PrawfsBlawg

From the Prawfs Gets Results Files...sort of

I meant to get this post up earlier but I'm delighted to say that a post from Prawfs from a few months back on how to reduce jail populations has transmogrified into an oped in today's New York Times. Congrats to BYU's Shima Baradaran! Remember, Prawfs is your space to read and write commentary that scoops the Gray Lady :-)

Solving the Problem (?) of Scarce Slots for Specialty Articles

In our last episode, we ended on a terrifying cliffhanger: few journals in any year have editors interested in any given, esoteric, legal subject.  Slots for the "weird" (i.e., not con law or crim law) at those journals are especially scarce because most limit themselves to no more than one of each.  FoP Carl confirmed that impression.  This led us to ask: if a board feels it's especially interested in some area, why not accept a second or third excellent piece on the condition of publication in the next volume?  Especially in the age of ssrn and bepress, many authors would surely accept such an offer.    

My proposal to overcome this limitation (I hesitate to call it a "problem," but so far I remain convinced it's a needless cost of existing rules): let current boards make offers to publish articles in future volumes, subject to approval of their full membership.  I unpack why this could make sense after the jump.

Journals, I think, limit board authority to the current volume for the same reason states force their officials to balance budgets: to reduce inter-temporal externalities.  There’s a useful disciplining effect when the board that accepts a piece also has to edit it (or at least buy beers for and accept dirty looks from the hapless managing editors who do the hard work that results).  It’s more fun to work on articles and with authors you’re excited about, instead of stuff your predecessors thought was cool.  (Aside to the clerk who inherited my docket: sorry about all those admin cases.)  And at some point deferred offers could pile up, to the point where later boards would be unable to offer timely publication to anyone (and, therefore, probably unable to get many offers accepted) -- but current boards have at best indirect incentives to care about that. 

Still, there are other solutions that would mitigate the externality problem while also offering more flexibility.  As one recent Harvard editor pointed out in comments to one of our prior posts, Harvard will theoretically accept an unlimited number of articles in a year.  In practice, though, they almost never do, because they (accidentally?) have an internalization mechanism: their full membership, which presumably includes the following year’s board, votes on all offers.  Now, probably Harvard’s practice wouldn’t work for everyone; they publish maybe 8 articles a year, and some places push out three times that many.  That’s a lot of editor-hours spent voting (not to mention debating and/or clucking over the choices).  And they’re Harvard; they don’t need to hurry to make offers. 

But not every article has to go through full-member voting.   Boards could give themselves the option to call for a full-member vote in cases where their likely alternatives are reject or defer to the next volume.  In other words, the board alone can accept articles for the current year, or, with the approval of the full membership, for the following.   There are probably other institutional benefits from giving the 2L membership some limited exposure to the selection process, too.  This procedure would give the immediate future a voice in efforts to impose costs on them, while opening more slots for truly sparkling pieces that catch a board's fancy but seem too similiar in subject to other pieces in that volume.

I’ll bet there are lots of other possibilities.  Let’s figure it out.  Or is this a pseudo-problem?  Tell us what you think.    

Libertarianism, Federalism, and Farewell

The month ends as it began; with accusations that libertarians are opportunistically using federalism means to advance libertarian ends.  I think we can expect this to be a continuing meme as the ACA litigation makes its way to the high court.  Obviously, this is nothing more than ad hominem, but this kind of “hidden motivation” talk might (does?) play a role in clouding the ultimate discussion of constitutionality and increasing the unease of a reluctant member of the Court. 

As others have pointed out, there is nothing inconsistent about libertarians using the commonly accepted tools of federalism to advance what libertarians believe to be the requirements of justice.  In fact, libertarians and federalists share so many common goals they might want to think about joining forces. 

There is, however, one possible problem, at least in terms of the current ACA litigation. 

It seems to me that the tools of federalism which may be used in good faith by libertarians are limited to constraints which protect the retained rights of individuals.    Federalists, after all, are as concerned about protecting individual liberty from federal abridgement as are libertarians.  Thus, James Madison and Thomas Jefferson argued that the Alien and Sedition Acts usurped powers reserved to the states in a manner that violated individual liberty.  They correctly saw nothing inconsistent with such an argument. 

But what libertarian constitutional theorists cannot use in good faith are those federalist tools that insist some matters affecting individual liberty are reserved to state regulatory control as a matter of constitutional right.  A libertarian might use such arguments opportunistically against the federal government, but if successful would likely then turn around and attack the state regulatory autonomy he had previously defended in order to advance libertarian ideas of individual freedom. 

Libertarian opponents of the ACA, as far as I can tell, have limited their federalism-based arguments to those which a libertarian may hold in good faith; those protective of individual liberty, in other words.  I believe this is what causes some critics to believe that they are “really” making libertarian arguments.  In fact, they are simply limiting their use of federalism to those aspects of the theory that conform to the libertarian ideal of justice. 

But that self-limitation, made for good conscientious reasons, may come at a cost.  It may be that the argument most likely to convince 5 justices to vote against the ACA is a federalism argument supportive of state regulatory autonomy—an argument libertarians cannot embrace in good faith.  Perhaps the justices will construct such an argument on their own, or from amici, but if libertarians are leading the charge they may be doing so with one federalist arm tied behind their back.  

My thanks to the folks at pawfsblawg for having me as a guest this last month.

 

Federal prosecution in NYPD rape case?

Last week's acquittal of two New York City police officers on rape charges (they were convicted on three counts of official misconduct, resulting in their immediate firing and some further criminal punishment) has sparked outrage and protests. The victim still has a multi-million dollar federal civil rights action against the officers and the city.

Bu might the Justice Department also bring a federal civil rights prosecution against the officers? Successive or dual federal prosecutions based on "substantially the same act(s) or transactions involved in a prior proceeding" are governed by DOJ's Petite Policy, which lays out three requirements for a federal prosecution:

[F]irst, the matter must involve a substantial federal interest; second, the prior prosecution must have left that interest demonstrably unvindicated; and third, applying the same test that is applicable to all federal prosecutions, the government must believe that the defendant's conduct constitutes a federal offense, and that the admissible evidence probably will be sufficient to obtain and sustain a conviction by an unbiased trier of fact.

The second element is where a lot of the action occurs. Under the policy, federal interests have presumptively been served by a state prosecution, regardless of outcome. That presumption may be overcome based on a number of factors, including indications that nullification occurred in the prior prosecution or where the state prosecution failed on an element that would not have to be proven in the federal prosecution. The presumption also may be overcome, regardless of the outcome in the state prosecution, where:

first, the alleged violation involves a compelling federal interest, particularly one implicating an enduring national priority; second, the alleged violation involves egregious conduct, including that which threatens or causes loss of life, severe economic or physical harm, or the impairment of the functioning of an agency of the federal government or the due administration of justice; and third, the result in the prior prosecution was manifestly inadequate in light of the federal interest involved.

The most famous example in my lifetime of a federal civil rights prosecution following a state acquittal was the successful prosecution of LAPD Officers Stacey Koon and Laurence Powell, two of the officers involved in the beating of Rodney King (two other officers were acquitted on the federal charged). The federal prosecution was triggered in large part by the extreme consequences that followed from the state acquittal.

So is this an appropriate case for a successive federal prosecution?

This was a high-profile state prosecution that drew a lot of media and public attention. There is visible public anger over the verdict, although obviously nowhere near what followed the acquittal of the LAPD officers in 1992 and not expressed in nearly as destructive a way. Gender issues do not carry the same force as the racial issues involved in the King case, especially absent rioting. The King case also hinted at systemic issues of excessive force (often race-based) within the LAPD, concerns that do not seem to be present here (putting aside whether a verdict such as this one removes deterrents to such misconduct). Nor does this feel like a nullification situation; the jury had to buy a line of logic many don't agree with ("the woman was too drunk to keep the story straight so we can't believe her word (absent DNA evidence), but she was sober enough to consent so it couldn't have been rape"), but that is not necessarily the same as the jury simply ignoring the law and the evidence. The King case also had video evidence, which (as video does) probably gave federal officials a greater feeling of certainty as to what happened in the underlying events and thus a greater feeling of certainty that the jury ignored obvious evidence of guilt. This case does not feel like nullification as much as wrong-headedness and normative misconceptions about sexual assault.

Might this fall within the catch-all, three-step test for overcoming the presumption? Again, this case raises serious questions of gender equality and of the power of the law to protect vulnerable women from sexual assault in a particular context, especially by those who wield legal and social authority. That is (or certainly should be) a compelling federal interest, although, again, perhaps not as compelling as the racial tensions and consequences of 1992. The conduct, as alleged, was egregious--police officers abused their authority for personal gain unrelated to any legitimate part of their job; the officers went back to the woman's home three times, lying several times and violating department regulations to do that; and one officer even admitted laying in bed with her when she was passed out, which is strange behavior in any event. Was the state acquittal "manifestly inadequate in light of the federal interest involved"? The case does touch on a potentially hot question of whether the law will protect vulnerable persons from sexual assault where alcohol is involved. If one sees "too drunk to be believed, not too drunk to consent" as a dangerous legal proposition that produces/perpetuates gender inequality, then the federal interest is left unprotected by a state verdict in which the jury relied on that inference. Even more so when that gender inequality is coupled with police officers manipulating their authority for some purely personal thrill.

DOJ obviously wants to avoid the appearance that it brings subsequent civil rights prosecutions simply because the media pays attention to a case and enough of the public believes a state court verdict was wrong and expresses that belief loudly enough. But there are serious federal interests in gender equality and in stopping police misconduct that may justify a prosecution here. And because the case is something of an outlier on its facts, it could be a flashy-enough prosecution to give the federal government "more bang for the buck" in civil rights enforcement.

Of course, there remains the third element--will the evidence "probably" be sufficient to sustain a conviction. Might DOJ fear (rightly) that a federal jury will be just as likely to fall into the logical trap that the state jury did?

Déjà Vu: The Ethics of Workshops Presenting

While still a student I recall attending a workshop that partially overlapped with another event I was similarly interested in attending.  Seeing that I was sitting in the back and considering the large number of people in attendance, once the proceedings reached the Q&A I quickly and silently headed towards the exit.  Spotting me nearing the door, one of the senior professors also in attendance took the opportunity to duck out with me.  As the door shut behind us she turned to me saying “this was the third time I heard this person give this same talk!”  

That was about four years ago.  This past academic year, when in a different school, I heard the same talk once again.  I was mildly scandalized.  Is not the whole point of workshops to ‘workshop’ new work? To further projects ‘in progress’ and to foster academic excellence through the exchange of new ideas? What a waste of academic resources, I thought to myself.  Give others a chance!  Workshops, unlike invited lectures, are for either relatively new or significantly evolved papers.   

But are there reasons in favor of such syndication?  Is it ever permissible?  

For one thing, workshop attendees are better served hearing a tested and well-honed talk that is based on completed and well-vetted work rather than being subjected to half-baked ideas and embryonic undeveloped drafts, as is sometimes the case.  Given the choice, and all other things being equal, I would probably opt for the former.  Moreover, I can see how re-presenting a truly seminal idea could foster academic excellence.  Finally, one must acknowledge that the focus on the constant production of ‘new ideas’ does more to produce academic chatter than to develop quality scholarship.  Let’s face it, while papers are often new, the ideas seldom are. 

I do however think that serial re-presenting of the same paper over years suffers from a problem of diminishing returns, which probably justifies, in most cases, not accepting yet another speaking engagement.  The workshop format is most suitable to sharpening developed work but not for fine-grained perfecting.  It is hard to expect a (mostly) new audience to produce highly fine distinctions and critiques.  Moreover, workshops are not conducive to the dialectics of back and forth conversation, which are required for fine-grained discussion.  Workshops are usually a little erratic, jumping from issue to issue as the moderator moves down the queue.  I am not claiming that after years of presenting the same paper or idea in workshops across the country one will not obtain any new valuable feedback, but I do think that this becomes less likely as time goes by.  Chances are that unless the paper significantly evolves with time, mostly the same observations are raised again and again.  This gives the speaker the opportunity to play the superhero, defending the paper with great ease from familiar objections.  But it is not in line with academic excellence.                  

Would you lie to prevent accurate enforcement of an unjustified law?

Here's something I'm thinking about vis-a-vis my article and I thought it might be fun to hear people's thoughts.

If you knew and saw A did X in front of you, where X is a crime that you think is unjustifiably criminalized because at bottom you think X lacked any morally blameworthy feature (e.g., pot possession/handgun possession/eating on the subway, whatever), how many of you would lie if the cop asked you (Did you see A do X a moment ago) or if the court called you as a witness--in order to prevent accurate enforcement of the law against A?

I take it some of you might be willing to lie or not answer if A if A was family/friend--true? But perhaps that would be the case even if X was a justified crime in your mind? In any event, how many of you think you should lie, but doubt you would because you fear the perjury/false statements criminal liability to you if you did? What are some of the other options you think are desirable as a moral agent facing this quandary?

I'd be curious to see what your intuitions are when you tweak the scenario in several ways too:

a) imagine you think X should be permitted conduct but you think the law banning X is nonetheless morally legitimate even if you don't think it's  all-things-considered justified in your view to have a criminal law prohibiting X.  (This is kind of like saying you think the law passes muster under a deferential reasonableness review). Would you lie then?

b)  imagine you think X is impermissibly criminalized because the law is so spectacularly dumb that it couldn't survive deferential reasonableness review (e.g., a prohibition on chess). Would you lie then?

c) imagine you think the law banning X is illiberal (ie. and e.g, it violates a core political right such as free speech) (perhaps X is flag burning). Would you lie then? 

Titles: (Mr.) Professor X, Ms. Y

I and many other women professors I've talked to have had students refer to us as "Ms." or "Miss Y" literally in the same sentence that they refer to a male colleagues as "Professor X." It may seem trivial but it is annoying, and it creates a real quandary.  If you say something to the student, you run the risk of seeming unduly sensitive or prickly about prerogative. If you don't say anything, you run the risk of allowing the student to be eaten alive when he says something similar to a female judge.  So what's the right way to handle it?  When I first started teaching, I didn't say anything. Later, I decided to point out to the student that, while I'm sure he meant no offense, he should never make the mistake again lest he encounter a professor or  judge less tolerant than I. As I've become more senior (oh, painful phrase!), I have this experience less and less, but I am assured by female colleagues that it continues apace, which makes me wonder if a more systematic response might be warranted. I must say that as a 3L law student I bridled when a male law professor corrected me when I referred to my friends as "girls," but I had cause  to appreciate his wisdom when, just a few months later, I worked for a federal judge who treated his male clerks quite differently than his female clerks. I've never referred to any woman over age 18 as a girl again.

On a related note, a colleague brought to my attention that his students disproportionately referred to male parties on his exam  by last names and female parties by first names. What, if anything, is to be done?

R.I.P., Sylvester Pennoyer

Via Kevin Clermont, via one of his students, come these photos of the grave of Sylvester Pennoyer in his family plot in a cemetary south of Portland. Definitely worth a pilgramage.

 

 

 

Randy Barnett’s Bill of "Federalism” [sic]: Why does Randy so persistently confuse libertarianism with federalism?

There has been a bit of a debate here at Prawfsblawg about whether Randy Barnett's attack on ACA really just a libertarian theory dressed up in a federalism costume. As I have observed earlier, I tend to agree with the critics that Randy's theory is best understood as libertarian theory rooted in the allegedly special burden imposed on private freedom by affirmative commands.

Randy's other advocacy efforts suggests that this tendency to mix libertarianism and federalism can lead to constitutional false advertising. For at least a couple of years now, Randy has been pressing the ratification of a "Bill of Federalism," a set of ten proposed amendments to the U.S. Constitution that would allegedly protect federalism from encroachments by the Congress that are now permitted by the SCOTUS's precedents. But Randy's "Bill of Federalism" title for the package is pretty misleading: Half of the amendments have nothing much to do with federalism, if "federalism" is understood to mean "constitutional theories that protect subnational governments' power." Indeed, two of Randy's proposals are actually attacks on subnational power. Proposal # 5 protects "Freedom of Political Speech and Press" by including within the concept of speech "any contribution to political campaigns or to candidates for public office," and Proposal #9 subjects both state and federal legislation to a sort of heightened judicial scrutiny whenever such legislation burdens a grab-bag of "natural, inherent and unalienable rights," including the rights of "acquiring, possessing and protecting real and personal property, making binding contracts of their choosing, and pursuing their happiness and safety." Both of these proposals, therefore, would centralize policy-making by subjecting state laws to federal judiciary's veto enforcing new national rights. Randy's proposed amendments ## 7,8, and 10 do not actually undermine federalism, but they do nothing to advance it: Instead, these three proposals are a grab-bag of reforms favored by populist libertarians such as a line-item veto for federal appropriations, term limits for members of Congress, and a ban on judicial "reference to the law of nations or the laws of other nations."

Why would Randy mislabel these populist and/or libertarian proposals as protections for "federalism"?

Note that calling for new nationally protected individual rights in the name of federalism is significantly harder to explain than calling for more federalism in the name of individual rights. As I have earlier observed, libertarians seem to gravitate to the notion that federalism protects individual liberty, probably out of some notion that mobile citizens can protect themselves from rapacious subnational governments by fleeing to less oppressive competitors. This, at least, is the idea behind Barry Weingast's "market-preserving federalism" and Brennan's and Buchanan's "leviathan-constraining" federalism. But such a notion cannot explain why Randy would defend new individual rights as a species of federalism: No one has ever contended that having federal judges enforce limits on campaign finance laws -- including state and local campaign finance laws -- somehow advances the cause of subnational governments' power.

Likewise, Randy's misnamed "Bill of Federalism" cannot be defended as part of a general preference for small government. Richard Esenberg suggested a year ago that libertarians might equate libertarianism with federalism out of a general distrust of bigness. According to Richard, "[i]t may well turn out that individual liberty –- as well as the liberty of smaller communities –- is promoted by the devolution of decision-making," an idea that Richard ties to "a Hayekian suspicion of the capacity of increasingly larger and more centralized bodies ever to have the capacity to make good decisions." Note, however, that Randy's call for two new national rights seem inconsistent with this small-is-beautiful argument for federalism: Under Randy's "Bill of Federalism," unelected Article III judges appointed by a President elected by an enormous national constituency will veto campaign finance laws enacted by, say, little bitty Arizona. In the battle between the federal Goliath and the subnational David, Randy is apparently rooting for Goliath.

So what's going on here? Why is Randy pressing populist libertarian proposals like term limits, balanced budgets, and freedom of contract in the name of "federalism"? A cynic might suggest that Randy is trying to camouflage controversial conservative ideas in neutral-sounding constitutional language of federalism. Does anyone have an alternative explanation to prove the cynics wrong?

One book?

A recently graduated student of mine sent me a note the other day, asking for a suggestion for one (broadly speaking) law-and-lawyering-related book to read during the few days off he has before starting his bar-exam preparation.  I recommended Kazuo Ishiguro's "The Remains of the Day", which my own teacher -- David Luban -- once recommended to me.  Other suggestions? 

The Annual LSA Happy Hour: Thursday, June 2, at 9pm in SF at Cantina

Along with our friends around the blogosphere, I'm thrilled to share the details for this week's happy hour for prawfs who will be attending LSA or who happen to be in SF. We'll be gathering around 9pm or so for a few hours at least at Cantina, which is at 580 Sutter St. (cross-street is Mason). This is just around the corner from the St. Francis Westin, so you have no excuse to miss out on the vibe, music, and drink specials we've arranged at this cool spot. We'll be gathering in the downstairs room, at least for the first few hours of the evening. No need to RSVP, but please feel free to let me know if you're planning on joining so I can give them a rough head count, and please please please, share this information with the other fun prawfs and non-prawfs you know.

See you Thursday at 9pm at Cantina!    And here's a google map link if you need it.

Can you copyright a nose job?

There’s been a lot of discussion in the blawgosphere recently about the Mike Tyson/Hangover 2 tattoo case, and the underlying question of the copyrightability of tattoos.  In the context of that discussion on an IP profs’ listserv, Lior Strahilevitz posed a related question:  If tattoos are copyrightable as works of authorship fixed on the human body, shouldn’t nose jobs also be copyrightable?  Is there a principled copyright distinction between the Mike Tyson face tattoo and, say, Bristol Palin’s recent rhinoplasty?

Before exploring this question, let me offer some quick background.  Not all products of the mind are copyrightable.  Works of authorship have to be original and fixed in a tangible medium of expression (TME) in order for federal copyright (though not necessarily state common-law copyright) to vest.  Most fixations of works of authorship are made in familiar media—canvas, a book, the memory of a computer—and as long as they last for more than a transitory duration, fulfill the fixation requirement. 

This raises three questions, each of which have been raised on the IP profs’ listserv.  First, is a nose job a work of authorship?  Second, is a nose job fixed in a tangible medium of expression?  And finally, is a nose job original?  I consider each of these points below the fold.

First, a few writers asserted that a nose job isn’t a work of authorship, full stop.  Works of authorship are listed in section 102(a) of the 1976 Copyright Act, and unsurprisingly, “nose job” isn’t among them.  One might conclude thus quickly that as a simple matter of statutory construction, the 76 Act excludes nose jobs.  This strikes me as far too hasty a conclusion, for two reasons.  First, section 102(a)’s list of works of authorship is inclusive, not exclusive.  The text says, “works of authorship include” the relevant categories, not that works of authorship include only the referenced categories.  It seems pretty clear from this (and other aspects of the 76 Act) that the framers wanted the statute to remain flexible in terms of what counted as a work of authorship.

In addition, there’s a category listed in section 102(a) that does seem to fit nose jobs reasonably well:  sculptural works.  Where artists fix their original ideas in three-dimensional form, whether via marble or clay, we have no problem calling the resulting work a sculpture.  Why should the human body be any different?  I can think of some prudential objections that I’ll elaborate below in discussing fixation, but as a textual matter I don’t see any basis for this distinction.

The final point some have raised with respect to whether nose jobs can be works of authorship is that surgeons are not “authors.”  They are more like craftspeople, because they don’t infuse their work with the sine qua non of copyright, originality.  This is a plausible argument, though I think also too hasty, but it really seems to belong in the discussion of originality, which I’ll get to below.

A second objection to the copyrightability of nose jobs may be that they are not valid fixations in TME.  The Second Circuit recently decided a case that nicely laid out a two-part test for what constitutes a valid fixation.  A fixation must persist in some physical form, such as a book or canvas.  A nose is clearly tangible, and easily meets this standard.  A fixation must also meet a duration requirement; that is to say, the fixation must persist for some minimum time in order to be valid.  Ephemeral fixations such as in skywriting or the very brief memory of a computer would not count.  Here, too, a nose seems clearly to meet the relevant standard, since rhinoplasty lasts until the face of the recipient turns to dust. 

Some writers have suggested that the human body is not a "medium of expression."  This doesn't strike me as valid.  We use our bodies to express ourselves all the time in ways too numerous to list.  And artists sometimes use others' bodies to express themselves, such as where photographers use models to acheive a certain aesthetic effect. 

Now let’s consider the final doctrinal hurdle for the copyrightability of nose jobs:  originality.  Copyright originality means that there must be a modicum of creativity in a work, so that if it is a slavish imitation of the outside world that reflects no input from the author, then it does not merit protection even if it is the product of considerable effort.  Exact digital images of cars, for example, have been held to lack the requisite originality to merit federal copyright protection.

Nose jobs, it seems to me, may well lack originality in the majority of cases.  The point of most nose jobs is not to create a creative or distinctive look, but rather to make the patient’s nose fit some preexisting (usually, smaller) archetype of what a nose should look like.  This is the antithesis of originality; it’s an attempt to make the patient’s nose less, not more, distinctive and original.

It is, however, not descriptively accurate as applied to all nose jobs.  Most nose jobs probably fit this category, but some patients actually do want a nose job to be distinctive and set them apart from the crowd.  Consider, for example, body modification.  This practice involves alterations to the body including piercings, tattoos, and plastic surgery in order to attain outrageous and undeniably distinctive (if often grotesque) results.  This presents a much harder case for the copyrightability of plastic surgery.  If a patient for whatever reason wants to have a nose job to look freakish rather than to fit in, then one might have to concede that there is originality there, and such body modifications may well be copyrightable.

Beyond these doctrinal points, though, lies a prudential consideration that’s well worth considering, and has already been gestured at by an eminent commentator who’s come out against the copyrightability of tattoos.  Even if some (though probably not most) nose jobs may be original, validly fixed works of authorship as a matter of statutory text, as a prudential matter the idea of allowing the human body to count as a site of fixed works of authorship may be disastrous.  It would open the door to, say, copyright in hairstyles or even ripped musculature.  In such a world, any picture or film that captured an image of any person could--perhaps even would--subject the photographer or videographer to infringement, with attendant financial risks (given the substantial statutory damages associated with even inadvertent copyright infringement).

And this, in turn, raises the specter of ceding rights in one’s body to another person, since it's the author of a work of authorship, not the object in which the work is fixed, in whom those rights vest.  If a plastic surgeon has the copyright in my nose, then am I constrained in my ability to go in public to display it?  Do I have to get permission to have photos of my face taken?  And since copyrights can be sold and re-sold, I may not even know the person who has rights that constrain the use of my own body. 

This point is all the more concerning to the extent that some works of visual art are also subject to the moral rights scheme of the Visual Artists Rights Act, which could mean that surgeons (or whoever owns the copyright in the relevant nose) have rights of integrity and attribution concerning the patient’s nose, so that they might have a cause of action should the patient want to alter their nose (with more rhinoplasty or a nose ring) or lie about its origin (and I suspect many patients indeed want to downplay having had a nose job).

At the end of all this, what’s the verdict on the copyrightability of nose jobs?  I think many, probably most, nose jobs would fail because they’re insufficiently original to merit copyright protection.  Those few that do possess sufficient originality, though, present a harder case.  While they do seem to meet the relevant statutory standards for copyrightability, the prudential considerations raised by accepting the idea of owning works of authorship fixed in the human body are concerning, and I think may counsel in favor of a categorical rule that fixations in the living human body are not valid fixations for copyright purposes.

And this final point, if persuasive, returns us to the subject matter from which this post originally grew:  the Mike Tyson tattoo case.  Most commentators (self included) readily assumed that tattoos are valid fixations, and if original, merit copyright protection.  But if there should be a bright-line rule precluding copyrighted works fixed in the human body, then this would seem to exclude tattoos from the realm of valid fixations as well.  This does not mean, of course, that tattoo artists could not copyright their designs, but only that unauthorized tattoos of those designs would not be actionable because they would not count as “copies” within the meaning of the Copyright Act.

Women in the Profession: More Data for Bill

Bill Araiza asks what to make of the data that the percentage of women in law schools has declined "from 49.05% in 2002 to 47% in 2010." I don't know, but here is some more information: the percentage of women applying to law school. (This data is from the LSAC, for 2000-2009 and 2010.) 

Female applicants compared to female accepted candidates (data from LSAC, 2000-2009, 2010):

Difference between percent of applicants who were female and percent of admitted students who were female:

Perhaps it is premature based on this information, and maybe if we broke this out by rankings we would see something different, but my tendency now is to want to ask the question, "Why are fewer women applying to law school?"

Update: This is indeed how the question is framed in Vivia Chen's post: "Why are fewer women flocking to law?" 

Here is the spreadsheet from which I generated these graphs:

 

Women in the Profession

This week brought some interesting and at least arguably conflicting news about what Justice O'Connor called Portia's Progress.  On the one hand, there was buzz about statements that women had won out in approximately 40% of the law school dean searches finalized over the last few months.  On the other, there's news that women are making up a smaller part of the entering classes of both elite law schools and law schools more generally. 

The overall decline doesn't strike me as extraordinary -- from 49.05% in 2002 to 47% in 2010 (all down from just over 50% in 1993, as indicated this really interesting chart).  But on the other hand I suppose the size of the nation's law school class is so large that even small percentage changes are significant.  But the relatively smaller enrollment percentages at the elite schools (the lowest being 42.6% at NYU) really does seem a little more striking.  I'm no statistician, but I'm not sure this imbalance is fully explained by the fact that males outnumber females in the law-school age population.

There's some commentary on the site where the post was made that suggests perceptions of women's lack of progress in the profession, but I'm curious what people here think.  Is there something going on behind these numbers?

Anecdotal Evidence of Letterhead Bias

Dave Fagundes' very interesting interview with current Minnesota Law Review Articles Editor Carl Engstrom, and the comments thereto, prompted me to relate an anecdote about letterhead bias in law review article selection.  Everyone has a sense that letterhead bias exists but no one can prove it.  As far as I know, there is no empirical study on how often professors at third- or fourth-tier schools are published in, say, top-10 or top-25 journals.  Minna Kotkin's work, though it focuses on gender imbalance, does touch on letterhead bias (see pp.27-28), but (1) does not come to any hard-and-fast conclusions and (2) lumps together tiers 2, 3, and 4, whereas my sense is that it is far more difficult for professors at fourth-tier schools to get published in top journals than it is for those at second-tier schools.  Moreover, even if there were empirical evidence that professors at third- and fourth-tier schools are rarely published in the more well-regarded law journals, there is the question of causality:  are they rejected by Articles Editors at these journals because they teach at third- and fourth-tier schools, or do they teach at third- and fourth-tier schools because they do not write law review articles as well as professors at more highly ranked schools?  Of course, it may be a little of each, but as someone who teaches at a fourth-tier school, I'd like to think that it is more the former than the latter.

Which leads me to my anecdote.  A few years ago (summers of 2008 and 2009, to be exact), I labored over a nice little piece -- or what I thought was a nice little piece -- on the premeditation-deliberation formula, which is often used to separate second- from first-degree murder.  I typically write on constitutional criminal procedure, and this was my first attempt at a substantive criminal law piece, but I was fascinated by the challenge of justifying, or at least explaining, this artifact of the law that had drawn all but universal condemnation.  Having spent the better part of two summers engrossed in the works of Beccaria and Montesquieu, I sent the piece out in August 2009 to the law reviews at the top 100 schools according to the U.S. News rankings, as well as some specialty journals.  I anxiously waited for a bite.  And waited.  And waited.

I got zero offers.  I was despondent.  This had never happened before.  My prior work had placed in second-tier journals and some specialty journals of first-tier schools.  The placements, frankly, had never been as good as I thought they should be -- are they for anyone? -- but at least I got something.  I questioned whether spending two summers writing about something new had been a dreadful mistake, rather than sticking to something right in my wheelhouse.  Constitutional criminal procedure, after all, is on the "sexier" side of things; eighteenth-century penological theory, apparently, is not, at least for someone writing from the fourth tier.

Then, in December 2009, I got an e-mail from David Harris, then-Chair of the AALS Section on Criminal Justice, informing me that my paper had been selected as the winner of the Section's Junior Scholar Paper Award.  I was quite stunned, both because of the impressive talent I see in my colleagues in the Criminal Justice Section, whose achievements as detailed in the Section newsletter always leave me feeling somewhat intimidated, and the poor showing my piece had had in the fall submission season.  The difference, of course, is that the evaluation of papers for the award was done anonymously.

Fast-forward to March 2010.  I sent the article -- the exact same article, mind you -- again to the same journals to which I had sent it in August.  The difference was an additional sentence, in bold-face type, in the first footnote of the paper and the same sentence in the cover letter:  "This paper was the winner of the 2010 AALS Criminal Justice Section Junior Scholar Paper Award."  In the letter, I also helpfully dropped a footnote citing Articles that had previously won the same award; as Engstrom says in the Fagundes interview:  "[I]f an article . . .  has received any . . . honors worth mentioning, authors need to explain that to us so we have a sense of why it matters."  Suffice it to say, this time I got some offers, and the article just came out in the Indiana Law Journal, my best placement yet.

Of course, this is anecdotal evidence, so take it for what it is worth.  And, of course, there is anecdotal evidence going in the other direction as well:  both Mark Godsey and Emily Houh, who preceded me at NKU-Chase College of Law, published in top-15 journals in their time here, and John Stinneford published a fantastic article in Northwestern University Law Review while at a fourth-tier school (all three are now at second-tier schools).  Yet my nagging concern:  what about the runner-up for the award that I won?  Doubtless, that unknown person is writing terrific stuff.  But if he or she is at a third- or fourth-tier school, it may well be that no one is reading it.

The CrimProf Shadow Conference Next Week at Law and Society in San Fran

For those of you attending LSA next week,  or if you're in SF nonetheless, please note that below the fold is information regarding the 10 panels making up the "crimprof" shadow conference. All are welcome to attend the panels on criminal justice or the happy hour.

Colleagues,

In anticipation of next week's 3d annual Shadow CrimProf Gathering at the Law and Society meeting in San Fran, I'm both attaching  and pasting below the information regarding the ten panels we (Miriam Baer and I) have slated. You'll notice that our panels begin with "Criminal Justice 01, 02, etc"

As I understand it, all ten of our panels will be held in the same room, which is very convenient. Unfortunately, the preliminary program doesn't say what room that is in but once I know what it is next week, I'll share it here on the listserve and on Prawfs.com

Presenters on these panels are sharing their drafts with the others on their panels, hopefully by today (I say shame-facedly and foot-draggingly). However, if you see a paper not on your panel that you'd like to read in advance of the presentation (or perhaps, perish the thought, you won't be able to make the presentation because of some conflict), then please reach out and email that person--I'm almost certain that people are excited to get feedback on these works in progress.

Last, Miriam Baer and I invite you all to join us at the Clock Bar around 9pm on Friday evening in the St. Francis Westin hotel for drinks and company. Please feel free to let either of us know in advance if you and others may be coming. All are welcome.

See you next week, and below is the schedule:

Criminal Justice 01: Topics in Substantive Criminal Law 1210

Keyword Area CRIME AND VICTIMS Schedule Information: Scheduled Time: Thu, Jun 2 - 10:15am - 12:00pm  Building/Room: St. Francis or Nikko, TBA 10 Title Displayed in Event Calendar: Criminal Justice 01: Topics in Substantive Criminal Law 1210 Session Participants: Chair: Ruth Jones (University of the Pacific) [email protected] Sex, Drugs, and Cyberbullies: Reflections on Parenting, Policing, and Schooling *Deborah Ahrens (Seattle University) The Choice of Evils *Vera Bergelson (Rutgers University, Newark) From Coverture to Conspiracy and Back Again: Women, Crime, and Coercion *Mary Anne Franks (University of Miami) Reinvigorating Actus Reus: The Case for Involuntary Actions by Veterans with Post-Traumatic Stress Disorder *Melissa Hamilton (University of South Carolina) Abstract: The panel will discuss various issues of substantive criminal law, including the following presentations: 1. Melissa Hamilton, Reinvigorating Actus Reus: The Case for Involuntary Actions by Veterans with Post-Traumatic Stress Disorder;  2. Mary Anne Franks: From Coverture to Conspiracy and Back Again: Women, Coercion, and Crime; 3. Vera Bergelson, The Choice of Evils; and 4. Deb Ahrens, Sex, Drugs, and Cyberbullies: Reflections on Schooling, Parenting, and Policing.

Criminal Justice 02: Institutional and Theoretical Issues in Punishment 1310

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Sponsor: Keyword Area CRIME AND VICTIMS Schedule Information: Scheduled Time: Thu, Jun 2 - 12:30pm - 2:15pm  Building/Room: St. Francis or Nikko, TBA 10 Title Displayed in Event Calendar: Criminal Justice 02: Institutional and Theoretical Issues in Punishment 1310 Session Participants: Chair: Dan Markel (Florida State University) [email protected] Punishing Corporate Governance *Miriam Baer (Brooklyn Law School) Cruel and Unusual Federal Punishments *Michael J.Z. Mannheimer (Northern Kentucky University) Retributive Justice: 4 Questions *Dan Markel (Florida State University) Total Retribution *Meghan J. Ryan (Southern Methodist University) Discussant: Richard H. McAdams (University of Chicago) [email protected]       Abstract: This panel will include a series of papers addressing the relationship between punishment and democracy, punishment and corporate governance, and punishment constitutionalism.

Criminal Justice 03: Criminal Procedure and Policing 1410

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Sponsor: Keyword Area CRIME AND VICTIMS Schedule Information: Scheduled Time: Thu, Jun 2 - 2:30pm - 4:15pm  Building/Room: St. Francis or Nikko, TBA 10 Title Displayed in Event Calendar: Criminal Justice 03: Criminal Procedure and Policing 1410 Session Participants: Chair/Discussant: Fabio Arcila Jr. (Touro College) [email protected] A Spectacular Non Sequitur *David Gray (University of Maryland) Reasonableness with Teeth: The Future of Fourth Amendment Reasonableness Analysis *Cynthia K Lee (George Washington University) Interrogation and the Roberts Court: Rules for "Fair Play," Not Protecting Vulnerable Suspects *Jonathan Witmer-Rich (Cleveland State University) Abstract: Among the Fourth Amendment’s core concerns is the relationship between the public and police. Increasingly, that relationship has been subjected to reasonableness analysis. Though once predominant in the civil search context, increasingly reasonableness analysis has been moving into the criminal search and seizure context as well. This development has caused great concern among many commentators, as a move toward reasonableness has the potential for undermining traditional Fourth Amendment threshold protections. This panel will explore the implications of this move toward Fourth Amendment reasonableness, asking questions such as whether adequate protections of Fourth Amendment interests can exist under a reasonableness framework, and how Fourth Amendment doctrine should respond to reasonable mistakes. Also to be considered are the related issues of the exclusionary rule and modern developments under the Roberts Court in the law of police interrogation.

 

Criminal Justice 04: Searches and Privacy 2110

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Sponsor: Keyword Area POLICING AND PUNISHMENT Schedule Information: Scheduled Time: Fri, Jun 3 - 8:15am - 10:00am  Building/Room: St. Francis or Nikko, TBA 10 Title Displayed in Event Calendar: Criminal Justice 04: Searches and Privacy 2110 Session Participants: Chair: Josephine Ross (Howard University) [email protected] Crime Severity Distinctions and the Fourth Amendment: Reassessing Reasonableness in a Changing World *Jeffrey Bellin (Southern Methodist University) A Parent's "Apparent" Authority *Hillary B. Farber (Northeastern University) Privacy in the Workplace: City of Ontario v Quon *Clifford S Fishman (Catholic University of America) Consent-To-Search and Dignity *Josephine Ross (Howard University) Abstract: This country is at a crossroads regarding privacy. Although the Fourth Amendment places limits on the ability of police to stop individuals and search them and their possessions, these rights are being eroded from a number of different angles. This session will discuss four of the ways that privacy is challenged, including the ever-expanding use of technology that tests long-standing substantive Fourth Amendment doctrine, the rules allowing the government to investigate its employees, the consent doctrine that allows police to search without any reason to believe the individual is in possession of something illicit, and the apparent authority doctrine that allows parents to consent to searches of their children even when these young individuals would not willingly give up their privacy. In many situations, it is the more vulnerable among us who are most likely to be expected to submit to pat-downs or full blown searches. We will offer an array of fixes to these conundrums and promise a lively debate.

 

Criminal Justice 05: Constitutional Issues in Criminal Procedure 2210

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Sponsor: Keyword Area CONSTITUTIONAL LAW AND CONSTITUTIONALISM Schedule Information: Scheduled Time: Fri, Jun 3 - 10:15am - 12:00pm  Building/Room: St. Francis or Nikko, TBA 10 Title Displayed in Event Calendar: Criminal Justice 05: Constitutional Issues in Criminal Procedure 2210 Session Participants: Chair: William W. Berry III (University of Mississippi) [email protected] Criminal Constitutional Avoidance *William W. Berry III (University of Mississippi) Graham on the Ground *Cara H Drinan (Catholic University of America) The Sounds of Silence *Erik Lillquist (Seton Hall University) Abstract: This panel investigates several different issues related to the constitutionality of various aspects of criminal procedure.

Criminal Justice 06: Privacy and Security 2410

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Sponsor: Keyword Area CRIME AND VICTIMS Schedule Information: Scheduled Time: Fri, Jun 3 - 2:30pm - 4:15pm  Building/Room: St. Francis or Nikko, TBA 10 Title Displayed in Event Calendar: Criminal Justice 06: Privacy and Security 2410 Session Participants: Chair: Fabio Arcila Jr. (Touro College) [email protected] Binary Searches and the Central Meaning of the Fourth Amendment (download) *Lawrence Rosenthal (Chapman University) Guantanamo And Domestic Criminal Justice *Nirej Sekhon (Georgia State University) Indecent Exposure: How Private is a Student's Cell Phone? *Amy Vorenberg (University of New Hampshire) From Trade Secret Thief to Julius Rosenberg: How Government Bailouts May Affect the Concept of Industrial Espionage *Robert E Wagner (Case Western Reserve University) Abstract: Panel will address issues at the intersections of criminal justice and public/private security: Larry Rosenthal, 4A and Dogs and Privacy Nirej Sekhon, Crime, Community, and Terror Amy Vorenberg, TBA Rober Wagner, Frome Trade Secret Thief to Julius Rosenberg: How Government Bailourts May Affect the Concept of Industrial Espionage

 

Criminal Justice 07: Perspectives on Prosecutors and Defense Attorneys 2510
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Sponsor: Keyword Area CRIME AND VICTIMS Schedule Information: Scheduled Time: Fri, Jun 3 - 4:30pm - 6:15pm  Building/Room: St. Francis or Nikko, TBA 10 Title Displayed in Event Calendar: Criminal Justice 07: Perspectives on Prosecutors and Defense Attorneys 2510 Session Participants: Chair: Barbara O'Brien (Michigan State University) [email protected] Becoming a Prosecutor: How Prosecutors Grow into Their Professional Roles *Kay Levine (Emory University), Ron Wright (Wake Forest University) Collective Bargaining, Constitutional Rights, and Criminal Defense *Pamela R Metzger (Tulane University) Ready to Listen: The North Carolina General Assembly’s Decision to Go Where the McCleskey Court Wouldn’t *Barbara O'Brien (Michigan State University), Catherine M Grosso (Michigan State University) Discussant: Shima Baradaran (Brigham Young University) [email protected]       Abstract: This panel will focus on research examining the roles of prosecutors and defense attorneys in the adversarial process. The papers will look at different aspects of the process, including prosecutorial charging decisions, the role of defense counsel in the pre- and post-adversarial stages, and the culture of prosecutors’ offices in shaping norms and practices. For instance, one paper will critically examine the Supreme Court’s recent cases regarding the right to counsel under the Sixth Amendment, while another looks at the possibility of defense attorneys bargaining collectively. A third paper will discuss institutional culture and norms that shape prosecutorial decision making based on interviews with state prosecutors in North Carolina and Georgia. A final paper examines the political and cultural context that facilitated a substantial legislative shift in North Carolina as to how courts are to review prosecutorial and jury decision making in death penalty cases.
Criminal Justice 08: Adjudication and Trial 3210

Sponsor:

Keyword Area COURTS AND TRIALS

Schedule Information:

Scheduled Time: Sat, Jun 4 - 10:15am - 12:00pm  Building/Room: St. Francis or Nikko, TBA 10 Title Displayed in Event Calendar: Criminal Justice 08: Adjudication and Trial 3210

Session Participants:

Chair: Caren M Morrison (Georgia State University) [email protected] Saving Face(book): How Social Networking During Voir Dire Will Eviscerate What's Left of Batson *Caren M Morrison (Georgia State University) Defending the Indefensible: Why Society Should Protect Snitches *Michael L Rich (Elon University) Juror Privacy *Melanie D. Wilson (University of Kansas)

Abstract:

The panelists will discuss works in progress primarily focusing on privacy and security of lay participants in the criminal justice system, in particular jurors and confidential informants. The panel will also consider the role of defense counsel in the civil law system. The presenters and papers are as follows: 1. Shawn Marie Boyne: "Paper Tigers?: The Role of Criminal Defense Attorneys in Civil Law Systems" 2. Thomas Cohen, "Who’s Better at Defending Criminals? Does Type of Defense Attorney Matter in Terms of Producing Favorable Case Outcomes" 3. Melanie Wilson: "Protecting Jurors' Privacy."  4. Caren Morrison: "Saving Face(book): How Social Networking During Voir Dire Will Eviscerate What's Left of Batson." 5. Michael Rich, "In Defense of the Indefensible: Why and How the Law Should Protect Snitches."

 

Criminal Justice 09 Roundtable--Most Deserving of Death? An Analysis of the Supreme Court's Death Penalty Jurisprudence 3410

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Sponsor: Keyword Area JUSTICE Schedule Information: Scheduled Time: Sat, Jun 4 - 2:30pm - 4:15pm  Building/Room: St. Francis or Nikko, TBA 10 Title Displayed in Event Calendar: Criminal Justice 09 Roundtable--Most Deserving of Death? An Analysis of the Supreme Court's Death Penalty Jurisprudence 3410 Session Participants: Chair: Kenneth Williams (South Texas College of Law) [email protected] Participant: Susan Rozelle (Stetson University) [email protected] Participant: Laurent Sacharoff (University of Arkansas) [email protected] Participant: Andrew Taslitz (Howard University) [email protected] Abstract: The death penalty continues to be one of the most divisive issues in the United States. Past disputes, such as slavery and racial segregation, have been largely resolved. Yet, the debate over capital punishment persists. Proponents and opponents of capital punishment disagree about whether it is just, whether it deters, whether it is racist and just about every other issue associated with the death penalty. Both sides, however, seem to have reached a consensus about one thing: the system is broken. How did we end up with a system that both supporters and opponents of the death penalty would agree has become dysfunctional on all levels? The author places the blame primarily on the United States Supreme Court through an analysis of its death penalty jurisprudence.

Criminal Justice 10 Roundtable--An Investigation of Empirical Desert 3510

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Sponsor: Keyword Area CRIME AND VICTIMS Schedule Information: Scheduled Time: Sat, Jun 4 - 4:30pm - 6:15pm  Building/Room: St. Francis or Nikko, TBA 10 Title Displayed in Event Calendar: Criminal Justice 10 Roundtable--An Investigation of Empirical Desert 3510 Session Participants: Chair: Christopher Slobogin (Vanderbilt University) [email protected] Participant: Lauren Brinkley-Rubinstein (Vanderbilt University) [email protected] Participant: John Darley (Princeton University) [email protected] Participant: Dena Gromet (University of Pennsylvania) [email protected] Participant: Tom Tyler (New York University) [email protected] Abstract: The central contention of empirical desert is that adherence to societal views of “justice” will not only satisfy retributive urges but will also be as efficacious at controlling crime as a system that straightforwardly revolves around utilitarian purposes of punishment, because it will enhance the moral credibility of the law and therefore enhance compliance with it (Robinson, 2010). This roundtable will discuss data testing hypotheses that raise vulnerabilities in this argument, and offers insights from procedural justice, cognitive bias, and neurological perspectives.

 

 

Go to Israel: How Obama Can Do Better with Israelis

While he has many fans in Israel, most Israelis distrust and even dislike Obama.  This is unusual for an American president.  On the backdrop of the recent less-than-diplomatic clash between President Obama and Israeli Prime Minister Netanyahu, it is worth asking why this is the case.  The negative sentiments many Israelis harbor towards Obama are not adequately explained by the administration’s actions or policies, which have thus far been no less friendly to Israel than those of the previous two administrations.  The President’s middle name and race are also not the keys to unlocking the reasons for why so many Israelis dislike and distrust Obama, even though (and this may be part of the problem) the president himself has suggested as much (here).        

One seemingly plausible explanation is the ideological discord between the current (disgraceful) government of Israel and the Obama administration.  Simplistically put, the American presidency has moved to the left while Israel’s government has become more hawkish.  Moreover, the three most central members of Israel’s current government– Netanyahu, Barak, and Lieberman – have come to be personally despised in the Obama administration.  And who can blame them?  But friction between leaders is hardly new and is not a sufficient explanation for Israelis’ animosity towards Obama.  Neither is the ideology gap, considering that neither American nor Israeli policy has really changed all that much in the past two years and seeing that the recently proclaimed positions on the Palestinian issue of Obama and Netanyahu are not all that different, the brouhaha not withstanding.

The better explanation of Obama’s low “approval ratings” in Israel is more psychological, and the person most to blame for it is Obama himself. 

Obama is a populist everywhere but in Israel.  Obama’s two Middle East speeches – the Cairo speech and the recent “Arab Spring” speech – were addressed to the Arab people attempting to talk directly to the people of the region above the heads of the region’s governments and leaders.  Yet, unlike President Clinton who also pushed Israel towards peace, Obama has put little effort into speaking to Israel’s populous and gaining its trust.  When taken against the backdrop of Obama’s grand efforts towards winning the hearts and minds of the Arabs, neglecting to also visit Israel or to speak directly to its people is understandably experienced as an attempt to gain the favor of the Arabs by turning a cold shoulder to the Israelis.  When Obama looks to the Middle East Israelis eagerly search for that familiar gaze of recognition and find it exclusively affixed on others.   

If he truly wants to achieve peace Obama must win the trust and affections of Israelis.   Speaking at the yearly AIPAC convention and rehashing the old platitudes about a commitment to Israel’s security will not achieve this.  Go to Israel Mr. President.  Stand in Tel Aviv’s Rabin Square and speak to its people.  Get to know them.  Israelis, unlike many of their neighbors, love America and will be eager to listen.  And stop thinking of Israelis as if they were American Jews – all those references to your Jewish friends, advisers, the Holocaust, the civil rights movement are off the mark.  Make Israelis feel that you genuinely care and that you will be there when the chips are down, and more of them will entrust their security to you and follow your lead towards peace.  As of now – for most Israelis – you are a storm to be weathered.              

Sundry Fundry

Earlier today, the NYT reported the jury's acquittal on the rape and other severe charges of two NYC cops. I've been intrigued by this trial for a few weeks, and as I had suggested earlier on FB, I was skeptical that the gov't was going to win this case especially without forensic evidence and with a victim who had blacked out so much of the evening's details on account of intense alcohol consumption. The gov't did have, however, a secret audiotape that indicated the likelihood of the principal defendant having sex with the victim; whether the audiotape indicated rape is, from what I recall, more debatable. (FWIW, the other cop was said to be either standing guard or alternatively asleep on the sofa in the living room of the victim).  Despite the acquittal on the major charges, the cops were both found guilty of official misconduct by the jury, and that prompted Ray Kelly, the NYPD Commish to terminate them promptly--before they were suspended with pay. “The guilty verdicts involved violations of the officers’ oaths of office and, as a result, warrant immediate termination,” Mr. Kelly said. 

So question to those who know or have basis for surmise: is an official misconduct jury finding typically sufficient  to warrant immediate termination? Is there a possibility that Kelly thought this was a case that didn't involve evidence BRD but nonetheless thought there was enough yuckiness about it that it made sense to fire the cops, one of them a 25 year vet? Was this a discretionary or mandatory firing?

update: a friend who's a prosecutor wondered if I thought that in light of the official misconduct found by the jury and admitted by the cops we would want those cops, even absent the allegations of sexual assault. I thought the hypo was very instructive. I take it that the proven misconduct of the cops was very serious. But if you were to strip away the allegations of the sexual assault altogether, would the gov't have brought this case? I don't know enough to say; my guess is that absent any claim of sexual misconduct, there would have been reprimands but not termination. That's why I asked if the terminations were mandatory or discretionary. Maybe, in light of the allegations of misconduct of which they were acquitted, the police dep't  fired these guys because there was enough evidence to think it was terribly bad judgment even if there wasn't proof beyond a reasonable doubt of rape.

In other news:

Dave Fagundes, the Charlie Rose of the Law Review Review, has an awesome travel blog of his time in Argentina this summer. DF is justly famous not only for being the person holding the most MVP awards from Prawfsfest, and for referring to himself in the 3d person as DF, but he is also a former Let's Go writer; unsurprisingly, his travelogue is sharp and funny. Pictures too. Keep up with him here.

Those of you who have read the important Brown v. Plata case (overview here), I'm wondering whether you had the same reaction I did to Alito's insanely over-the-top description of the decision below, in which he stated “The three-judge court ordered the premature release of approximately 46,000 criminals — the equivalent of three Army divisions.” Alito seems either to overlook or not care that "3 army divisions" are capable of and indeed intended to perform coordinated action; there is no basis for an equivalence between that and the prisoners to be released in California. Alito's dissent made some otherwise plausible arguments about the overbreadth of the remedy and the way the policy choices were smuggled in as facts, but I found this and other rhetorical flourishes in the opinion to be off-putting and thus less effective in making his case. I take the decision, for what it's worth, to be good evidence of the proposition that the state can forfeit (at least partially) its warrant to engage in retributive blaming practices when it is failing to discharge its obligations of providing sufficiently decent care to offenders. Whether it marks progress from Farmer v. Brennan--that remains to be seen.

Last, and on a happier and tipsier note: for those of you attending LSA in San Fran next week (or even for those of you who are not but are still in or near SF), consider yourself invited to save the date/s! There will be a general happy hour next week with our friends from Co-Op and Glom, among others, Thurs at 9pm. Location to be confirmed imminently. It will be near but likely not in the St. Francis Westin.  Relatedly, the CrimProf happy hour will be Friday at 9pm, at the Clock Bar in the St. Francis Westin. More details and location to be confirmed soon, but mark your calendar to save the date and time. All are welcome at either one. Hope to see you there. I'm begging Ethan to guide me on an underground chowhound tour, but hopefully at places about as bougie as his last batch of posh recommendations.

The interpretive authority of consensus in the lower courts

Following up on my earlier post on today's Supreme Court decision in Fowler v. U.S., here is a post on another of today's cases: U.S. v. Tinklenberg. The case concerned how to calculate time under the Speedy Trial Act. Justice Breyer wrote for the Court, and it was a characteristically Breyerian opinion: The text could be read this way, but then again it could also be read this other way; and here are several (in this case, six) considerations that, taken together, lead us to adopt one interpretation rather than the other one.

Let's focus on his second consideration. The opinion tells us that, over the course of the last few decades, every circuit has answered the question at issue and, until the Sixth Circuit's decision here, every circuit ruled the other way. Breyer then states that "[t]his unanimity among the lower courts about the meaning of a statute of great practical administrative importance in the daily working lives of busy trial judges is itself entitled to strong consideration, particularly when those courts have maintained that interpretation consistently over a long period of time."*

Concurring in the judgment, Justice Scalia (joined by the Chief and Justice Thomas) concludes that the text is clear and so there is no need to consider anything else. In particular, he writes: "The clarity of the text is doubtless why, as the Court's opinion points out, every Circuit disagrees with the Sixth Circuit's conclusion. That is the direction in which the causality proceeds: Clarity of text produces unanimity of Circuits -- not, as the Court's opinion would have it, unanimity of Circuits clarifies text."

I'm not 100% sure what Breyer has in mind, but let's take a strong reading of his position, according to which the lower-court consensus has more than the evidentiary value of shedding light on the best interpretation of the statute. The consensus, instead, has force by virtue of its mere existence. That is, the fact that all the lower courts have adopted one interpretation is an independent reason (not conclusive, to be sure) to agree with them -- due to the interest in avoiding disruption, etc.

I am inclined to think that the strong view of the value of lower-court consensus, whether or not Breyer is actually embracing it here, states a normatively desirable principle of law. Cf. Eskridge & Frickey on "Law as Equilibrium."

* Note: I corrected a typo that appears in the current version of the opinion on the Court's website. (I'm not sure I corrected it the right way, though.)

Persistence. Pass It On.

So the Spring submission season didn't go so well for you?  That's nothing, according to this N.Y. Times obituary:

"[Dick] Wimmer, who after 25 years of submissions and more than 150 rejections finally got [his first novel] published — to very positive reviews — died on May 18 at his home in Agoura Hills, Calif., his son said. He was 74."

R.I.P.  And thanks for the inspiration.

 

The rule of lenity as a rule of federalism

Today's Supreme Court decisions included three interesting (aren't they all?) statutory interpretation cases: Chamber of Commerce v. Whiting (preemption and Arizona immigration regulation), U.S. v. Tinklenberg (Speedy Trial Act), and Fowler v. U.S. (federal statute against witness tampering). Here I will highlight Fowler. In an opinion concurring in the judgment, Justice Scalia advocated an interpretation of the statute that was more favorable to the criminal defendant than the interpretations advanced by either the majority or the dissent; he reached this result in part by citing the rule of lenity. That he should take a pro-defendant position here should not really be very surprising to people who pay attention to these sorts of cases. The thing I instead want to point out is the way his opinion weaves together lenity and federalism.

The rule of lenity -- the rule that unclear criminal statutes should be construed in favor of the defendant -- is typically justified on notice/Due Process grounds or separation-of-powers grounds. But in federal courts, there is an additional potential justification, namely that lenity can help prevent excessive federal encroachment on state criminal law. As Scalia's opinion contends, a broad reading of the statute at issue threatens to turn lots and lots of murders of witnesses into federal crimes. That would hardly be the end of the world, but it would read the statute to sweep beyond the core of the federal interest. (I don't claim to be making a new discovery here in pointing out the lenity/federalism overlap: McNally v. U.S. is sometimes cited as another example of this phenomenon.)

Before Prawf Rick Hills points it out, I suppose I should concede that, whatever interest it might hold, this discussion was going on in a concurrence. The rest of the Court didn't find much use for lenity.

"Storm" and Circumcision (and Palmore v. Sidoti)

Legal bloggers have written a good deal in the past few days about proposed initiatives in California to ban the practice of circumcision.  (Relevant links can be found in this CoOp post by Dave Hoffman.)  I'd like, perhaps slightly oddly, to link that discussion to this story.  It concerns a couple in Toronto that announced the birth of their child, Storm, but refused to announce the child's sex, as "a tribute to freedom and choice in place of limitation."  The parents argue that "parents make [too] many choices for their children," and that refusing to tell the world what the child's gender is, and refusing to impose on their children a set of strong expectations based on gender roles (their two sons, for instance, are free to pick clothes from the boys' or girls' section of the store), will allow their children to make their own choices.

In one sense the two stories are quite different: one is about a practice that is seen as imposed on one's child, and the other is described by the parents as being about the refusal to impose choices on their children.  But I think the stories are actually pretty similar.  As many commenters on the Storm story point out, Storm's parents have deliberately exposed their child to potential harm.  In his or her absolute freedom, Storm will also (so to speak) be buffeted by uncertainty, mockery, criticism, and even potential violence.  Storm's parents may believe Storm will be better off in the long run, but they are clearly not just thinking about Storm: they are using Storm to send a message to the world about their own hopes, dreams, and commitments, no matter the cost. 

In that sense, it seems to me that Storm's parents are actually in a pretty similar position to those parents who circumcise their children, not for medical reasons, but to demonstrate a religious commitment, even if that commitment is necessarily not yet the infant's choice.  Parents who circumcise their children for that reason (and I am one of them) are writing a message on their children's bodies.  They may believe the costs are small, but they know there are potential costs, and still refuse to leave the choice to the child later in life.  Storm's parents, similarly, are making a deliberate choice about Storm's upbringing, one whose unconventionality may expose Storm to genuine harm.  They know about these potential harms: Storm's brother, Jazz, says in an interview that he chose not to attend a conventional school because of questions about his gender, and that this decision upset him.  But they have chosen to act as they have with Storm nonetheless, as a "tribute to freedom and choice."  In other words, like parents who circumcise for religious reasons, they have chosen to use their child's life to send a message.  Storm's parents see themselves as making a strong statement about their child's autonomy.  But because they are making a statement, one that exposes their child to risks, they are also, like parents who circumcise, illustrating the ways in which parents may make choices that outweigh the child's autonomy.  It seems to me that, at least absent proof that circumcision will cause terrible harm to a child or proof that Storm will suffer no harm whatsoever -- that is, in circumstances in which both decisions carry potential but not certain and grave harm -- supporters of circumcision should also support Storm's parents' choice, and opponents of circumcision ought also to be critics of Storm's parents.

I also can't help but wonder what reaction both groups ought to have to a case like Palmore v. Sidoti, in which the Supreme Court held that a court could not decline to award custory of a child to the mother because the mother had remarried a person of a different race.  The trial court had believed that, given the biases of the community, the child would be "subject to environmental pressures not of choice," and that the child's best interests would therefore best be served by awarding custody to the father.  The Court held that "the reality of private biases and the possible injury they might inflict" must in this case be treated as irrelevant to the custody decision, lest the law "give [ ] effect" to those biases.  Surely there is an argument to be made that an opponent of circumcision, and/or a critic of Storm's parents, ought to be at least uneasy about Palmore.     

Interview with a law review article submission editor: Carl Engstrom of the Minnesota Law Review

There is a lot of discussion on law professor blogs, including but not limited to this one, about law review submission strategy.  And in those discussions, there is a lot of conjecture about how articles editors make their decisions.  I say “conjecture” because for some time, a voice missing from this discussion is one that could actually shed light on the selection process rather than having law professors guess at what matters and how to craft submission strategies:  law review article editors themselves. 

Fortunately, though, there’s been some contribution to this dialogue lately from law review article editors, most recently James Tierney's thoughtful series of posts at Opinio Juris.  In order to continue this dialogue, I interviewed my good friend and college classmate Carl Engstrom, who just completed his 2L year and is currently an article submission editor for the Minnesota Law Review.

Carl answered my many questions about the myths and non-myths law professors have about the article submission process, and our discussion appears below.  A few quick caveats are in order before beginning.  This discussion reflects Carl’s sense of the submission process, to the extent that he’s been through it as an article submission editor exactly once (spring submission season 2011).  And this discussion reflects only the views of a single articles editor at a single law review.  Obviously, things change from law review to law review, and may also be different at the same reviews as boards turn over.  But with that in mind, here we go:

Dave Fagundes:  Would you say the school letterhead under which a submission is made is a dominant consideration for articles editors?  Law professors certainly seem to think so.

Carl Engstrom:  It has some influence, which is probably unfortunate.  If a submission comes in from a professor at a fourth tier law school, there is likely some tendency to prejudge the work, so letterhead from lower-ranked schools may make it somewhat harder to get an article accepted.

That said, however, letterhead is never dispositive, and can be easily overcome if the substance of the article is impressive.  Minnesota Law Review in particular perceives itself as a journal that tends to be more aggressive in terms of taking articles that have impressive substance even though the author is not from a well-known school.  To give some indication, only 6 out of the 18 articles I bumped (i.e., recommended for review by the 5-person articles committee that ultimately extends offers) during the Spring 2011 submission season were written by professors at top-25 schools.  

And there’s a countervailing consideration:  We take this process seriously, and don’t want to think of ourselves as mechanically reproducing the US News rankings hierarchy, so this causes us to want to resist using a professor’s school as a simple proxy for quality.

The interview continues below the fold.

DF:  So what external factors—that is, factors other than the quality of the article itself—do influence the process?

CE:  The CV is probably the most important such external factor.  The author’s publication record is definitely taken seriously.  If they’ve consistently been publishing strong work, that makes a positive impression.   The author’s educational background and professional background are also influential.  For these reasons, the CV is the first thing I read, usually briefly, before moving on to the article itself.

DF:  What about the cover letter?

CE:  It’s usually pretty marginal, especially since so few authors include relevant information in it.  At the outset of submission season, I took a look at them, but as the season went on and we were crushed by the volume of incoming articles, I started throwing them away entirely unless they seemed to add really important information.

DF:  What kind of information in a cover letter would rate as really important?

CE:  Any information that indicates how the article has been perceived so far.  For example, if an article has been a big hit on SSRN and is getting a bunch of downloads and has been included on lots of big SSRN top-ten download lists, this is relevant because it suggests that the article will be cited heavily when published (and future citations matter to us a lot).  Also, if an article has been accepted for presentation at important conferences, this may be helpful information about how it’s perceived by peers.  Of course, we don’t necessarily know the significance of various conferences, so if an article has been accepted at a conference that is a big deal, or has received any other honors worth mentioning, authors need to explain that to us so we have a sense of why it matters.

DF:  How much does the “sexiness” of the topic matter?

CE:  Sexiness matters, but not for the reasons many people think it does.  Sometimes it can be a negative to write about a very current issue, because odds are that countless other people in your field are also writing about that issue.  For example, it seemed this past submission season that about a quarter of the incoming articles were about the financial crisis.  There were so many of them that writing about this subject matter probably decreased authors’ chances of acceptance, despite being very topical.

Subject matter can be a plus if it makes the article more interesting.  It’s appealing when an article takes on a topic that affects our daily lives.  Probably my favorite piece that I read, and that we will be publishing in next year’s volume, is about knockoffs of high-status consumer items, like a Coach purse, and the extent to which trademark should regulate transactions when people know they’re buying knockoffs (viz., “Veblen Brands and Invisible Hands in the Market for Social Expression,” by Jeremy Sheff).  This piece is not topical in the sense of relating to a major recent news event, but is very socially relevant in the sense that it relates to something we see around us every day.  This isn’t to say, though, that being current or trendy in any of these senses is necessary to getting published.  It helps, but quality is always the dominant consideration.  If an author seems to be arbitrarily trying to pique interest by picking a “sexy” topic, but the thesis seems uninteresting or poorly executed, that article stands no chance of going forward in the submission process.

DF:  What other factors aside from subject matter and, of course, quality of argument do you find influential when reading a piece?

CE:  It’s probably marginal, but formatting can make a difference.  Some articles come through cleanly formatted and looking like they were made with a law review template in terms of margins and running header.  Others look like standard MS Word documents, and sometimes have weird fonts or other formatting quirks—this doesn’t help make a good first impression.  I should emphasize that while an editor would never consciously make a decision on such a basis, on a subconscious level, it’s easier to imagine a piece being in your journal if it is formatted like an article in your journal.

Related, and probably more important, it helps if an author has made an effort to clean up the footnotes.  Obviously we don’t expect articles to be perfectly Bluebooked, but some pieces come through where the author has clearly made no effort to Bluebook the footnotes at all.  In very close cases, these kinds of articles are less likely to make it through the process.

DF:  So now let’s talk about expedites.  Lawprofs tend to think they’re hugely important.  Is this right?

CE:  Expedites drive the process, but don’t guarantee a good result.  When the process is at its peak in mid-to-late March, it’s a crisis-driven process, and the articles editors and board are just barely keeping up with the massive workload.  Often we’re getting 5 expedites a day, and at its peak this year the articles board was meeting 3 to 4 times a week to discuss at least ten “bumped” pieces at each meeting.  However unfortunate this may be, articles that are not on expedite aren’t going to get immediate attention, because there is no time imperative to review them. 

So an expedite can get articles editors to look at a piece sooner than they would have otherwise, but this doesn’t mean they’ll be more likely to accept it.  For one thing, the source of the expedite matters, probably more than it should.  If an author expedites from a specialty journal at an obscure school, that won’t have as much of an impact as an expedite from a mainline review at a peer institution.  In fact, I think that an expedite from an obscure journal may actually hurt the author’s chances of getting an offer extended, because subconsciously editors may associate the piece with the source of the expedite.  Again, we know this isn’t ideal, and in a world of infinite time we’d certainly ignore these kinds of proxies, but when you have as little time as we do, it’s an unfortunate necessity. 

This kind of expediency is also a two-way street.  We’re also well aware that lawprofs are often just using us as a step in their own expedite process, and we have to be resigned to the fact that after doing lots of work and getting excited about an article, we’ll make an offer, only to have the author use the offer to aggressively seek to place at higher-ranked journals. 

DF:  Any thoughts about the ideal time to submit an article?

CE:  It’s impossible to pick a date that will be ideal for all journals, since schedules change from year to year, and boards turn over at different times at different schools.  But just this past year at Minnesota, I’d say that submitting late February-early March was probably ideal, because while our process tends to be going most actively in mid- and late March, it takes a while to get an article into the queue, so submitting much after mid-March can make it harder to get attention as the board and editors are swamped with looking at the hundreds of articles that were submitted a few weeks before.

DF:  OK.  Is there a time past which submitting is just a waste of time?

CE:  It’s probably a waste of time to submit an article after early-to-mid April, because by then most of the slots are full, fatigue has set in, and it’s probably better to wait until fall.  I can speak from personal experience in saying that by mid-April, it was extremely difficult for any article to stand out.  My rates of “bumping” pieces plummeted after around April 1st.  But in theory, it’s always possible to place an article regardless of when it’s submitted.  If we got something in May that was an absolute blockbuster, we would make an offer; it’s just rare that this happens since almost all submissions happen during peak spring and fall seasons.

DF:  Is there anything authors do that tends to reduce chances of acceptance?

CE:  Well, again, thesis is everything—a persuasive, interesting, well-supported piece will likely succeed regardless of ancillary considerations.  But one thing authors do that can cut back against even a persuasive thesis is overstate its importance.  Obviously it’s helpful to explain the importance of your claim, but it’s pretty obvious when authors overclaim this, by asserting that their suggested fix to a subset of the habeas corpus statute will cause a foundational re-imagination of the landscape of American law.  So it’s great to be ambitious, but don’t overdo it.

I’d also suggest including a CV, for the reasons we discussed above.  Some authors include their CV within the cover letter, which can cause it to get lost or overlooked, so don’t do that either.  And also as we discussed before, poorly or strangely formatted articles with sloppy Bluebooking are less likely to be taken seriously, though this can be overcome by outstanding content.

Final point on this issue:  it’s a joke among our group of articles editors that every other article has the phrase “much ink has been spilt” in the introduction.  I’m not sure why this happens to be such a frequently used cliché, but it’s way overused, and I’d suggest avoiding it because it comes off as unoriginal and kind of annoying.

DF:  Great, so at a big-picture level, how much of an author’s success in the submission process seems due to status, strategy and gamesmanship, and how much is about the quality and content of the article. 

CE:  It really is much more about content than anything else, though this depends on the stage of review.  At the initial intake stage, especially when the submission season is at its peak and we’re all swamped, ancillary issues like status or formatting might loom larger than at other times.  But once an article makes it to the Articles Committee, it’s really all about the article—its relevance, quality of reasoning, and originality. 

DF:  Any final thoughts for authors?

CE:  Yes.  A few of us read the lawprof blogs, including this one, and it’s always dispiriting to see how much apparent contempt there is for articles editors, with authors dismissing us as “stupid 2Ls” who don’t know anything about their areas of expertise.  For one thing, we’re well aware that we don’t know nearly as much as the professors who are writing and submitting these articles, and because we are aware of our own shortcomings, we work incredibly hard to try and make every decision we make an informed one. 

And if a law student has chosen to be on law review, and then opted to be an articles editor, they’re someone who is really interested in legal scholarship, and also look up to the professors whose articles we are publishing.  To read these same professors refer to our work, or even our intellect, in such negative terms is quite upsetting.  So a little more generosity of spirit toward those of us who give up our time to edit and publish your articles—for free, after all—would be nice.

Thanks to Carl Engstrom for taking the time to answer all of my questions in such detail.  I hope this has been helpful to authors of law review articles in getting a better sense of how the submissions process works.  I’ve given this link to Carl, and he’ll be keeping an eye on the thread, so if others are interested in posing questions about the process, feel free to continue the discussion with Carl in the comment thread.

Sports and Politics, mix

Let no one say sports and politics do not mix all the time. In DC's Congressional Softball League, a team from the Office of National Drug Control Policy (the "Czardinals") pulled out of a scheduled game with a team of people from various drug-policy reform groups (the "Capitol Hemp One Hitters") (H/T: Deadspin). According to a press release issued by the One Hitters, this is the sixth time that the Czardinals have backed out of a game with them--reflecting on the softball field that office's attitude "on the national stage" towards those who even propose or want to discuss legalization as a policy option.

How Should Elected Judges Interpret Statutes?

Federal judges are unelected and, basically, politically unaccountable. Most state judges are elected in some form or another. What (if any) significance does this hold when it comes to how judges should interpret statutes? There is some evidence that modes of selection and retention do in fact affect judicial behavior, but here I am asking the normative question. Should a judge's elected character make a difference to the judge's interpretive method?

A) No. What matters is the judicial role. That role determines the proper interpretive method. How one got into the role is irrelevant.

B) Yes. Elected judges can legitimately engage in looser interpretation or more aggressive interpretive maneuvers because they have a better democratic pedigree. (I concede that some of the terms being used here are vague, contested, complex, etc. but I hope they have enough content to allow the reader to agree or not.)

C) Yes, but in the opposite way. Elected judges have to be more restrained precisely because they lack the right kind of independence.

D) None of the above.

As you might guess, this issue is implicated in one of my current research projects. I am tentatively endorsing B. Perhaps you can save me from making a fool of myself by explaining why I'm totally wrong before I post the draft on SSRN.

Entry Level Hiring: U.S. Advanced Law Degrees

At request, I've broken out U.S. law schools from which entry level candidates received (or expected to receive) higher law degrees: LL.M.s, SJDs, or JSDs. (Unlike the other summary of degrees, this includes both Other Degree (1) and Other Degree (2).)

LL.M. or LL.M. expected: Georgetown 6; NYU 3; Yale 3; Florida 2; Harvard 2; Duke 1; JAG School 1; Penn 1; Temple 1; U Conn 1; Wisconsin 1. (The high number of Georgetown LL.M.s may be due at least in part to the fact that some of the Georgetown teaching fellowships also result in an LL.M.)

SJD, JSD  (or expected): Cornell 1; Harvard 1; Michigan 1; Penn 1; Yale 1.

Update 5/25/2011, 2:17pm: The Berkeley JSP program does not issue advanced law degrees (it grants PhDs), but the PhDs it issues are higher degrees granted by a U.S. law school. This year, there were two entry level hires who had or were expecting a PhD in JSP from Berkeley Law.

Why Is It So Hard to Publish an IP/Tax/Admiralty/WeirdLaw Article?

“We would have accepted this article in February,” one editor-in-chief kindly wrote me not long ago, “but we’ve already accepted a tax article this year.”  At the time, I took this as likely an editor’s version of “I have to wash my hair” and tried not to take it too seriously.  A couple of  weeks ago, though, at the OJ (as previously highlighted by your humble correspondent), a recent Chicago Law Review editor said much the same thing: once his journal takes an article from a “specialty” field, the bar is much higher for other pieces in the same field.  Because I enjoy pointless sword fights and extremely bad Scottish accents, I’ll call this the “Highlander effect”: there can be only one specialty article per volume. 

It’s easy to understand the institutional dynamic that produces the Highlander effect.  (It’s a little harder to understand why you’d cast a fellow with a thick Swiss accent as a Scot, but let’s save that for another post.)  Articles editors typically have diverse interests--often by design, in order to maximize the board’s capacity to evaluate a range of topics.  Given a limited number of publication slots,  some combination of log rolling and feelings of fairness to others’ preferences means that boards will rarely be able to accept multiple pieces that would satisfy some “outlier” preference.

This scarcity has a number of undesirable effects.  For one, it produces a race to the “submit” button -- exactly the race lamented by our OJ commentator.  It adds significantly to the randomness of placement results, reducing their signaling value.  Or, alternatively, it produces repeated submissions of essentially the same piece to multiple boards, another practice rightly decried at the OJ as wasting journal resources (and, y’know, recidivism is pretty annoying for us authors, too).  Conceivably it raises significant conflict issues for peer reviewers submitting in the same cycle (or narrows the pool of unconflicted reviewers).

What’s most vexing about this particular Highlander, though, is that it’s driven entirely by the assumption that available slots are limited.  Why not just park the second excellent tax article in the next volume?  Well, that’s a thornier one.  Let’s pause for comment & come back for a Part II.

The Obama Administration and the NDAA

I've been rather critical of the Obama Administration, both on this blog and elsewhere, for what might best be described as a frustrating degree of timidity when it comes to some of the key national security debates of the day, particularly where detainee issues are concerned.  Thus, although I had been troubled by the Administration's silence on the "new AUMF" buried within the House version of the National Defense Authorization Act, and the restrictions on the President's power to transfer detainees either stateside or to third-party countries, it hadn't exactly been surprising...

With that in mind, I was quite pleased by the discussion of the detainee provisions in the NDAA contained within the Statement of Administration Policy released today. Quoting from it in relevant part:

The Administration strongly objects to section 1034 which, in purporting to affirm the conflict, would effectively recharacterize its scope and would risk creating confusion regarding applicable standards. At a minimum, this is an issue that merits more extensive consideration before possible inclusion. The Administration strongly objects to the provisions that limit the use of authorized funds to transfer detainees and otherwise restrict detainee transfers and to the provisions that would legislate Executive branch processes for periodic review of detainee status and regarding prosecution of detainees. Although the Administration opposes the release of detainees within the United States, Section 1039 is a dangerous and unprecedented challenge to critical Executive branch authority to determine when and where to prosecute detainees, based on the facts and the circumstances of each case and our national security interests. . . .  The prosecution of terrorists in Federal court is an essential element of our counterterrorism efforts - a powerful tool that must remain an available option. . . . If the final bill presented to the President includes these provisions that challenge critical Executive branch authority, the President's senior advisors would recommend a veto.

Kudos to the Administration for finally taking a public stand on these issues--not to mention the right one, in my book. For more, see Bobby Chesney's insightful take over at Lawfare.

The So-Called Vicinage Clause

In doing research for my latest project on the Cruel and Unusual Punishments Clause last night, I took a detour and started looking at some materials on the origins of the Vicinage Clause of the Sixth Amendment.  The Vicinage Clause requires that, in a criminal case, the jury be drawn from "the State and district wherein the crime shall have been committed."  I discovered something I had never realized:  it's not a "vicinage" clause at all.

One of the main objections the Anti-Federalists had to the Constitution was that it did not contain a sufficiently robust jury-trial right in criminal cases.  Article III, sec. 2 did provide for jury trials in criminal cases, but it required only that the "trial . . . be held in the State where the . . . Crimes shall have been committed."  Anti-Federalist writings of the period are replete with the sentiment that this provision is insufficient to protect the common-law right of trial by jury, which encompassed the right to be tried by a jury of the vicinage, which typically meant the county or other locality where the crime occurred.  As Anti-Federalist writer Brutus put it, a person could "be brought from Niagara to New-York, or carried from Kentucky to Richmond for trial of an offence."  Many of the state constitutions guaranteeing the right to a jury trial in criminal cases used the word "vicinage," as did virtually all of the proposals to amend the Constitution by the State ratifying conventions.  And James Madison's proposed amendments, which passed the House of Representatives, also used the term "vicinage."  But when the proposal went to the Senate, that body preferred the term "district."  According to a letter from Madison to Edmund Pendleton, dated Sept. 23, 1789, the Senate would not budge when the dispute over the language went to conference committee.  So the amendment was adopted two days later with the Senate's preferred term "district" rather than "vicinage."

What is critical to realize is how different a "district" is from the "vicinage."  On Sept. 24, 1789, the day before the Sixth Amendment was approved by the Congress, President Washington signed into law the Judiciary Act of 1789.  That Act created 13 federal districts:  one for each of the 11 States that had by then ratified the Constitution, plus one for Kentucky (which was then part of Virginia) and one for Maine (which was then part of Massachusetts).  That is to say, other than the districts of Kentucky and Maine, the districts were coterminous with the States.  So other than defendants in those two districts, no one really benefitted much from the Vicinage Clause, for it did nothing more than Art. III, sec. 2 already did except to require not only that the trial take place in the State where the crime occurred but that the jury also be drawn from that State.  While this takes care of Brutus' Kentucky-to-Richmond example, one could still be "be brought from Niagara to New-York" for trial by a New York jury for an offence committed hundreds of miles away.

I had never realized that the Anti-Federalists actually lost the battle for a true vicinage clause.

A Petty Plea to Our Friends at SSRN

I probably download five to seven articles a day from SSRN, which, to be clear, is not how necessarily how many articles I actually read. I have two quibbles about the downloading process. First, when I click on One-Click Download, I normally I have to click it twice for it to actually download. What's up with that?

More importantly, when it downloads, I have to rename each paper that I plan on keeping. That's because the paper defaults to be saved as SSRN-idXXXXXXX, where the X's are some random # associated with SSRN's filing system. I understand that, to the SSRN database, each of our papers is just a random #.  So sad. Seriously though, to users, we normally save papers with some useful descriptor so we can identify it quickly in our My Docs folders: e.g., Leib on Friendship 2011. My preference would be that SSRN create a better name default so we don't have to rename the papers once they're downloaded. I would prefer something like Markel 2011 on Democracy and Retributivism. Name, year, and a phrase. If you wanted to rename it on your own you could, but there'd be a useful default name at least. And when the author is submitting the paper to SSRN, she could be given the choice of what the short name would be if she didn't like the default.

If this were possible, it would save me a few minutes a day, and I'd have a better organized documents folder. So Gregg Gordon, can it be done? A few minutes here, a few minutes there, pretty soon you're talking real time! Whether that's more time for more scholarship or Angry Birds, I leave to you...

Two-Tiered Law Firm Tracks and Hiring

Today's New York Times has an interesting article about what it deems a new phenomenon of big law firms creating a "permanent associate" track.  These associates work in small-city back offices (the article profiles the Orrick office in Wheeling, W.V. and WilmerHale's office in Dayton), and make a lot less money -- $50,000-$65,000, according to the article.  But the associates profiled seem to like it: they say they're doing challenging work, but with fewer working hours expectations.

There's a lot interesting here, from the "in-country outsourcing" angle to the question about whether those offices will become a pink ghetto.  But for now I'm curious about whether this development might have differential impacts on law schools and their grads.  For example, Wilmer's executive director is quoted as saying, in reference to Dayton, that "there's a big, low-cost attorney market there."  That comment at least implies that the firm has its eyes on using local legal talent, rather than staffing the office with the attorneys it would normally hire.  (Of course that could also be complete window-dressing to obscure the cost-cutting nature of the entire project.)

I suppose that, all other things being equal, the firm would prefer to continue hiring the cream of every year's crop, and simply giving each new hire the option of what I'll call "the Dayton track."  But maybe not.  It might be in the firm's interest to segregate the two associate classes so they don't have the same informal network in which they can compare notes and keep tabs on all the ways in which the Dayton-track associates are and are not being treated equally -- and, indeed, so the front-office lawyers aren't as aware of how many fewer hours the Dayton lawyers are being expected to bill.  Hiring local talent for the Dayton-track lawyers might also create more stability -- a Georgetown grad from Long Island is presumably more likely to keep her eyes open for chances to move to a front office operation closer to where she might have originally expected to live, while a local grad might well be delighted at the opportunity to work for a name-brand firm right at home. 

There's also the question of how many "cream of the crop" grads would accept a Dayton-track job.  In this market, of course, a lot of them might.   But they (and career counselors at schools that send a lot of grads to Biglaw) will have to do some thinking about what a back-office job might look like on a resume.  It's at least plausible that a top-tier grad facing a Dayton-track job or no law firm job at all might opt for the latter, on the theory that the former will reflect some kind of failure, or, at best, an ambivalence about putting in the hours required to succeed in a front office operation. On this point it bears noting that the two associates profiled in the article graduated from Northwestern and UVA, so maybe there will always be enough top-tier grads willing to staff these offices.

All of this is speculation; who knows how this phenomenon will play out.  But if I were a dean at a lower-ranked school in a small city I'd be scheduling business calls on Biglaw managing partners, touting my town's low cost of living (making back-office salaries acceptable) and easy access to major cities, and how anxious my grads would be to work in that firm's back office.

Photos in Supreme Court Opinions

The Supreme Court has just issued the decision in Brown v. Plata.  The Court, 5-4, upheld the district court's injunction ordering the release of up to 46,000 California prisoners to remedy unconstitutional overcrowding.  Notably, the Court appended three photographs to the opinion to demonstrate the overcrowding.  I recall that in Scott v. Harris, the Court attached a link to the video of the police chase at issue in that case, and re-districting cases sometimes include maps.  But does anyone know of any other case in which the Court has attached photographs?

Entry Level Hiring: JD Schools

One of the questions this year's entry level hiring post addresses is, "How many people who got their JD from School X were hired on this year’s entry-level market?" Brian Leiter has done a definitive study on this question over time for graduates since 1995 who are teaching at the top 43 law schools. I thought it might be interesting to the look at this question for entry-level hiring reports from 2004 to this year. The below represents data pulled from Larry Solum's entry level hiring reports for 2009, 2008, 2007, 2006, 2005, and 2004 (I omitted 2010 because not much data was collected that year), and from this year's hiring report to date.

N.B.: This is as reported on the entry level hiring reports only. I cannot emphasize enough how incomplete this is. To get a real picture of entry level hiring over time, one would have to take Leiter's approach and look at the faculty of various law schools. This is a report on entry level hiring reports, not on entry level hiring.

That said, here's what I found (if you click on the picture, it will get bigger):

Each year, Harvard and Yale together are the source of the initial JD of between 25% and 35% of the hires listed on the entry level hiring report; the group of NYU, Michigan, Chicago, Columbia, Stanford, Berkeley, and Virginia (I selected these schools because these were the schools that had provided at least five hires in more than one year) provide the JDs for 30% to 40%; and all other schools represent 35% to 40%. All this seems pretty stable across the last seven years (though perhaps I am missing something).

Here's the spreadsheet I used to generate this graph. There are three tabs: some schools broken out, schools combined into the graph categories, and the graph itself. Some of the schools broken out (Texas, UCLA, Georgetown) ended up in the "other" category because they didn't represent more than five hires reported in more than one year. 

As always, I look forward to hearing your thoughts, comments, suggestions, etc.

Also, remember: this is very incomplete and wrong as a report of entry level hiring, because it is based on years of incomplete data. If you want to know about real entry level hiring, I commend to you Brian Leiter's report and the Katz et al. article. This is just a report about entry level hiring reports. 

Inching towards jurisdictionality

A recent Second Circuit decision, New York City v. Mickalis Pawn Shop, caught my civ pro eye for its examination of the link among personal jurisdiction, appealability, and default judgments--it may provide some nice exam fodder. The case involved two non-New York gun dealers sued by New York City on a public-nuisance theory, attributing NYC gun violence to these out-of-state sales. These two defendants had challenged personal jurisdiction in the district court, lost, then defaulted. It turned out the case also had a nice jurisdictionality issue: Whether the Protection of Lawful Commerce in Arms Act ("PLCAA") of 2005, which prohibits civil actions in state or federal court against members of the gun industry for liaility resulting from third-party violence, was a limit on the court's jurisdiction or an affirmative defense defeating the substance of claims such as this one by New York City.

I was reading this portion of the opinion, thinking "Boy, this all sounds familiar." Then I remembered--I wrote about this basic issue once upon a time. The Second Circuit  correctly concluded that it was non-jurisdictional and a limit on the substantive cause of action. It ckted Arbaugh and Henderson (the Court's most recent statement on jurisdictionality) for the standard that a provision limits the courts' adjudicative power only if Congress says so in clear language, by speaking to the courts in terms of judicial power. There was no such jurisdictional language here, so the PLCAA was not jurisdictional.

Correct conclusion, although I would have preferred the court take a slightly different analytical course. I wrote not about the PLCAA, but about the "Cheeseburger Bill," the Personal Responsbility in Food Consumption Act of 2005, which was considered at the same time as the PLCAA but died in the Senate. It would have imposed identical limits on lawsuits against the fast-food industry seeking to recover costs related to obesity and other health problems. Both are examples of what I described in the article as Congress statutorily overriding common law rights, rendering those rights and corresponding duties non-existent as law, and defeating any action to vindicate those rights or enforce those duties. But that limitation on rights goes to the merits (in an early draft I called this "merits stripping," but no one lacked that phrase). The claim fails because there is no existing legal right to enforce or vindicate (because of the federal statute), although the federal law does not deprive the court of its core adjudicative power.

More recently, I argued that Arbaugh's clear-statement rule is the appropriate line between jurisdiction and procedure, since the overlap or potential confusion between them is likely more common and the line between them much softer. For a jurisdiction/merits divide, however, I would look only to the more absolute language from Justice Scalia in last term's Morrison v. Nat'l Australia Bank, in which he stated that to ask what conduct a rule of law reaches is to ask what conduct it prohibits, which is always a merits question. Under this approach, the only issue in Micaklis should have been whether state negligence law, as now limited by the PLCAA, reaches and prohibits (or regulates) the defendants' conduct. Clearly it did, by describing the real-world conduct that no longer gives rise to a claim for relief, thus indicating the line between permissible and impermissible real-world conduct. After the PLCAA, the common law does not regulate the defendants conduct anymore, given the PLCAA's language, thus the claims fail on the merits. And implicitly, Congress could not change this by throwing jurisdictional language around, unless it was in a provision truly aimed at the adjudicative authority of the courts.

The nice thing about the Supreme Court's recent jurisdictionality rulings is that it is pushing lower courts to reach correct conclusions of non-jurisdictionality and courts are following that guidance, just as the Second Circuit did here. Let's hope perfect reasoning for those conclusions comes next.

The Legislative Catnip of Crime Registries

Just in case y'all missed it, here's a link to Erica Goode's very interesting story from the front page of today's NYTimes about the way states are thinking about expanding eligibility for their crime registries and communal notification requirements. My beloved FSU colleague, Wayne Logan, is probably the leading scholar in the country on this topic -- here's a link to his recent book -- and unsurprisingly, he appears in the story with some great commentary.

Responding to the loss of an en banc quorum (Update: PrawfsBlawg gets results!?)

(Update on 5/24: Last Friday I posted the item below suggesting a tweak to the Fifth Circuit rules. As a comment on the post points out, yesterday the Fifth Circuit issued notice of a proposed amendment taking an approach similar to what I proposed. Because I am so modest (and non-delusional) I will disclaim any causal effect. Nonetheless, I am not so modest as to refrain from suggesting that great minds think alike!)

As you probably know, there are a good many lawsuits out there concerning various aspects of climate change. One particularly interesting and unusual decision was the Fifth Circuit's decision in Comer v. Murphy Oil. Or rather non-decision, as we'll see.

To summarize the proceedings: The plaintiff landowners brought state tort claims against the defendants (mostly oil companies) on the theory that the defendants' contributions to global climate change increased the ferocity of Hurricane Katrina, thus damaging plaintiffs' property. The district court dismissed on justiciability grounds. A Fifth Circuit panel reversed and remanded for further proceedings on the merits. A rump of the en banc court, substantially diminished due to numerous recusals, then voted the case en banc. This vote had the effect, according to Fifth Circuit Rule 41.3, of automatically vacating the panel decision. (The Fifth Circuit is not unique in this regard, so the scenario described here could occur elsewhere.) After the en banc vote, yet another judge recused, arguably depriving the en banc court of a quorum. The majority of the remaining judges then decided that they lacked the power to proceed and that the only thing they could do was dismiss the appeal for want of a quorum. In particular, they decided that they could not undo the vacatur of the panel opinion, meaning that the district court's decision, which you'll recall the panel had reversed, remained in effect.

Now, the dissenting minority of the remaining judges took issue with this disposition on a number of grounds, including by disputing that the court had lost a quorum. For purposes of this post, let's assume that the court did indeed lose a quorum and that the en banc court could not proceed further. The outcome of this state of affairs in Comer was that the appellants did not get a decision from the court of appeals, thus arguably depriving them of their statutory right to an appeal and complicating their ability to seek further review. One way to avoid this result is to amend the circuit rules so that the decision to take a case en banc does not vacate the panel decision. Of course, one credible objection to that approach is that the court might not want the panel decision to be valid after it has been voted en banc; after all, the panel decision might have been taken en banc because the majority of the court disagrees with it. If that is the problem, though, why not just provide that the en banc vote depublishes or otherwise strips precedential effect from the panel opinion? See the advisory committee note to Ninth Circuit Rules 35-1 to 35-3. That way, the panel decision isn't binding on later panels or district courts, but the parties still have a merits disposition. Or, if you prefer, let the en banc vote continue to vacate the panel decision but amend the rule so that the subsequent loss of a quorum automatically reinstates the panel opinion but in unpublished non-precedential form.

To be sure, this is hardly the most pressing problem facing the federal courts, but this seems like a pretty easy fix, no?

Advice to the New Summer Associate in Big Law

As a sequel to an old post advising new junior associates in big law (here), below are some nuggets of wisdom for those rising 3Ls and (fortunate) 2Ls about to spend a summer at a big firm.

Do Less Well

The firm’s assessment of you will be based more on how well you performed on the assignments you were given and less on how many assignments you completed.  Beware the natural inclination to hand in an assignment too quickly in the pursuit of yet further assignments.  This is probably the most costly mistake summer associates make.  Keep people abreast of your progress, but take as much time as you need.    

“S/He cannot Even do this Right!”

The expectations of the substance of your work product will be low.  This has the unfortunate effect of inflating the expectations of the formal and technical aspects of your work.  Spelling errors, typos, using a sample and failing to insert the name of the new client in the caption, saving your work to the wrong hard drive, forgetting the page numbers etc. are often blown out of proportion.  So proofread! proofread! proofread! proofread! and then proofread some more.  

 Do not be a Brat

Many partners resent the summer associates, especially during an economic downturn.  After all, that signed Chagall lithograph is not going to pay for itself.  I recall tagging along to a meeting of a defense team that comprised the very best white-collar crime litigators in NYC.  At the end, one of the partners from the hosting firm invited us all to “yet another party we are having for those brats.”  Everyone but me – the only summer associate – laughed.  Your aim is therefore to project an image of a thankful adult, as opposed to a spoiled brat complaining about the quality of the hors-d'oeuvres, that the Broadway show was not the most expensive show around, or that at Skadden they already upgraded to the newer Blackberry.  It will surprise you how much of this goes on.           

Getting an Assignment

Always have a pad and pen.  When given an assignment ask questions.  Better to ask even the dumbest question at the beginning than have to ask midway.  Some basic things to know: what the deadline is; the scope of the assignment; the jurisdiction; the partner on the case; the name of the client; the billing number.  Do not leave the room until you feel comfortable that you know what it is you are being asked to do.  Worrisome of appearing ignorant and not wanting to waste a superior’s time, summers have a tendency to scribble the instructions on their pad with little understanding, thinking that they will figure things out later.  This is a sure recipe for wasting everyone’s time, including yours.    

“I’m FROM CORNELL, where are you from?”

Don’t do that.

Be Part of the Team

The fact that your discrete assignment is complete does not mean that there is no work to be done on the broader matter.  Inquire.  Offer to help.  Do not leave for home or some firm event before checking in and finding out whether there is more to be done.  Associates will appreciate you for this.      

The Long Run 

Although your main goal is to obtain an offer for permanent employment, do not lose sight of the long-term goal: having a successful career at the firm.  Any negative impressions you leave people with during the summer will catch up with you a year or two later when you return.  Remember this when interacting with junior people at the firm who may have little power over your offer prospects.  The lowly second-year associate of today may be the mid-level associate who makes your life hell tomorrow.  

Give Everyone thy Ear, but Few thy Voice 

Everyone at a law firm gossips about everyone else in the firm.  If there is something you do not want the firm or others to know, confide in no one.  At least not until you have formed some consistent and reliable friendships.      

 Eye on the Prize

Regardless of whether or not you are certain about spending your first post-graduation years at a big firm (and there are weighty reasons not to), act as if that is your aspiration.  Your primary goal should be obtaining an offer for permanent employment, and a firm is less likely to give such an offer to noncommittal candidates.  Keep your reservations about geography, practice area, your dream of joining Amnesty International, your secret desire to get a slot with a top-ten ranked firm (there are as well weighty reason not to) etc. under wraps.  Once you have the offer, there may be room for delicate negotiations.

Those RAH-RAH Folks in Recruiting

They may seem like your friendly camp counselors, but they are constantly assessing you.  Do not trust them.  Assume everything gets reported back to the hiring partners.          

What do YOU Want?

You are assessing them just as they are assessing you.  Do not allow your pursuit of an offer and eagerness to please to distract you from asking yourself – and mostly only yourself – whether the firm appeals to you.  Look more to how people at firm act and appear and less to what they say.    

Church-state arrangements, religion, and violence

My colleague Dan Philpott, and his co-authors Tim Shah and Monica Toft, have a nice essay-summary up, at Public Discourse, of their new book, God's Century.  This bit might be of interest to those of us (I'm looking at you, Horwitz) who have been looking at the "institutional" dimension of First Amendment freedoms:

A (typically) thoughtful piece by Tim Shah, Dan Philpott, and Monica Toft:

. . . [R]eligion has made a political comeback, abetted by globalization, democratization, and technological development. Those religious actors who are most closely integrated with state authority and who hold a political theology that calls for state sponsorship, the subordination of minorities, and the use of violence are most likely to be violent. Those who have remained independent of state authority and carry a political theology that prescribes democracy, peace, and reconciliation are most likely to be peaceful and democratic. . . .

. . . [W]here government and religion lack institutional independence, the result is likely to be conflict, whereas independence is a precondition for democracy and a mediating influence. Thus it seems that a healthy institutional independence between religion and state is good for everyone, everywhere. This carries with it an important lesson for policy. While it does not mean that the U.S. ought to replicate exactly the first amendment of the Constitution, it does mean that a healthy secularism of separation is better for democracy, human rights, and peace, on one hand, and for the flourishing of religion, on the other. . . .

How to Lose Friends and Not Alienate People

I have been puzzling over the best way to defriend on Facebook lately.  I think the following pattern is probably pretty common: 1) join and enjoy Facebook; 2) get excited about all the folks you can friend ("Hey, Richard Posner is on Facebook!"); 3) realize that given your influential friends, you can no longer post  in the carefree way you once did ("Hey, I can't post that joke about prostate vs. prostrate -- Richard Posner might see it!") and that 4) some of your non-influential "friends" are not really friends and have grown tiresome ("Damn, I am sick of getting those prostate-vs-.-prostrate jokes from X.")  

At that point, one's options are limited.  One can cull friends, starting with the most obvious suspects and proceeding from there; but one risks offending some of those people when the defriending is discovered.  (I am assuming that the primary actor here is an over-sensitive, risk-averse, craven individual.  No resemblance to myself is intended.)  One can eliminate everyone with a flimsy excuse ("I need a break from Facebook"), and then selectively refriend; but this is usually discovered too.  One can create two Facebook accounts, one for personal and one for professional friends.  But the Senate Judiciary Committee will probably eventually look at both anyway, and even under this approach too many non-friend "friends" will still end up clogging your life.  

Perhaps I've been spending too much time rereading Cryptonomicon lately, but I think what is needed is some kind of random-number-generator Facebook app.  Call it, say, The Lottery, after Shirley Jackson's story.  It will simply randomly generate a number of friends and automatically delete them every so often.  Perhaps a nice impersonal notification can be sent out.  ("You have been defriended by Paul Horwitz's Lottery App.  This was a the result of a random number generator and is in no way personal.")  That way, you can cut down on unneeded friends and return to the heedless and irresponsible posts and baby pictures you used to put up when you only had a couple of hundred friends; and, like customer service reps everywhere, you can simply blame it on the computer.  

The only fly in the ointment, I suppose, is that if you have chosen to use The Lottery, you can be held responsible for the unfriendliness of doing so in the first place.  Perhaps, as in Jackson's actual lottery story, we should simply make this an automatic feature of Facebook for every member, without an opt-out possibility.      

Farewell to all that

I've been a lousy Prawfsblogger in recent months (ed.:  only "in recent months"?) and the explanation, though not the excuse, has been, I think, my winding-down gig as "Associate Dean for Academic Affairs" (i.e., for student-related stuff).  It's been a learning, rewarding, and humbling experience.  There's so much that goes into the health, happiness, and overall enterprise of a law-school community than I, notwithstanding what I like to think was my pretty high level of engagement with my teaching, scholarship, and service, realized.  Questions come up that, looking back, I didn't realize (though, looking back, I probably should have) someone had to answer (or know how they should be answered); some questions that I thought were and would be easy turn out not to be; some skills that I didn't realize were very helpful turned out to be both needed (and, I suspect, not-fully-possessed).  Live (and work) and learn!

In July, I'm taking on the "Associate Dean for Faculty Research" job.  And, I cannot help wondering what advice the future me (or anyone else!) would give current-me.   

Should Jurisprudence Be a Required Law School Course?

Note: the following is a guest post from Patrick Luff, who will be VAPing at W and L, and is currently at Oxford:

In doing some extracurricular reading on jurisprudence, I’ve been struck by how it can yield additional layers of understanding and meaning to any area of the law. No U.S. law school I know of requires students to take classes in jurisprudence or legal theory, and I expect that many U.S. lawyers have never read a word about jurisprudence (excluding that part that overlaps with constitutional theory, which they might get a bit of in their con law course). On the other hand, at the University of Oxford and some other law schools in the United Kingdom, undergraduate law students are required to take jurisprudence.

Granted, as most jurisprudence scholars recognize (usually on the first page of their books) that isn’t directly related to law practice­—you can’t plead that a law is invalid because it’s basis is an ought derived from an is. But if I were designing a law school curriculum from scratch, I might require jurisprudence as an upper-level course. I would make it required, rather than merely offered, because I think it would enhance students’ understanding of the other subjects they had studied. On the other hand, I wouldn’t place jurisprudence in the first-year curriculum, because I suspect that reading jurisprudence is a more enriching experience if you first understand the basics of how we use the law. Having examined various subjects in the rest of their courses, students might benefit from looking at the big picture of what law is­. I’m willing to admit, however, that my suggestion may be nothing more than the conceit of a law professor who thinks that jurisprudence is interesting, and that law students should therefore take an equal interest in the subject. Should jurisprudence be a required law school course? If so, when should students take it?

 

Entry Level Hiring: Final Summary

Update, 5/20/2011: The charts and summaries below are accurate as of 5/20/2011. I will continue to add to the spreadsheet, but I will not update the charts or summaries. To be added to the spreadsheet, please email me, slawsky *at* law *dot* uci *dot* edu. Also, a few entries say "Firstname Lastname," rather than the person's actual name, either by request or because the person currently has another job and I don't know whether he has notified that job of his new position. 

We have reports of 155 people being hired, at 99 different law schools. 

Nine schools have been reported as doing no entry level hiring this year.

Here is the full spreadsheet.

The spreadsheet has lots of different worksheets, with lots of information--download it and see!

Here are answers to some frequently asked questions:

Q: How many people who got their JD from School X were hired on this year’s entry-level market?

Harvard 20; Yale 19; NYU 10; Michigan 10; Columbia 9; Stanford 9; Berkeley 6; Chicago 6; Duke 5; Cornell 4; Notre Dame 3; Penn 3; Boston College 3; Texas 3; Georgetown 3; Hastings 3; Other 39.

Schools in the "other" category with two JDs who were hired: Arkansas; British Columbia; Howard; USC; Virginia.

Schools in the "other" category with one JD who was hired: Barry; Cardozo; Connecticut; Florida; George Washington; Georgia State; Hebrew U; Lewis & Clark; LSU; Maine; Melbourne; None [no initial law degree]; Northwestern; Oregon; San Diego; Sao Paolo; Sorbonne; Suffolk; Sydney; Tel Aviv; Temple; Tennessee; Toronto; UCLA; University of Ljubljana; Vienna; Washington & Lee; Washington University; Wisconsin.

Q: How many people who got an entry level hiring job had a fellowship, degree, or clerkship?

107 (69%) had a fellowship; 77 (about 50%) had an advanced degree; 89 (about 57%) had a clerkship.

Nonproportional Venn diagram:

Q: Tell me more about these advanced degrees. 

Okay, but first a caveat: Although 18 people had more than one advanced degree, the following looks only at what seemed to me to be the "highest" degree someone earned. For example, someone with a Ph.D. and an LL.M. would be counted only as a Ph.D. for purposes of this question. (This tracks the "Other Degree (1)" column, for the two people out there who are actually following along on the spreadsheet.)

That said, looking only at what seemed to be the most advanced degree (apologizing in advance for mischaracterizing the relative advancement of anyone's multiple degrees), and including "expected" degrees, the 77 "highest" advanced degrees broke down like this:

D. Jur., SJD, or JSD (or SJD or JSD expected) 4; LL.M. (or LL.M. expected) 15; Ph.D. (or Ph.D. expected) 37; Masters (or Masters expected) 20; MD 1.

Topics ranged all over the map. For the 37 Ph.D.s, for example:

For Ph.D.s: Economics or finance 7; history (including legal history) 6; political science (including political science and public policy) 5; law or law-related field (law, comparative law, JSP) 5.

"Other" fields (one each) include Cellular & Molecular Bio; Chemical Engineering; Clinical Psychology; Comparative Literature; Education; Educational Administration; English; Government; Philosophy; Pharmacology & Cell Biology; Public Policy & Sociology; Science & Tech Studies; and Sociology.

Masters degrees were similarly all over the place. Here (pop-up window) is a chart that breaks all this information down. (The same pivot chart is included in the spreadsheet if you want to mess around with it.)

Q: How long ago did these entry-level hires get their initial law degrees?

No Initial Law Degree 1; Zero to Four (Graduated 2007-2011) 25; Five to Nine (Graduated 2002-2006) 76;  Ten to 19 (Graduated 1992-2001) 46; Twenty or More (Graduated before 1992) 7.

Q: Could you break the hires out by men/women?

Men 96 (about 62%); women 59 (about 38%). (Let's say this is right within +/-2 people.)

Q: Did we learn anything interesting about subject areas?

We definitely learned that the entry level hires this year had incredibly diverse specialities, from Criminal Law to Space Law to Tax to Law of the Sea to Law and Sexuality to Cross-Border Insolvency, and on and on--in fact, the hires named 108 different fields of specialty! (I did this differently from the "what kind of degrees" question--here, if someone listed three fields of speciality, I included all three.) You can see the full alphabetical list of specialties here (pop-up window)--it's pretty amazing. (We did not get information about the specialties of 17 people who were hired.)

As for which fields were most popular--15 people listed Civ Pro as an area of interest, 13 people listed Con Law, 11 people listed crim, and 10 people listed each of Legal History, Tax, and Contracts. In the single digits, Environmental had 9; International Law and Crim Pro, 8 each; IP and Corporations, 7 each; and so on down the line. You can see the full list organized by number of people who stated an interest here (pop-up window).

Q: This is all wrong! I know for a fact that more people from School Y were hired! Plus, you account for only 108 different law schools, and there are 200!

Yes, this spreadsheet is certainly missing some information. Repeat: this spreadsheet is incomplete. It represents only those entry-level hires that were reported to me, either through the comments on this blog or via email. It is without question incomplete. (It is, however, in the ballpark of Larry Solum's reports--he generally seemed to get reports of around 150 or 160 entry-level hires--151 in 2009, for example.)

Q: More slicing! More dicing! Different slicing! Different dicing! 

Sure--you can do it yourself, or ask questions in the comments and I'll see what I can do, or we'll work it out as a group. (For example, last time MB asked for a proportional Venn diagram, and one of the commenters knew of a site that generated them, so I ran one and posted it.)

Q: What does it all mean?

 I have no idea. But it's been fun! 

Balkinizing the Liu Filibuster

There is a nice discussion going at Balkinization about the successful "filibuster" of Goodwin Liu's nomination to the Ninth Circuit, among Jason Mazzone, Sandy Levinson, and Jack Balkin. Worth a read.

Is the Seventeenth Amendment Unconstitutional?

Now that I've got your attention, can I interest you in some term life insurance?

Just kidding.  This is a topic I have been kicking around in my head for some time now.  The Seventeenth Amendment, of course, required that U.S. Senators be "elected by the people" of each State.  Previously, the Constitution had provided that Senators be "chosen by the Legislature" of each State.  Attacking the Seventeenth Amendment has been part of a larger states' rights agenda for at least the past few years.  There is even a blog dedicated to repeal of the Seventeenth Amendment.  This position is typically dismissed by the intelligentsia as worthy of tin-foil hat status.  However, there is a small but thoughtful body of academic literature, by the likes of Vik Amar, Jay Bybee, and Todd Zywicki, addressing and in some cases disputing the conventional wisdom that the Seventeenth Amendment was a good idea.

My question, however, relates not to the advisability of the Seventeenth Amendment but to its constitutionality.  How can a constitutional amendment itself be unconstitutional?  If it violates Article V, of course.  Article V provides that there are two aspects of the Constitution that could never be changed, one of which is now moot.  The other is that "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."  The argument for the unconstitutionality of the Seventeenth Amendment can be made in two moves:  first, the Constitution contemplates that the "States" are separate entities from "the people" of the States; and two, reducing every State's suffrage in the Senate to zero, while formally equal, does not satisy the contemplation of Article V that the States retain some "suffrage" in the Senate.

1.  The Constitution does not use the words "the people" and "the States" interchangeably.  For example, the Tenth Amendment reserves power to "the States" and, separately, to "the people."  Notably, the Supreme Court in Heller came to much the same conclusion in interpreting the words "the people" in the Second Amendment.  Though I think the Court glossed over the difference in connotation between "the people" acting collectively and "persons" acting individually, I think the Court was right that both are distinct from "the States."  Before the Seventeenth Amendment, the States, through their respective legislatures, chose their Senators.  Moreover, the legislatures could decide on other mechanisms through which Senators could be chosen, including popular election, which became more widespread in the early-twentieth century.  But each State had a voice in the composition of the Senate because each retained the prerogative of choosing for itself how it would select its Senators.  The Seventeenth Amendment changed that by requiring a particular mechanism, popular election, for the selection of Senators.  The Amendment thereby transfers the power to select Senators from the States to the people of the States.  Thus, each State is divested of its suffrage in the Senate.

2.  But if each State is equally divested of power, arguably Article V is not violated because each State still has "equal Suffrage in the Senate," i.e., no suffrage at all.  That is a plausible reading of Article V but, I submit, it may not be the best, for it puts all the weight on the word "equal" and none on "suffrage."  If Article V guaranteed "equality of suffrage," that would indicate that equality of the States is the sole objective of the provision.  But by guaranteeing "equal suffrage," Article V seems to guarantee both at the same time:  equality of suffrage and suffrage itself.

To see why, suppose that a married couple with three children decide to allow the children to decide every year where to go on their summer vacation.  Suppose further that the family draws up a compact reflecting this arrangement.  The compact states that future alterations to the compact, such as restrictions on potential vacation spots, can be made as long as (1) at least two of the three children agree to the changes; and (2) both parents agree as well.  However, the compact goes on to state that, notwithstanding the possibility of such future alteration, “no child shall be deprived, without his or her consent, of his or her equal suffrage in deciding where the family will take its summer vacation.”  Finally, suppose that, one year, the family decides to alter the agreement so that the parents will henceforth make the summer vacation plans on their own, without any input from the children.  The only dissenting voice is one of the children.  When she comes to complain that the aforementioned proviso has been breached, the parents explain that she has clearly misread it:  it merely restricts the family from favoring one child over another, but it does not restrain them from taking the decision away from the children entirely.  On this reading, each child still has an “equal" vote, which is to say no vote at all.  The dissenting child would have every reason to cry foul.  That is not the most plausible reading of the “equal suffrage” provision.  To the contrary, common sense, and conventional grammatical construction, would seem to dictate that where there is a constraint on ever depriving any child of “equal suffrage,” the constraint applies to the term “suffrage” every bit as much as it does to the term “equal.”

The symbolism in this little allegory is not hard to identify.  The parents represent “the People,” since, just as in a family unit, all powers derive from the parents, in our constitutional democracy, all powers derive from the people.  The children are, of course, the several States, and the compact is the Constitution.  Its delegation to the children of the power to choose the family vacation spot approximates the Constitution’s delegation to the States the power to choose their Senators.  Its provisions regarding alteration of the document roughly approximates Article V of the Constitution, and its proviso that no child will ever be deprived of “equal suffrage” in choosing the family vacation spot obviously tracks the language of Article V regarding the one aspect of the Constitution that can never be changed.

It is not hard to see why this was one of two aspects of the Constitution that could never be amended away.  The Constitution essentially sets up a triangular structure connecting the People, the federal government, and the States.  The federal government was designed to be representative of both of the other legs of the triangle, the People and the States.  The Seventeenth Amendment cuts off one of these legs -- the States no longer have a say in the composition of the federal government.  The essential triangular nature of the arrangement has therefore been irrevocably atered.

Summer Re-reading

I love my Kindle.  (That was an uncompensated endorsement, but Amazon, if you're listening I'd be happy to provide you my taxpayer ID for a 1099.)  One of the things I like I about it is that it makes buying a book seem less momentous -- you get an idea, you search for it on the Kindle Store, and boom, in a minute you're reading the first page.  This has led me to buy books that I otherwise would not have bought, in particular, books I've already read.  Right now I'm re-reading 1984, a book I haven't read since high school.  It's such a rich book, and with thirty more years of life experience since the first time I read it I feel like it's a brand new read.

So here's a fun question to kick off summer pleasure-reading season: what's been your best re-reading experience?   What have you come back to after a period of time that struck you as significantly different, more meaningful, whatever, as compared with the first time you read it?

They Stole Our Shtick, But Read It Anyway

Insider views from a law review editor, http://opiniojuris.org/tag/law-review-submission-process/.  Thanks to the editor, James Tierney of the Chicago LR, for his candor.

Some highlights: "The best articles are those that look as if they might be publishable immediately."

"Once a journal makes an offer on a ... [specialty] law article ... another [same specialty] article will face a higher burden of persuasion."

"Authors might think twice before sending their second, or third [e-mail about an upcoming board review] of the day."

"Including very few footnotes suggests the author wants our editors and staff to complete the library research process."

Grading Civ Pro

Mike Dorf has established a tradition of posting his Fed Courts exam after the fact. I thought I would do the same with the all the materials I used to grade my just-completed Civ Pro class, following on an old post in which I considered the merits of basing exams and writing assignments on real cases rather than creating my own hypos. I decided to try it this semester--every graded assignment involved either a real case or questions at javing their origins in a real case.

First, I assigned a group project mid-semester. I broke the class into eleven "courts" of 5-6, assigned to review the Eleventh Circuit's decision in Speaker v. HHS, which dealt with the sufficiency of a complaint under Twiqbal. Each court was required to produce a majority and a dissent and grades were assigned to each court as a whole. Second, the in-class multiple choice/short answer portion used questions that I made up, but taken from recent cases to a greater extent than I have in the past.

Third, the take-home portion of the final exam required each student to write on one of three questions, again all based on actual cases (they had about 2 1/2 weeks to do this--from the last day of class until the day of the in-class exam). Two questions were based on the complaint in the state-court action brought by reporter/model/famous person Jenn Sterger (of Brett Favre text fame) against her former PR representative.  One group was required to argue, as defense counsel, that there was no personal jurisdiction in Florida; the other group was required to argue, as defense counsel, how it would get the case to the United States District Court for the Southern District of New York (the defendant's home) without dismissing for lack of personal jurisdiction (so arguing venue, change of venue, etc.). The last question required students to argue, as the losing party, why an Eighth Circuit decision imposing attorney's fees against the losing party under a state statute was wrong under Erie analysis.

So how did this all go? Well, ultimately I have to see what the students have to say on the evals.

I liked the group project. It struck a nice balance between giving them a significant assignment (and grade) mid-semester, while easing the workload on each student slightly. And I have been swayed to the view that they need to learn to work together, at least a little bit, as part of the 1L experience. I have heard rumors that some courts did not get along, although no one took advantage of the dispute procedures I established. Again, I think I will know more about this once I see the students' comments. [Update: I just saw the evals and the group project got panned. About 20-25 students asked me to get rid of it. Two said they were on groups where some people did no work, but they did not want to come to me to complain. OK, I may need to rethink this one. Does anyone out there do group projects and, if so, how?]

I liked using real documents from real cases as the basis for essay questions. It set up a more-realistic scenario for the students--a client comes to you with nothing but the complaint he just was served with and you have to make a preliminary determination, based on that document, as to your defenses and responses.  I also sense I was a bit more open to unexpected arguments in the essays--because I did not write the problem, there was a greater chance someone might find something I had not thought of. At the same time, providing narrower materials made it easier for students to stay on target; I had only a few exams that went way off the rails by trying to out-think or over-complicate the problem and throwing unrelated issues into their answers.

The one thing I feared was students letting the opinion being reviewed do the analytical work for them. I avoided that problem, at least on the take-home portion of the final, by 1) using a complaint rather than an opinion in one case and 2) requiring them to argue against the opinion in the other case, which necessarily demanded an entirely different analysis. The questions based on the complaint worked better than the questions based on reviewing a court decision, which is interesting to note.

This approach also makes things a bit easier on me. Rather than trying to put together an all-encompassing fact pattern, I just need to find pleadings or decisions that lend themselves to use as testing materials--certainly doable over the course of a year of watching cases. It also made writing multiple choice/short-answer questions easier; I still had to get creative in writing the questions and options, but it was nice having the questions and issues already set up in the real case to use as my starting point.

So, all-in-all, I was pleased, especially with the final exam (both the take-home and in-class portions), so I expect to follow this approach again next time.

Deferring to agency amicus briefs that present new guidance

In reading some of the Supreme Court's recent cases, I was intrigued by its willingness to defer to administrative interpretations presented to the Court in the form of amicus briefs filed by the relevant agency or by the Solicitor General. I refer in particular to Williamson v. Mazda Motor (relying, in part, on a brief expressing the government's view that a federal vehicle-safety regulation did not preempt a state tort suit) and Chase Bank v. McCoy (deferring to the agency's interpretation of its own regulation, which was conveyed in an amicus brief). Giving some degree of deference to positions expressed in agency amicus briefs is not a new development, though it does seem to me that the Court perhaps used to express a bit more hesitation about doing so.

In any event, whether or not there is a trend in this regard, one interesting feature of deferring to an amicus brief is that the Supreme Court might be relying on an interpretive authority that did not exist until the Supreme Court's decision to review the case brought it into existence. (This new-authority scenario doesn't describe every instance in which the Court defers to a brief. After all, agencies sometimes file briefs in lower courts; plus, some briefs merely restate administrative guidance offered elsewhere, in which case the deference is not to the brief's position per se.) The right answer to the case could therefore change as the case moves from the lower court to the high court. That seems, at first blush, a bit strange. How should we respond to this state of affairs?

There are a few possibilities:

1. Because uniformity, consistency, and predictability are important, the lower courts should do a better job of conforming their interpretive practices to the Supreme Court's model. Indeed, in Chase Bank v. McCoy, the Supreme Court seemed to criticize the Ninth Circuit for not inviting the agency to submit an amicus brief. And yet . . . Should we really expect every lower court in the land to ask for, and wait for, an agency's views whenever a statute administered by the agency is the subject of litigation? Would the agencies and the Department of Justice welcome a regime in which they had to take positions like this routinely?

2. Because uniformity, consistency, and predictability are important, the Supreme Court should stop deferring to new guidance provided in government amicus briefs.

3. No change is needed. When the Supreme Court decides to hear a case, it should try to get the right answer, even if that means relying on a new source of guidance that was called into existence by its decision to review the case. If Congress passed a new statute that applied to pending cases, the Court would apply that. Same thing here. (Here I am borrowing from footnote 6 of Justice Scalia's dissent in Mead.)

Thoughts? (I should add that I recognize that the considerations presented here concern just one aspect of the larger issue of deferring to agency views expressed in connection with litigation.)

What is the "Right" Kind of Mistress?

Let's start off with the obvious.  Most people would agree that extramarital affairs (with or without resulting children) are simply wrong, although we can all agree that people live complicated lives and do indeed make mistakes.  Most everyone agrees that using a position of power to obtain sex is still more wrong, and in importantly different ways.  And forced sex, assuming a difference between this and my second category, is wronger still.  

Yet I am still slightly queasy about some of the language used by some commenters to discuss Arnold Schwarzenegger's affair (the latest reported one, anyway).  One of my Facebook friends wrote yesterday to express disgust with "men who sleep with the help."  Today, Maureen Dowd's column, which I glanced at accidentally (I'm not sure anyone reads Dowd on purpose anymore), has a nearly identical pull-quote summarizing the topic of her piece: "Men who help themselves to the help."  All this is somewhat reminiscent of the late 90s discussion of Bill Clinton, in which his actual and alleged mistresses were roughly categorized in descending order from more or less acceptable sexual partners (within the general assumption that adultery is nonetheless wrong) of his own social class, to young women from good backgrounds, like Monica Lewinsky, who were somewhere further from the pale but might still be considered autonomous sexual agents, to "trailer trash."  There is a similar air to some of the Schwarzenegger talk, in which part of the reaction is one of general disgust toward his behavior, but there is an additional element of disgust at Schwarzenegger's having had an affair, specifically, with "the help."

If the distinction is only about sexual harassment or abuse of power, that's fine.  But I can't help but detect a certain element of class in it as well: a feeling that Schwarzengger not only betrayed his wife and children, which is bad enough, but did so tawdrily, and what can only have been out of lust and convenience, not actual love and affection between emotional equals.  

I'm talking only about language here, not about the actual facts, about which I have little knowledge.  I am not excusing Schwarzenegger's conduct in any event (although, in the case of freely made mutual decisions to enter into extramarital affairs, I am inclined to treat both actors as equally wrong rather than treat only the married person, or only the man, as the sole wrongdoer).  And, to be clear given this week's headlines, none of this has anything to do with the alleged conduct of Dominique Strauss-Kahn.  But it would be nice in this particular case if, absent further information, we did not assume that affairs involving a partner who is, say, a wealthy professional woman constitute a liaison of two minds, while those involving "the help" are treated as barely involving a second person at all.    

 

 

The Transfer Game

One of the rituals of the end of the spring semester is the trickle of students coming into my office and announcing, with varying degrees of sheepishness, that they're considering transferring, and asking if I'd be willing to write a recommendation letter.  So it's quite timely that the Journal of Legal Education's current issue has an article by Jeffrey Rensberger (South Texas) examining the transfer phenomenon.  It's a good read, and important for anyone interested in legal education.

Aside from collating statistics confirming the intuition that students transfer to higher-ranked schools (rather than primarily for geographic or educational-program reasons), Rensberger considers the effects of transferring, both on legal education generally and individual students.  He makes the important argument that the gains intake schools enjoy from transfer students are outweighed by the losses suffered by outflow schools.  To oversimplify, his argument is that transfer candidates, because they perform better, are more likely to contribute to rich classroom discussion and are more likely to succeed both on the bar and in their careers.  (I'm not sure I agree on the career success point, but that may be because I have a broader definition of what constitutes career success.  But he is likely right on the first two points.)  He argues that these gains enjoyed by intake schools are less than the corresponding losses suffered by outflow schools, essentially because the intake schools already have a good number of students who are likely to contribute to the school's success; one more such student doesn't change the atmosphere much.  By contrast, the outflow schools don't enjoy a surfeit of such students, and suffer relatively more when the active, creative class participant and future first-time bar passer leaves.

I agree with this much of Rensberger's analysis.  I've felt real disappointment when first-year stars have sought to transfer, exactly because these students were so great in the classroom and were no bar pass risks.  But I'm not so sure about the next part.  Rensberger then considers the problem from the perspective of the outflow school.  He paints a picture of a school that has taken a chance on a risky student (by definition, he suggests, since the higher-ranked school didn't pick that student originally), and invested time and money in developing her, only to see her poached (his word) by the inflow school.  With the caveat that I'm not speaking from actual data, I'm not sure I agree with this picture.  My sense is that a number of transfer students were toward the top of the outflow school's entering class, based on LSAT/UGPA.  Not always, but enough that it's familiar for me to have a student poring over the choice between foregoing a continuing merit scholarship and transferring up the food chain.

What does this difference mean?  At first blush, it suggests that there's nothing seriously insidious with the current transfer situation.  Remember that U.S. News fails to consider the credentials of incoming transfer students as part of a school's overall student quality.  Thus, if intake schools are just picking up the students they would have taken originally had they not been pushed by U.S. News to artificially bump up selectivity and entering student credentials, then in essence lower-ranked schools have just rented those students for a year, before they found their "natural" place in the law school hierarchy.

But there's more to it, both quantitatively and qualitatively.  First, higher-ranked schools are foregoing first-year tuition for those students they passed on originally and took only as transfers.  Thus, all other things being equal, for their books to clear they need to take a larger number of transfers than they would otherwise take as additional first-years, to make up for that year's worth of lost tuition. Therefore, there's an additional volume of transfer outflow.

What this suggests is that we need to ask whether, for outflow schools, it's worth it to have these students for a year, even if they lose them (and, indeed, lose more than what they would otherwise lose, given the tuition analysis in the previous paragraph).  Is it better to have taught good students and lost (more of) them, then to never have taught them at all?  Rensberger doesn't directly address this aspect of the problem, which I think cuts in both directions.  On the one hand, there is surely a demoralization effect as the best students in the first-year class climb a rung on the career ladder while leaving their classmates behind.  On the other hand, the performance of these out-bound students in the first class may well have an inspirational effect that lasts beyond their departure.  I'm not sure how one would measure these effects, but it would be interesting to see the results, if one could.

Second, there's the impact on transfer students themselves.  Rensberger discusses this in the context of those students' job prospects, and, in particular, their prospects in light of the choice between graduating at the top of their original matriculating school and possibly in the middle or worse of their transfer school.  This is important, and something students often don't appreciate.  But there's more.  Transfer candidates are, by definition, stars in their original school.  They'll get the RA positions, the recommendations, the law review and moot court positions, and, generally, every intangible goody that a law school can bestow.  In my experience, these benefits are often undervalued by transfer candidates -- unsurprisingly, since they haven't experienced them yet.  They also lose out on a lot of the camaraderie that comes from having gone through first year together.  This isn't just a matter of having a lot of drinking buddies -- it's also a matter of developing the core of one's professional network.

So, in sum, transferring is a decidedly mixed bag.  Rensberger concludes, correctly, I think, that the transfer game is an overall net negative for legal education.  My own sense is that it's often at best a mixed blessing for the students who play it.  Ideally, higher-ranked schools wouldn't game the system by artificially restricting their first-year classes for U.S. News reasons and then making up the financial shortfall by taking more than their "natural" share of transfer students.  But that would mean that schools aren't playing the U.S. News game.