Monday, March 7, 2005

Law Professor Takes on Law School Exams: Northwestern Law Prof Steve Lubet, who I believe runs the clinical programs at Northwestern, has an article in the American Lawyer arguing that traditional law school essay exams are in need of major reform:
There is almost nothing about the typical law school examination that is really designed to test the skills involved in law practice. And many aspects of exams are positively perverse. Take time pressure, for example. By their nature, exams are time-limited, usually to about three or four hours, during which it is necessary to assess the problems, decide on the answers, marshal the material (whether strictly from memory or from an "open book"), and then write, hopefully, coherent answers. There is no opportunity for reflection, research, reconsideration or redrafting. You simply dash off your answer and hope you got it right.
He continues:
The dirty secret (if it is a secret) is that law schools rely on exams primarily because they are easy to grade. The intense time pressure guarantees that the answers will be relatively short and, even more important, that quality will differ significantly. Exams do a great job of dividing test takers into measurable categories, even if those categories measure nothing more than an ability to take tests in an artificial, nonlawyerly setting.
  I have worried a lot about about this same dynamic, although I don't think the situation is quite as bad as Lubet suggests. I suspect the reason for the traditional dominance of in-class three-hour law school exams is less the need to generate short and varied answers than it is to limit opportunities for cheating. Take-home exams are the most common alternative to the traditional approach; they offer the benefit of giving students the opportunity to reflect at length on their answers in a way that is a bit more like most types of legal practice. But take-home exams also create a window for unethical students to bend (or break) the rules.

  With that said, I don't know why law schools couldn't increase the amount of time allowed for in-class exams and then impose word limits on answers. Most law students take their in-class exams on laptops these days, which would make the shift to word limits easy to administer. This approach would be fairer for students who perform less well in the highly pressured atmosphere of a three-hour exam, and wouldn't impose a substantial burden on professors.

  Any thoughts? Should law schools that follow the traditional approach consider switching from traditional three-hour in-class exams to five-hour or six-hour in-class exams with word limits on answers? I am assuming the exams are open book (which I think is the most common approach, and obviously the approach that most closely resembles legal practice).

  I have enabled comments. Thanks to CrimProf Blog for the link.

Business School Hack: If you were on the admissions committee at Harvard Business School, would you consider it a plus or a minus if a candidate hacked in to a computer that stored admissions decisions to find out whether they had been admitted? How about if 100 students did it?

  A misdemeanor violation of 18 U.S.C. 1030(a)(2)(c) isn't a great way to start off a business school career — unless you're as famous as Martha Stewart, I suppose.

  UPDATE: I'm not positive, but I think the headline of the article I linked to -- "Harvard, Stanford, Duke computers hacked" -- is inaccurate. As best I can tell, the university computers weren't hacked. Rather, I think the problem was with a third-party service, ApplyYourself, that the universities all used. So I think the candidates hacked into ApplyYourself's computer, not the computers at Harvard, Stanford, and Duke. It doesn't make a difference legally, or at least won't in most cases, but seems worth pointing out.
Careful With That Etymology:

I just got a political e-mail that began with:

Where did the word "picnic" comes from?

It was typical to have a picnic on a Friday evening in Oklahoma. The word was short for "pick a nigger" to lynch. They would lynch a Black male and cut off body parts as souvenirs. This went on every weekend in this country, and it was all across the county. . . .

This set my myth-detection antennae a-quiverin', and sure enough this is yet another usage myth, much like the claims that "nitty-gritty" originally referred to debris (including dead bodies) in the holds of slave ships, or that "handicapped" stems from handicapped people supposedly begging with their caps in their hands. In fact, Snopes says it's a myth, and the dictionaries I've checked note a perfectly innocent etymology for the word.

This reminds me of two tips I thought I'd pass along:

(1) Lots of the most interesting etymological claims that are bandied about on the Net and in the popular press are bunk. (The old chestnut about "fuck" being an acronym from "for unlawful carnal knowledge" is another example.) I don't know why this is especially common for etymological assertions, but that's what I've found. But don't trust any etymological claims -- especially the interesting ones -- unless you verify them in a reputable dictionary (and maybe not even then).

(2) More broadly, if you're tempted to forward such a claim -- etymological or not -- check it out. Check it on Snopes. Check it in a reference work; there are plenty available for free online. And this is especially so if you're making a broader political point, as my correspondent was. Why ruin your credibility at the outset, by passing along long-debunked errors?

Related Posts (on one page):

  1. Incorrect Etymologies:
  2. Careful With That Etymology:
Ponnuru v. Goldstein

After an unusually long hiatus I find myself drawn back into posting by having seen this recent post. (And no, I did not write it, for those of you with memories that go back that far.) Regarding the substance of the dispute between Ponnurru and Goldstein, I generally could not care less, which I guess puts me mostly in line with both Goldstein and Juan Non-Volokh in finding this to be much ado about very little.

I am drawn to comment, however, by the unusually nasty tone of Ponnurru's replies, particularly given that he does not seem to be getting the better of the argument. The only point that I write to make is that Ponnuru loses all credibility — and I would think the respect of most reasonable people — when he calls Goldstein dishonest and stupid. (I'm willing to accept slippery, though that certainly cuts against stupid).

I am happy to disclose that I am quite good friends with Goldstein and have known him for a very long time. I can also vouch for the fact that he is neither dishonest nor stupid and it is my humble opinion that his arguments in his exchanges with Ponnuru are likewise neither dishonest nor stupid (though I do not necessarily agree with every one of them). Whether reasonable persons might differ as to his substantive points is an entirely separate matter that I will leave to such reasonable persons. My suggestion to Mr. Ponnuru, however, is to lay off the name calling. If you have arguments, make them, and let the readers decide. Resorting to name-calling suggests that you lack more substantive responses and are perhaps out of your weight class. If you want to duke it out with the big boys then start acting like one.

Perhaps this post will define me in Ponnuru's eyes as both biased and stupid, though I imagine that will only reinforce my earlier points. I am no partisan either for or against Professor Tribe, my right-wing bona fides are fairly decent, and I will let others decide for themselves whether I am stupid. I am, however, a friend of Tom Goldstein, and friends do not allow mean-spirited and erroneous slanders to sit unanswered, especially when they are coming from "my side" of the fence.

Blogging and Students:

Reader Ben Wickert asks:

As a law professor, have the beliefs you express on your blog been challenged by students, whether in class or out? How do you express yourself without causing too much controversy? Or, perhaps, is that not even a concern of yours?

The answer to the first question is "no." It's too bad, since I think students should talk more to their professors, and argue with them (politely) when they disagree. This is s best done outside class, unless for some reason the blog post is squarely on-topic to the current class discussion. But if a student came up to me and said he disagreed with something I've blogged, and wanted to discuss it, I'd be delighted. As to expressing myself, I'm happy to cause controversy, if I think I'm right. I am especially careful with particular posts that I think will be controversial, to make sure that I'm indeed correct -- I don't want those sorts of controversies in which I end up looking like a fool. But creating the kinds of controversies in which I say something accurate yet controversial is, I think, part of my mission as an academic. And it's fun.

By the way, if any teacher-bloggers (whether in higher education or in K-12 education) have any interesting stories about students reading your blog posts and reacting to them, please post them in the comments.

Blogging Experts and Federal Rule of Civil Procedure 26:

More on the law of blogging -- a reader asks whether under Rule 26 of the Federal Rules of Civil Procedure (emphasis added), experts have to disclose all the blog posts they've posted in their area of experties:

(2) Disclosure of Expert Testimony.

(A) In addition to the disclosures required by paragraph (1), a party shall disclose to other parties the identity of any person who may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence.

(B) Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.

My quick guess is that blog posts need not be disclosed, unless they are detailed enough to form part of the witness's "qualifications" (which is highly unlikely, though a post that's as detailed as a scholarly article might qualify). The requirement, after all, is not simply to disclose all publications, but to disclose "the qualifications of the witness, including a list of all publications."

Yet I'm no civil procedure expert, so I can't be positive. If you have actual knowledge about this legal question (and not just speculation about the text, or opinions on what the law should be), please do post about it in the comments. Again, though, please limit this to specific legal knowledge that you have on the subject. I don't mean to be a martinet about this, but that's the way comments on such posts can be really useful.

I Blame Justice Douglas:

A friend of mine just reminded me that the generally accepted spelling is "haled before a court," not "hailed before a court." I usually use "haled," I think, but in a recent post (which I've since corrected) I used "hailed" instead. I blame Justice Douglas, since my sentence tracked his dissent in Beauharnais v. Illinois, which used "hailed." Impressionable law students: Don't get sucked into that usage yourself.

Note that I'm generally a descriptivist on usage, so I resist many claims that a common usage is "wrong." But "hailed into court" is still used very rarely by courts, compared to "haled into court," so I'm not sure it's really common usage yet.

Moreover, it's especially important for lawyers not just to be right, but to look right. Even if you have a good descriptivist argument to defend your using "hailed," the safer bet is to write "haled."

FEC and Blogging:

I wanted to echo Orin's recommendation of Rick Hasen's item on the FEC and blogs. Rick is a leading election law scholar, and a very thoughtful fellow, as well as the leading election law blogger. He tends to be more pro-regulation than I am, but I find his work to be much worth reading.

One small disagreement I have with Rick's piece: He writes that "As a matter of policy, bona fide on-line journals and political bloggers such as Hugh Hewitt, Andrew Sullivan, or Joshua Marshall, should be treated the same as the New York Times and David Brooks" (I agree so far) but then says that "Online corporate-owned journals like, however, do not appear to fall within the literal ambit of [the] 'media exemption' [to restrictions on corporate speech about candidates] nor do any blogs that are owned by corporations, because the exemption on its face applies only to broadcasts, newspapers, and periodicals."

I think that, literally, blogs are periodicals. They are published fairly regularly, rather than intermittently, and they reach more than a few people; that makes them "periodical publication[s]." (The relevant exemption comes in 2 U.S.C. sec. 431(9)(B), "The term 'expenditure' does not include--(i) any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication . . . .")

It would be good to clarify FECA to make clear that Weblogs and online magazines are exempted. But I think that, properly -- even literally -- interpreted, "other periodical publication" already includes blogs (except perhaps ones that publish intermittently and very rarely).

(Note that some dictionaries define "periodical" as meaning less often than daily, but that's not the majority definition, and it's not apt in this context, since "other periodical publication" shortly following "newspaper" suggests that newspapers, many of which are daily, are periodicals, and therefore that "periodical" includes daily publications. Also, one can argue that "periodical" requires a fixed period between items, such as roughly 24 hours or 7 days, and that therefore blogs that sometimes have posts 5 minutes apart and sometimes 15 hours apart don't qualify. But I don't think that periodical requires such fixed intervals -- publishing at least once a day should be as periodical as publishing exactly once a day at a fixed time -- nor would it make much sense.)

Rachel Corrie Award:

I have only a layman's knowledge of Rachel Corrie's life and death, but my tentative sense of the matter is close to that expressed in this Dennis Prager column. I would not have, for instance, named an award after her — but others obviously disagree, as the mass e-mail that I reproduce below shows. (Note that this e-mail was forwarded to me by a reader; I have no reason to doubt its authenticity, and I have confirmed that the purported sender is indeed involved with the Award.)

Subject: [RFP] Matthew Abraham is 2005 Rachel Corrie Award Winner

I am extremely pleased to announce that Matthew Abraham, assistant professor of English at the University of Tennessee at Knoxville, is the recipient of the 2005 Rachel Corrie Award for Courage in the Teaching of Writing. The award, now in its second year, is sponsored by the Progressive SIGS and Caucuses Coalition (PSCC) of CCCC, and will be presented at the PSCC annual Wednesday evening event at CCCC. This year the event will take place March 16 from 5:00 to 7:00 pm. (See the CCCC program for exact location.)

It happens that March 16 is also the second anniversary of Rachel Corrie's death. As Matthew Abraham's work has much in common, in its focus and its spirit, with Rachel's, presenting him with the award that night will be a both a wonderful way to once again commemorate the life and deeds of the young woman/student who took what she learned extremely seriously, as well as to recognize the young man/scholar/teacher who is bringing Palestine onto the radar screen of a new generation of students--and that of his rhetorician colleagues.

As the numerous supporting letters for Matthew that flooded my mailbox attest, he has earned this distinction through his work in all three areas in which most of us are evaluated for tenure: teaching, scholarship, and service.

From bringing Ann Coulter's writing, as well as progressive voices, into his undergraduate rhetoric and writing class (so that "students will learn about those aspects of argumentation that currently fuel cultural and political debate within the U.S.") to creating a graduate course called "Rhetoric in the Public Sphere: Intellectuals, Writing, and Social Change" (in which he asks students questions they most likely haven't encountered in their other courses, such as "What does it mean to 'speak truth to power'?" and "Why is the word 'advocacy' a dirty word in academe?"), Matthew Abraham has taken the field of rhetoric and writing to a place where it vitally matters. As a former colleague of his at Edinboro University of Pennsylvania wrote to me about his teaching: "[I]f Rachel placed her body between the Caterpillar monster and the little house she was trying to protect, Dr. Abraham's work places his professional future between the profession's crushing institutional silence over Palestinian suffering and the forces that would enforce this silence at the peril of the profession's conscience.... Not only did Matthew open students' minds to the complexities of the situation in the Middle East through assigned readings, supplemental lectures, and planned participation in debate (he was a charismatic teacher; I observed in his classes the awe and admiration with which he was regarded by his students; he appealed to youth's idealism, and he won!)--not only that, but also he led us, the faculty, out of our entrenched timidity and moral isolation toward the path of commitment and activism...."

Matthew was taking risks in his scholarship at least as far back as the time he wrote his dissertation (actually, not very long ago)--which was, in his own words, "an analsyis of the controversial academic scholarship of Lani Guinier, Edward Said, Paul de Man, and Norman G. Finkelstein." His publications include "The Rhetoric of Academic Controversy after 9/11: Edward Said in the American Imagination" in JAC and "Supreme Rhetoric: The Supreme Court, Veiled Majoritarianism, and the Enforcement of the Racial Contract" (forthcoming in an anthology from the U. of Illinois Press). As a colleague in his department wrote to me, "Dr. Abraham has presented a critical perspective of the ways in which the academic elite fashion a treasonous discourse that places scholarship in the service of U.S. sovereignty and power, a discourse that all too often masquerades as professional practice in academe." Even his current department head wrote about him with admiration: "When [Matthew] came here for his job talk, he presented himself and his scholarly agenda without soft-pedaling it....There's always pressure on new hires to be quiet and to fit in.....[Matthew] doesn't keep quiet and he hasn't changed his political commitments to please me or anyone else. He's kept on with his work even though it means that he has to put up with the extra pressures that come with ideological tests."

Many who read this announcement will recall that Matthew was the instigator of petitions on behalf of several intellectuals whose academic freedom has come under fire, including Ward Churchill and Tariq Ramadan. According to all accounts, Matthew has also been brilliantly innovative as an organizer of intellectual events--even when under threats of cancellation and boycott. Timothy Brennan, Professor of Cultural Studies, Comparative Literature, and English at the University of Minnesota, wrote to me of the 2003 panel Matthew organized for the MLA called "The Rhetoric of Resistance: The Intifada and the Literary Imagination": "It was very well-attended and widely debated--a local triumph..... The word 'intifada' had never before appeared on the program of the MLA." Victor Vitanza and others wrote glowingly of Matthew's work as a guest moderator for an online Pre/Text symposium with Noam Chomsky and Norman Finkelstein that dealt with the responsibility of intellectuals. Vitanza wrote of Matthew's handling of sometimes difficult--sometimes outright rude--questioners and commentators that he "disarmed the...people by being knowledgeable about what was being counter-questioned and by displaying a grace under fire that few have the ability to demonstrate publicly....His interperseonal skills are the best I have witnessed."

The star participants were no less laudatory about Matthew's role. Finkelstein wrote to me, "Although Corrie set the bar of courage at a nearly impossible peak for others to scale, I'm confident that, to the extent that anyone can, giving the award to Matthew would appropriately honor her memory." Chomsky wrote, "Abraham not only organized the symposium, but was also its guiding participant. The leading themes were topics that particularly concerned Edward Said--and Rachel Corrie. That takes a good deal of courage in the public domain in the US, including an academic setting. It includes extremes of abuse and vilification, and for younger people, threats to possible appointment; and in fact more direct threats, including death threats, many taken seriously by police on campuses and in communities....Abraham handled all of this with skill, care, sympathetic understanding, and admirable courage. The same has been true of other initiatives of his in defense of freedom of speech and academic freedom, and of suffering people. It is an admirable record, one of which, I am confident, Rachel Corrie would have very much approved, as I do, very much....In brief, I cannot think of a more worthy candidate."

I think I'll let Chomsky have the last word. Please join us in honoring Rachel and Matthew as we present this award--as well as for two hours of discussion with other CCCC progressives--at the Wednesday night CCCC convention session "Affirming Action: A Roundtable by the Progressive SIG/Caucus Coalition (PSCC) and the CCCC Diversity Committee" on March 16, 5-7pm, in San Francisco.

Harriet Malinowitz

Chair, Rachel Corrie Award for Courage in the Teaching of Writing Committee

Should the FEC Regulate Political Blogging?: Rick Hasen offers some thoughts. I am no expert in this stuff, but the recent comments of FEC Commissioner Bradley Smith that the FEC might start to regulate blogging sound to me more like parts of a media strategy than a prediction. Smith is strongly opposed to campaign finance regulation, and suggesting that the FEC might start regulating lots of bloggers is a surefire way to get the blogosphere in the mood to oppose campaign finance regulation.

Related Posts (on one page):

  1. Optional Speech Protections:
  2. FEC and Blogging:
  3. Should the FEC Regulate Political Blogging?:
University of Colorado President Resigns:

University of Colorado President Betsy Hoffman has just announced her resignation, effective June 30, 2005, or whenever a successor is named. In her time as President, Hoffman proved to be an excellent fund-raiser, and--until recently--a popular spokesperson for CU. She had no interest, however, in attempting even the mildest reforms of the far left's strangehold on the humanities at CU, and its suppression of intellectual diversity.

New Decisions on Prisoner Lawsuits and Criminal Law: Fresh from its decision invalidating the juvenile death penalty, the Supreme Court today expanded the scope of prisoner civil rights claims in one decision and made it harder for prosecutors to prove a defendant's prior criminal record to trigger higher punishments in another decision. Finally, in a concurring opinion, Justice Thomas strongly suggested that the Court is ready to expand Sixth Amendment protections again by overruling a 1998 precedent that exempted prior past convictions from the Court's new pro-defendant Sixth Amendment jurisprudence.
American Spectator on Asbestos Litigation:

Good piece in the March American Spectator on the asbestos mess. It doesn't seem to be online. I am quoted as follows:

"Money attracts lawyers like bees to honey," said David Bernstein, a George Mason University law professor who has written extensively on asbestos litigation. "In the absence of courts enforcing medical standards, the only risk to tort lawyers is what they pay for the photocopies. They just open up the file in their word processor and type in new names."

"Just to respond to a case costs a company hundreds of dollars," Bernstein continued. "If at all plausible, most companies would save money just paying even baseless claims off at $500 or even $2,000 apiece. And this breeds more of the same. For a single person filing a nuisance suit isn't worth it. It's too expensive. But you file 800 at once? 8,000? As long as the courts require so little actual evidence, the problem of asbestos litigation will continue to get worse."

"One of the main problems with asbestos litigation is that in the early 80s, when there were a lot of plaintiffs who were quite obviously injured, many states adopted special rules for asbestos litigation that were much more liberal with regard to analysis and causation," Bernstein said. "Now most asbestos claims are much less valid, but the liberal rules still apply. That's why you see companies with a tenuous connection to asbestos being sued and plaintiffs not deserving of checks receiving a lot of money."

George Mason University law professor David Bernstein said a real amelioration of the problem might not come until the visibility of the issue has been raised substantially. "When the publicity gets intense enough, courts might examine these claims more rigorously and be more willing to throw out the frivolous claims of unimpaired plaintiffs," Bernstein said. "Asbestos litigation might be less a question of judicial process than public opinion."

Institutions, Incentives, and Consumer Bankruptcy Reform:

I have just launched my latest article on the seas of the law review submission process as well. It is "Institutions, Incentives, and Consumer Bankruptcy Reform." It is in the process of being posted as a working paper and I will let you know when it is available.

This article builds on prior work of mine on the consumer bankruptcy crisis in the Northwestern Law Review and the Michigan Law Review. This article builds on my forthcoming article in the Northwestern Law Review, “An Economic Analysis of the Consumer Bankruptcy Crisis” which concludes that the upward trend in consumer bankruptcy filings over the past twenty-five years cannot be explained by the traditional model of consumer bankruptcy filings (working paper here). This article also builds on my prior article in the Michigan Law Review, entitled “The Past, Present, and Future of Bankruptcy Law in America” which explores the intellectual foundations and political economy of the making of bankruptcy legislation in America (working paper here).

This article caps this trilogy by proposing a new model of consumer bankruptcy that examines changes in the institutions and incentives for consumer bankruptcy filings over the past 25 years. Thus, where "Economic Analysis of the Consumer Bankruptcy Crisis" was largely a critique of the existing model, this is my effort to provide alternative model that I believe better explains the trends of the past 25 years and can guide future policy-making. In addition, as I describe in "Past, Present, and Future" the traditional model provided the intellectual foundation for the 1978 Bankruptcy Code. The model that I describe in my current article provides an intellectual foundation for much of the current bankruptcy reform agenda, and thus provides the first intellectual foundation for the bankruptcy reform legislation. The reform legislation, I believe, marks a fundamental sea change in the direction of American bankruptcy law, and I think it is important to understand the intellectual foundation for that change of direction. As many of you know, I have been an advisor to the Senate and House Judiciary Committees for several years on the bankruptcy reform legislation, so I think I have gained some insight into the intellectual foundation of the reform legislation.

Here's the Abstract:

ABSTRACT Consumer bankruptcy filing rates have soared during the past 25 years. From 225,000 filings in 1979, consumer bankruptcies topped 1.5 million during 2004. This relentless upward trend is striking in light of the generally high prosperity, low interest rates, and low unemployment during that period. This anomaly of ever-upward bankruptcy filing rates during a period of economic prosperity had spurred calls to reform the Bankruptcy Code to place new conditions on bankruptcy relief. Although bankruptcy reform has drawn broad bipartisan support on Capitol Hill, these proposals have proven controversial within the academy. Critics have argued that these reforms are unnecessary and punitive, and that private market adjustments such as higher interest rates and more restrictive credit rationing are suitable policy responses.

Scholars have previously identified two models of the consumer bankruptcy process, the traditional “distress” model and the economic “incentives” model. Neither, however, can explain the observed bankruptcy filing patterns of recent decades. This article offers a new model of consumer bankruptcy rooted in New Institutional Economics that explains the rise in consumer bankruptcy filings as reflecting changes in the institutions, incentives, and constraints surrounding the consumer bankruptcy filing decision. It is argued that this new model of consumer bankruptcy that is both theoretically and empirically superior to the traditional model.

This article identifies three institutional factors that can explain the observed rise in bankruptcy filings over the past several decades: (1) A change in the relative economic costs and benefits associated with filing bankruptcy; (2) A change in social norms regarding bankruptcy; and (3) Changes in the nature of consumer credit, toward more national and impersonal forms of consumer credit. It is argued that all of these factors tend to increase the incentives for filing bankruptcy or reduce the constraints imposed on filing bankruptcy. The result has been to increase the equilibrium level of bankruptcy filings in America.

Finally, the article briefly discusses some policy implications of the model presented here, focusing most specifically on the proposals contained in the Bankruptcy Reform Act that Congress is again considering, but also addressing more far-reaching proposals, such efforts to reverse changes in social norms or proposals to allow contracting-around the mandatory discharge provision of current law.

The Long Road to Being a Law Professor: An interesting discussion has been bouncing around the blogosphere recently about what law schools students should attend if they want to become law professors. To get up to speed on the discussion, check out these posts by Chris Geidner, Brian Leiter, Christine Hurt, and Larry Solum (and Larry again here). This is a very good discussion, and I agree with much of what has been posted. I have a few additional thoughts that I hope will be useful.

  Much of the discussion has focused on how much easier or harder it is to be a law professor based on what school you attend for your J.D. I think it's worth adding that, no matter what law school you go to, the road to becoming a law professor tends to be long and difficult. Rare exceptions exist, but most successful candidates get a law teaching job only after putting in a tremendous amount of work over a period of several years to prepare themselves for the teaching market. It probably starts with applying to schools; then turns to getting high grades; getting to know professors; applying for clerkships; and then — and this probably is the hardest part — writing, placing, and publishing multiple scholarly articles. The law school you attend is part of the picture, but only part of the picture.

  Second, almost all candidates encounter lots of uncertainty along the way. Persistence in the face of that uncertainty is key regardless of whether you went to law school at Yale, Tennessee, or Capital University. You might not get into the school you want, or may not get the clerkship you want; you may not place your article in a journal you want, or make law review. A few lucky souls encounter fantastic success at each and every one of these stages. But most don't; most people succeed at some of these stages and flop at others. The uncertainty continues to the very end: I know a number of very well-qualified candidates who didn't get a teaching position the first time they applied, and had to go on the market a second time to get a job.

  Finally, my relatively limited experience suggests that there is a wide gap between the success rates of candidates who are committed to getting a teaching job and those who are less committed to it. Some people express a wish to teach tempered by a number of caveats: they'll do it only if they can get a job at a top school, or only if they can be in a particular city or region. Most people who impose these sorts of restrictions give up along the way. At the same time, those who are willing to work really hard, write up a storm, and are flexible about what jobs they'll take usually end up with something eventually. Of course, it's hard to generalize on a point like this. I don't want to make it seem like anyone can be a law professor if they try hard enough; that's not true. But in my admittedly limited experience, my sense is that those who keep knocking on the door have a pretty good chance of having someone let them in.

Sunday, March 6, 2005

Are Young Associates Slackers, or Just Rational Actors?: Last week, posted this National Law Journal article on the work ethic of law firm associates who are part of the the so-called "Generation Y" — those born in 1978 or later. The verdict? From the perspective of today's law firm partners, associates from Generation Y are "slackers" with "a flabby work ethic" who don't "take charge of their career," lack "loyalty," aren't eager to do mindless work, and "don't volunteer for committee or other firm work." The article suggests everything from 9/11 to the bust as an explanation for this alleged generational shift in attitudes.

  Most of my knowledge of law firm life is second-hand, so my own take on this is sheer speculation. But I wonder if the article is missing a better explanation for the shift: law school graduates today understand that law firms — particularly large firms — are businesses. Law firms hire associates to make money, not for the esprit de corps. Big firm partners want to maximize their profits, and hiring lots of associates and having them bill lots of hours with little hope of making partner is a way to do that. Partners who have created this sort of environment are in an odd position to complain that today's young associates lack loyalty and don't volunteer for committee work. If I'm not mistaken, associates are taking their clues from partners and are viewing law firms as means to an end. Most big-firm partners are looking to make lots of money; most big-firm associates are looking to pay off some loans, get some experience, and add a line to the resume before figuring out what they really want to do with their lives. Associates in this position may seem lazy and insufficiently loyal to some partners, but that's mostly because the associates are not planning on sticking around for the long haul.

  But enough of my speculation. VC readers at law firms know a lot more about these dynamics than I do. I have opened up comments so we can get the real scoop from our readers.

Related Posts (on one page):

  1. The Problem With Partners These Days:
  2. Are Young Associates Slackers, or Just Rational Actors?:
Attorney's Girlfriend on the Jury:

This is almost unbelievable: in a case in which a jury awarded $28 million to a plaintiff in a rollover case, "The trial was interrupted last week when Ford lawyers discovered one of the jurors, Diana Palacios, was the girlfriend of plaintiffs' lawyer Jesse Gamez. In a hearing over a defense request for a mistrial, evidence was presented that Palacios, the Crystal City city manager, had also solicited two of the plaintiffs for Gamez to represent."

Now here's the even crazier part: the judge refused to grant a mistrial. And wouldn't there be some professional, or just plain moral, obligation on the part of the attorney to let the judge know that his girlfriend was on the jury before the trial started?

UPDATE: A reader writes:

You'd think so. But maybe not, at least with respect to a professional obligation. See Armstrong v. State, 897 S.W.2d 361 (Tex. Cr. App. 1995), where a juror was the longtime girlfriend [correction: another reader points out, correctly, that the juror was actually a longtime female friend] of one of the prosecutors, and the defendant was convicted of murder and given a life sentence. The Texas Court of Criminal Appeals, en banc, upheld the conviction. (No doubt this influenced the judge's decision in the Ford case you reported on.) Further, the Court expressed "no opinion" about whether the prosecutor violated Tex. Disciplinary Rule of Professional Conduct 3.09, which is a special rule for prosecutors. No one even seems to have *suggested* that there was a more general duty for attorneys other than prosecutors to disclose such matters. The Court's attitude seems to have been that defense counsel should've done a better job questioning the jurors during voire dire.

On the other hand, another reader notes that it's a pretty clear violation of rules of professional conduct to have a third party solicit clients.

Saturday, March 5, 2005

Eye on the (Washington) Post:

You will find much more accurate coverage of many recent events involving Israel at EyeonthePost than at its target, the Washington Post. My favorite recent point: The Post consistently refers to Israel as "occupying" the West Bank and Gaza, though the only other sovereign countries to have recently held these lands, Jordan and Egypt, have disclaimed ownership. But Syria merely has a "presence" in the otherwise sovereign state of Lebanon.

"Rapist Too Important for Prison?"

So it seems, from this news account. "Judge Rayford Means . . . said he factored in McIntosh's important work with stroke victims and brain injuries, and sentenced McIntosh to a year of house arrest and 12 years' probation."

There is some uncertainty about the facts of the case, but the man did plead guilty to sexual assault and possession of a controlled substance (presumably the sodium pentobarbital that the man was accused of slipping the woman to knock her out). Seems quite troubling, if the news account is accurate.

Funny Prediction on the Ten Commandments Cases,

from lawprof Jack Balkin.

Being Super-Rich May Be Easy, but Being Merely Rich is Hard: That seems to be a favorite lesson taught by the folks at the New York Times. See this article today, and this article from last week.
Syrian Pullback to Bekaa Valley Prevents Search of That Area.--

Assad announced that he is pulling back Syrian troops to the Bekaa Valley in Lebanon. This entry from The Dream of Lebanon explains the stated reason for staying in Bekaa:

Assad Withdraws 12,000 Troops, Keeping 3,000 Behind as Bekaa Garrison

President Assad is expected to announce a major redeployment of the Syrian army in Lebanon in a speech at Syria's People's Council, or parliament, on Saturday, pulling out some 12,000 troops by March 23 and leaving behind a 3,000-strong garrison in the Bekaa Valley, the Beirut media reports.

Assad believes the March 23 deadline would enable him to fend off a potential storm at the Arab summit conference set for the same day in Algiers against Syria's 28-year-old breath-choking tutelage over Lebanon, media reports said.

The alibi for retaining the Bekaa garrison, complete with four mountaintop early warning systems, is to guard against an Israeli army flank attack on Damascus via Lebanon. Some Lebanese opposition leaders may go along with the Bekaa concept provided Syria's secret services are withdrawn altogether from every inch of Lebanon, reports said.

The local media is focusing enormous interest on the Assad speech Saturday afternoon, wondering whether he would make any reference to the withdrawal of secret service centers that are abundant in Beirut and other major Lebanese cities.

An Nahar said in a terse remark Saturday that residents of the Upper Metn district spotted movements by the Syrian troops stationed in the region. It did not elaborate.

The Turkish Weekly has a couple of quotations from Assad's speech:

Syrian President Bashar Al-Assad addressed the Syrian parliament this evening. As expected he vowed a `gradual withdrawal` but no timetable for the withdrawal was given.

Assad : `We have to act positively to the stability of Lebanon`

Assad defended the role of Syria for stability, and emphasized that the Syria has no interest in Lebanon. Syria's presence in Lebanon is just for the stability of the Lebanon and the region.

Assad says forces will withdraw to Bekaa Valley in E. Lebanon. He claimed they were already pulled back troops in 1999 when there was no pressure at all.

Assad: “We should not stay one day if consensus asks us to leave”

When I first heard that Syria was pulling out of Lebanon, I knew that Syria would still try to set up a puppet government, so there was a lot that would have to happen before Lebanon was free. But I also had a tangential thought that a pull-out might allow the US or some other reliable investigators to search the Bekaa Valley to see what the Iraqis may have shipped there before the Iraqi War. One of the claims that was made before the Iraqi War by the sometimes unreliable was that WMDs were shipped to Syria. After the War, both US and coalition officials said that they tracked shipments to Syria, but could not know whether there were any WMDs in them.

For example, Coalition WMD inspector David Kay told the Telegraph on Jan. 24, 2004:

“We are not talking about a large stockpile of weapons. But we know from some of the interrogations of former Iraqi officials that a lot of material went to Syria before the war, including some components of Saddam’s WMD program. Precisely what went to Syria and what has happened to it, is a major issue that needs to be resolved. reported that one of the sites where WMDs were buried was the Bekaa Valley in Lebanon:

Indeed the US administration and its intelligence agencies, as well as Dr Kay, were all provided with Syrian maps marked with the coordinates of the secret weapons storage sites. The largest one is located at Qaratshuk at the heart of a desolate and unfrequented region edged with marshes, south of the Syrian town of Al Qamishli near the place where the Iraqi, Syrian and Turkish frontiers converge; smaller quantities are hidden in the vast plain between Al Qamishli and Az Zawr, and a third is under the ground of the Lebanese Beqaa Valley on the Syrian border.

Since the Syrian pullback is to the Bekaa Valley, I guess the Syrians will have a chance to cover their tracks (if their tracks need covering). We know that the WMDs existed in Iraq in 1998 because inspectors found them, and we know with reasonable certainty that there were no major stockpiles of WMDs in Iraq when the war started because we found only a few isolated WMDs in Iraq after the war. What we may never know is when they were removed or — what is more likely — destroyed.

Friday, March 4, 2005

Juveniles, the Death Penalty & Deterrence:

Justice Kennedy's majority opinion in Roper v. Simmons maintains that the deterrence argument for the death penalty apply with "lesser force" to juveniles. Kennedy writes: "it is unclear whether the death penalty has a significant or even measurable deterrent effect on juveniles," and notes that, as a general matter, "juveniles will be less susceptible to deterrence" than adults.

Interestingly enough, the facts of the case, as described in Kennedy's own opinion, suggest that criminal sanctions do have a potential deterrent effect on juveniles:

There is little doubt that Simmons was the instigator of the crime. Before its commission Simmons said he wanted to murder someone. In chilling, callous terms he talked about his plan, discussing it for the most part with two friends, Charles Benjamin and John Tessmer, then aged 15 and 16 respectively. Simmons proposed to commit burglary and murder by breaking and entering, tying up a victim, and throwing the victim off a bridge. Simmons assured his friends they could “get away with it” because they were minors. [Emphasis added.]

In other words, Simmons sought to induce other juveniles to participate in his crimes by telling them they need not fear criminal prosecution. This argument would have been unnecessary were his friends not deterred, at least in part, by such threats. From this proposition it is but a small step to assume that the severity of the criminal sanction -- death as opposed to a set jail term -- could have some deterrent effect on the margin. This does not mean that capital punishment for juveniles is a good idea, but it does suggest that Justice Kennedy may have been a bit too quick to dismiss the potential for deterrence. Indeed, his own recital of the facts should have raised a red flag on this point.

Martha Stewart: Who ever is doing public relations for Martha Stewart deserves every penny she is paying them. Law schools teach that the purposes of sending lawbreakers to jail are to deter wrongdoing and punish the wrongdoers. The press coverage of Martha Stewart's release from prison suggests a third purpose: humanizing celebrities, giving them some adversity to triumph over so they can make a stirring comeback and sell lots of home products.

  UPDATE: See also this post from Eric Muller.

  ANOTHER UPDATE: The Sunday New York Times will have a commentary in the Week in Review section very similar to this. You can see the online version here.
Ponnuru v. Goldstein - Part Tres:

The smackdown continues. The latest entries:

The entire exchange and supporting documentation will soon be available here, or at

For what it's worth, I thought the initial Ponnuru piece on Tribe cam up a bit short. Even accepting everything at face value, it hardly seemed like scholarly misconduct. At most it demonstrated that that Tribe engaged in a bit of puffery, so it hardly seemed worth all the space in National Review.

Without engaging in an extensive side-by-side comparison of all the documents and rejoinders, I think that Goldstein showed Ponnuru engaged in some slight misrepresentations of his own, but I don't think Tribe comes off scot-free either. I think a fair-minded reader could still conclude that Tribe exaggerated some points in his initial essay. Again, however, this hardly amounts to academic fraud. Congress will be considering the sunsetting provisions of the USA Patriot Act later this year. In anticipation of the coming debate, the Standing Committee on Law and National Security of the American Bar Association has assembled a group of experts in this area to debate the merits of key sections of the Patriot Act (as well as other issues beyond the Patriot Act such as rules for detaining enemy combatants).

  The essays are all going to be posted at, although only some of the essays have been posted at this time. They also will be assembled into a book available for purchase directly from the ABA. Stewart Baker, chair of the Standing Committtee, describes the goal of Patriot Debates as presenting "a series of 'dueling essays' on all of the most controversial issues relating to USA PATRIOT Act, written by some of the finest legal thinkers on these topics." The list of participants includes Viet Dinh, Patricia Wald, John Yoo, David Cole, and a handful of others (including me). A bunch of the essays are already up on the current site, with more to come. My own essay on sections 209, 212, and 220 is available here.

  The Top Secret Handbook For New Volokh Conspirators recommends writing a bunch of posts over the next few weeks urging you to buy the ABA book (see page 283, footnote 97 in the Handbook). But I don't know why you would want to buy the book: all of the essays will be available online first at

Thursday, March 3, 2005

Solomon Amendment and Moussaoui Petitions: How Appealing has posted the petition for certiorari and brief in opposition in the Moussaoui case from the Fourth Circuit, as well as the petition for certiorari in the Solomon Amendment case from the Third Circuit. These things can be hard to guess, but I think the Court will grant the petition in the Solomon Amendment case and deny the petition in Moussaoui.

  (For those who are not lawyers or don't follow the Supreme Court, a rough translation of that paragraph into English would be something like this: "The case of the alleged 20th 9/11 hijacker and the case involving military recruiting at law schools have reached the Supreme Court. I think the Supreme Court will agree to review the case involving military recruiting, but will decline to review the case involving the hijacker.")
My Column on Blogs

in the New Orleans Times-Picayune this morning. (I just love the name "Times-Picayune.")

I've been in New Orleans for a couple of days, by the way, visiting at Tulane Law School, giving several talks and much enjoying the time here (and not just the delicious food!).

Sending Us Posts to Read and Link to:

A reminder of our linking policy: If you want to send us a post or op-ed of yours that you think we might want to read and link to, please include both (a) the text of the post and (b) the URL of that particular post (also known as a permalink).

When we're working from home, often on slow connections, this makes it much easier for us to read the post -- and thus much likelier that we will read it and consider linking to it.

I suspect that many other bloggers have similar preferences to these. Sorry to be so demanding, but the volume of e-mail that we get has ended up requiring this. Thanks!


Alice, who is in an Atlantic seaboard state (one of the states of the USA, that is) is talking on the phone to Bob, who is in a Pacific seaboard state (again, one of the states of the USA). "What time is there?," Alice says. Bob gives the correct time where he is. "Funny, it's the same time here," says Alice. How is that possible?

Thanks to Warren Usui for the problem.

When I First Read this profile in the New York Observer, I wondered if it was just a parody poking fun at the pretentiousness of Harvard graduates. But a link from The Corner suggests it's the real deal.

My post yesterday on harsh ridicule of religion in Australia contained an important error: The law that I criticize is a law in the state of Victoria (home of Melbourne, and roughly a quarter of Australians), not a federal law that covers all Australia. D'oh! My apologies for the error, and my thanks to readers Jarrod Weir and Peter Laverick for setting me straight.

My criticism of the law, however, still stands.

Friends in High Places:

A well known tactic in getting a good placement for a law review article is for the author to thank in the first footnote important friends and colleagues who read and commented on the piece. The message to student editors is, "you may know who I am, or anything about the subject matter, but this article must be important or these important people would not have bothered to read it." Thus, long lists of prominent scholars thanked in initial footnotes are rather common. I just noticed that one Professor as trumped her professional colleagues by thanking the Diety in her initial footnote: "I first give thanks to God for guiding me through to the completion of this Article." That's even better than Posner or Sunstein!

(BTW, it should be obvious that I'm being facetious; I'm sure the author was sincerely thanking God. For that matter, law review authors thank their friends out of courtesy, not simply because it looks important).

Smackdown Over Tribe:

Ramesh Ponnuru and Tom Goldstein continue to duke it out over whether Larry Tribe presented a fictional account of his argument in the Richmond Newspapers case. There's even a new blog (well, kinda) for the exchange.

Here's the rundown:

For those wanting even more, here's a link to Tribe's brief in Richmond Newspapers and here's a link to his allegedly fictional Green Bag article.

On whether there is any connection between Ponnuru's attack on Tribe and looming Supreme Court confirmation battles, a reader e-mail prompts me to offer this thought: There is no doubt that some on the Right have it out for Tribe due to his role in scuttling the 1987 nomination of then-Judge Robert Bork to the Supreme Court. That fight was extremely bitter, and some on the Right have never forgiven those who, in their view, were instrumental in defeating Bork's nomination.

In a related vein, I have often heard that one reason Walter Dellinger was never confirmed by the Senate as Solicitor General -- and served his time as "acting" SG -- was because his role in opposing Bork. I cannot verify the claim, but it would be further evidence that the scars from prior nomination battles run deep.

Baude on Roper on Foreign Law: Will Baude offers thoughts on the use and misuse of foreign law in Roper v. Simmons at The New Republic Online.
Be Careful What You Wish For:

One thing I noticed recently is the increasing sentiment among some American Jews in favor of "hate speech" restrictions, especially given the recent incidents of anti-Semitism at some universities. I just ran into that a couple of days ago on a Jewish academics' discussion list on which I'm a passive reader. The Australian decision that found harsh criticism of Islam illegal should, I think, be a reminder that hate speech bans can bite anyone.

Many people think such laws will ban criticism (which they think is hateful, and much of which may indeed be hateful) of their group. But they quickly discover that the laws easily spread, and soon spread to criticisms that you yourself may want to make — though of course you'll make such criticisms much more fairly and temperately, and naturally you're completely sure that a hostile judiciary will recognize this and find your speech to be different, right?

Justice Douglas put it well when dissenting from Beauharnais v. Illinois, a 1952 case that upheld a law that banned libels of races and religions (and that is fortunately widely believed to have been implicitly overruled):

Today a white man stands convicted for protesting in unseemly language against our decisions invalidating restrictive covenants. Tomorrow a negro will be hailed before a court for denouncing lynch law in heated terms. Farm laborers in the west who compete with field hands drifting up from Mexico; whites who feel the pressure of orientals; a minority which finds employment going to members of the dominant religious group — all of these are caught in the mesh of today’s decision.

Today you may want Aryan racists or Muslim radicals to be convicted for condemning Jews. Tomorrow a Christian will be haled before a court for denouncing Islam in heated terms. The next day someone with perfectly fair and sensible criticisms of Islam will be convicted because his views seem too radical or not sufficiently balanced for the judicial elites of the time.

Related Posts (on one page):

  1. Whoops:
  2. Be Careful What You Wish For:
  3. Harsh Criticism of Religion Made Illegal:
Not Quite the Same:

I think the Supreme Court's decision holding that the death penalty may not be imposed on killers who were 16 or 17 at the time of their crimes was unsound, for the reasons that Orin has noted here, and that Justice Scalia noted in dissent. I'm not sure what I think of the execution of such killers as a policy matter, but I think Justice Scalia is right that this is not unconstitutional.

Nonetheless, I'm not persuaded by the link that some readers have drawn between this and a point in yesterday's post about the killings of Muslim women by their families:

In many cases, fathers -- and sometimes even mothers -- single out their youngest son to do the killing, Boehmecke said, "because they know minors will get lighter sentences from German judges." . . . Currently, six boys are serving time in Berlin's juvenile prison for honor killings.

I think many would-be killers (and those who influence them) may be swayed by the possibility of relatively light sentences, especially if they are just several years (which is my tentative sense from the paragraph above). But I think few would-be killers, especially teenagers, would think "I won't commit this crime if there's a small chance I'll get the death penalty; but I will do it if all it means is that I'll get life without parole." The marginal difference in deterrent, I suspect, is pretty modest there -- whereas the marginal difference between several years in prison and many more years, which it sounds like is the situation in Germany, would be quite substantial.

This is my intuitive sense; I haven't read the studies, about which I hear conflicting things. Nonetheless, it's a pretty strong intuition. I don't think we're going to have many more honor killings (or other killings) by 17-year-olds as a result of this decision.

At the same time, I do agree on one point: I don't think the U.S. Constitution should be interpreted in light of the moral judgments of Germans or Englishmen (or perhaps more precisely the members of German or English legal elites), who may have very different cultural and moral assumptions about the propriety of punishment. That 20 American states endorse something strikes me as more significant for interpreting our Constitution (if present views are to be considered) than 50 to 100 foreign countries' endorsing something. (I say 50 to 100 rather than the full complement of 200+ because 50 to 100 is the upper limit of the number of countries that are democratic enough that we should see their "views" as anything other than the political judgments of the strongmen or cliques that run them.)

Wednesday, March 2, 2005

Robert Byrd, the Democrats' Crazy-Old-Uncle-in-the Attic

has come under fire from Jewish groups for comparing the Republicans' "nuclear option" threat regarding filibusters and judicial nominations to Nazi tactics.


This article on "honor killings" of Muslim women -- in Germany -- is generally shocking. There are many important points there, for instance:

One of the unsettling truths about Hatin's death and the plight of many Muslim women is that it took the comments of three Turkish boys and the outrage of a male school director to get people to notice. When the murder first happened, it sent no shock waves through the mainstream German press. It only became big news when a group of 14-year-old Turkish boys mocked Hatin during a class discussion at a school near the crime scene. One boy said, "She only had herself to blame," while another insisted, "She deserved what she got. The whore lived like a German." The enraged school director not only sent a letter home to parents, but also to teachers across Germany. The letter ignited a media fury. Less known, however, is that the letter also hit a nerve among educators. "Teachers from across the country wrote back saying they had had similar experiences," Boehmecke said. They reported Turkish boys taunting Turkish girls who don't wear headscarves as "German sluts." . . .

"People were afraid they would be called Nazis if they dared to bring up issues of human rights in the Turkish community," said Serap Cileli, a Turkish author and filmmaker who at 15 was forced into an arranged marriage. . . . She has written prodigiously about her experiences and now helps Turkish women escape oppressive families. For the greater part of a decade, however, Cileli was unable to find a publisher for her work. "Everything I wrote from 1994 to 1999 was rejected, even by newspapers," she said. "They told me I was writing about a minority issue and they were afraid of appearing racist." . . .

But this paragraph struck me as particularly troubling (thanks to InstaPundit for the pointer) -- "demented" (from the quote below) and "death cult" (from the comments of others) are apt terms:

In many cases, fathers -- and sometimes even mothers -- single out their youngest son to do the killing, Boehmecke said, "because they know minors will get lighter sentences from German judges." In some cases, these boys are revered by their community and fellow inmates as "honor heroes" -- a dementedly skewed status they carry with them for the rest of their lives. Currently, six boys are serving time in Berlin's juvenile prison for honor killings. "In a way, these boys are victims, too," she said. Sometimes they are forced to kill their favorite sister.

Lots of Interesting Stuff posted recently over at The Right Coast. Check it out.
SPEECHES TOMORROW IN NYC: Tomorrow, I will speaking on Ashcroft v. Raich at NYU law school at 12:15 p.m. Vanderbilt Hall (located at 40 Washington Square South) Room 204 (lunch will be provided) and at Columbia law school at 6:30pm (Greene Hall 104).
Justice Scalia Isn't Exactly A Model of jurisprudential consistency, but those trying to play "gotcha" with him have to do much better than this piece by William Saletan in Slate. Here is Saletan's first paragraph:
Dissenting from Tuesday's U.S. Supreme Court ruling on the execution of juveniles, Justice Antonin Scalia ridicules his colleagues for switching sides on the basis of "evolving standards." He calls the majority opinion a "mockery" for supposing that the Constitution's meaning "has changed over the past 15 years." It's an unfortunate complaint, because the justice most flagrantly guilty of changing his position on the moral responsibility of juveniles in the last 15 years is Antonin Scalia.
  What's the evidence that Justice Scalia has "switched sides"? It's this and only this: Justice Scalia voted to uphold both the juvenile death penalty (in Roper) and parental notification abortion statutes (in Hodgson v. Minnesota).

  According to Saletan, the juvenile death penalty and parental notification statutes involve opposite sides of the same basic issue: the moral responsibility of juveniles. As best I can tell, Saletan thinks that parental notification laws are premised on the absence of juvenile moral responsibility, while the juvenile death penalty is premised on its existence. To Saletan, you can't believe both are constitutional without "switching sides."

  To point out the obvious, though, the Supreme Court is not supposed to adopt abstract formulations on morality and then decide to strike down or uphold statutes based on whether a given statute happens to reflect that formulation. That's the whole point of Scalia's writings in both the death penalty and abortion contexts: the moral decisions belong to legislatures, Scalia argues, not the courts. You can agree or disagree with that, of course, but it seems quite odd to accuse him of being inconsistent in these cases.

  Thanks to Howard for the link.
Broad Readings of State Bill of Rights Provisions:

I mention below that state courts may read Bill of Rights provisions differently than the analogous federal provision is read. Sometimes the text clearly mandates this, in which case I take it that many advocates of judicial restraint wouldn't object. For instance, many state right to bear arms provisions explicitly secure an individual right to have arms for self-defense; whatever you think of the proper interpretation of the Second Amendment, state courts have to interpret those provisions as barring at least some gun controls. Likewise, some states, including California and Florida, have an expressly secured "right to privacy"; one may debate what that should mean, but one can't complain that the judges who enforce such a right to privacy under the state constitution are just making it up.

But what if the text is vague or ambiguous? Should people who fault the U.S. Supreme Court for reading federal Bill of Rights provisions too broadly -- especially when they strike down legislative enactments -- do the same as to the state supreme courts reading state Bill of Rights provisions too broadly?

The answer could of course be yes: One could argue that such state decisions illegitimately interfere with the democratic will, as expressed by the state legislature. One could also argue that such different interpretations may cause some confusion, and one could appeal to the U.S. Supreme Court's authority to argue that the state court's decision intepreting similar constitutional language is mistaken. (As I note below, state courts are legally entitled to interpret state provisions differently from similarly worded federal provisions, but critics may argue that those interpretations are erroneous, and may call on the U.S. Supreme Court Justices' authority to buttress those arguments.)

But here are three reasons why we should be less worried about state judges' broad readings of vague or ambiguous constitutional language -- I'm not saying "not worried at all," since some such readings may still be viewed as wrong for various reasons, but less worried, for instance if the case is close and there's a plausible argument that the state constitutional provision should indeed be read to restrict the state legislature:

  1. We often hear complaints about unelected judges imposing their views on the democratic process. But in many states (most, I think), state supreme court judges are elected, and can be voted out of office (though that rarely happens, and sometimes the system is set up to minimize the chances of that, for instance by barring contested races and only providing for a Yes or No vote, as in California). They may not be elected on a platform of imposing their own views on the law; but their election -- and possibility of electoral removal -- does, I think, give their decisions more democratic legitimacy.

  2. We also sometimes hear complaints about a state's law being invalidated by the will of those nine Justices in Washington, who may have very different views than the state's residents do. This cultural disconnect argument is a harder (though not impossible) argument to make against state supreme court Justices.

  3. A related argument is that when the U.S. Supreme Court invalidates a state law on Bill of Rights grounds, it sets the law in stone for the 50 states, and prevents useful state-by-state experimentation (with innovative police procedures, for instances). This argument doesn't apply to state supreme court decisions.

  4. Federal constitutional decisions are very hard to dislodge through the democratic process -- it (usually) takes a 2/3 vote in each house of Congress, and then the votes of 3/4 of the state legislatures. But state constitutional decisions can often be changed by a simple majority vote of the people (though that varies from state to state) preceded by a vote of the state Legislature (though sometimes that has to be a supermajority, or two successive majorities in successive sessions) or a citizens' petition with a suitable number of signatures. So if the state supreme court interprets a provision in a way that the people dislike, they can change it with less difficulty than they can as to the federal constitution.

Again, one can surely criticize state court decisions on various grounds, for instance that they are illogical, or inconsistent with the provision's text, original meaning, or historical interpretation. I have, for instance, criticized a Nevada Supreme Court's state constitutional decision related to taxes, and I don't agree with the Massachusetts Supreme Judicial Court's same-sex marriage decision, just to give two examples. And one even when the text is vague or ambiguous, one can argue that state courts should err on the side of giving the legislature more flexibility. But I do think that the four points cited above make this latter argument less persuasive (though don't by any means entirely defeat it) as to state constitutional decisions than it is as to federal constitutional decisions.

Rights Under State Constitutions Vs. Federal Constitutions:

Reader Robert Woolley writes:

Why did the Missouri Supreme Court, in the juvenile death-penalty case (State ex rel. Simmons v. Roper (112 S.W.3d 397)), invoke the federal 8th amendment, rather than using Missouri's own state constitutional provision of the same language?

The Missouri justices had to go through pages of rhetoric to explain its justification for concluding that the US Supreme Court "would" now overrule its own 1989 Stanford precedent. They happen to have guessed correctly, as it turned out, but I can't figure out why they did it that way. It seems like a politically and legally risky move, virtually inviting reversal, if they have guessed the higher court's mood incorrectly. And whether they guessed right or now, they were pretty clearly violating principles of how precedent should work. But had they decided the case on the Missouri constitution, the decision would be essentially immune from reversal by any federal court. The Missouri court clearly had that option, as evidenced by this footnote [20:] "Because the Eighth and Fourteenth Amendments afford Mr. Simmons relief, this Court need not reach Mr. Simmons' alternative argument that, even if his execution is not barred by the Eighth Amendment, it is barred by article 1, section 21 of the Missouri Constitution." In the face of a fairly recent, directly contradictory holding of the supreme court, why take the uphill, against-the-wind path, when they could by fiat interpret the state constitution to achieve the desired result, and be done with it, with much less hand-waving justification needed, and no chance of reversal?

I had the same question myself.

First, a bit of background: Recall that there are 51 Constitutions in the U.S. — one federal and 50 state (I set aside D.C. and the Territories). Each of them has a Bill of Rights.

When a state government is dealing with its citizens, it must follow both the federal Constitution and the state Constitution. It follows that the person litigating against the state can win if he can prevail under either the federal or the state provision. And state courts may interpret provisions of the state Bill of Rights more protectively than courts have interpreted the federal Bill of Rights, either because the provision's text or history is different, or just because they think the federal provision has been interpreted incorrectly, and they don't want to perpetuate that error in reading the state constitution.

What's more, the state's highest court (usually but not always called the state Supreme Court) is the ultimate expositor of the meaning of the state constitution. The U.S. Supreme Court may not reverse the state court's judgment on that question — it may not say "Well, you think your state constitution's Cruel and Unusual Punishment Clause means one thing, but we disagree, and we're higher than you are." As to the meaning of state constitutional provisions (and state statutes), the U.S. Supreme Court is not higher than the state supreme court; the U.S. Supreme Court may reverse state decisions when they violate someone else's federally secured rights, but not just because the Court disagrees with the interpretation of state law. In fact, many states have read state free speech provisions, freedom from search and seizure provisions, right to bear arms provisions, non-impairment of contracts provisions, and other provisions more broadly than similar federal provisions have been read.

With that background, on to the reader's question. I have two guesses (assuming that the state constitutional claim wasn't foreclosed either by the litigant's failure to properly raise it or by contrary state precedent — a fair assumption given the note the reader quotes):

  1. The Missouri Justices wanted to insulate their decision from revision by a state constitutional amendment. State voters can pretty easily revise state constitutional decisions, by simply enacting an amendment that modifies the underlying clause, for instance to say that "however, an execution shall not be considered Cruel or Unusual Punishment on the grounds of the person's age, if his or her age is 16 or above." The amendment wouldn't change the result in Simmons' case, but it would change the result for the future. Such amendments often (I don't know the Missouri rule) just require a majority vote of the voting public, and a majority in the state legislature (or some number of signatures from the public instead of the legislative majority).

  2. The Missouri Justices wanted to prompt the Court to revisit the case. Then, if the Court affirmed (as it did), they would have helped make a national rule. And if the Court reversed, then they might have been able to decide based on the Missouri Constitution on remand (though then their decision might be even less popular with Missouri voters, if Missouri voters worry about such things, because it would be a departure from an influential institution's very recently expressed views, not just the views that institution expressed a decade ago).

It's also possible that the Missouri Justices just turned to the federal constitution out of force of habit. Many lawyers don't think of raising state constitutional arguments — something I try to remedy for the future in my constitutional law classes — and some state supreme court Justices might have a similar mindset. But I doubt it; here it's pretty obvious that the Missouri Justices at least knew of the option. (If Missouri courts have recently done a good deal of state constitutional law, something that I don't know, then it would be even less plausible that they turned to the federal question reflexively.)

Tribe's Travails:

NRO's Ramesh Ponnuru thinks Harvard law professor Laurence Tribe of "falsifying as fact what was, in truth, fantasy" -- what Tribe himself has called the "cardinal sin" of scholarship. SCOTUSBlog's Tom Goldstein thinks Ponnuru has overstated the case. Goldstein further surmises that Ponnuru's article is evidence that "the battle lines for the next Supreme Court nomination are being drawn in frighteningly personal terms." As Tribe may be called upon to critique a conservative Bush nominee, Goldstein suggests, the Right is seeking to discredit him now. A SCOTUSBlog commenter has what I think is a more plausible explanation: "the basic dynamic of journalists on one side of the political spectrum being overly critical of intellectuals on the other side is pretty common." NRO and its ideological compatriots go after folks like Tribe, while liberal periodicals go after [insert name of prominent neoconservative here].

This isn't the first attack on Tribe. Back when there were a spate of stories about plagiarism at Harvard (see, e.g. here), The Weekly Standard's J. Bottum leveled this charge against Tribe as well. Prof. Tribe admitted a "failure to attribute some of the material The Weekly Standard identified," but many commentators thought the initial allegation was itself overblown. For myself, I think the Ogletree case was worse.

Roper v. Simmons and Evolving Standards of Decency: In Roper v. Simmons, yesterday's decision declaring the juvenile death penalty unconstitutional, the Supreme Court relied heavily on the fact that five states have gone from allowing the juvenile death penalty to banning it since the Court's 1989 decision in Stanford v. Kentucky:
  Five States that allowed the juvenile death penalty at the time of Stanford have abandoned it in the intervening 15 years — —four through legislative enactments and one through judicial decision. Streib, supra, at 5, 7; State v. Furman, 122 Wash. 2d 400, 858 P. 2d 1092 (1993) (en banc).
  Though less dramatic than the change from Penry to Atkins (“telling,” to borrow the word Atkins used to describe this difference, 536 U. S., at 315, n. 18), we still consider the change from Stanford to this case to be significant.
  As Xrlq points out, however, something important is missing from this analysis: a sense of whether the five states that changed their policy are states in which capital litigation is active or basically dormant. If the goal is to look for "evolving standards of decency" and find an "emerging national consensus," it is one thing to say that practices changed in five states; it is another to say that actual practices stayed the same, but that the law on the books in a few states changed. The difference matters because while most states allow capital punishment in theory, the actual practice of bringing capital cases and carrying out the sentences is heavily weighted in favor of a small number of states.

  I took a look at some statistics, and the stats seem to confirm my suspicion: the five states that moved to ban capital punishment for juveniles are states that have capital punishment on the books but rarely use those laws. While five states changed their laws on the books since 1989, it seems that actual practices since 1989 remained the same.

  Here are the stats I found. The juvenile death penalty has always been very rare in the United States; since the beginning of the republic, it has occurred on average about once a year. That rate has remained constant (at least in absolute terms) in the last twenty years: 22 juveniles have been executed in the last 20 years. Texas is responsible for 13 of those cases; Virginia for 3; Oklahoma 2; Georgia, South Carolina, Louisiana, Missouri each for 1. (stats on page 4 of the Streib report cited in the Roper opinion)

  The states that banned the juvenile death penalty since Stanford v. Kentucky are Washington (by the courts), and (I think, from page 7 of the Streib report). Kansas, New York, Montana, and Indiana. But Washington, Kansas, New York, Montana, and Indiana aren't states that have executed anyone for a juvenile crime at least in the last three decades — and indeed, I'm having trouble finding evidence that any of these states ever actually did so.

  More broadly, these five states are not active death penalty states even for adult crimes. Since the death penalty was reinstated in 1976, these five states have been responsible for 17 out of the 1,000 or so executions that have occurred — only about 2% of the total. 11 of the 17 executions were in just one state, Indiana. (The numbers, available here, are Washington - 4, Kansas - 0, New York - 0, Montana - 2, and Indiana - 11.) Notably, of the 4 states that abolished the juvenile death penalty by legislative decision, 2 of those don't actually have a functional death penalty for any defendant.

  If I understand the statistics correctly, the move to abolish the juvenile death penalty in five states since 1989 is essentially symbolic: none of those states have executed a juvenile in many decades, if ever, and the five states are mostly states that have capital punishment in theory but not in practice. If the "evolving standards of decency" inquiry of the Eighth Amendment focuses on actual practices, then there seems to be virtually no evidence of a changed standard since 1989.

Related Posts (on one page):

  1. Juveniles, the Death Penalty & Deterrence:
  2. Roper v. Simmons and Evolving Standards of Decency:
  3. Roper v. Simmons and Capital Litigation:
Harsh Criticism of Religion Made Illegal:

No, not by the mullahs; not by Ashcroft; rather, by the Parliament. of Victoria, the Australian state that's home of Melbourne and a quarter of all Australians. The Victoria Racial and Religious Tolerance Act of 2001 provides that "A person must not, on the ground of the religious belief or activity of another person or class of persons engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons."

There's a defense for people who, among other things, are "reasonably and in good faith" engaging in "genuine academic, artistic, religious or scientific" commentary, or otherwise acting "in the public interest." But the Victorian Civil and Administrative Tribunal held two months ago that this defense is available only to those who speak "reasonabl[y]" and who "honestly and conscientiously endeavour to have regard to and minimise the harm [the speech] . . . will . . . inflict," as opposed to "us[ing the freedom of speech] as a cover to offend, insult, humiliate or intimidate people."

Among other things, speech that isn't "a fair representation of [another group's] religious beliefs" is punishable, as is speech that fails to "distinguish between moderate and extremist" members of a religion. Likewise, the tribunal seemed particularly troubled by speech that "mock[s] what [members of a religious group believe," or "repeatly invoke[s] laughter from the audience when describing apparent [religious] beliefs." (Naturally, the decision and the statute give little guidance as to what exactly you can say in order that your comments be found "reasonable" and "fair.") The decision (Islamic Council of Victoria v Catch the Fire Ministries Inc) held some Christian speakers liable for harshly criticizing and mocking Islam — among other things, saying "that the Qur'an promotes violence, killing and looting," "that it treats women badly," "that Allah is not merciful and a thief's hand is cut off for stealing," and more. But of course, if the law is applied evenhandedly, it would equally apply to atheists criticizing religious people generally (think "religion is the opium of the masses" but with some more elaboration), or at least members of a particular religion. It would apply to people criticizing Catholicism for its supposed oppression of women or historical crimes. It would apply to people mocking beliefs like those of Catch the Fire Ministries, or harshly criticizing the Falwells and the Robertsons.

This is an awful position for a democracy to take. Religions are ideologies, and need to be subject to criticism like any other ideology — especially when the religions are motive forces for important political and moral movements. Some of this criticism will involve mockery, laughter, and severe ridicule; and ridiculing religious ideologies will naturally implicitly or explicitly ridicule people who hold those views, especially when the speaker gives examples of folly that the ideology supposedly causes. Yet if you take religion seriously, as a set of ideas that, if true, should affect people's lives, you have to accept the possibility that some religious ideas are false and harmful, and deserve harsh criticism and not just bland ecumenical toleration.

I would prefer that such criticisms be fair, polite, and measured; but it's impossible for the law to punish only the rude and excessive form without also punishing and deterring important content. John Stuart Mill dealt with all this a century and a half ago, and his position is as sound today as it was then.

In any event, this is just another reminder to be cautious about proposals to create a new "hate speech" exception in U.S. constitutional law, by replacing the supposed excessive rigidity of modern First Amendment law with a more balanced and nuanced approach. Seems to me that our rigidity on this score is far superior to Euro-Canado-Australian flexibility.

UPDATE: My original post erroneously said that the law was enacted by the Australian Parliament; it turns out that it is a state law, which covers only the state of Victoria. Thanks to readers Jarrod Weir and Peter Laverick for correcting me.

Related Posts (on one page):

  1. Whoops:
  2. Be Careful What You Wish For:
  3. Harsh Criticism of Religion Made Illegal:
Democratic "Blue Dog" Coalition Endorses Bankruptcy Reform:

The Democratic "Blue Dog Coalition" in the House of Represntatives has come out strongly for Bankruptcy Reform in a letter to Speaker Hastert. As they correctly observe, "Allowing bankruptcy to become a financial planning tool rather than a last resort forces many of our constituents who pay their debts to pay for those who do not."

In the past, the reform legislation has garnered roughly 75% majorities in both houses of Congress (all Republicans and about half the Democrats). In an era of Washington partisanship, one would be hard-pressed to find many major pieces of legislation with such broad-based bipartisan support.

Tuesday, March 1, 2005

De Novo is Back: The law student group blog De Novo was out for a few days due to a server problem, but is now back online.
Roper v. Simmons and Capital Litigation: I have just finished working my way through the opinions in Roper v. Simmons. As someone who greatly values stare decisis, I was disappointed by Justice Kennedy's majority opinion. There just isn't much there to justify overruling a 16-year-old precedent and striking down 18 state laws. I'm not sure about the juvenile death penalty as a matter of policy, but I found Justice Scalia's powerful dissent pretty tough to refute as a matter of constitutional law.

  One interesting part of Roper is the incentives it creates (together with Atkins v. Virginia) for those seeking judicial abolition of the death penalty. Roper and Atkins tell capital defense litigators to delay their cases for as many years as possible. Drag out the appeals for a long, long time. During that period, have activists try to encourage legislators in a few select states to enact new legislative restrictions on the death penalty. It doesn't matter if those restrictions have any actual effect on how cases are charged; bans in states that do not actually bring any death penalty cases are fine, as the real audience is the Supreme Court. Years down the road, you can then use the new legislative restrictions in a few states as "objective indicia of consensus" that the practice of using the death penalty in such cases is impermissible. In effect, the changing practice in a handful of states can be bootstrapped by the courts into a constitutional ban that applies to all states.

  Notably, the bootstrapping can be prospective: evidence of changing attitudes in years following the crime and conviction can be used to trump then-governing law. This seems to be what happened in Roper. In 1989, the Court held that it was permissible to execute persons for murders committed at the age of 16 and 17. In 1993, Christopher Simmons committeed his heinous murder, and in 1994, Simmons was convicted and sentenced to death. Then, in the 11 years after Simmons was convicted and before the Supreme Court decided its case, 4 states decided end potential juvenile capital liability. [At least I think the states acted after 1994; to be honest, it's hard to tell from the Streib chart that the Court relies on. If anyone knows the exact dates, please e-mail me.] The action of the 4 states then became the basis for an alleged "consensus" in the direction of ending the juvenile death penalty. Had Roper been scheduled for execution soon after his conviction, executing him presumably would have been constitutional. Executing him apparently became unconstitutional only years later, after Atkins loosened up the Eighth Amendment a bit and a few states had banned the juvenile death penalty.

  UPDATE: Reader Jack Sullivan points out: "It seems pretty obvious that the defense lawyers already have plenty of incentive for delay. Delay keeps their clients alive." Indeed! The novel part here isn't the incentive for delay but the incentive for pushing legislative reforms during that delay.
Ward Churchill and the Jeffries Case:

Stone Court raises some interesting issues regarding my recent post regarding the 199 University of Colorado professors who signed a petition demanding the termination of the Regents' inquiry about Ward Churchill's misconduct.

Jeffries is a Second Circuit case in which the Supreme Court, pursuant to the recently-decided Supreme Court case Waters v. Churchill, reversed a previous decision of the Second Circuit. On remand, the Second Circuit upheld the decision of the Regents of the City College of New York to strip Jeffries of his chairmanship of the Black Studies Department, because of the Regents' reasonable concerns that Jeffries' off-campus racist speech would disrupt the operation of CCNY. Although Jeffries is a Second Circuit case, the Supreme Court's involvement gives the case national significance; Jeffries is an important case suggesting that the University of Colorado Regents' investigation of Churchill, based on the disruptive effects of Churchill's own hate speech, is perfectly lawful. And accordingly, the CU 199's assertion that the investigation is a violation of the First Amendment is extremely implausible.

Stone Court does not seriously dispute this point, but instead raises a separate issue from the Jeffries case. Waters v. Churchill set a fairly loose standard for the dismissal of public employees based on the potentially disruptive effects of employee speech. In the Second Circuit remand, an amicus brief from a group of university professors urged the Second Circuit to carve out a special academic freedom exception to Waters v. Churchill. The Second Circuit declined to do so, explaining that there was no need to consider the issue, because Jeffries had not lost his academic freedom; he was still teaching at CCNY. Stone Court argues that Jeffries stands for the proposition that Ward Churchill cannot be fired.

This misses the main point of my post--which was to refute the CU 199's assertion that the investigation of Ward Churchill is improper and must be terminated immediately. To the contrary, Jeffries validates an investigation begun because of the potential disruption caused by Ward Churchill's speech.

One can imagine all sorts of sanctions which the CU Regents might impose short of firing. For example, Churchill could be barred from campus until he successfully completes a therapy program for his inability to control his anger. He could be ordered to write formal retractions of the various academic frauds he has perpetrated. He could be ordered to pay full compensation to the copyright holders for the various works he has plagiarized.

But in the Ward Churchill case, I think that termination would probably be the proper remedy, and that Jeffries provides Churchill with less protection than Stone Court realizes. That the Second Circuit declined, on the facts of the case, to consider whether to create an academic exception to Waters v. Churchill does not mean that the Second Circuit (or, more relevantly, the Tenth Circuit) would create such an exception in a case where the issue was properly before the court. There is no such exception currently in the law, although the Second Circuit's statement in Jeffries does at least imply that creating an exception would be worth a court's consideration, in a proper case.

So if the CU Regents fire Churchill because of the disruptive effects of his speech, it's possible that the Tenth Circuit might create a Waters exception for Churchill's benefit. But the possibility that such an exception might be invented by some court in the future does not mean that the Regents' investigation is presently improper, or that firing Ward Churchill pursuant to the black-letter law of Waters v. Churchill would be a violation of the Regents' obligation to obey the First Amendment as it is currently interpretted.

Moreover, the history of the Jeffries case is hardly helpful to Ward Churchill. After the trial in the Southern District of New York, district Judge Conboy lambasted CCNY for demoting Jeffries solely because of Jeffries' off-campus hate speech, despite an abundance of evidence which clearly would have supported demoting (or firing) Jeffries and would have left him with no First Amendment counter-argument. For example, Jeffries had threatened to kill a student newspaper reporter. Judge Conboy also affirmed that the First Amendment does not require colleges to subject their students to the classroom ravings of incompetent "pseudo-scholars."

As my previous post argued, there appears to be an abundance of evidence to support the termination of Churchill's employment, on grounds which offer Churchill no shred of a First Amendment argument. Such grounds include academic fraud, and violation of the Colorado statute requiring all public university professors to take and obey an oath to support the U.S. and Colorado Constitutions. Well-established Colorado caselaw affirms that such an oath is violated when a professor calls for the violent overthrow of the U.S. and Colorado governments, as Churchill has done repeatedly.

Much of the evidence of Jeffries' professional misconduct (which CCNY failed to use when demoting Jeffries) was brought to public attention as the result of the public uproar following Jeffries' hate speech in Albany. By castigating CCNY for failing to base its actions on such evidence, Judge Conboy implied that it would be proper for a college to use such evidence as grounds for disciplining a professor. Accordingly, the assertion of the CU 199 that the University must ignore the developing evidence of Churchill's misconduct is implausible.

One small point: I criticized the University of Colorado administration for failing to act on complaints about Churchill's misconduct (including a violent threat against another faculty member) which were brought to the administration in the 1990s. Stone Court writes: "The unstated premise of Kopel's claim is almost certainly that the system was broken for Churchill because his political views were beloved by the alleged prevailing left-wing university establishment." Not so. I don't know if Churchill was simply the beneficiary of lax enforcement of rules for faculty in general; even today, the administration does nothing to enforce the university rule that professors should not politicize their classroom or verbally attack students because of the students' political views. Alternatively, if the administration was specially lax with Churchill, the reason might be that Churchill received favorable treatment on "diversity" grounds, because he was (supposedly) an American Indian. The latter theory is especially plausible because University records show that Churchill was hired for an affirmitive action job counseling minority students, was later given a teaching position, and was later pushed for tenure by the administration (two departments rejected him, but a third aceded to the administration's request) based on the adminstration's belief that Churchill is an Indian.

Alabama Sex Toy Case:

Glenn Reynolds denounces the 11th Circuit for upholding an Alabama ban on the sale of sex toys, and links to a newspaper column criticizing the opinion. In a 2000 article in the Hastings Constitutional Law Quarterly, Reynolds and I argued that such cases can be resolved without need to address the question of a constitutional right of sexual privacy: laws such as Alabama's are void because they are not within the scope of the state's "police power."

Typical BBC "Balance":

The BBC's report on the suicide murder in Tel Aviv last Friday opened with footage of the family of the terrorist suicdie-murderer in mourning--and showed no footage of the victims, or their families. The BBC eventually apologized, but you have to wonder about what kind of sick mindset their reporters have. (Via

Roper v. Simmons: Liberal critics often accuse the Rehnquist Court of being an activist court that overthrows precedents and allows its own will to trump that of legislatures. The latest data point on this question is in: check out Roper v. Simmons, a 5-4 decision by Justice Kennedy invalidating the use of the death penalty for juveniles, overruling the Court's 1989 decision in Stanford v. Kentucky.

  I'm heading off to teach a class; more commentary later when I have read the opinions (I did notice a heavy reliance on international law, though -- see pages 22-24 of Kennedy's opinion).
The Law Review Article Submission Process: The arrival of March 1 means that it's peak law review submission season, and I am happy to have just finished submitting my latest article, Rethinking Searches and Seizures in a Digital World. I'm pretty excited about the article — it asks and answers a number of big questions in the field of criminal procedure that are beginning to come up a lot but no one has written about yet. I think the article 'clicks' pretty nicely.

  Having blogged at length about the law review article submission process, I thought some readers might be interested to know what approach I chose. On the paper vs. electronic submissions question, I ended up mailing paper copies to most of the journals on my list. I submitted electronic copies to the journals that encouraged them, however, including the main law reviews of Harvard, Yale, Stanford, Columbia, Penn, and Cornell. The electronic submission process was relatively easy, although some journals have better interfaces than others. For example, I couldn't tell if the upload at Columbia was successful (although I later received an e-mail indicating it was), and both Stanford and Penn required you to write down your tracking/ID number rather than just send it to you via e-mail. It also occurs to me that it's pretty easy to accidentally upload the wrong file; I doubt most journals will contact you if you accidentally upload a cover letter file rather than the actual paper. Paper submissions let you confirm that everything that should be in the envelope is in there; the current electronic forms do not.

  There has been a lot of attention recently on the length of law review articles. I was able to trim my article to a relatively compact 21,659 words, which will probably translate to about 45 journal pages. That's well under the 25,000 line that a number of journals are monitoring, although not quite at the 20,000 mark that the Virgina Law Review prefers (see this post for some details). If the top law reviews hadn't announced their interest in shorter articles the piece probably would have been in the neighborhood of 25,000-27,000 words; I ended up cutting the piece down by going through it line by line and taking out what seemed interesting but non-essential. It made for a stronger article, I think. (For some interesting insights into why this may be easier in some fields and harder in others, see this post from UCLA law prof Vic Fleischer.)

  One thing journals might keep in mind is that the new focus on article length should push journals to clarify their length policies for articles versus essays. Some law reviews allow authors to choose whether they wish to submit their pieces as (full-length) articles or (generally shorter) essays; my sense is that at most of these journals there are distinct article-selecting teams depending on which option authors choose. Given that, the journals should be clear about what kind of word length they expect for articles versus essays; otherwise authors don't really know which category to choose. Some journals have clear policies, but others don't.