PrawfsBlawg

Monday, November 17, 2008

Gotta Go Fill that Scholarship Aquarium ...

It's time for me to sign off PrawfsBlawg. I'm extremely grateful to all the Prawfs for having me.

I'll now be returning to more traditional modes of professorial writing (i.e., trying to help fill up the scholarship aquarium outside the dean's office). But I will also be posting on my home blogs – the IP-and-media-focused Pixelization and the tongue-in-cheek Backbencher.

By the way, if you haven't read The Backbencher lately, here's some of what you've missed: my write-in campaign for the office of vice president on a platform of using lasers to eliminate wasteful government spending, my suggestions for reforming the Democratic National Convention to make it more competitive against other reality television shows, my wrap-up of the Olympic Games' biggest losers, my gloating over changing Massachusetts bowling law, my considered analysis of Ohio's minimum prices for beer, and my exposé of Fox News' foray into selling porn.

Take care, everyone! Have a very happy holidays!

Posted by Eric E. Johnson on November 17, 2008 at 07:46 AM | Permalink | Comments (0) | TrackBack (0)

Sunday, November 16, 2008

Black Holes and the Law: This is the End

I want to thank everyone who gave such insightful and, in many cases, well-researched comments to my various posts (here, here, here, and here) about the legal dimension of the safety controversy regarding the Large Hadron Collider, the European super-sized particle smasher which detractors claim might spawn an Earth-ending black hole.

This is a case that poses a number of extremely interesting questions about the philosophy of law, legal epistemology, the intersection of the law and politics, the intersection of law and psychology, and other areas. Because I think the subject is so worthwhile, I plan on doing some additional posts on my own blog, Pixelization, about the matter, including responses to many of the comments I’ve received to the PrawfsBlawg posts.

Additionally, I’ve created a webpage where I will post court documents, links, and any follow-up work I do on the matter. I think this case could be fertile ground for classroom discussion in various classes, including Remedies, International Law, Jurisprudence, Civil Procedure, and Evidence. To the extent there are written opinions or other documents that could make good teaching materials, I will try to track them down and make them available.

For this post, I’d like follow up on something I wrote in my first post. I noted then that this is “a case that highlights the trust modern civil society has vested in the institution of the law and courts.”

“A court of law,” I continued, “wields enormous power. That power includes, ostensibly, the authority to shut down what is perhaps the most expensive scientific endeavor in history.”

Well, apparently not. As commenter “martined” noted, it turns out there was an action in a Swiss court aimed at delaying LHC operations. But the case was rejected because CERN – the intergovernmental organization operating the LHC facility – has immunity. (When I can obtain the court documents for these proceedings, I will post them on the resource webpage.)

The issue of CERN’s immunity is a whole other area of this case that is highly intriguing. From my brief review of what documents I’ve been able to find so far, the following appears to be the case: The treaties establishing CERN have vested it with legal personality. The host countries, Switzerland and France, have given CERN and its employees broad immunity and protection against interference by the courts and host country laws and regulations. That immunity is preventing plaintiffs, who argue their lives are at stake, from being able to use judicial process to mount any kind of challenge to CERN’s planned undertakings.1

Continue reading "Black Holes and the Law: This is the End"

Posted by Eric E. Johnson on November 16, 2008 at 10:57 PM in International Law, Judicial Process | Permalink | Comments (8) | TrackBack (0)

Constitution-talk at the March

I went out yesterday to exercise my First Amendment rights at the L.A. version of the nationwide marches for marriage equality.   If you haven't attended a protest march in a while it's something you ought to consider doing.  My sense is that we do in fact bowl alone a lot more nowadays, and that goes for political expression, too.  Physically gathering with like-minded people to express myself was quite a rush.  The crowds on the subway were boisterous and friendly, the 20something lesbian punk couple next to us squeezed into one seat so my husband and I could sit (I think they had ulterior motives, but I'll give them the benefit of the doubt), and a brass band (!) was playing as they were getting off another train when we arrived at the City Hall stop.   The rally and march were similarly upbeat: the speakers were generally on point and not long-winded, everyone seemed to be taking care of everyone else, and the kids that were brought along were all adorable.

I was also struck by the signs.  A lot of people carried the "No on 8" signs that were all over town during the campaign.  But others created their own -- sometimes witty, sometimes poignant.  As a law professor, though, I was most struck by the signs that spoke constitutional language.  Of course, "equal rights" or a variation thereof was a main theme.  But one sign had a pretty long quotation from the Gettysburg Address, another had the "we hold these truths to be self-evident" language from the Declaration, others made observations about equal liability for taxes being combined with unequal status, and many of them had some variation of "separation of church and state."

I'm not here to praise any of these messages (though my earlier posts this month and before, plus my presence at the march, should make it clear basically where I stand).  I'm simply saying that I'm impressed and, frankly, grateful, that so many of my fellow citizens -- not lawyers, not academics -- are able to appropriate constitutional language in political discourse.  The popular constitutionalists are right to worry about the atrophying of people's constitutional awareness and of their sense of responsibility for safeguarding our constitutional rights.  But based on my experience yesterday people know these terms and they're comfortable using them.  Sure, they were just slogans on handmade signs.  No doubt they heard and got cues from more "sophisticated" advocates arguing in the media.   And of course most of them couldn't do the intricate analysis a court does when deciding a constitutional case.  But they get the basic ideas, and yesterday they took responsibility for them.  And that's pretty cool

Posted by Bill Araiza on November 16, 2008 at 02:50 PM in Constitutional thoughts | Permalink | Comments (2) | TrackBack (0)

Friday, November 14, 2008

Why 30 Rock's Kenneth Would Make a Great Law Student

From NBC's 30 Rock, aired last week:

Posted by Eric E. Johnson on November 14, 2008 at 11:13 PM in Teaching Law | Permalink | Comments (1) | TrackBack (0)

The World Series of Poker

(If poker does not amuse you, by all means skip this post...)

So, besides the election, there were two big media events I was looking forward to in November.  The first did not happen, and the blame for that I put squarely on the shoulders of He Who Must Not Be Named.  The second, though, went off without a hitch.  That was the Main Event of the World Series of Poker - the World Championship No Limit Hold 'Em Event.

The World Series of Poker -- wasn't that in July?  Well, sort of.  The main event began on July 3, with 6844 players putting in their $10,000 apiece for a chance at the first place prize of $9 million.  (This was down from the 8000+ players in 2007, in large part because the federal government has made it so difficult for those in the United States to get money in and out of online poker).  By July 14, the 6844 were finally winnowed down to 9, the 9 who would play at the final table.

But, for the first time, WSOP this year decided to postpone the playing of the final table, as a way of stoking publicity and coordinating with ESPN.  So the players all got their initial check (for $900,670 -- the 9th place amount).   And then they waited for 4 months before squaring off for the remaining $24 million or so that would be distributed quite unevenly among those 9.  Now there were all sorts of potential problems with this.  4 months and only 9 players creates plenty of opportunity for collusion.  It is also somewhat unfair to the pros and semi-pros at the table; it gives the rookies 4 months to bulk up on their poker knowledge.  (Apparently, professional poker players not in the tournament made a killing offering lessons.)  And, especially as someone who teaches Contracts, I couldn't help think about the other potential disasters.  What if someone gets seriously ill?  Or dies?  The usual poker rules (see paragraph 52) offer no sympathy to ill or deceased players.  Such players simply lose their clips, which are anted and blinded off.  Now that makes sense for regular tournaments.  (Indeed, any other rule risks creating very bad incentives for poker players, who are by their natures both calculating and deceptive.)  But the 4 month lag before the final table obviously increased the risk of something like that happening, and the $24 million at stake would have meant that any such events would have been spectacularly interesting.

But nothing like that happened this year.  (It will have to wait for my Contracts exam.)  On November 9 and 10, the November Nine simply sat down and finished the thing.  ESPN edited the footage down into a viewable 2-hour segment.  (You don't want to watch poker unedited; it's as bad as watching unedited chess matches.)  It will be broadcast and rebroadcast -- it'll be hard to avoid.  And I cannot but recommend it.

Posted by Chris Lund on November 14, 2008 at 09:06 PM | Permalink | Comments (0) | TrackBack (0)

Young and Stupid ... Forever?

The New York Times reports that applicants for a job in the Obama Administration will have to disclose an enormous amount of information, from the usual income and tax information to information about domestic help and, most interestingly, information about applicants' Web presence.  In particular, the application asks for emails that might be embarrassing, blog posts, email aliases and Facebook pages.  I haven't looked at the actual application but from the article it doesn't seem like the Web questions are time-bounded -- that is, they ask for all of this information going back all the applicants' lives.

The transition team's demand for applicants' Web information is understandable.  As we all know, information placed on the Web potentially stays there forever, and thus retains its capacity to embarrass.  But if application screeners take a hard line on potential embarrassment then youthful indiscretions could derail many applicants' hopes for a government job.

I hope this doesn't happen.  People (like me) who grew up before the Internet age got a pass on our youthful stupidities.  Scrawl something regrettable?  The wall got washed off or the notebook got tossed.  Take an embarrassing photo?  It's forgotten in a shoebox somewhere, or lost since lost in one of the moves we made in our 20s.  Make a porno like Zack and Miri?  It's on a disintegrating Super-8 reel so no risk there.

Continue reading "Young and Stupid ... Forever?"

Posted by Bill Araiza on November 14, 2008 at 08:01 PM in Current Affairs | Permalink | Comments (1) | TrackBack (0)

Kind of feels like being an Article III Judge . . .

I am thrilled/surprised/relieved to report that the faculty at the College of Law has recommended me for tenure. I mention this to echo and add to Bill Henderson's comments at ELS of how he addressed blogging in his tenure materials. The statement I included in my submission, similar in some respects to Bill's (although I have not been as prolific or high-profile a blog writer as he), is after the jump.

Since blogging has become a more common and important part of the legal academy within the last eight years, there has been a lot of discussion about the wisdom of blogging without tenure. But the reality is that a substantial number of bloggers are untenured (Aside: Has anyone examined the status of the contributors on the top legal blogs in Caron's most recent study?). And that number goes up when we consider the large number of guest bloggers who cycle through here, CoOp, and other places. So the real question is not whether pre-tenure blogging is a good idea; it already is happening. The real question is how to present blogging as part of our package of scholarship, teaching, and service.

It seems to me that any discussion of blogging in tenure materials will be one part education and one part justification. We have to explain a lot to some senior law faculty, as well as to central administrators and perhaps to faculty in other departments and who are involved in the review process (FIU does not have a university-wide faculty committee between the law school dean and the provost, although many schools do). We have to explain what blogging is at its most fundamental level, why we do it, why it is not a waste of writing time, how it relates to our core scholarship, how it benefits us professionally in terms of scholarship, teaching, and service, and how it benefits the school. It may be a good idea (as Bill did) to provide at least a representative list of (more substantive) blog posts, which makes blog writing look, at least, like writing op-eds and other short pieces.

It also seems to me that the level of needed explanatory detail will decrease as more and more bloggers gain tenure (say, within the next five-seven years) and blogging becomes a routine and understood part of our writing activities. In about 5-10 years, it should be enough to say "I blog at ______" in the "other scholarly activities" section of the tenure folder. The interesting question will be whether committee members begin reading some blog posts for evaluation--not in the same way or with the same interest as they review scholarship, but with an eye towards evaluating how good this person is at this particular, accepted scholarly activity.

Continue reading "Kind of feels like being an Article III Judge . . ."

Posted by Howard Wasserman on November 14, 2008 at 06:48 AM in Blogging, Life of Law Schools | Permalink | Comments (3) | TrackBack (0)

Thursday, November 13, 2008

A Better Bar Exam

The worst thing about studying for the bar, for me, was the feeling that I was wasting two months of my life learning fictional law.

The Multistate Bar Exam, in order to be useable by any state, does not test the law of any state. Instead, its questions on contracts, criminal law, real property, and torts are based on “fundamental legal principles,” and not on the actual law.

Every state but Louisiana and Washington uses the MBE. That’s a shame. A lot of time and effort ends up squandered. The irony of the bar-exam process is that while taking the MBE involves trying to prove competency to practice in a particular state, the process of studying for the MBE is a lost opportunity for gaining that competency.

A reasonable approach might be for the MBE to be split into two exams. One, the national exam, could test the federal subjects that are already on the current MBE – constitutional law, federal civil procedure, and federal evidence. Sales – at least insofar as Article 2 of the Uniform Commercial Code is truly uniform – would also be an appropriate subject of the national test. If there is a desire for more subject matter that statistically unites bar-takers across the country, I would support adding in federal fundamentals bankruptcy and tax.

Then the second test could be a battery of torts, property, contracts, and criminal law questions that are customizable by each state bar. That way, a state that follows the minority rule on any given doctrine could change the question or answer key accordingly.

I realize this would be a tremendous inconvenience to state bar examiners, but the cost would be more than outweighed by the substantial gains to be had in the competency and knowledge of new lawyers and the service received by clients.

Posted by Eric E. Johnson on November 13, 2008 at 11:59 PM | Permalink | Comments (6) | TrackBack (0)

Mathiness

My nerdy and pedantic colleague Christian Turner sent around an email pointing out an error the Supreme Court made in an opinion yesterday -- in math.  Christian, it's worth noting, has a Ph.D. in math from Texas A&M so we're all prone to trusting him on this one.  With his permission (and on the condition that I introduce him as "my nerdy and pedantic colleague"), I'm sharing his email below:

It's not everyday that my prior experience in math proves useful in reading a Supreme Court opinion.  Today is still not such a day.  However, math did provide a chance to task-avoid by focusing on an inconsequential, stray remark in an opinion. Roberts just issued an opinion in Winter v. NRDC - ruling in favor of the Navy in a case involving the Navy's NEPA obligations with respect to the use of certain kinds of sonar in training exercises, where the sonar might have ill effects on marine mammals.  (Kind of an interesting case actually.)

The opinion contains the following line:  "There is an exponential relationship between radius length and surface area (Area = pi r^2)."

This is decidedly not an exponential relationship, but it could be called a power relationship, quadratic relationship, or geometric relationship.  An exponential relationship is something like y = 3^x.  The difference between the two kinds of relationship is huge, easily seen as x grows large.  (Though there's disagreement, the number of electrons in the universe is very, very likely less than 10^100.)

Correcting this could be my only shot at leaving any kind of mark on the Court.  Too bad I don't have a blog.  Maybe I could become the crank who submits nitpicky correction petitions (if such things exist) on an ongoing basis.  In fact, crank is probably my pre-destined endpoint.

 

Posted by Sonja West on November 13, 2008 at 01:19 PM | Permalink | Comments (12) | TrackBack (0)

Oral Argument in Summum

After a post on the background of the case and one about its weirdness,  I wanted to note some interesting things about the oral argument (well, at least I find them interesting).  Whole transcript available here (HT: Religion Clause).  For other background info on the case, see here and here. 

Short answer: Summum is in trouble.  Maybe 9-0 trouble? 

Longer answer: past the break.

My solemn vow:  Yes, I will post on other topics...

Continue reading "Oral Argument in Summum"

Posted by Chris Lund on November 13, 2008 at 12:45 PM | Permalink | Comments (8) | TrackBack (0)

The Prop 8 Litigations

I was interviewed for this NPR story on Morning Edition today on the Prop 8 litigations. 

Posted by Ethan Leib on November 13, 2008 at 11:50 AM in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 12, 2008

"You Know, Content"

I'm not much of a Ron Rosenbaum fan, but I very much like this piece in Slate arguing against "new media guru" hype. It's a nice counter to the usual blog triumphalism and disdain for the actual discipline of journalism that pervades and pollutes so many corners of the blogosphere, most certainly including the legal blogosphere. (Somewhat ironically, perhaps, since most of us make our living teaching law -- and it is probably not much harder to be a good lawyer without the benefit of professional training and experience than it is to be a good journalist.) It serves as a healthy reminder that there is a qualitative difference between actually spending several years reporting, say, a 100,000-word piece on police torture, and thinking that you can become King David by typing "Indeed." at the end of a link to someone else's work.

Additional irony alert: It's in Slate.

Posted by Paul Horwitz on November 12, 2008 at 11:49 PM in Paul Horwitz | Permalink | Comments (1) | TrackBack (0)

Civil Rights Legislation in the Obama Administration

One of the many issues the Obama Administration will have to resolve is where to go on civil rights legislation. The campaign website's section on civil rights gives prominent focus to enacting the Fair Pay Act, the Employment Non-Discrimination Act (protecting gays and lesbians and, seemingly, transgendered people) and the Matthew Shepard Act (expanding federal hate crimes law to include gays and lesbians), overturning the Ledbetter decision (which seems to be what the Fair Pay Act does, so maybe they're double-counting), depoliticizing DOJ and reinvigorating civil rights enforcement.  No doubt renewal of the Voting Rights Act will also be part of this agenda.  Presumably the new Congress will support most, if not all, of this agenda, though of course who knows when and whether they will get to it given the other issues on the nation's plate right now.

My question is about the constitutionality of the civil rights legislation that may come out of Congress over the next couple of years.  Aside from the Voting Rights Act renewal (about which a lot of people, including my colleague Rick Hasen, have written and about which I won't comment here), I don't see any serious constitutional issues with any of this legislation, given the commerce power. (Even the Matthew Shepard Act devotes a fair amount of verbiage to bringing itself within the Supreme Court's opinions in Lopez and Morrison, though I certainly wouldn't rule out a Commerce Clause challenge).   The one major caveat is the extent that such legislation applies to states and makes them liable for retrospective relief, such as damages or backpay.  Of course, Seminole Tribe disqualifies the commerce power as the source for such remedies, and thus requires examination of Congress's power to enforce the 14th Amendment -- the so-called "congruence and proportionality" test from City of Boerne v. Flores.

Would ENDA be congruent and proportional to the equal protection problem of state government employment discrimination based on sexual orientation or gender identity?  This does not seem an open and shut question, although I argued in an article published in 2002 that ENDA should be upheld as appropriate enforcement legislation.  The only cases where the Court has upheld Section 5 legislation against this standard have been where the legislation either benefitted a class that gets heightened equal protection scrutiny (Nevada Dept of Human Resources v. Hibbs) or protected a fundamental right (Tennessee v. Lane).  And even those decisions depended on the four liberals peeling off from the conservative bloc Chief Justice Rehnquist and Justice O'Connor (Hibbs) or O'Connor alone (Lane); with those two justices gone it's not clear that even those cases would come out the same way today.

Continue reading "Civil Rights Legislation in the Obama Administration"

Posted by Bill Araiza on November 12, 2008 at 07:01 PM in Law and Politics | Permalink | Comments (1) | TrackBack (0)

Post-Meat Market Silence

We are not hiring at Marquette this year, and so for the first time in four years I was not at the FRC.  I don't have much to add to the prior posts concerning what separates the candidates who get callbacks from those who don't.  And I couldn't agree more that the difficulty of drawing those distinctions can only be appreciated from the interviewing side of the table. I'd been led to believe that life as an interviewer would involve frequent instances of candidates bombing in spectacular and memorable ways.  That hasn't been the case.  I've certainly witnessed interviews that didn't go well. I've yet to see a disaster.

All of which means that you may be reading this as a candidate whose only phone calls have been from your spouse or your clients.  Meantime, the hiring thread below reveals that others are getting callbacks.  Some of them are getting lots of callbacks.  And these are from the places where you thought you had a good interview.  I've been there.  (Though without the additional anxiety that I'm guessing accompanies instant knowledge that those callbacks are going to others.)

One of the other things best appreciated from the hiring side is just how many of us were meat market candidates more than once.  Without thinking too hard about it I can identify eight people whose first trip to the meat market was unsuccessful.  And I am not what you'd call well-connected, so I'm drawing on a pretty small sample size.  Some of those repeat players have since made very nice names for themselves.

Continue reading "Post-Meat Market Silence"

Posted by Chad Oldfather on November 12, 2008 at 05:29 PM | Permalink | Comments (0) | TrackBack (0)

Southern for *!@#&!!

Leaving aside any of my own views on Sarah Palin, I must offer a note of translation to those who watched her interview on the Today show, or read about it here.  Palin is quoted as saying the following about her unconventional desire to give a concession speech of her own on Election Night, which was nixed by the McCain campaign:

Ms. Palin said she wanted to introduce Mr. McCain on election night in order to “brag him up,” as she put it, “and do what John McCain just can’t seem to do for himself, bless his heart.”

I don't know how she came by the locution, but Southerners and folks like me who live in the South understand its meaning and, as a public service, are glad to translate it for you.  Here's how one writer describes the phrase:

In the South, we believe in being polite even if it kills us.  So, when we just can't fight the urge to say something nasty, we follow it up with a "bless her heart" just to make us feel better. "Look at that poor woman trying to jog around that track. Her rear-end is dragging a trail, bless her heart."

The title of a book on Southern life gets it about right: Bless Your Heart, Tramp: And Other Southern Endearments.  I think McCain's people made the right call on this one.  Any "bragging up" that is prefaced or followed by "bless your heart" is going to feel just a tad more like tearing down. 

Posted by Paul Horwitz on November 12, 2008 at 04:06 PM in Paul Horwitz | Permalink | Comments (8) | TrackBack (0)

The Weird Lineup in Pleasant Grove v. Summum

Following up on an earlier post, oral argument in Summum is today.  Pamela Harris (O'Melveny and Lecturer at Harvard) is arguing for Summum; Jay Sekulow (ACLJ) is arguing for the City. 

But the lineup of amici is striking, and it reveals how weird this case is.  Usually, in church-state cases, there's a pattern.  The left files briefs for one side; the right files briefs for the other; and the federalism people and judicial restraint people file briefs for whatever side federalism and judicial restraint are on (not that they always go together).

But Summum is different.  One might expect that the left would file for Summum, while the right would file for the City.  But that hasn't happened.  The City has 16 amici briefs in its favor; poor Summum has only 2.  (I am reminded of Justice Scalia's maxim that when the amici are stacked in one's side favor, be suspicious.)  And many of the briefs from the traditional left (Americans United, The Baptist Joint Committee, the American Humanists) were filed  "in support of neither party."  So what is all that about?  And what do we make of the Rutherford Institute, a right-wingish public interest group, similar in some respects to the ACLJ, filing on Summum's behalf?  What is going on?

Continue reading "The Weird Lineup in Pleasant Grove v. Summum"

Posted by Chris Lund on November 12, 2008 at 01:12 PM in Religion | Permalink | Comments (3) | TrackBack (0)

Executing Retributivism, redux

I'm home now from the autumnal delights of Falls Village, CT only to be hobbled by terrible sniffles just before class begins this afternoon. Alas, I'm not the Canadian I once was. In any event, I meant to get this up on the blog last week, but better later than never. For the Eighth Amendment fans in the audience, I have recently put up a substantially revised and expanded version of my article, Executing Retributivism, up on SSRN (and forthcoming this spring). There's still a good bit more work to be done toward the end (not to mention editorial work below the line throughout), but I have tried to improve and clarify the argument that Panetti v. Quarterman, a case the SCT decided in 2007, has substantial implications for the constitutional regulation of both capital and non-capital punishments, implications that have not been sufficiently appreciated so far.

To be more clear about my intervention, I am not arguing that the holding in Panetti requires the end of capital punishment or the end of the warehousing of the mentally ill in prisons, to name just two. Rather, my claim is that the ratio decidendi of the decision should lead lower courts and defense lawyers to revisit the rationales currently used to justify some of these practices, which are, to say the least, problematic from a retributive perspective. As there is still time to revise in light of feedback, I'd be grateful for anyone's off-line thoughts.

I have also put up new drafts of some other works in progress: Retributive Damages; How Should Punitive Damages Work?; and Punishing Family Status (with Ethan and Jennifer Collins). The first and third pieces are close to finished (coming out in January and December respectively), but the second piece is still very early on and I'd be grateful for comments on the piece, which offers a sketch of how to redesign the architecture of punitive damages.

Posted by Administrators on November 12, 2008 at 12:38 PM in Article Spotlight, Criminal Law, Dan Markel | Permalink | Comments (0) | TrackBack (0)

[Legalize] Bong Hits 4 Jesus!

The then-18-year-old  Alaskan who held up that infamous "Bong Hits 4 Jesus" banner has received a $45,000 settlement from the school district according to this story in the Anchorage Daily News.  Apparently the student, Joseph Frederick, had additional claims that weren't decided by the Supreme Court including a claim that his free speech rights were violated under the Alaska Constitution, which states: "Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right."  The settlement also reportedly requires the school district "to spend as much as $5,000 to hire a neutral constitutional law expert to chair a forum on student speech."

I became tangentially involved in this case when it was before the 9th Circuit by writing an amicus brief for the Student Press Law Center in support of the student.  When Kenneth Starr later stepped in on behalf of the school district and filed for cert, I repeatedly assured the SPLC that the Supremes would never take the case -- it's a far too messy vehicle, it's not even clear the kid was at school, and, most importantly, nobody has any idea what this crazy sign meant!  I, of course, soon ended up writing another amicus brief when the petition was granted. 

The interesting question I think this settlement raises is whether Frederick had broader free speech rights under Alaska's Constitution than he had under the U.S. Constitution.  It certainly seems doubtful that the Alaska Supreme Court would have concluded -- as the U.S. Supreme Court did -- that there is a free speech exception if public school students engage in speech that can reasonably be construed as advocating illegal drug use.  The "on all subjects" language in Alaska's provision strikes me as contrary to such a specific subject-matter based exception.  I wonder if this might signal a trend where citizens begin relying more on their state civil liberties than on their federal ones.

Continue reading "[Legalize] Bong Hits 4 Jesus!"

Posted by Sonja West on November 12, 2008 at 11:42 AM in First Amendment | Permalink | Comments (0) | TrackBack (0)

Why We Watch (Guest Post From Frederick Vars)

I've already written here about my enthusiasm for the work of my new colleague Fred Vars, who brings a set of valuable methodological tools to a variety of interesting questions.  (Commenters last time asked: is it law?  is it economics?  My answer -- whatever.  It's interesting.)  Fred must have a sweet tooth for sports, because following his interesting paper on the optimal targeting of soccer shots, he's sent along this interesting tidbit on why people watch losers in baseball.  Here's what Fred has to say:

The climax of the baseball postseason this year was not the World Series.  It was game five of the ALCS, in which the Red Sox, down by seven runs in the seventh inning, climbed back to beat the Tampa Bay Rays.  A surveyusa poll of Boston area respondents showed, tragically, that roughly half (47%) of those watching the game turned it off before the end.  Are Sox fans quitters?

In their defense, the probability of a comeback was miniscule.  The best estimate I’ve uncovered comes from the Win Expectancy Finder, which compiles data from 1977 to 2006.  A home team down by such a margin in the seventh inning won no more than 1.8% of such games.

So why did so many fans (53%) keep watching?  If we assume that seeing the Sox lose gives fans no pleasure (“no joy in Mudville”), we can calculate how much pleasure not watching the game would bring the median Sox fan.  Not watching was just a tiny bit better than seeing a loss.  In other words, seeing the Sox come back from that far down gave the median fan about 56 times the enjoyment of the next best use of time.  The thrill of victory indeed (even without a championship)!

Comments are welcome.  I cannot help but reflect that, having written about missing shots on goal in soccer and the viewership for losers in baseball, Fred may be suffering from some strange illness or homesickness that precludes him from focusing on winners.  Fred, remember that the Crimson Tide is 10-0! 

Posted by Paul Horwitz on November 12, 2008 at 11:37 AM in Culture | Permalink | Comments (1) | TrackBack (0)

A) Well-Meaning? B) Patronizing? C) A Little Sad? D) All of the Above? E) None of the Above?

This is a sensitive one, but I think well worth writing about.

In her column this past Sunday, Maureen Dowd (of whom I am generally no great fan) writes about the scene in Washington -- and elsewhere across the country -- after the election:

I grew up in the nation’s capital, but I’ve never seen blacks and whites here intermingling as they have this week.

Everywhere I go, some white person is asking some black person how they feel. . . .

I saw a white-haired white woman down the block from me running out to strike up a conversation with a black U.P.S. delivery guy, asking him how he felt and what this meant to him.

I was starting to feel guilty. Every time I passed a black patron at a downtown restaurant or a movie or the Kennedy Center, would perfect strangers want me to ask how they were feeling? Or was that condescending and were they sick to death of it? . . .

Dowd continues by noting that the election of Barack Obama provides an obvious moment of common ground and mutual reflection on the changes in our country, and that it's natural that such conversations take place, even if they are "awkward."  She concludes, a little jokingly: "But is it time now for whites to stop polling blacks on their feelings?"  Leon Wieseltier says some similar things in his typically overheated TNR column this week, ending in the somewhat embarassing way that only Wieseltier can:

I woke up the next morning still under the spell of solidarity and love. I decided to make the spell last. I gave away my tickets to a performance of some late Shostakovich quartets, because for once I was not interested in the despair. Instead I spent the day listening to the Ebonys and the Chi-Lites and the Isley Brothers. For lunch I went to Georgia Brown's for fried green tomatoes. A day of dopey symbols, I admit.

Continue reading "A) Well-Meaning? B) Patronizing? C) A Little Sad? D) All of the Above? E) None of the Above?"

Posted by Paul Horwitz on November 12, 2008 at 09:55 AM in Paul Horwitz | Permalink | Comments (2) | TrackBack (0)

Tuesday, November 11, 2008

What do you call the little "(i)" and "(i)(i)" in a statute?

Apparently, "romanettes":

Monday's Supreme Court oral argument in United States v. Hayes (pdf) was dense with debate over rules of grammar and statutory interpretation, all aimed at figuring out what Congress meant when it passed a statute in 1996 that expanded the scope of a law that makes it a crime for those convicted of felonies to possess a firearm. Just how far the new law went to include those convicted of domestic violence misdemeanors was the subject of the day, and by the end of the hour it was harder to predict the outcome than it was at the beginning.

One bright spot in the colloquy came during Assistant to the Solicitor General Nicole Saharsky's defense of an expansive view of the law. In discussing the statute at issue, 18 U.S.C. 922 (a)(33)(A)(i) and (ii), justices had been referring, awkwardly, to sections "little eye" and "little eye eye." But Saharsky had a far better way. She called them "Romanette one and two," using an obscure but self-explaining and almost whimsical term for a lower-case Roman numeral.

"Romanette?" asked Chief Justice John Roberts quizzically.

"Oh, little Roman numeral," Saharsky replied offhandedly.

"I've never heard that before!" said Roberts. "That's ... Romanette."

In all his days in the solicitor general's office and in private practice, Roberts had apparently never run across the term. The audience laughed -- including many, to be sure, who had never heard the word before themselves. Chief justices, along with everyone else, can learn something new every day.

H/T:  Patrick Sellers, a former Legislation student

Posted by Ethan Leib on November 11, 2008 at 05:11 PM in Article Spotlight | Permalink | Comments (3) | TrackBack (0)

Another Cheer for Clicker Technology

Miriam Cherry on Concurring Opinions has a fun and informative post about gaming in the classroom.  She mentioned "clicker technology," and the basic setup is that the students have these clickers and they can use them to answer multiple choice questions that a professor can throw out on an overhead.  I've been using clicker technology this semester, and I really dig it.  It's useful in a lot of ways.  You can certainly use it to test students.  I try to throw in a multiple choice question or two every now and then to make sure they're getting it.  (I do not grade students on their answers; I understand that potential exists, but I am hesitant about that for various reasons.)

My point is that clickers can also be a good way to spark class discussions.  A couple weeks back, my Contracts class did tortious interference with contract.  We spent some time talking about alienation of affection, a  tort in Mississsippi and a few other states under which a deserted spouse can bring suit against a third party alleged to be responsible for the failure of the marriage.  Alienation of affection is an analogue to tortious interference -- take the elements of tortious interference, replace the word "contract" with the word "marriage," and basically you get alienation of affection.

So we read Fitch v. Valentine, a recent Mississippi Supreme Court case that, among other things, addressed whether to abolish the tort.  I polled the class about whether, if they had been on the Fitch court, they would have voted to abolish or retain it.  I also had them (anonymously) indicate their genders, and broke the stats down.  79% of the women in the class said they would have voted to abolish the tort.  But only 42% of the men would have done so.  I was shocked at the seriousness of the disparity.  And, as you can imagine, this fueled an interesting class discussion about contracts, law, and gender.

Posted by Chris Lund on November 11, 2008 at 10:38 AM in Teaching Law | Permalink | Comments (0) | TrackBack (0)

Another Paper for the Institutionalists Among Us

I briefly plugged Judith Areen's excellent new paper on academic freedom and governance yesterday.  Let me also plug another new paper that ought to be of interest to people with an interest in First Amendment institutionalism, as well as privacy law scholars.  It's by Amy Gajda at Illinois and it's called Judging Journalism: The Turn Toward Privacy and Judicial Regulation of the Press.  Here's the abstract:

Courts, John Marshall famously declared, must "say what the law is." Increasingly, it seems, they are also called upon to say what the news is. When subjects of unwanted publicity sue for invasion of privacy or other torts, journalists commonly defend on the ground that the challenged disclosures were privileged as newsworthy. Traditionally, courts minimized constitutional concerns by deferring heavily to journalists' own sense of what qualified as news; that a story made the newspapers or the evening news was itself nearly conclusive evidence that the topic was of legitimate public interest and therefore beyond the control of tort law. Recently, however, courts have grown decidedly less tolerant. Driven by mounting anxiety over the loss of personal privacy generally and by declining respect for the press specifically, courts are increasingly willing to impose their own judgments about the proper boundaries of news coverage. Ironically, an emerging tool used by courts to police news outlets is journalists' own codes of professional ethics. By measuring editorial decisions against gauzy internal ethics standards, courts give the appearance of deference to the profession while, in fact, aggressively scrutinizing editorial judgments.

This Article demonstrates the growing threat to press freedom posed by these emerging trends. Part I places the conflict in historical context, showing how evolving legal understandings of privacy and press freedom set the two on course for a modern collision over "newsworthiness," which was resolved initially by deferring to journalists' editorial judgment. Part II explains how recent developments - including growing resort to journalists' codes of professional ethics - have undermined judicial deference to journalism in defining the news. Part III examines the implications of the nascent resurgence of tort regulation of journalism, and Part IV concludes by suggesting ways in which courts and journalists individually might end this narrowing of news.

It's superbly researched and well worth reading.  I'm not sure my own take on these issues is quite as negative as Prof. Gajda's, but she marshals an impressive argument.

Posted by Paul Horwitz on November 11, 2008 at 10:15 AM in Paul Horwitz | Permalink | Comments (0) | TrackBack (0)

Monday, November 10, 2008

A quick question about the FRC

Like Michael, I'm just back from the FRC, where I had a great time meeting a bunch of (intimidatingly) talented and accomplished people.  I was struck, during the conversations, that nearly every candidate, when asked (something like) "do you have any questions for us", asked "why do the Irish stink at football these days?" (not really) or (something like) "is there research support for junior faculty"?  And, my colleagues and I responded each time with what must have seemed like a canned recitation of our policies with reference to first-year teaching loads, pre-tenure leaves, internal workshops, travel and summer-research funding, etc.  Anyway, I wonder if we just made a mistake, and neglected to do what perhaps other schools do, i.e., include a description of these policies in the materials we send out before the FRC?  Or, is this just uniforming thought to be a safe question to ask?  If we were to take care of answering this question in pre-FRC correspondence, would we be doing candidates a favor, by answering their unasked question?  Or, would we be depriving them of a helpful go-to question for that inevitable "any questions for us?" moment during the interview?

Posted by Rick Garnett on November 10, 2008 at 03:45 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (20) | TrackBack (0)

Tip for Political Junkies: "A Perfect Candidate"

A big story in this past election was the change of Virginia from a red state to a blue state.  If you are a politico coming down off the heady fumes of this year's contests (cf. the chart included in this post), you should check out the documentary "A Perfect Candidate."  The documentary chronicles the 1994 Virginia Senate contest between Chuck Robb and Oliver North (with Doug Wilder in an Oscar-worthy supporting role).   It's an incredible documentary -- it focuses on North's campaign, and the level of access granted by the North folks is unbelievable in retrospect.  Given the fairly raw footage on display, it's unlikely we'll ever see it again.  But you should check it out -- it is a slice of American politics that can rarely be seen so vividly.

Just to sell it a little more:

• There are so many scenes that are really startling -- startling because of their unguardedness.  There's Chuck Robb wandering around a grocery store looking for voters.  There's the elderly DAR member who supports the flying of the Confederate flag.  There's the (not more than) four-year old with a rifle who says he shoots "clay pigeons and Democrats."  And there's the Washington Post writer who calls North a "demogogue" and his supporters "fascists."  No one really escapes unscathed -- but at the same time, everyone retains their humanity.
• You can see former McCain advisor and current MSNBC guru Mike Murphy in a minor role -- shooting around ideas with the other North consultants.
• Two Republican senators express grave doubts about North's candidacy when he wins the nomination -- Bob Dole and John McCain.
• Some folks are warning that President Obama has to rein in his agenda, or he will end up with another Republican revolution like Clinton did in 1994.  This movie immerses you in 1994 -- the issues, the culture wars, the icons, the drama. 
• There's the scene at the end when North campaign manager Mark Goodin tears up at the loss of his candidate.  Goodin comes off as a decidedly mixed figure -- a scrapper, a hard-fighter, someone perhaps willing to skirt the norms in order to succeed.  But at the end, when he stands in the cold and wells up in sadness and anger, he is truly one of the iconic figures in American politics.  It is hard not to be moved.

Posted by Matt Bodie on November 10, 2008 at 03:01 PM in Law and Politics | Permalink | Comments (1) | TrackBack (0)

Scientocracy and the Need for Judicial Process

There is a controversy among scientists as to whether a colossal new particle accelerator outside of Geneva could produce a black hole that might grow to annihilate the Earth. Slated to begin operations in Spring 2009, the Large Hadron Collider is a project of the multinational CERN consortium and is the result of billions of dollars in spending and decades of planning and construction.

Despite the obvious ramifications for everybody on the planet should a black hole be produced, many scientists seem to have the attitude that any controversy about safety should be settled among scientists – engaging one another in argument – and not in the court of public opinion or among lawyers and judges in a court of law.

The desire among scientists to keep the controversy from being vetted by laity is an intriguing aspect of the story of the LHC and the controversy about its safety. There is an inclination – both inside and outside of CERN – toward what might be called a limited-form scientocracy, a regime in which the community of scientists alone has the authority to determine what experiments will be run, regardless of alleged public hazards.

Such an attitude is in evidence in a colloquium talk given by decorated physicist John Ellis. The purpose of the August 2008 presentation was, in part, to give fellow scientists “the tools to convince other people that the LHC is safe.”1

In his talk, Ellis expressed in various ways a concern about the potential of the law and judicial process to interfere with particle-physics experimentation. Particularly interesting was hearing him talk about Richard Posner, whose 2004 book, Catastrophe, discussed the possibility of Earth being destroyed by a “stranglet” disaster – a scenario some feared from the now-active Relativistic Heavy Ion Collider on Long Island, New York.

“This guy, I find really worrying,” Ellis said about Posner.2 Using a slide show, Ellis flagged for his audience Posner’s suggestion that high-energy physics experimentation should perhaps be subject to a federal catastrophic-risk-assessment board and Posner’s view that a “scientifically literate legal profession” should be involved in adjudicating science-intensive controversies.

Continue reading "Scientocracy and the Need for Judicial Process "

Posted by Eric E. Johnson on November 10, 2008 at 12:12 PM in Judicial Process, Law and Politics | Permalink | Comments (8) | TrackBack (0)

The Blogging Guinea Pig

In my first post last week, I wrote about my hesitancy in signing up to guest blog. On the one hand, I wasn't sure how comfortable I'd be with such a public sharing of such nascent thoughts. I tend to be more a writer who ruminates, revises and reworks before sharing and later publishing. I'm sure I was attracted to academia in part because of the slow and deliberate pace of legal scholarship. And while I always welcome constructive criticism of my work, I also feared how I'd handle the lurking "piranhas" as Orin dubbed them. Not to mention that I already had plenty of ways to spend the limited hours in my day.

But I decided to give it a try because I couldn't shake the feeling I was missing out by not being a part of this virtual law school. Some of my blogging colleagues have assured me that it's not only useful but fun and addictive. They thrive on the ability to throw out a still-forming thought and crave the immediacy of the feedback. I also wanted to blog because I think the time will come when law blogging will be a pseudo-requirement for our job much like going to conferences and presenting papers. After I noted in my last post that I felt some self-imposed pressure that this was something I should be doing, our Dean and several tenured faculty members sought me out to assure me that they didn't give one whit about whether I blog or not. I should only do it if I enjoy it. I believe them that they don't care and that it won't make the slightest difference when I go up for promotion and tenure (although apparently they're all reading PrawfsBlawg!). But I nevertheless wonder about the near future. As the percentage of bloggers on tenured faculties grows, so most likely will the perceived esteem of blogging. It's only natural for us to value what we ourselves have done.

Whatever the importance of blogging to the young law professor, I'm giving it a try. And while I'm here, I'm offering to be a blogging guinea pig for all the other reluctant bloggers. It'll be hard to know how many of you there are because, by definition, you won't be posting and commenting. But I'm going to assume you're out there and wondering, "Is this something I'd enjoy? Is this something I should be doing?" At the end of the month I'll let you know my thoughts, because that's what we bloggers do.

Posted by Sonja West on November 10, 2008 at 10:41 AM in Blogging | Permalink | Comments (0) | TrackBack (0)

The DC Circuit's Dicta-Fest on Academic Freedom

On November 4, as the nation busied itself with other matters, the DC Circuit issued a very interesting opinion in a case called Emergency Coalition to Defend Educational Travel v. United States Department of the Treasury.  (Thanks to Jonathan Adler at VC for linking to the decision.)  The issue was whether amended Treasury regulations tightening restrictions on Cuba-based study programs violated the Administrative Procedure Act and the First and Fifth Amendments.  The DC Circuit panel upheld the district court's judgment in favor of the government on a motion to dismiss.

I think the basic ruling is fairly uncontroversial.  Even defenders of a robust form of institutional and individual academic freedom, like me, don't think that necessarily translates into a wide range of positive rights against viewpoint-neutral regulations.  What makes it perhaps more difficult is the argument advanced on behalf of the plaintiffs that the weighting of government interests involved in testing such regulations ought to take account of the importance of academic freedom, which should have some bearing in evaluating the government's argument that national security interests simply trump other considerations here.  I think those values should indeed be part of the mix.  But even if they are, that hardly compels a ruling against the government; it just demands a more candid and explicit incorporation of academic freedom in the weighing of interests. 

What is interesting about the DC Circuit's opinions in this case is the substantial amount of discussion of academic freedom.  As usual for academic freedom discussions by courts, it's all dicta.  In a concurring opinion, Judge Edwards notes that "[a]cademic freedom is not an easy concept to grasp, and its breadth is far from clear."  He lists a host of questions about constitutional academic freedom that he says "it is uncecessary for us to parse," but is clearing chomping at the bit to do just that.  In a separate concurrence in his own majority opinion, Judge Silberman takes a far more critical view, arguing that "[t]he very notion of academic freedom" as a First Amendment right "is elusive."  He reads the Supreme Court's statements on the issue narrowly; he says that it is "difficult to see why, if the university has a right to control at least the outer limits of its professors' lectures, a state legislature may not assert the same degree of control"; he suggests that he agrees with the Fourth Circuit's notorious decision that academic freedom may not exist as a constitutional right at all, and exists if at all only as an institutional right; and he concludes that "I do not perceive any principled reason why the First Amendment should be thought to protect internal governance of certain academic institutions . . . but not other eleemosynary bodies or, for that matter, trade unions or corporations."  (So much for Boy Scouts of America v. Dale!)

This is a very interesting opinion and one for the higher education law casebooks.  Congratulations are due, too, to Professor Judith Areen, whose forthcoming paper, Government as Educator: A New Understanding of First Amendment Protection of Academic Freedom and Governance, which is discussed in both concurring opinions, jumps directly from SSRN into F.3d. 

Posted by Paul Horwitz on November 10, 2008 at 10:32 AM in Paul Horwitz | Permalink | Comments (0) | TrackBack (0)

Greenawalt's Religion and Constitution and "The Philosopher's Brief"

A few weeks ago my friend and co-blogger Rick organized a superb roundtable conference to discuss the second volume of Kent Greenawalt's superb treatise Religion and the Constitution, titled Establishment and Fairness.  Rick has now outdone himself, organizing a collection of responses to Kent's books, stemming from the conference, to be published in Constitutional Commentary.

My contribution is titled The Philosopher's Brief.  In short, I argue that Kent's wonderful books are a work of legal philosophy, but without the philosophy, as it were.  They proceed carefully and in a nuanced fashion with respect to various church-state issues.  But without a clear underlying theory that tells us how to evaluate, rank and reconcile Religion Clause values, we are left somewhat in the dark as to how to evaluate whether the conclusions he draws on particular issues are genuinely "reasonable" ones.  I also argue that a somewhat different "bottom-up" approach to law and religion might focus more on the social and institutional facts implicated by the Religion Clauses and less on abstract philosophical values.

Here's the abstract.  Comments are welcome, as always.  Enjoy.

This is a short commentary on Kent Greenawalt's recent major contribution to law and religion, the two-volume work Religion and the Constitution, stemming from a roundtable discussion of his work at Notre Dame Law School.

This commentary makes two arguments about Religion and the Constitution. First, it questions whether the "bottom-up" approach that Greenawalt advocates for law and religion questions can succeed absent an explicit theory of the Religion Clauses. Greenawalt proceeds in the careful fashion of a legal philosopher, setting out a range of values that underlie the Religion Clauses and offering a sensitive case-by-case examination of various Religion Clause issues. It is a philosopher's brief for the Religion Clauses, as it were. But it lacks a clear philosophy: it does not ultimately tell us how to rank and reconcile competing Religion Clauses values. Such a philosophy may, in fact, ultimately be unattainable. But without it, we are left without clear standards for evaluating the "reasonableness" of Greenawalt's conclusions in particular cases.

Second, it argues that Greenawalt's work may be insufficiently attentive to the institutional nature of religious institutions and their role in the social and constitutional constellation. An alternative "bottom-up" method, rather than attempting to reconcile abstract Religion Clause values, might instead proceed by considering the role, practices, and capacity for self-regulation of various religious entities at an institutional level, and considering the legal implications of such an approach.

Posted by Paul Horwitz on November 10, 2008 at 10:08 AM in Paul Horwitz | Permalink | Comments (2) | TrackBack (0)

AALS faculty recruitment conference: any objections to requesting photo on candidate cv?

I just returned from the AALS faculty recruitment conference, and I share Michael's general reactions, about the high quality of the candidates and about how strenuous the process can be, on both sides of the recruiting table.

One of my colleagues on the interviewing team had an interesting idea that might improve the process a bit.  Would it be inappropriate for the interviewing school to request that candidates provide photos on their cv's?  This would be a help not just in ensuring that every interviewer accurately distinguishes the candidates ex post (not that big a problem, in my experience), but also in assisting the interviewer's recollection of the details of each interview.

Are there any significant objections to this proposal?  (I have heard that some academic departments outside of law routinely use photo cv's, though I have no first-hand knowledge.)

Posted by Ken Simons on November 10, 2008 at 08:41 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (9) | TrackBack (0)

Pleasant Grove City v. Summum

It's been a quiet year for law-and-religion cases at the Supreme Court -- no Free Exercise cases, no Establishment Clause cases, nothing about the meaning of the various federal statutes addressing religious exercise (RFRA, RLUIPA, etc).

The closest thing we have is Pleasant Grove City v. Summum. Summum is a sort of follow-up to Van Orden v. Perry, which held that some government-sponsored Ten Commandments displays were constitutional. Summum was brought by a religious group that wanted to put up its own version of the Ten Commandments (the Seven Aphorisms, which they claim is what God really gave Moses) in a city park that already had a Ten Commandments display (one of a more traditional sort). In the Tenth Circuit, Summum won on its Free Speech claim; the Tenth Circuit found that the city park was a traditional public forum from which the plaintiff could only be excluded upon the showing of a compelling interest. On Wednesday, the Supreme Court will hear oral argument. And an interesting case it will be...

Continue reading " Pleasant Grove City v. Summum"

Posted by Chris Lund on November 10, 2008 at 12:06 AM in Religion | Permalink | Comments (2) | TrackBack (0)

Saturday, November 08, 2008

AALStamina...

A couple hours ago our committee finished its last interview at the meat market meet market AALS Faculty Recruitment Conference.   This is my second year as a tenure-track professor, and my first appointments committee experience.  Comparing this experience to the one I went through just a couple short years ago, I learned the following:

1.  Apparently it's pretty rare for such new faculty to be on an appointments committee.  Perhaps we're progressive that way, or just gluttons for punishment, but two of our group are in their second year.  At the same time, I relish the input I am having on the process.

2.  The interviewing process is simply exhausting.  Just as I always thought it was more tiring to take a deposition than to be deposed, I think it is more difficult to interview rather than be interviewed.  (I except candidates that have 20+ interviews from these comments).  We were on for a full half hour, every half hour, all day.  No breaks except a lunch made short by being perpetually behind.  I envied the candidates that got to stretch their legs on the run between towers - not the stress, and the rushing from room to room, but the ability to move for a second.

3.  As a candidate I thought it was challenging to be on for every interview - not knowing which scholarship might be discussed.  But at least it was my scholarship and I was familiar with it.  This weekend we engaged 28 candidates on their scholarship, often wholly unfamiliar to at least some (and sometimes all) of us.  It was like 28 mini-workshops where you can't sit back and listen to other peoples'  great questions.

4.  I can't over-emphasize how impressed I was with all of the candidates.   Everyone we interviewed had something really great to bring to the table.  Of course, some did better than others, but I am really pleased with the work we did to select a slate of folks to meet.  I also really personally liked some of the candidates aside from what they might contribute as scholars and teachers, including many I know we won't have room to call back.  I have been told that for many candidates one callback for every three interviews, and even one callback for every five interviews, is a good result.  I understand that now.  We surely will not be able to bring every highly qualified and engaging candidate back to campus, and it really stinks.  And it may have little or nothing to do with a candidate's quality or likelihood of success.  If our full faculty had infinite time, patience, and money I would want to introduce most of our candidates to them.  Did I mention the part where I personally liked many we just can't accommodate?  Ugh. *

5.  That said, I don't want to give potential candidates too rosy a picture.  There were candidates who just weren't ready to go on the market for a variety of reasons.  There are things you can (and should) do to get ready for the academic teaching market.  Prawfs and other sites have many tips on this, including a compilation I keep at my own web site.  I have also read others say that being on this side of the table clears up a lot of mysteries in appointments, and it's true.  Things that didn't make sense to me when I was a candidate make perfect sense in the dynamics of appointments committee decisions. 

This has been a great experience, but one that is both exhilarating and exhausting.  I hope we make the right choices as a committee - it's a lot of responsibility that we took very seriously.

*Anyone reading this that interviewed with our committee - please don't read anything into this about how you did.  Our committee made no decisions today, is not meeting until we are back at school (did I mention the part about how exhausted we all are?), and my own personal thoughts are only one vote in any event.  That said, if you don't get a callback, also don't read anything into it about how you did.   Did I mention that there were people we really liked that we won't be able to call back?

Posted by Michael Risch on November 8, 2008 at 08:15 PM in Teaching Law | Permalink | Comments (14) | TrackBack (0)

Friday, November 07, 2008

The Media Say Data Are Awkward

Data is.

Media is.

Are you with me? Well, some folks aren’t.

“The data are inconclusive,” they will say. Or, “The news media are irresponsible.”

“Media” and “data” are mass nouns expressing uncountable quantities. When used as such – and they almost always are – they should be paired with the singular form of verbs. That’s my view, at any rate. And I’d say it’s well accepted.

But in academia, many folks contend these Latin-derived terms can only be used as plural nouns. “Media is” and “data is” are bad grammar to them. This view is especially prevalent on the science scene, but you’ll find it in legal scholarship as well. A lot of it. Over 10,000 occurrences of it in law review articles, according to Westlaw.

Now, I do not want to offend the thousands of law professors out there who’ve written “data are” in an article. (I don’t think I’d have any friends left.) But hearing people say “data are” drives me crazy. And when they correct me, I can’t take it at all.

The worst is Tom Clancy. Someone persuaded the techno-thriller mega-novelist that the singular “data” is a grammatical no-no. As a result, Clancy’s got every submariner under the Atlantic talking like a tweed-coated pipe-smoking grad student – everyone of them looking for a “datum” that will pinpoint the location of a lost Russian sub.

Grab a soy latte, Captain Grammar, and give me a break.

Actually, grab three soy lattes: One large, two media.

So, I ask you, the PrawfsBlawg readership – is “data is” what it is, or is “data is” what they aren’t?

Posted by Eric E. Johnson on November 7, 2008 at 06:40 PM | Permalink | Comments (9) | TrackBack (0)

Weekend Viewing

A must-see: South Park's take on the presidential election. Full episode here. And here is a story on how they produced the episode--and how they would have dealt with a McCain victory. In its own inimitable way (and around a lot of profanity and scatological humor), it captures the excess on all sides.

And here is a taste:

Posted by Howard Wasserman on November 7, 2008 at 04:16 PM in Culture | Permalink | Comments (1) | TrackBack (0)

Judicial Process Course Materials

Despite my best intentions, I’m about to break the promise I made in my last post (and what better way to celebrate an election than by breaking a pre-election promise?).  I thought about whether I could do another Malcolm Gladwell post, based on his latest piece, but haven’t quite been able to find an angle on that that I like.  And so, it’s back to the judicial process.  I’ve posted a “tentative draft” of my course materials on SSRN.  As I note in the abstract, these materials are a work in progress, and are surely incomplete in many important respects.  I welcome all feedback concerning how they might be improved.

Posted by Chad Oldfather on November 7, 2008 at 02:36 PM in Judicial Process | Permalink | Comments (0) | TrackBack (0)

Thursday, November 06, 2008

Barack Obama and John Kerry

So I'm staying at the Marriott in D.C. (like a lot of Prawfsblawg readers and writers), looking forward to interviewing some great candidates.  Anyway, we get the USA Today, and there's a fascinating county-by-county map relating to the 2008 presidential election in today's paper.   I can't get a link to it, unfortunately.  (It's on page 7A.)  But it's not about the counties Obama won and the counties McCain won (that's available here, if you want it).

It's about how Obama did in 2008 versus how Kerry did in 2004.  And it's fascinating.  Obama did generally better, of course.  In some states, Obama did dramatically better.  (In virtually every county in Indiana, for example, Obama did more-than-7% better than Kerry.) 

But in a few states, Obama did worse.  Substantially worse.  Obama gets significantly less votes than Kerry in Arizona (not hard to understand), but also in this weird swath of territory running from southeast Oklahoma, through Arkansas, through Tennessee, through southeastern Kentucky and southwest West Virginia.  Arkansas is the most pronounced.  In Arkansas, in the majority of counties, Obama got more-than-7% less in each county than Kerry did in 2004.  And in no county in Arkansas did Obama do better than Kerry.

There's probably an explanation I'm missing.  If there is, I have no doubt that the Prawfsblawg readership will alert me to it.  Could it be better v. worse-organized campaigns in particular states, or a decision by Obama not to spend money in these regions?  Other thoughts?

Posted by Chris Lund on November 6, 2008 at 02:02 PM | Permalink | Comments (14) | TrackBack (0)

Prop 8 Retroactivity

I have to confess that the seeming passage of Prop 8 dampered the election for me.  I'm very happy about Obama's victory but it really is counterbalanced by a fair bit of depression about the fate of Prop 8.  California at its worst, alas.  I also think there is very little chance that any of the litigation to undo Prop 8 will succeed; indeed, it looks foolish to try to go back to the courts on this one (unless some showing of voter fraud or undercounting can be made, neither of which seems on the table).  Until we get another chance to have this battle as a constitutional amendment -- or the Supreme Court gets a very different constitution, we're stuck, I fear.

Still, I'm a bit more optimistic (than Eugene Volokh) that the same-sex marriages already performed will remain valid.  Eugene's argument for their invalidation is a simple textual one:

According to the text of the amendment, as soon as the amendment takes effect, only male-female marriages are valid or recognized. (Nor is there any language in the initiative summary, or the supporters' arguments, that purports to interpret this text as not applying to existing marriages.) Future marriages, preexisting marriages, in-state marriages, out-of-state marriages — all are valid and recognized only so long as they are between a man and a woman.

Still, he recognizes that text is not all there is to interpretation of direct democracy in California:

Note that this article reports that "[a]n attorney for advocates of the ban essentially agreed" that "the proposed amendment, like most laws, will be interpreted to prevent same-sex marriages in the future, and not affect those that were legal when they took place." And some court decisions have hinted that a court might also look to "various pre-election materials (newspaper articles and editorials, committee reports, interest-group articles, etc.)." AFL-CIO v. Deukmejian, 212 Cal. App. 3d 425, 436 n.4 (1989); see also Carlos v. Superior Court, 35 Cal. 3d 131, 144 n.12 (1983), overruled on other grounds by People v. Anderson, 43 Cal. 3d 1104 (1987); Goodman v. County of Riverside, 140 Cal. App. 3d 900, 906 & nn.3-5. But it seems to me that these sources can only be the most tenuous evidence of what the voters actually understood the amendment as meaning, or intended it to do. As People v. Castro, 38 Cal. 3d 301, 312 (1985), held, "opinions [which were not] distributed to the electorate by way of the voter's pamphlet" ought not be relied upon, because courts "can only speculate [about] the extent to which the voters were cognizant of them." Accord People ex rel. Lungren v. Superior Court, 48 Cal. App. 4th 1452, 1461 n.6 (1995), rev'd on other grounds, 14 Cal. 4th 294 (1996).

In light of my study of the interpretation of direct democracy, I see courts as much more likely to pursue the voters' intent, as difficult to discern as it may be.  I also would expect a court to rely much more heavily on canons like the canon against retroactivity, even when a measure of direct democracy is in play.  See Evangelatos v. Superior Court, 44 Cal.3d 1188 (1988).  It just isn't especially unusual to see California courts, when engaging in interpretation of direct democracy moving beyond the text, especially when the reading that applied the amendment retroactively is by no means necessary or perfectly clear.  As a practical matter, too, the California Supreme Court might not like getting rid of these marriages that they essentially blessed.   

Continue reading "Prop 8 Retroactivity"

Posted by Ethan Leib on November 6, 2008 at 11:26 AM in Current Affairs | Permalink | Comments (13) | TrackBack (0)

A Simple Cost-Benefit Analysis for Elena Kagan

Why would Elena Kagan give up the deanship of Harvard Law School, for which she has been widely celebrated, for the cloistered life of the Supreme Court?  Um, let's see.  Perhaps the ad wizards at American Express MasterCard (thanks for the correction, Mike!) can help us out here:

• Hiring every law professor in the country: Sweet.
• Realizing that you now have to preside over faculty meetings involving every law professor in the country: Not so much.
• Hiring every law professor in the country and then getting the hell out of Dodge: Priceless! 

Posted by Paul Horwitz on November 6, 2008 at 10:48 AM in Paul Horwitz | Permalink | Comments (0) | TrackBack (0)

We Rise.

I'm just now emerging from the crush of edits I've had to do this past fortnight, and I plan to enjoy a brief reprieve this weekend communing around Connecticut campfires with the wonderful alumni of the Dorot Fellowship. Before I go, however, I wanted to share this video of Maya Angelou, talking with Harry Smith about the meaning of Obama's election. (Hat tip: Tommy.)

Watch. It will brighten your morning.

P.S. Happy 40th Birthday to our beloved co-blogger, Rick Garnett!

Posted by Administrators on November 6, 2008 at 10:44 AM in Current Affairs | Permalink | Comments (0) | TrackBack (0)

If it's Thursday, I Must Be in Room 4513 -- Or Was it 4315?

So I gather it's hiring conference time again. Of course, I wish the best of luck to everyone. Herewith, some unsolicited advice.*

1) Sometimes -- less often than used to be the case, I think -- you will find that particular interviewers, or even whole factions of the interviewing committee, have some ideological commitment or hobby-horse that you cross at your own peril. Your first instincts will tell you to steer clear. But, look, you can't please everyone. Sally forth. What's the worst they can do -- ding you?

2) If you are interviewing with one of the 40 or so "top 20" schools, they may, in a clever feint, ask you primarily about your scholarship. They may seem uninterested in what you have to offer in the classroom. Don't believe it: talk mostly about your teaching.

3) Conversely, if you are interviewing with a school that asks primarily about your teaching aptitude and that has obvious teaching needs, this might be a good time to talk about how you would rather not teach Property, but do have a great idea for a limited-enrollment seminar on Derrida and legal theory.

4) You may find that you arrive at your schedule interview room only to find that the prior candidate is still talking with the committee (usually, you will hear gales of laughter from behind the closed door as you sit in the hallway). You have two good options here: 1) sit meekly without knocking while the prior candidate bogarts all your interview time); or 2) knock every minute or two until they let you in.

5) Don't be glib.

6) Finally, don't worry -- you have plenty of time, and the Marriott Wardman Park is easy to navigate. And there's never a lineup at the hotel Starbucks.

* I take no responsibility for any consequences of actually following this advice. And I might add in a more serious vein that it is quite possible to have a very good time at the meat market; kibitzing about the law is, after all, one of the great benefits of the job. This is just kibitzing under somewhat unusual circumstances. Enjoy.

Posted by Paul Horwitz on November 6, 2008 at 01:08 AM in Paul Horwitz | Permalink | Comments (8) | TrackBack (0)

Wednesday, November 05, 2008

For what it's worth . . . .

. . . Like most conservative-leaning Americans who follow politics, I resigned myself a long time ago to the fact that, given all the givens, the Democratic Party's candidate would almost certainly be elected President.  And, I told myself ("Self,  . . . ") that I would try, notwithstanding my disappointment, to react more charitably, affably, and reasonably than (I thought) some of Pres. Bush's critics had reacted after the 2004 election.

Maybe, at some point(s), I'll impose on the Prawfs community a (I hope) respectful dissent from some of the more extravagant reactions to and interpretations of this election.  For now, though -- genuinely not wanting to stir up discord when I know that many of my friends and fellow citizens are very happy -- I don't see the point in fleshing out my regrets (regrets that are, of course, not inconsistent with an appreciation for the fact that it confirms some very good things about America and its progress).  So, I'll just record my view that, given all the political givens, the election was surprisingly close, and note that tens of millions of reasonable, fair-minded, unselfish, even-keeled, no-less-committed-to-racial-and-social justice Americans (and even a few reasonably informed and intelligent law professors!) both regard Sen. McCain as a genuine American hero who has displayed during his long career in public service a bipartisan spirit and independence that Americans claim to value in politicians and believe, upon reflection and in in good faith, that President-elect Obama's victory and agenda are not, on balance and all things considered, for the best.  But . . . we'll see.  That said, best wishes to all.

Posted by Rick Garnett on November 5, 2008 at 11:34 PM in Rick Garnett | Permalink | Comments (12) | TrackBack (0)

Prop 8: A Look Back and the Road Ahead

I can't add anything more to all the postings about the inspiration and awe so many of us felt last night as Barack Obama won the election, so I won't try.  But, and keeping in mind that I've already posted once on Prop. 8 directly and once indirectly, I feel a need to say a few things about the result last night and the road ahead.

First, proponents of same-sex marriage rights have a right to feel an acute sense of an opportunity just missed.  A "no" vote on Prop. 8 would have been immensely influential in solidifying marriage rights in the United States, given the sheer size of California.  The near-final result is not particularly close as a percentage matter (52.5 to 47.5), but a swing of 250,000 votes would have changed the result.  Not exactly a nail-biter but close enough to regret.

Should proponents have held off on suing, or Mayor Newsom refrained from granting the licenses?  After all, the California legislature had twice passed bills granting marriage rights; in one sense, we were a Democratic governor away from winning, and winning in a way that would have blunted any judicial tyranny argument.  But hindsight is always 20-20, and I wouldn't presume to criticize the politicians and plaintiffs and lawyers who made the decision to go. (Indeed, while I don't have the chronology handy, it might have been Mayor Newsom's action that prompted the legislature to act.)   And every day of delay is a day that matters to the men and women involved: think of Del Martin, who lived to marry her partner of over 50 years only because of the court decision that Prop. 8 overturned.

Continue reading "Prop 8: A Look Back and the Road Ahead"

Posted by Bill Araiza on November 5, 2008 at 09:50 PM | Permalink | Comments (5) | TrackBack (0)

Teach your children well

Riffing off Sonja's and Paul's comments about the world that we introduce to our children, let me share the following:

My wife and I decided to tell our almost-three-year-old daughter about Obama this morning, mainly because we were so excited about it. My wife explained that the country had chosen a new "boss" (give us a break, we were talking to a 3-year-old), a man named Barack Obama, who seemed like a very nice man who believed in many of the things we do, including tzedakah (the Hebrew word for righteousness, which includes within it concepts such as charity and justice, and something that they talk about in her pre-school). We then told her that Obama showed that she could be anything she wants when she grows up; she responded that she wants to be a teacher. Tonight at bed time, she brought up that Mommy had told her she could be the boss or she could be a teacher when she grows up. I agreed that she could be whatever she wants to be and do whatever she wants to do. Her response:

"OK, when I grow up, I want to be Barack Obama."

So do I, Lily. So do I.

Posted by Howard Wasserman on November 5, 2008 at 08:21 PM in Current Affairs | Permalink | Comments (3) | TrackBack (0)

This is what a President looks like . . .

I was moved by Paul's post about the momentousness of last night's election and what it means about the America we live in today and the one we will wake up in tomorrow and the day after that.  I also have a very young daughter and found myself thinking last night that as she grows and one day learns about the "President" -- the image her little mind will form will be first and foremost of an African-American man.  How unbelievable and inspiring.  Like many, I also grew teary last night as I listened to African-American parents talk about the joy they'll experience when they look their children in the eyes and tell them that they truly can achieve anything in America because an African-American man is the President of the United States.

To my surprise, however, I found myself aching for the day that I get to look my daughter in the eyes and tell her that she truly can achieve anything in America because a woman is the President of the United States.  My reaction surprised me because I've been a long and passionate supporter of President-Elect Obama (Yay! It's so fun to say!)  I was not moved by Sen. Clinton's candidacy or, clearly, by Gov. Palin's.  But my reaction is highlighting for me how much role models really do matter.  As a 1L at the University of Chicago, I did not have a female professor until the third quarter.  All year I told myself that it didn't matter -- that contracts was still contracts and torts was still torts. But when I finally had my first female professor (Elizabeth Garrett for Civil Procedure), I realized it did matter.  It mattered a lot. She was smart. She was qualified.  She was tough.  And she made it that much easier to imagine being in front of the classroom myself some day.

As I continue to celebrate last night's historic end to one discriminatory barrier, it's only making me increasingly anxious for others to fall too.  I want it to be that much easier for my daughter to imagine herself in the oval office some day.  I hope we don't have to wait too long.

Posted by Sonja West on November 5, 2008 at 04:27 PM in Gender | Permalink | Comments (1) | TrackBack (0)

Recounts to Watch

Thanks to blue-again Ohio and Florida, we don't have 2000 all over again, but a number of races remain too close to call. Required or likely recounts will be interesting to watch (candidates semingly in the lead are listed in bold):

Minnesota Senate:  Coleman (R) v. Franken (D) 

California 4th Cong. Dist.: McClintock (R) v. Brown (D)

Maryland 1st Cong. Dist: Kratovil (D) v. Harris (R)

Virgina 5th Cong. Dist: Goode (R) v. Perriello (D)  

Posted by Geoffrey Rapp on November 5, 2008 at 03:47 PM | Permalink | Comments (0) | TrackBack (0)

Transitions...

I would hope that all of us law-bloggers might burn off our excess energy in the next few months by giving serious thought to the legal issues that confront the incoming President.  I don't mean this in a triumphalist fashion, a la Clinton in 1993 -- now that we're in office, we're pulling out the laundry list!  I mean it in a more meta fashion -- what are the challenges involved in presidential transitions themselves, and perhaps legal transitions in general?

Let me offer a reading list on this issue.  I think Jack Beermann's work on presidential transitions is especially useful, and all but unique in the field.  You can find his SSRN page here, and I strongly recommend his articles "Presidential Power in Transition" and "The Law of Presidential Transitions" (the latter is co-authored with William Marshall).  Beermann certainly leaves many questions unanswered, but he provides an invaluable overview, along with a fine discussion of many specifics.  On the specifically administrative side of the ledger, Nina Mendelson's work is also fantastic, and I recommend her article Agency Burrowing: Entrenching Policies and Personnel Before a New President Arrives.  I have no idea what partisan leanings either person has, but I hope the Obama transition team will get in touch with both of them!  Finally, although its focus is a little different, I would recommend The Credible Executive, by Eric Posner and Adrian Vermeule.  I should add that there is a substantial poli-sci literature on these issues, but the legal academic literature is embarrassingly scanty.  I hope others will feel free to weigh in on some of the key issues involved in transitions, and to suggest other reading. 

Let me add three notes.  First, although it's too late to slot a discussion of these issues for publication in the next cycle of law reviews, I would strongly encourage law reviews with online supplements, like the Yale Pocket Part or Michigan's First Impressions, to set up a mini-symposium on these issues.  (And, yes, I'm definitely volunteering.  For that matter, I'm happy to corral the authors.)  This is an issue that deserves immediate and focused discussion.  Second, although it's still in the planning stages, I'm happy to say that my own law school will be hosting a conference on these issues next year.  I know, it's a little late, but I think it will be terrific and I look forward to it.

Third, there is one issue I think has not received enough attention, and that is what it means for questions of executive transition for the new President to take the oath prescribed to him in Article II.  I have a vested interest in this point, since I am working on a paper about the history and meaning of the federal judicial oath; but I think there is room for much more attention to the meaning and implications of all office-holders' oaths, including the Article II oath, and I hope and think that the increased attention to virtue ethics in the legal academy will lead to a greater interest in this subject.  Whatever candidate or President-Elect Obama might say, once he takes the oath I think he is subject to an independent set of obligations prescribed by the oath, and their precise meaning and implications are well worthy of serious attention.            

Posted by Paul Horwitz on November 5, 2008 at 03:20 PM in Paul Horwitz | Permalink | Comments (4) | TrackBack (0)

The real reason Obama won: he was once a law professor

In the excitement over Obama's election, pundits are offering varying explanations of this remarkable event.  But one underappreciated explanation is this: his academic temperament made a difference.

As a law professor, Obama took pains to consider, and have his students consider, both sides of every legal and policy issue.  (Or so it was reported.)  Only in this way, he believed, can one both understand the complexities of the issue, and persuade those with differing views that their views are taken seriously.

In his campaign, he was similarly nuanced, thoughtful, and balanced.  Or more precisely, he displayed these qualities as much as one could realistically expect, given the constraints of being a major party Presidential candidate  And these qualities made a difference, especially in his speech on the role of race in America, a speech remarkable for its frankness and sensitivity; and also towards the end of the campaign, when the economic crisis was most salient.  Obama's steady, cautious approach, and his reluctance to demonize his opponent or his opponent's views, reassured voters that he would handle the crisis effectively.

The upshot?  The major parties should insist that all future Presidential candidates spend some time teaching law (or political science or philosophy etc) before they receive the party's blessing as nominee.

Well, ok, maybe not.  Obama's victory no doubt reflects his ability to inspire young and minority voters, his eloquence, the unpopularity of Bush, the horrid state of the economy, and an extraordinarily creative and disciplined campaign.  But perhaps his academic temperament played a small role.  And perhaps those of us who are proud of his achievement can be a little proud, too, of what we do for a living.

Posted by Ken Simons on November 5, 2008 at 03:17 PM in Current Affairs | Permalink | Comments (2) | TrackBack (1)

Another Comment on the Election...

I wanted to echo Paul's thoughtful post -- this is a truly great day for the country, a monumental and historic moment.  But it's a work in progress, as Paul says, and I wanted to say just a little about the work that remains to be done. 

Presidents come from being Senators and Governors; I guess I thought the way we would get our first African-American President was that there would be so many African-American Senators and Governors that, because of sheer probabilities, one of the candidates would be African-American.

It didn't happen exactly like that.  If I'm not mistaken (and I always mess things like this up), because of Obama's election, there are now no more African-Americans in the Senate.  (Curse you Incompatibility Clause, and keep working, Seth Tillman!).  And there are only two African-American governors (Deval Patrick and David Paterson).  I'm not a pessimist -- really I'm not.  This is a proud day in the history of the country.  But there are still more proud days to come.

By the way, Barnes and Noble -- your email at 1:01 a.m. this morning about how I should buy the memoirs of the 44th President of the United States -- that was over the top.

Posted by Chris Lund on November 5, 2008 at 11:50 AM | Permalink | Comments (0) | TrackBack (0)

9/10-12 and 11/3-5

Last night, as some 160,000 people gathered in Grant Park to take part in a historic moment, my brother-in-law and a friend, both of whom blog for an audience composed substantially of each other, gathered in an apartment in Chicago -- to live-blog the election while watching it on TV.  This is a little like celebrating the fall of the Berlin Wall by sitting in a flat in Berlin with a friend writing postcards to each other.  I have something of that sense today.  Although blogs were a real part of this election, they still did not fully carry out anything like a journalistic function, but were largely echo chambers -- places of democratic participation, of a sort, but rarely sites of valuable reportage.  To blog about the election the day after seems a little beside the point.  But I have quotas to meet, so here goes.

In the post-9/11 era, people often spoke and acted as if America were a very different and much less safe place after September 11 -- as if the America of September the 12th was qualitiatively different from the America of September 10.  I have always been astounded by the tendency to speak in this manner about those events -- as if the plans had not been long afoot before the 11th, and as if the security flaws and accidents of dumb and brutal chance that became manifest that morning were not also long afoot.  Surely America felt different on the 12th than it did on the 10th, but it was not any more dangerous.  Those events were all part of the same process, and it was only their manifestation that changed us.

We might say the same thing about last night's election.  An election is of course a moment of change, and I can think of few more momentous than last night's election; who could not have been moved by the tears that streamed down so many cheeks lat night?  (Certainly not John McCain, whose concession speech, as I expected it would be, was gracious and fully recognized the historic nature of the moment.)  But the America that elected Barack Obama President last night, however different it might be from the electorate of 40 or 20 years ago, is not different from the America that existed on November the 3rd.  I don't think it's possible to overemphasize the profound impact that this nation's election of its first African-American President has had on all of us; it still seems both inevitable and unbelievable at the same time.  As someone who was not born into American society but chose as a foreign-born adult to cast his lot with the United States, I feel great pride and optimism today about my choice to tie my life, fortune, and sacred honor with this nation.  But the United States of which I am a part today is not so different in its component parts from the United States of two days ago, or for that matter of two years or ten years ago.  It is and always has been, I believe, a nation in flux, a nation whose views and assumptions are far broader and more accepting than its detractors have ever been willing to acknowledge.  The actions of the United States on November 4 manifested these tendencies, but they were not a sudden change; they were a snapshot of an America that has long been moving toward this moment.

Still, as anyone who woke up on September 12 can attest, there is a difference between knowing something as a matter of fact and experiencing it viscerally and immediately.  Those of us who lived through this moment can fully appreciate it, but should appreciate it not just as a sign that America suddenly changed on November 4th, but as evidence of changes that have been occurring for years and that we do not always see. 

One last note: Like my wife, I cannot help but think of my very young daughter, who, as my wife marveled last night, will simply never remember an America in which what we experienced last night was not possible.  There are challenges aplenty before us, and of course Obama will fail at some of them and demonstrate what will turn out to be characteristic flaws (and virtues) in dealing with them.  I really have always thought of Obama as a Kennedyesque figure, and we must remember that Kennedy emphatically had flaws in addition to his immense ability to inspire and articulate an American mood; I don't think Obama will be different in this respect.  But my daughter will, I hope, face her own challenges with a sense that she is a citizen in a country where little is impossible, where anyone can serve and lead, and where the day after some momentous event -- September 12th, or November 5th -- is both a new day and a manifestation of a history that is made every day, even when we do not notice it.         

Posted by Paul Horwitz on November 5, 2008 at 09:15 AM in Paul Horwitz | Permalink | Comments (5) | TrackBack (0)

Patenting DNA

After a brief diversion to rant about analyze the Bilski decision, I return now to the last post of my Everything is Patentable series.  I end this series of posts with one of the thorniest patentable subject matter questions – products of nature, including DNA. 

Like other areas, precedent is not terribly useful.  Products of nature are not patentable, but determining what is a product of nature can be difficult.  The general rule is that materials that are “isolated and purified” qualify while others do not.  Except, of course, for the person who was able to purify tungsten to the point where it was flexible (an important discovery for making light bulbs).  The court there ruled that he had not invented tungsten even though it did not exist in nature in the pure form that the inventor claimed.

DNA takes this point a step further – detractors claim that “someone can patent your DNA.”  These claims are patently false (pun intended).  DNA patents are about either purified gene sequences (turns out a lot of genes have non-functional segments) and artificial organisms in which DNA strands are combined with bacteria to artificially generate proteins.  Cool stuff, really, and critical to the biotech industry.

So, what’s the problem under rigorous patentability? 

Continue reading "Patenting DNA"

Posted by Michael Risch on November 5, 2008 at 07:39 AM in Intellectual Property | Permalink | Comments (1) | TrackBack (0)