online Chronicle of Higher Education.  According to their deans, in other words, law schools are like Wayne Campbell.  (UPDATE:  I mean, of course, Garth!  Party on.)

Posted by Rick Garnett on March 1, 2011 at 09:24 AM in Life of Law Schools | Permalink | Comments (2) | TrackBack