Saturday, April 2, 2005

Ayres and Brooks on Affirmative Action in Law Schools:

Over at Balkinization, Ian Ayres argues (and I agree) that Richard Sander's work on affirmative action in law schools has focused attention on the wrong issue: the problem with the current system of racial preferences is not that it leads to fewer black lawyers [or at least, I'm not confident Sander's proven that], but that a large percentage of blacks admitted to law school--mostly students who attended lower-ranked schools--will either never graduate, or never pass the bar. Previously, I've cited the statistic that 43% of entering black students fall into one of these categories, compared with less than 20% of white students. Ayres and his colleague Rick Brooks, in a forthcoming Stanford Law Review piece, come up with this complementary statistic:

On the first day of law school, we estimate that 42.6% of blacks entering law school had less than a 50% chance of becoming lawyers. (while virtually no whites students — .23% — were in this high risk category). These at-risk students predominantly attend low ranking law schools [Bernstein: which means at low-ranked schools, the statistic is well above 42.6 percent]. While Sander lobbies for a world where without affirmative action, where the top ranking law schools would become largely all-white, we consider a world where some of the African-American students attending lower ranking law schools would choose not to attend if they knew the real risks involved.

The problem is not so much that black students at elite law schools are being harmed by an affirmative action "mismatch," as Sander would have it, but that while the overwhelming majority of black students at elite schools succeed [update: in the sense of graduating and passing the bar], most black students admitted at the bottom two-thirds of American law schools will never become lawyers. [Update: Contra Sander's point about the effect of affirmative action on the number of black lawyers, a bottom-tier law school that admits ten black law students on an affirmative action basis, only two of whom actually become lawyers, is indeed increasing the pool of black attorneys, but at the cost of unfairly disrupting the lives of the other eight students.]

While the ABA and AALS congratulate themselves based on increasing the numbers of black lawyers, they neglect the carnage caused to people's lives who enter law school with a good-faith belief that the law school they are attending thinks they will succeed, while in fact admissions officers and law school administrators know that it is likely they will never become lawyers. Anywhere from one semester to three-plus years of these students' lives are wasted in a futile effort to become attorneys, while they could have been succeeding in some other field. The ABA won't accredit a law school that doesn't ADMIT what they consider to be enough black law students, but doesn't seem to mind that at many of these schools, most of the black students admitted won't become lawyers. It's a fraud, a travesty, and something that makes me very angry. If I were a class action attorney, I'd organize a group of former black law students admitted under these false pretenses and find a way of suing their law schools, the ABA, and the AALS for fraud or some other legal cause of action (how about, as an anonymous colleague suggested, a qui tam action for taking student loan money in a racket no more successful from a student point of view than fly-by-night hair colleges?) At the very least, law schools should inform admittees--whether admitted for reasons of race, alumni relations, or political reasons--with very low scores about the statistical odds that they will become lawyers.

On another note, I'd also do away with the requirement that practicing law requires passing the bar exam, which currently serves as a barrier to entry to blacks and others; but as long as the bar exam exists, law schools have an ethical duty not to admit students who they know are likely to fail it [update: I believe, in fact, that there is either an ABA or AALS rule that, in theory, requires laws schools to only admit students they expect to succeed]. I understand that there is a strong correlation between very low LSAT scores and bar failure. The ABA, of course, with its primary mission of cartelization of the legal profession, would rather have good affirmative action "numbers," than actually do something practical to make it easier to become an attorney.

Sixty Million Frenchmen *Can* Be Wrong: Over at Marginal Revolution, our occasional co-blogger Tyler links to an interesting Economist article about French "Googlephobia":
[President Jacques Chirac] asked his culture minister, Renaud Donnedieu de Vabres, and Jean-Noël Jeanneney, head of France's Bibliothèque Nationale, to . . . create a home-grown search-engine to browse [French books.] Why not let Google do the job? Its French version is used for 74% of internet searches in France. The answer is the vulgar criteria it uses to rank results. "I do not believe", wrote Mr Donnedieu de Vabres in Le Monde, "that the only key to access our culture should be the automatic ranking by popularity, which has been behind Google's success."

Friday, April 1, 2005

Google Gulp:

Sounds great.

Heather MacDonald

criticizes complaints about the lack of race and sex "diversity" among top bloggers.

Thanks to reader Chris Buchanan for the pointer.

Interesting Article on Campus Intellectual Diversity:

Thoughtful column by Professor KC Johnson in Inside Higher Ed on the question of intellectual diversity in higher education, Transparency or a 'Selig Strategy'?

As Commissioner Bud Selig and several prominent players attempted to evade subpoenas for recent House of Representatives hearings on baseball's steroid problem, Rep. Henry Waxman observed, "What strikes me is that baseball doesn't want to investigate it and they don't want us to investigate it." The California congressman summed up baseball's policy as "don't know, don't tell."

This "Selig Strategy" could also describe the academy's response to indications that the nation's humanities and social sciences departments suffer from a lack of intellectual and programmatic diversity. Calls for outside inquiries have been denounced as violations of academic freedom, while few if any signs exist that the very internal academic procedures that created the problem can successfully resolve it.

Instead of imitating baseball's strategy of trying to cover up relevant information, the academy should bring transparency to the now-cloaked world of faculty hires and in-class instruction, compiling and publicizing the necessary data, probably through college and department Web sites. Such a response would allow the educational establishment to employ the habits of the academic world, namely reasoned analysis through use of hard evidence, to address (and, when false, disprove) specific allegations of ideological bias. At the same time, the exposure associated with greater transparency might deter those professors inclined to abuse their classroom authority for indoctrination.

Johnson also lays out his view of how this greater transparency could work.

Bankruptcy Property Exemptions:

A number of readers have asked what is the deal with bankruptcy exemptions, and homestead exemptions in particular? A quick primer on exemptions and their relationship to bankruptcy.

Even though the Bankruptcy Code is federal, exemptions are primarily a creature of state law. This reflects a deal cut when the first permanent bankruptcy act was enacted in 1898. Basically, representatives of farm states were concerned that big-city bankers were going to foreclose on farms, so to protect farmers, they provided that state law would control what property a debtor could protect from his creditors in bankruptcy.

Today, the pro-farmer roots of the state control over exemptions continues to be reflected in the fact that many of the states that have an unlimited homestead exemption are farm states--Iowa, Kansas, and South Dakota--and even Texas was originally a cattle ranch exemption. Florida also has an unlimited homestead exemption (I'm not sure of the historical provenance) and the District of Columbia I believe does as well.

At least one alert reader has observed that the state-based nature of exemptions appears to violate the Constitution, in that one of Congress's enumerated powers in Article I, section 8 is to enact "uniform" bankruptcy laws. In Hanover Bank v. Moyses (1902), the Supreme Court held that this “personal” nonuniformity in treatment among individuals was permissible, so long as “geographical” uniformity was preserved. Thus, debtors and creditors in different states may receive different treatment, so long as the debtors and creditors within the same State are treated the same. The “uniformity” requirement does, however, forbid “private” bankruptcy laws that affect only particular debtors.

So the bankruptcy reform legislation does several things to limit fraud and abuse of the homestead exemption. First, a debtor who relocates to a new state (such as OJ Simpson buying a house in Florida) would have to wait 40 months before he could take advantage of that state's unlimited homestead exemption. Second, it creates a 10 year reachback period for attacking fraudulent use of the homestead exemption. Third, it places a cap on the value of the homestead exemption as applied to judgments obtained for securities fraud--essentially depriving Ken Lay and Scott Sullivan of the ability to assert their Texas and Florida homestead exemptions against victims of securities fraud by Enron and WorldCom.

The legislation, however, does not place a flat cap on the value of the homestead exemption that an individual can exempt in bankruptcy. Why not?

First, because as noted, historically the primary beneficiaries of the homestead exemption were Kansas and Iowa farmers. A flat cap would apply to these farmers as much as it would to wealth Florida doctors. Once it is recognized that the issue is about both farmers and doctors, for many people it becomes a much more difficult political and policy question, and it certainly is not so clear that everyone would agree that a South Dakota family farmer is abusing the bankruptcy system by using his unlimited state homestead exemption. Indeed, were such a cap to be imposed, I suspect that the critics of the legislation would probably say that it is unfair because it would force farmers off their land just to satisfy their creditors.

Second, the bill does target what most people do think of as unquestionably bankruptcy abuse--borrowing money in a low-exemption state then relocating to a high-exemption state on the eve of bankruptcy. Moreover, it allows targeting of special claims that don't involve farmers, such as fraudulent use of the homestead exemption and securities fraud. This also explains why the abuse we usually hear about usually involves Texas or Florida--fat cats are more likely to buy a beach house in Florida to evade creditors rather than a wheat farm in South Dakota.

Third, although reasonable minds can disagree, it appears that most of the costs of the unlimited homestead exemption are borne by individuals within that state. According to a paper a few years ago by Gropp, Scholz, and White, residents of unlimited homestead exemption states have higher interest rates, are more likely to be denied credit, and get access to less credit than residents of other states. Thus, it appears that the ability to protect more property ex post in bankruptcy is factored into the risk assessment ex ante at the lending stage. Much of the cost thus appears to be kept in state and there is not much evidence of interstate spillovers. Given the apparent lack of interstate spillovers, it can be reasonably argued that this particular decision is justifiable on federalism grounds--combined of course with the limitations that the reform legislation imposes on relocating right before bankruptcy (before the creditor can adjust its lending behavior to take account of the heightened risk).

Fourth, the potential for abuse appears to be unique to the unlimited homestead exemption. As I suggested in my post earlier today, Bankruptcy Courts have long had the power to attack debtors who attempt to use trusts, exemptions, and other vehicles to try to protect excessive property in bankruptcy. In a famous case (Northwest Bank Nebraska v. Tveten), the court denied the bankruptcy discharge of a doctor who cashed out all of his non-exempt assets and converted them to an exempt annuity purchased from a fraternal organization, which at the time had an unlimited exemption under state law. Notwithstanding this legal status, the 8th Circuit permitted the exemption, but then denied the detor's discharge (he had almost $19 million in debts and $700,000 in assets). Courts can also attack these sorts of schemes as fraudulent transfers and have a variety of tools at their disposal. This is the reason why it is so unlikely that the hypothetical concerns about the asset protection trust will turn out to be real--because bankruptcy courts can easily attack those naked efforts to protect assets.

In contrast to other exemptions which have generally been subjected to an implicit reasonableness requirement, the unlimited homestead exemption has often been treated as sacred, especially in Florida where it appears that it may even protect property even for someone convicted of fraud or criminal behavior (for a discussion see here and here).

So, as noted in the discussion earlier today, the bankruptcy reform legislation is designed to target real, documented abuses of the system, and not willy-nilly chasing made-up or hypothetical bankruptcy abuses. Congress never amended the code to place a flat exemption on abuse of the unlimited exemption for annuities purchased from fraternal organizations, because existing law worked just fine to take care of that problem. It seems pretty clear that courts will also take care of the problem of asset protection trusts if the situation arises--just as they have taken care of foreign asset protecion trusts.

I personally don't have strong views on the specific weighing of the federal bankruptcy concerns for uniformity versus the federalism concerns and I think either position is reasonable--so long as the forum-shopping problem is alleviated, which it is by the bill.

So next time you hear someone ranting about how the bankruptcy reform legislation does nothing to crack down on the unlimited homestead exemption, mentally substitute "Kansas family farmer" for "Florida millionaire" and see if you still feel that the bankruptcy reform legislation's failure to close this "loophole" is an unfair sop to the rich.

Baude v. Bainbridge and the Federalist Divide: In a response to charges that conservatives lost their federalism principles in the Schiavo case, Stephen Bainbridge suggests that federalism isn't really much of a principle among social conservatives that federalism principles should be weighed against other competing concerns:
  I see federalism and limited government as means to an end, while [Glenn Reynolds] seems to see them as ends in and of themselves. I find his to be a fairly typical worldview among libertarians, who make a fetish out of federalism and small government without regard to whether they actually contribute towards the public good in a given case.
  Will Baude responds:
  Well, yes. A commitment to federalism is unlikely to do much work if one employs it only when it would be useful in an individual case. What one has then is not a commitment to federalism but a commitment to using every rhetorical argument and political strategem available to get one's way.
  . . .
  [T]his is a perfectly sensible way to think-- that structure should always be subordinated to the immediate payoff-- but it isn't a particularly federalist way to think. Indeed, since 'federalism' is invoked only where the case-specific substantive result is desired isn't even using federalism "as (a) means to an end"; it's using federalism as a talking point.
  In a way, the Schiavo case reminds me of debates over Bush v. Gore. The political implications of different jurisprudential views reversed their usual polarity for a few weeks, and it was like watching a legal version of Freaky Friday.

  UPDATE: Stephen Bainbridge responds that I have misrepresented his position in a post you can access here; in response, I have updated my post above using the strikethrough. After reading through the various posts, I think I had misinterpreted Stephen's dismissive attitude toward libertarians as being dismissive of those who consistently follow principles. Rereading Stephen's past posts, however, especially this one, makes me realize that he had intended it to be critical of those who do not weigh one principle against other competing principles. I didn't recognize that the first time around; my apologies for the misunderstanding.
April Fools from the American Antitrust Institute:

Pretty funny: "Antitrust Controlled by Jerks, Says New Evolutionary Biology Report".

Since I just recently left the FTC, I wonder what this says about my evolutionary fitness?

My New Article on the Antitrust State Action Doctrine:

I have another new article posted, this one on the antitrust state action doctrine, co-authored with a former colleague at the FTC, "The FTC and State Action: Evolving Views on the Proper Role of Government" which is available for download from SSRN. It was written for the symposium on the 90th Anniversary of the Federal Trade Commission, which will be published later this year in the Antitrust Law Journal.

Here's the abstract:

Abstract: The state action doctrine was born in an era of exceptional confidence in government, with governmental entities widely regarded as unbiased and conscientious defenders of the public interest. Over time, however, more cautious and skeptical theories of government began to gain sway. In particular, the school of thought known as "public choice" - which holds that governmental entities, like private firms, will act in their economic self-interest - began to influence both legal theory and competition policy. Indeed, a close examination of recent state action case law suggests that public choice thinking has driven a slow, but consistent, evolution of the doctrine toward less deference to state regulators and more careful assessment of the actual incentives that drive their decision-making.

This evolution in thinking, however, has not been accompanied by the development of a systematic, analytical framework to guide the application of the state action doctrine in particular cases. Developing such a framework should therefore remain a top priority of leading antitrust policymakers, including those at the Federal Trade Commission.

Tom Smith on Schiavo Case:

I haven't followed the Schiavo case that closely, but I gotta say that Tom Smith's brillian satire on the Right Coast, Michael Schiavo in Hell (A Play in One Paragraph) hits home.


On reflection, and after reading some sound criticism from Mark Kleiman and others I now recognize that the word "brilliant" isn't the right word to capture what I was trying to express in my original post, especially because I'm honestly conflicted about where I come down on the whole thing. I still don't know the exact right word, but something about Smith's piece provoked me to think about the event in a bit of a different way.

Medical Bankruptcies and Death by Repeal of Rent Control:

Gail Heriot has uncovered a previous study by some of the authors of the much-criticized study claiming that 50% of bankruptcies are caused by medical problems. Gail observes:

I learned today that this was not the first time lead author David Himmelstein and co-author Steffie Woolhandler, both Harvard University associate clinical professors of medicine, weighed in with an unusual medical perspective on a hotly contested political issue. In 1996, when Massachusetts was considering abolishing rent control, Himmelstein and Woolhandler protested with the argument that (as Woolhandler put it), "If rent control vanishes, dozens will die." Noting that stress and social isolation can and sometimes do result in heart attack and death, she stated, "One-third of our heart attack patients at Cambridge Hospital live in rent-controlled apartments. By allowing landlords to force them out, the governor and state Legislature are implementing the death penalty--a social policy sure to kill."

Only heart attacks by rent-subsidized tenants were considered in this curious analysis. One could, of course, spin out similar tales of heart attacks by landlords who are unable to make ends meet because they can't charge fair market rents or of would-be tenants falling ill when they can't find an apartment at all, because nobody is willing to build apartments buildings that will only be rent controlled when completed. But evidently the good doctors were not inclined to go that far.

She has some other good reporting from that time.

Tom Delay Takes Personal Responsibility: In recent news, House Majority leader Tom DeLay has acknowledged his own missteps in the Terri Schiavo controversy and has pledged not to scapegoat the federal judiciary for failing to intervene. Heh, just kidding — happy April Fools' Day, everyone!
Bankruptcy Reform, The New York Times, and Real v. Hypothetical Bankruptcy Abuse:

A few weeks ago, I posted on the purported problem of bankruptcy reform and so-called "asset protection trusts." I noted at that time that I had been unable to find any actual cases of these trusts being used to shield assets from creditors in bankruptcy (I still haven't found any). I also asked for examples from readers, but no one has provided me with any examples (the only examples I received were for third-party "spendthrift" trusts, not self-settled asset protection trusts where the debtor retains substantial control over the proceeds of the trust).

Moreover, it is very doubtful that one of these asset-protection trusts would actually hold up in bankruptcy. Bankruptcy law already contains numerous applicable ways of preventing debtors from using these to abuse bankruptcy. First, courts can, and likely would, attack them as fraudulent conveyances under sections 544 or 548 of the Code. Courts could also deny the discharge to any debtor that tried to use an asset protection trust, which is exactly what courts have done when confronted with offshore asset-protection trusts.

So at this point, the entire debate about the possibility of debtors using asset-protection trusts to shield assets in bankruptcy appears to be wholly hypothetical--there does not appear to be a single case where a bankrupt has used an asset protection trust to shield assets from his or her creditors. Nor is there any reason to believe that under current law a debtor could use an asset-protection trust to get away with bankruptcy abuse. In fact, most people I have talked with about these trusts indicate that they are primarily a vehicle for tax evasion rather than a bankruptcy-proofing vehicle.

Yet, amazingly, many have criticized the Senate for rejecting an amendment that would have closed this "loophole" as the New York Times has called it (more on the Times in a moment, as it appears to be source of all the confusion on this issue).

Instead of pursuing all of the possible hypothetical abuses of the bankruptcy code, Congress has sensibly enough decided to focus on attacking real, documented abuses of the bankruptcy system, such as secretly hiding assets, homestead exemption abuse, and requiring high-income debtors to repay what they can as a condition for discharge.

Nonetheless, the legislation has been roundly criticized for the failure to "do something" about self-settled asset-protection trusts. (Of course, the Senate did place some limits on fraudulent use of these vehicles through the Talent Amendment.) A search reveals, for instance, roughly two dozen newspaper editorials critizing the Senate for the failure to adopted a proposed amendment closing the imaginary loophole. Professor Elizabeth Warren invoked the same criticism when I appeared with her on CNN. Paul Krugman invoked it as well is his confused criticisms of the legislation.

How did so many people get caught up in a feeding frenzy over such a phony issue? As is so often the case, it appears that it can be traced back to the New York Times, ever-gullible when it comes to perceived efforts by the Republicans to befriend big business and the wealthy. Beginning with an article in the March 2 New York Times, "Proposed Law on Bankruptcy Has Loophole" the Times started its intrepid reporting of asset-protection trusts. My research indicates that this is the first mention of asset-protection trusts in connection with the bankruptcy reform legislation. Note--although the bankruptcy reform legislation has been around for eight years, and the trusts as legal vehicles have been around since 1997, concern about them appeared this year for the first time. In that article, Gretchen Morgenson writes:

The bankrutpcy legislation being debated by the Senate is intended to make it harder for people to walk away from their credit card and other debts. But legal specilaists say the proposed law leaves open an increasingly popular loophole that lets wealthy people protect substantial assets from creditors even after filing for bankruptcy.

The loophole involves the use of so-called asset proptection trusts.

Hmmmm, "increasingly popular"? Interestingly, the Times provides no examples nor any statistics to support this conclusion that this is an "increasinlgy popular loophole that lets wealthy people protect substantial assets from creditors even after filing for bankruptcy."

In that article, the Times quotes among others, Professor Warren:

This is just a way for rich folks to be able to slip through the noose on bankruptcy, and of course, the double irony here is that the proponents of this bill keep pressing it as designed to eliminate abuse," said Elizabeth Warren, a law professor at Harver Law School. "Yet when provisions that permit real abuse by rich people are pointed out, the bill's propoents look the other way."

"Real abuses"? Now might be a good time for at least one example of the "real abuse".

The Times returned to the issue on March 4, again pretending like this was a real, rather than purely hypothetical abuse under current law, but once again citing no examples of an asset-protection trust holding up in bankruptcy (and ignoring the tools that bankruptcy judges have used to police abuse of foreign asset-protection trusts), then referenced it again on March 9.

A Westlaw search in the Allnews data base indicates that most of the newspaper editorials around the country then picked up the story and followed the Times over the cliff, running with it after the biased reporting by the Times first alerted them to this supposed rash of abuse. Reading those stories, none of them as far as I can tell have provided any evidence either.

In the end, it seems like a pretty specious criticism of the bankruptcy reform legislation that it doesn't chase down every hypothetical possible abuse that someone could dream up, especially when it is pretty clear that the possibility of the hypothetical abuse becoming a real abuse is really quite slim. The strength of the bankruptcy reform legislation is that it provides practical, workable solutions to real bankruptcy fraud and abuse. It is incremental rather than radical, building on the institutions that we already have in place. It is balanced and pragmatic. The abuses it targets are supported by facts and reality, not these sorts of silly distractions.

If the standard for attacking real, documented banrkutpcy fraud and abuse is that Congress also needs to close every hypothetical loophole even when current law appears to do the job fine, then yes, the reform legislation fails to close a lot of other loopholes--it does nothing about the possibility that someone might be able to protect real estate acquired on Mars, for instance, and does nothing to address the possibility that an alchemist might develop a machine that turns lead into gold and wants to exempt the machine in bankruptcy. It seems to me that Congress can better spend its time cleaning up real abuse in the system rather than chasing imaginary rabbits.

If this was a real problem, then Congress could and should act on it. But to criticize Congress for a failure to attack something that doesn't even appear to be an actual problem--get real.

And, of course, it more than a bit ironic that critics of the legislation simultaneously criticize it as a gift to the consumer credit industry, yet we are supposed to believe that they were unable to close this supposedly notorious loophole for the wealthy that just leaves money sitting on the table? It seems like at some point one of these two mutually-incompatible theories have to give.

A final word--I fear that the bankruptcy bar and bankruptcy industry has really harmed its credibility over the past few years through its scorched-earth attacks on the bankruptcy bill, starting with playing the bogus "women and children" card out of the box, moving onto the Schumer abortion amendment, and now the phony asset-protection trust attack. Like the boy who cried "wolf" too often, the complicity of the bankruptcy bar in schemes to mislead and confuse Congress had, I fear, forever tarnished its credibility on bankruptcy legislation.

A brief and useful summary of the caselaw on asset protection trusts is provided by Melanie Leslie, 231 New York Law Journal (Feb. 14, 2005).

Thursday, March 31, 2005

Teaching the Law of Rape:

In my criminal law class, I plan to spend some time discussing the law of rape. This is a hard subject to teach, not just because people have strong feelings about it but because (1) it's fairly likely that at least one women in the class has been a victim of rape or attempted rape, (2) many women in the class are deeply and personally concerned about the risk of being raped, in a way that people aren't with regard to homicide (which is rarer) or burglary (which is less serious), and (3) many men and some women, knowing this, are reluctant to speak candidly about some of the thorny issues in this area, which deprives everyone in the class — men and women alike — of a thoughtful, substantive discussion.

As a result, some professors just don't teach the subject at all. I don't want to take that approach; I think it's my job to lead students to think about important issues even when they may be personally difficult for them.

Still, I naturally want to do this as effectively as possible, and to do that I think I need to make students as comfortable as possible. I don't believe that making students comfortable justifies eliminating certain substantive topics or ideas. But I do think that there are ways of presenting the material that will increase students' comfort without sacrificing the substance, and that will actually make the substance more accessible.

Could those of you who have studied the law of rape in criminal law class (and those who have taught it, of course) tell me what worked well in the classes you've had? Any particular nonobvious pedagogical tricks that have really helped you understand the subject, or made it more exciting? Any good ways that teachers have defused tension in class, or cleared up confusion? (For instance, I was thinking about asking students to imagine the victim being their daughter, and the accused being their son [though not in the same case!], to see if this will help them see things from both sides, and will help them recognize that both men and women have a stake in having the law be fair both to the victim and to the accused. Did your teachers try this, and, if they did, did it work?)

If you have answers, please post them in the comments. Please be selective; I'm not looking just for interesting or outrageous stories, or arguments that the law of rape system is unsound in some ways. I'm looking, selfishly, for tips that would help me teach the law of rape in the standard first-year criminal class more effectively. Many thanks in advance for your help.

Posner-Becker on Bankruptcy Reform:

Posner provides straightforward explanation of the Bankruptcy Reform Legislation, echoed by Becker. A useful overview of the basic economics involved, and along the lines of which I testified in more depth in the Senate Judiciary Committee I haven't said before.

Je also fails to note the empirical evidence that demonstrates the trivial payouts made to unsecured creditors in chapter 7 (about 95% of cases pay nothing, and the others generally only pay a couple of pennies on the dollar), so that the model that contemplates an actual surrender of nonexempt property in chapter 7 is not really a very realistic description of how the world actually operates in practice.

His punchline is right on though:

Behind the Bankruptcy Reform Act, as behind the President’s proposal for social security reform, is an ideology of giving nonwealthy people greater responsibility for their own economic welfare, which entails subjecting them to additional financial risk. Under the present system, the prudent and the imprudent consumer pay the same high interest rates, assuming creditors can’t readily determine which consumers are prudent and which are imprudent. By lowering interest rates on credit-card and other consumer debt while at the same time discouraging default, the Bankruptcy Reform Act will encourage consumers to exercise greater care in borrowing—yet at the same time, because interest rates will be lower, the Act will enable prudent consumers (who do not face a high risk of bankruptcy) to borrow more and by doing so will increase their consumption options. The Act will not redistribute wealth from the poor to the rich, but from the imprudent borrower to the prudent borrower.

As I have said before, this bill is at bottom about rewarding personal responsibility.

Teaching Criminal Law:

I'll be teaching criminal law -- the substantive first-year course, not constitutional criminal procedure -- for the first time this coming year. Naturally, I'm asking colleagues for advice, doing a good deal of reading, and trying to come up with good pedagogical ideas myself; teaching a new class is exciting but daunting (and time-consuming).

I'd like, though, to also mine your collective experience for tips. Could those of you who have taken criminal law (and those who have taught it, of course) tell me what worked well in the classes you've had? Any particular nonobvious pedagogical tricks that have really helped you understand the subject, or made it more exciting? Any good ways that teachers have defused tension in class, or cleared up confusion? If so, I'd love to see this in the comments.

Please be selective; I'm not looking just for amusing stories, or arguments that the criminal justice system is broken in some ways, or for proposals for radically restructuring the criminal law class. (One day I might try a radically different approach to teaching the subject, but not the first time I teach it.) I'm looking, selfishly, for tips that would help me teach the standard first-year criminal class more effectively, preferably for nonobvious tips (i.e., more than just "be clear" or "don't insult your students"). Also, please don't discuss ways of making the teaching of rape law more effective -- I will have a separate post on that subject. Many thanks in advance for your help.

Columbia Report on Mealac:

The Columbia report on the controversy over its Middle Eastern Studies Department is out. Apparently, Columbia gave an exclusive to the New York Times to report on the document, but on condition that the Times publish the story without asking the activist students who had prompted the report for comments, and, indeed, before students had a chance to read it. For this and more substantive criticisms, click here. I was struck by the Times' coverage's emphasis that the report found no evidence of anti-Semitism related to this controversy. I've read quite a bit about the controversy, and I don't believe that there ever were allegations of anti-Semitism.

The one big piece of news from the report is that after interviewing various students who were present, the report finds the following allegation "credible":

[The incident involved] Professor Joseph Massad, who was teaching a class on Palestinian and Israeli politics. According to the report, a student, Deena Shanker, recalled asking if it was true that Israel sometimes gave a warning before a bombing so that people would not be hurt. She said the professor blew up, telling her, "If you're going to deny the atrocities being committed against Palestinians, then you can get out of my classroom!"

If true, this was not only an extremely intemperate and inappropriate response by Massad, but completely non-responsive to the student's comment. Massad had apparently been bloviating about civilian casualties caused by Israel's anti-terrorism military actions. The student, in response, didn't deny these casualtes, but requested that the professor confirm some additional information and significant context. But God-forbid a student should interupt the professor's rants against Israel! Is it the job of professors to indoctrinate their students with propaganda, and the job of students to sit back and be indoctrinated? (For a professor who actually argues something very close to "yes," see the comments of a philosophy professor quoted over at the Leiter Report--doesn't everyone know that the only plausible interpretation of Plato is opposition to the Iraq War?!).

Professors are certainly entitled to have a point of view, and some students may find that point of view obnoxious. But students are also entitled to have a point of view, and to the extent they express that point of view at an appropriate time and place and in an appropriate manner, they should not be silenced. Even more so, a student who merely requests confirmation of additional information.

UPDATE: Whoops, here's a (new) allegation of anti-Semitism from the head of the David Project, whose movie brought the whole controversy to public attention.

Pollys Announced:

Dartlog reports that ISI has announced its 2005 Polly Awards for Campus Outrages. Harvard's attack on Larry Summers finished fifth.

Why Campus Intellectual Diversity Matters:

The other day, I posted on a new study regarding the ideological imbalance on college faculties. There is a huge amount in the blogosphere, including of course, a few things right here by Juan. It appears that this time around, at least, no one is actually denying that the imbalance exists. I'll just comment on one key question that has been raised, which is, if there is such an imbalance, does it matter (as implicitly raised here)?

Intellectual diversity matters because it goes to the core of a liberal education. My remarks here will focus on colleges, because the underlying study doesn't address law schools. Also, this is a long post already, so I venture no speculation on the causes of the imbalance or opinions on rectifying it (the trackbacks to my first post have some interesting views on those matters especially this one), just my views on why I think it is an educational problem.

The way I see it, college education exists for three purposes: (1) to develop human capital, (2) to educate and develop critical thinking skills and intellectual self-discovery and character in students, and (3) to develop individuals who can participate as responsible citizens in a free and democratic society.

(1) Developing human capital: Ideological diversity has little to do with this really because it is just developing skills, such as in engineering, science, computer science, and business administration. Clearly this is an important part of education, but not the only thing, because otherwise we wouldn't offer English, Philosophy, etc., in universities. So I will set this aside.

(2) Educating critical thinking skills and intellectual self-discovery: Ideological diversity has a lot to do with this. The purpose of education should be to teach students how to think, not what to think. I don't know how you can teach students to analyze arguments and determine the truth value about claims about the world if you don't expose them to a variety of ideas. As Greg Ransom observes the presence of an intellectual orthodoxy on campus can severely hamper student's critical reasoning skills. Ransom's experience is that many students do in fact absorb some degree of indoctrination at a very superficial level, and that the virtual absence of any serious counterarguments leaves them at this very superficial and unreflective mode of analysis. I think this is probably right--for instance, I am amazed at the shallowness of analysis that I hear from ostensibly educated students. Comments I hear about environmental issues, in particular, come to mind.

UPDATE: I added as an update after my initial post "intellectual self-discovery" for students in response to a perceptive reader comment. I did mean to include this as well as part of this point--in addition to developing individual critical reasoning skills, it is also important to develop individual student intellectual skills to understand themselves and the world better as well as guiding ethical and character attributes. Obviously this requires students to wrestle with various ideas in coming to their own world views.

(3) Educating citizens for a free and democratic society: One of our major goals as educators is to educate individuals who can participate as citizens in the governance of a free and democratic society. If not, then I can't understand why the taxpayers of many states subsidize colleges. If so, it seems to me that it is imperative that students be exposed to all viewpoints about the world and to learn to evaluate the truth and resonance of competing world views. Living together as citizens in a free society, and having the kinds of connections and conversations that make that possible, requires developing a depth of understanding that cannot be created in an atmosphere of one-sided intellectual orthodoxy. It is a pretty short road from the impoverished discussions in modern universities to the idiocy of Michael Moore and red v. blue America. I don't pretend that American political discussion was ever that exhaulted, but surely we used to hold educated people to a higher standard of discourse then we see today, especially on university campuses? I personally would add to this that as part of educating free and responsible citizens we should make sure students understand the intellectual and historical foundations of the western world, but I recognize that this is a more controversial proposition.

So if the purpose of education is to educate students to think for themselves and to develop critical thinking skills about the world, as to become good citizens, leaders, and self-reliant individuals, does this require a diversity of opinion on the faculty? Or is it sufficient to leave up to individual professors on the honor system to try to present all sides of an issue in class and to make sure that students engage the various arguments on all sides of an issue?

While there are many good professors who create an open and balanced forum for a true exchange of ideas, there are many situations where this plaintly is not the case. Most obviously, the entire point of many courses today is to present a particular viewpoint, not to create a balanced discussion, such as Women's Studies, African-American Studies, and GLBT Studies (for instance, when Dartmouth added a GLBT Studies program a few years ago, its first course was taught by a local activist, rather than a properly-qualified professor).

Second, many professors do abuse the power of the podium in order to proselytize for their particular ideological views and to attack competing ideas. When I was in college, for instance, my required introductory class for my major on international politics consisted of a sustained rant by the professor against Ronald Reagan and the Strategic Defense Initiative and why we needed to maintain the policy of Mutually Assured Destruction (this was in 1984). My "History of the American South" class was a one semester narrative by a Marxist professor on how rich southern whites had conspired to manipulate racist sentiments among lower-class whites to keep them from banding together in the "natural" economic alliance of poor whites and blacks to plunder the property of rich whites. He was the only one who taught it, so if I wanted to take it (I was from South Carolina, so I was interested in it), I had to take it from him. I could go on, but I'm sure everyone has their own similar horror stories. The clear purpose of those teaching these classes it to proselytize and try to tell students what to think. Add political correctness into the mix and this is a pretty potent stew.

Leaving aside these obviously biased courses and professors, even the best professors are going to have a tendency to teach to their strengths and what they know best and are most interested in. And, I believe, this is perfectly natural, and probably is the way it should be because that is what makes for the best educational experience. But this is why you need to have professors with a variety of interests and strengths. Even something as simple as putting together a syllabus reflects a professor's views about what is important or interesting. I don't think that my experience as a Government major was unique--I read Marx in almost every class (often even in classes where he didn't even seem relevant). But for the fact that at the time Dartmouth had a Burkean and a Straussian on the faculty--both now retired--I don't know that I would have ever read Burke, Locke, or The Federalist. Fortunately I stumbled across the Institute for Humane Studies while I was in college, and so was exposed to classical liberal and conservative thinkers. But this requires taking the effort to look beyond the campus.

Intellectual diversity, therefore, is crucial in that exposes students to a variety of ideas and perspectives, and through that developes critical thinking skills and an understanding of different ways of seeing the world which is necessary for living in a free and democratic society. I think the failure to have a serious representation of libertarian and conservative professors on campus, and the resultant tendency of the left to trivialize that world view (which is, after all, held by roughly 50% of students!), breeds a cynicism in students about the whole intellectual enterprise in which we are engaged. If the university itself doesn't take ideas seriously and doesn't care about free, open, and informed discussion of ideas, why would we possibly think that students would be any more interested in it? And if we aren't going to teach them critical reasoning skills and to search for truth, they may as well major in Computer Science or Business Administration.

When universities fail to do their job, it seems to me that we get one of two results. First, we can get the shallow indoctrination phenomenon described by Ramson--opinions without serious intellectual support. Or second, we can the "tuning out" effect that I described in my earlier post (also noted here), where students simply ignore what happens in class and just regurgitate the mantra that they are fed. Either way, we have failed at the task of education.


To clarify, when I say "they may as well major in Computer Science or Business Administration" I do not intend to denigrate those majors in the slightest--I am just saying that if we don't accomplish the other two goals of a liberal education, then we should just treat colleges and universities as trade schools that just develop human capital, rather than developing good citizens, critical thinking skills, and intellectual self-discovery.

Rational Ignorance, Academic Blogging, and the Schiavo Matter:

I've gotten a bunch of media calls, and a bunch of reader e-mail, about the Schiavo matter. I'm staying out of it, but I thought it might be interesting to briefly note the questions that at least some academic legal bloggers ask themselves to decide which controversies to jump into and which to stay out of:

  1. How much factual and procedural detail do I have to learn to speak competently about this? Do I need to read one or two newspaper articles, or do I have to spend time acquiring a huge amount of knowledge about the facts and the procedural history of this case — knowledge that won't be reusable for future controversies, since it's specific to this incident?

  2. How close is this to my core area of academic expertise? If it's really close, it'll be (1) easy for me to figure out the right legal answer without learning much more about the law, (2) unlikely that I'll make a stupid mistake, and (3) important for me to know this for my future academic work. If it's far, then it means more work, more risk of error, and less long-term benefit from knowing about the subject.

  3. How many other experts are talking about this already? If there are plenty, then I'm less likely to be able to say much that's new and valuable.

  4. How controversial is this particular incident? If it's highly controversial, that's a plus (at least for many academic bloggers), because it means that people are listening and there's more of a chance to do some good by providing useful analysis. But on the other hand, the more controversial it is, the more demands there'll be for responses to counterarguments, follow-up posts, refinements in light of new developments, corrections of alleged errors, and so on — which means still more of a time commitment.

  5. How interested am I in this subject? It's one thing to invest time and effort in a subject that fascinates one, another to invest time and effort just because it's mildly interesting and people are knocking on your door asking for opinions.

  6. How busy am I with other things?

I asked myself these questions about the Schiavo matter, and the answer was simple.

The Liberal Academy Again (Again):

The Rothman, Lichter, and Nevitte study purporting to show liberal dominance among university faculty is now available on-line. Here is the abstract:

This article first examines the ideological composition of American university faculty and then tests whether ideological homogeneity has become self-reinforcing. A randomly based national survey of 1643 faculty members from 183 four-year colleges and universities finds that liberals and Democrats outnumber conservatives and Republicans by large margins, and the differences are not limited to elite universities or to the social sciences and humanities. A multivariate analysis finds that, even after taking into account the effects of professional accomplishment, along with many other individual characteristics, conservatives and Republicans teach at lower quality schools than do liberals and Democrats. This suggests that complaints of ideologically-based discrimination in academic advancement deserve serious consideration and further study. The analysis finds similar effects based on gender and religiosity, i.e., women and practicing Christians teach at lower quality schools than their professional accomplishments would predict.

As I've noted before, I don't think that such disparities are primarily the result of conscious bias. While I know of cases where ideological bias torpedoed a candidate -- and I know of schools that would not interview me because of my political views -- I believe this is the exception, not the rule. In most cases, I believe other, more subtle factors play the dominant role. As I wrote in 2003:

Most of the hostility faced by conservatives (and libertarians) is not explicit, and often not conscious or deliberate. In many cases, the subject matter and methodology of conservative scholarship is simply of no interest to those on the left (and probably vice-versa). At schools where there are no tenured conservatives, job candidates and junior professors may be left without a "champion" to help them navigate the process. The lack of right-of-center views at some schools may also make even moderate conservatives appear "kooky" or extreme. By the same token, it is clear to me that many conservatives in academia cry "wolf," or seek to blame political opposition on their failure to succeed in a highly competitive environment. Contrary to what some believe, not every conservative's failure to get tenure is the result of politics. . . . [In sum,] the bias against conservatives is real (if overstated) in many parts of the academy, particularly the humanities. Nevertheless, careful and talented conservatives can succeed in the academy . . .

For more thoughts on this question, I recommend Professor Bainbridge's post on the subject (along with the follow-ups and this TCS column).

Defending My Book: My reply to Trevor Morrison's review of Restoring the Lost Constitution: The Presumption of Liberty in the Cornell Law Review is now available on SSRN here. Because Trevor made four quite different criticisms, each requiring a response, I could not think of a clever unifying title for my reply (which will be published in the Cornell Law Review along with his review). So I called it, Why You Should Read My Book Anyhow: A Reply to Trevor Morrison. Here is the abstract:
In his review of my book, Restoring the Lost Constitution: The Presumption of Liberty, Trevor Morrison takes issue with (1) the relationship I describe between constitutional legitimacy and constitutional method, (2) my particular defense of originalism, (3) the operation of my proposed construction of the Constitution--The Presumption of Liberty--and (4) my interpretation of Lawrence v.Texas.

In this reply I defend the fact that I hold a conception of constitutional liberty at partial variance from that of the Founders, the reasonableness and limits of originalist interpretation, the conception of the police power identified in Restoring the Lost Constitution, and my reading of Lawrence v. Texas. Because Professor Morrison's objections are not atypical of those I have heard from others, I hope that reading my reply will induce skeptics of my approach to read my book anyway.
Indeed, I often heard these criticisms of my approach from faculty commentators when I was on my book tour last year, so this is a nice opportunity to answer them.

While you are in a downloading mood, you can also download my short essay about Lawrence v. Texas called, "Grading Justice Kennedy: A Reply to Dale Carpenter" here. I posted about it on Tuesday.

Wednesday, March 30, 2005

Bracewell & Giuliani: The law firm of Bracewell & Patterson will soon be the law firm of Bracewell & Giuliani. Christine Hurt has the scoop over at The Conglomerate.
More on Waiting in Line for Grokster: The magic cutoff for showing up for the Grokster case seems to have been around 10:00pm the night before the argument. George Mason student Eion Murdock reports showing up at 3 am and missing getting in by about a dozen spots; he reports that he was one of the 25 line-waiters who got to see the Brand X argument, but that he missed Grokster. Eion writes: "Not exactly what I was hoping for, but I figured that having stood in line for over 8 hours by that point I needed to see something."

  CDT policy analyst Mike Steffen writes that he showed up around 8pm on Monday night, and that he thought it was worth waiting in line (for 14 hours!) to see the argument. A slightly-edited excerpt from Mike's report:
  There were a lot of interesting or amusing interactions from the line sitting experience itself. For example:
  -waking up at 4 am to see a 20 person Supreme Court Bar line materialize basically out of nowhere. It was composed almost entirely of paid line-sitters, who made a very strange bunch. It's a little hard to describe how surreal this was at the time;
  -seeing Annalee Newitz from EFF ask Jack Valenti to autograph a vintage Betmax tape early this morning--and seeing Valenti sportingly oblige;
   -watching the argument between some of the campers further back from us and the MGM execs and P2P VC backers who showed up late to take places from hired sitters--and watching the Supreme Court police change their mind about the official policy on line-sitting over the course of the interaction.
  -chatting with the [other people in line] was fun and valuable in itself. This included the general counsel (!) of MGM, who had to stand in the public line with the rest of us (albeit only after 7:30 am when he showed up to replace his sitter), because petitioners in Grokster had run out of tickets for parties. He was exceptionally personable and friendly.
  Thanks to Eion and Mike for their reports.
Should Authors Include A C.V. In Law Review Submissions?: The ExpressO Law Review Submission Guide recommends that authors include a curriculum vitae when submitting articles to law reviews:
  The curriculum vitae is the most important accompanying document according to law review editors. Several editors made a special note that one's history of prior publication should be included.
  I am interested in hearing from current or recent articles editors on whether this is true. Do you recommend including a C.V. along with a submission? How many authors include them? Is a formal C.V. the way to go, or is a brief "About the Author" blurb sufficient? I know a number of law professors and other authors who have wondered about this, and I know we would much appreciate your feedback.

   Thanks to AWC for the link.

  UDPATE: To be clear, I am not looking for normative judgments as to whether articles editors should want to see C.V.s. It's an interesting debate, but not the one at issue here. My interest here is in understanding as a descriptive matter what articles editors actually do and what they actually prefer (warts and all).
Is Bush as Threatening As Al Qaeda?: Perhaps I am misreading this post at Crooked Timber, but, if I'm not, it equates 1) terrorist plots to murder innocent people with 2) efforts to save the lives of those innocent people by seizing and interrogating suspected terrorists. The post isn't clear on the standard it is using to measure harm, but it appears make the claim that the two are "equally awful" and that equivalence may make the U.S. "a threat comparable to that of Al Qaeda."

  Hard to know where to begin if that's the claim. Am I misreading the post? I have enabled comments.

  UPDATE: I plan to blog more on this later today, but have two classes to teach shortly and may not get to it for a bit. In the meantime, check out this response at Moonage Political Webdream.

  ANOTHER UPDATE: A number of commenters have interpreted my post as saying that I think the so-called "extraordinary renditions" policy is A-OK. I have re-read my post a few times, and I can't figure out why some are reading it that way. My point was obviously relative, not absolute: I think it is quite odd to equate the intentional killing of innocent civilians with targeting terrorist suspects for interrogation in order to stop the intentional killing of innocent civilians.

  This doesn't mean that I approve of a particular set of efforts to stop the intentional killing of innocent civilians. I find the extraordinary renditions policy difficult to assess: it's easy to be an outsider to the policymaking process and denounce the U.S. government for being uncivilized, but I wonder how the choices must look to those with the incredibly burdensome task of deciding on whether to have or how to execute this policy. The risks of abuse are very real, and terribly worrisome. Absolutely. At the same time, so are the risks of taking no action at all. I'm not sure what the right answer is, and I'm certainly open to argument on this point. It seems to me, though, that too many people are taking the easy out of simply ignoring one half of the equation and jumping to condemn those who don't as "uncivilized" or the moral equivalent of terrorists. That seems plainly myopic to me.
Things may be going better in Lebanon than we've heard.--, which is usually pretty good on infighting in Lebanon and the Palestinian held areas (though not always reliable), is reporting that Syria is faring poorly in Lebanon (it is only a headline, so you have to scroll down):

[Our] military sources report complete collapse of pro-Syrian political and intelligence structure in Lebanon and abrupt withdrawal of all Syrian commands including key figure military intelligence chief General Ghazaleh.

Pro-Syrian Lebanese PM Karame backs out of forming new government in Beirut. Lebanese secret service chief Gen. Raymond Azar has fled to Paris. Internal Security Forces head Gen. Ali al-Hajj about to quit.

Tuesday, March 29, 2005

Supreme Court Likely to Dismiss Prior Restraint Case:

The Supreme Court will probably not issue a decision in Tory v. Cochran, in which it was considering whether and when courts can enjoin libelous statements. Tory was enjoined from saying bad things about Johnnie Cochran. Cochran died today, which means the injunction will likely be automatically lifted under California law. (Civil libel law generally protects only the reputations of the living, not the dead; once the victim of a defamation is dead, there's no more basis either for a damages award or an injunction, even if the injunction would be permissible if the victim were still alive.)

This means that the case before the Supreme Court will become moot; a Supreme Court decision would no longer affect the outcome of this particular litigation. The Court will therefore likely dismiss the case without an opinion. Incidentally, the legal document filed with the court to note that a party has died, and in this case to urge a dismissal of the case, is called a "suggestion of death."

Maybe I'm mistaken, since I'm not an appellate procedure maven (and maybe I'd be mistaken even if I was). But that's how things seem to me, and to Howard Bashman, who is indeed an appellate procedure maven.

UPDATE: Ann Althouse points out: "Don't speak ill of the dead? Actually, the law prefers it."

Become an Organ Donor: I'm an organ donor — are you? I don't like to get preachy here on the VC, but we could save a lot of lives if more people became organ donors. Find out more information here.
Gender and Academia -- Some Data from The Physics Field: Inside Higher Ed has a story on a new report about women in physics teaching:
  Physics is among the most male-dominated of disciplines. And while commentators bandy about many possible causes — discrimination, the lifestyle tradeoffs required by graduate school or the academic workplace, and, controversially, innate aptitude — the problem seems most directly attributable to female students abandoning physics in droves between high school and college.
  So concludes a report issued by the American Institute of Physics, which found that the relatively small proportion of female faculty members in the field occurs not because of a “leaking” pipeline within academe, but because of the small proportion of women who choose to study physics after 12th grade.
The report is available here.
David Brooks Raises a Baseball Dilemma:

I share David Brooks's dilemma--what to do about the Washington Nationals (hat tip The Corner). Unlike any other sport, baseball is, and remains, a truly local game. The rhythm of the day-to-day summer game and the local social atmosphere and conversation that surrounds it tends to pull you toward following and supporting the local team. In this way, baseball strikes me as being very different from, say, football, which is more of a once-a-week event, where the enjoyment of the game is self-contained. Much of the appeal of baseball, I think, surrounds the ongoing conversations and commentary of the games from day-to-day, making it more of an ongoing local news story than a once a week event.

So while I've been a Braves fan for 20 years I can already feel the pull that Brooks describes.

U. Va.'s Klarman Wins the Bancroft Prize:

Congratulations to Professor Michael Klarman of U. Va. Law School, who has been awarded the Bancroft Prize in history, one the profession's highest honors, for his excellent book From Jim Crow to Civil Rights. According to a U. Va. press release, the Bancroft jurors noted that "Klarman's examination of this classic problem in American constitutional history is not only our best account of Brown, its antecedents and consequences, but also goes well beyond that important story to make a larger set of arguments about the role of the Supreme Court in helping to bring about social change."

You can read an abstract and full-text PDF of my coauthored review of Klarman's book at the Yale Law Journal's website.

So That's What They Call It:

A Word A Day tells us the name for locutions such as "Not to mention X":

paralipsis (par-uh-LIP-sis) noun, plural paralipses (-seez)

Drawing attention to something while claiming to be passing over it.

. . .

Paralipsis is especially handy in politics to point out an opponent's faults. It typically involves these phrases: "not to mention" "to say nothing of" "I won't speak of" "leaving aside"

An example from Moby Dick: "We will not speak of all Queequeg's peculiarities here; how he eschewed coffee and hot rolls, and applied his undivided attention to beefsteaks, done rare." . . .

UPDATE: Several people pointed out that this can also be called apophasis:

Allusion to something by denying that it will be mentioned, as in I will not bring up my opponent's questionable financial dealings.
Paralipsis is defined as:
A pretended or apparent omission; a figure by which a speaker artfully pretends to pass by what he really mentions; as, for example, if an orator should say, "I do not speak of my adversary's scandalous venality and rapacity, his brutal conduct, his treachery and malice."

The Conspiracy's Illustrious Connection to History:

Someone asked whether our coblogger Stuart Minor Benjamin, who is also a Jew from Louisiana, was related to Judah P. Benjamin. He reports:

I'm related to Judah P. Benjamin, but not lineally (he would be a cousin several generations removed). So he's not an ancestor, but is a relative. But here's the fun part: I'm related to him on my mother's side of the family. That is, our shared last names are a complete coincidence.


How Early Did You Need To Show Up For the Grokster Argument?: Pretty early, apparently. [See Update below] Lawyer Bruce Boyden waited in line for one of the special seats reserved for members of the Supreme Court bar, and reports that even those who had showed up for one of the Supreme Court bar seats at 4 am didn't get in to the Courtroom. Bruce also reports that Supreme Court bar members who showed up as late as 9:30am this morning were able to sit in the Lawyer's Lounge and listen in; the Court's sound system pipes in the audio from the Courtroom directly into the Lawyer's Lounge, which is down the hall from the Courtroom.

  UPDATE: Wired News has this story covered. From the Wired piece:
  Gray skies, with intermittent rain and cold, didn't deter a group of staunch file-sharing supporters -- as well as a number of hired line-standers -- from queuing up starting at around 2:30 p.m. Monday afternoon to secure a seat in court for the landmark copyright case.
  . . . .
  By 9 p.m. Monday, there were about 40 people in line to fill the estimated 50 available seats in court. Other space is reserved for the press and members of the Supreme Court bar.
  Hired line-standers were paid between $200 and $500 for the night to hold spaces for various people with an interest in the outcome of the case, according to one line stander who declined to give his name. People can be sent to the back of the line if they are caught swapping places with a hired line-stander at the last minute. Those who pay the line standers usually show up an hour or two before the court opens.

Related Posts (on one page):

  1. More on Waiting in Line for Grokster:
  2. How Early Did You Need To Show Up For the Grokster Argument?:
  3. Camping Out for Supreme Court Arguments:

TaxProf (Paul Caron) reports that "UCLA has 6 of the Top 25 tax faculty" in the Social Science Research Network listing of paper downloads, "double the number of the next most-represented school." Congratulations to Steven Bank, Victor Fleischer, Sam Thompson, Michael Asimow, Bill Klein, and Kirk Stark, our six notables.

Grading Justice Kennedy: My short essay (7 pages) "Grading Justice Kennedy: A Reply to Professor Carpenter" forthcoming in the Minnesota Law Review is now available for downloading on SSRN here. Here is the abstract:
In my article, "Justice Kennedy's Libertarian Revolution: Lawrence v. Texas" (2002-2003 Cato Supreme Court Review 21 (2003)), I claim that Justice Kennedy's opinion in Lawrence is potentially revolutionary because it protects "liberty" rather than a right of privacy and shifts the burden of justification to the government without any showing that the liberty in question is fundamental, as required by well-established Due Process Clause doctrine. In his article, "Is Lawrence Libertarian?" (88 Minn. L. Rev. 1140 (2004)), Dale Carpenter calls into question my reading of Lawrence. In this brief reply, I respond to these criticism, by imagining that the words of Justice Kennedy's opinion were submitted to Professor Carpenter by one of his students as her answer to a final exam question based on the facts of Lawrence. I explain why he would have given the student a B precisely because the opinion deviates from the established doctrine that Professor Carpenter undoubtedly would have taught his class. Because it is a Supreme Court opinion and not a student exam answer, however, Justice Kennedy and the four justices who joined his opinion are free to ignore previous doctrine and adopt a potentiallyrevolutionary approach, for which I give Justice Kennedy an A.
As Larry Solum likes to say, "download it while it's hot."
Sex, Biology, and Dangerous Science:

In the wake of the Larry Summers controversy, I decided to try to set up a panel here at the Law School about biological differences in cognition and temperament between men and women. I really don't know what the science tells us about this -- my extremely ill-informed lay sense is that there are some differences, but I have no idea how large they appear to be, or how confidently we can make assertions about them. But that will be the whole point of the panel: To bring in a couple of scientific experts, and have them give interested students and faculty a bit of an education on the subject.

I hope to get two knowledgeable and thoughtful people, one of whom takes the view that the differences are quite substantial, and may in fact influence men's and women's abilities and temperaments -- naturally, looking at the population as a whole, and without denying that the bell curves may overlap considerably -- and the other of whom takes the view that such differences are nonexistent or modest. Of course, I assume that both people would base their views in the existing body of evidence; but I take it that there are enough ambiguities and uncertainties in the evidence that serious scholars can reach contrary views here. The plan is to have it here some time in the Fall.

In any event, the reason for my post is to report on an interesting incident that happened during my search for possible panelists. To find people to invite, I've been asking people for recommendations, and following the chain of references. And one of the people who was recommended to me, an academic who's not in the law school, responded in what struck me as an odd way: She pointed out that recent studies on "stereotype threat" conclude that people will perform worse on various tasks if they know that others think their race or gender is inferior at those tasks. Therefore, she suggested, I shouldn't have the panel, because it could lead women to think they are worse at science and thus perform worse on scientific tasks. (To her credit, the person also did give me a name of a potential panelist, and her suggestion was framed as a suggestion and not as a command or as outraged insistence.)

Now I've heard of this stereotype threat phenomenon; I don't know whether it's real, but it may well be. Yet this is a university, a place of higher learning. Should we really be concealing important scientific evidence from our students (note that my correspondent didn't say that sex differences don't exist, only that discussing them might cause harm) because of a fear that they might react badly as a result? Seems to me that the answer has to be no.

Incidentally, I'd like more women to go into science and engineering -- I'd like more people generally to go into those fields, and I suspect that many very capable women are steered away from them by a variety of social factors. That's a loss for them, and a loss for society. As it happens, I doubt that many of the law students who will be attending the panel would go into technical fields in any event; but if somehow some other students show up and end up feeling discouraged from going into science (or patent law) as a result, I'll feel some regret.

Yet surely the answer can't be for university departments to deliberately keep quiet about these important scientific matters, thus allowing their students and graduates to fall into error for lack of knowledge.

Law Review Lara Recommends Apostasy:

A reader asks Law Review Lara -- well, no reader has actually asked Lara this, but she thinks they should, since she's run across this sentiment in the past:

I'm an editor on a law review, and I know the Bluebook says (Rule 5.1) that "[q]uotations of fifty or more words should be" set as block quotes, while "[q]uotations of forty-nine or fewer words should be" set as normal quotes. Yet a professor I'm working with insists on having some 55-word quotations be set as normal quotes, and some 45-word quotations be set as block quotes. And when I suggest that if he wants something not to be a block quote, he should edit out several words, he just growls. What should I do?

The answer, Lara says, is to change religions. Naturally, if one belongs to a religious denomination that relies on literal adherence to Holy Writ, and if that Holy Writ is the Bluebook, then one must obey God's will. Or if Congress were to enact the Bluebook as law, and punish violations as felonies, then good law-abiding editors should follow the law.

But for those who belong to more mainstream religions -- to which Lara suggests you convert -- the Bluebook is just what a bunch of editors on several law journals have made up in order to make writers', editors', and readers' lives easier. It often offers wise counsel. Sometimes, following it is necessary for academic honesty (for instance, when the Bluebook requires that writers note alterations in quotations, and readers expect that such alterations are indeed noted). Sometimes, it helps readers find the cited sources. Sometimes, it helps avoid ugly inconsistencies, for instance if a writer uses one citation format and then a few footnotes later uses a different citation format for a similar source. Still, it's not The Law, human or divine.

In particular, the 50-word rule is obviously a helpful guideline that reflects a sensible general propositions: Long quotes tend to be more readable as block quotes, and short quotes tend to be more readable as non-block quotes. Still, the point of the rule is readability, not following the rule for its own sake.

When following the rule makes the article less readable -- for instance, when setting a 55-word quote as a block quote unduly emphasizes it (especially compared to other equally important but shorter neighboring quotes), or when setting a 45-word quote as a block quote would provide helpful emphasis -- ignore the rule. No-one will punish you with damnation or prison. No reader will count the words and be shocked by your transgression.

In fact, the insistence on this particular rule is the classic example of the Apotheosis of the Bluebook. It's hard to come up with a better case of what law review editors, with the best of intentions and a good deal of unnecessary effort, sometimes do wrong. (Here's a rival candidate: Lara once wrote an article in which she mentioned the First Amendment, and an editor added a footnote attached to the text "the First Amendment" -- the footnote said "U.S. Const. amend. I.")

Lara should stress that there are doubtless many examples of what law review authors do wrong, and of what law review editors do right. For instance, law review editors often find errors in the author's use of sources, thus sparing the author embarrassment and preventing readers from being misled. Editors also often catch many errors in proofreading (including proofreading for Bluebook style in the many cases where the Bluebook does offer good advice). And they often provide many helpful editing suggestions that make articles clearer and more readable.

But these valuable tasks are only made harder by the Cult of the Bluebook. Lose that religion, dear reader, Lara urges.

More on Campus Intellectual Diversity:

Howard Kurtz reports today on a new study on the lack of intellectual diversity on campus College Faculties A Most Liberal Lot, Study Finds. I haven't been able to find a copy of the actual underlying study, so if someone knows where it is, please point me to it. So I'll rely on Kurtz's summary here.

According to Kurtz's summary:

By their own description, 72 percent of those teaching at American universities and colleges are liberal and 15 percent are conservative, says the study being published this week. The imbalance is almost as striking in partisan terms, with 50 percent of the faculty members surveyed identifying themselves as Democrats and 11 percent as Republicans.

The disparity is even more pronounced at the most elite schools, where, according to the study, 87 percent of faculty are liberal and 13 percent are conservative.

Broken down by departments:

The most liberal faculties are those devoted to the humanities (81 percent) and social sciences (75 percent), according to the study. But liberals outnumbered conservatives even among engineering faculty (51 percent to 19 percent) and business faculty (49 percent to 39 percent).

The most left-leaning departments are English literature, philosophy, political science and religious studies, where at least 80 percent of the faculty say they are liberal and no more than 5 percent call themselves conservative, the study says.

As I said, I haven't been able to find the underlying study, but as reported by Howard Kurtz, the finding here are consistent with the findings of Dan Klein's research, which I commented on a few weeks back. At that time, I was struck by a couple of things. First, that although a lot of people nitpicked at the study, none of them were able to rebut the central conclusion of the study. In fact, most of the criticism seems to have been done by critics who apparently didn't read all of Klein's underlying research which looks at both policy views and party affiliation.

Second, no one has provided any evidence that contradicts the central findings of these studies, whether Klein's or the apparent conclusions of the new study. I'm sure that advocates of the status quo will find something to pick at in the new study as well--but if the findings of these studies are fundamentally flawed, at some point wouldn't someone find something to the contrary? If the evidence was otherwise mixed, then nitpicking at particular studies is one thing, but when the evidence begins to accumulate, at some point it seems like nitpicking is somewhat unresponsive to the underlying issue.

If there is evidence out there that shows a libertarian/conservative takeover of academia, I haven't seen it.

The evidence is mounting that there is an ideological one-sidedness to university campuses today. The relevant question is whether it is having an effect on the education of American college students. Interestingly, one observation in the Kurtz article is striking:

When asked about the findings, Jonathan Knight, director of academic freedom and tenure for the American Association of University Professors, said, *** "It's hard to see that these liberal views cut very deeply into the education of students. In fact, a number of studies show the core values that students bring into the university are not very much altered by being in college."

This is consistent with what I hear from many of my own students--university campuses have become so cartoonishly left-wing that many students are essentially just tuning out their professors. Students report that they just go through the motions of pretending that they are converted, then they just regurgitate the mantra on exams in order to get a good grade. Meanwhile, many students dismiss their professors as risible ideologues (a good example here).

Perhaps the fact that students are largely unchanged by their university experience is the most damning comment of all about what is going on at universities today.

Finally, is anyone else surprised that Religious studies is self-reported as one of the most liberal departments? I would have thought if conservatives were present anywhere, it would be in religious studies.


I see my co-conspirator literally was simultaneously writing on the same article as I was.


As for my question at the end--the answer is "yes," apparently I am the only one who is surprised. I heard from several readers who studied religion in college or grad school and they are not the slightest bit surprised and report that most university religious studies departments today are devoutly multiculturalist (many religious university religious studies professors study non-Western religions) and tend to be quite hostile to Christianity. I didn't take any religious studies courses in college, so I wasn't familiar with the sociology of the profession, which was very interesting to me.

Pete the Elder adds:

I for one am not surprised that religion departments are liberal based on my undergraduate experience. Secular biblical studies for instance seems very liberal to me with the focus being on showing that the traditional views about the Bible are way off in areas like original authorship (did Paul write all the letters attributed to him?) and accuracy of the texts (did Jesus say what the Gospels record?). See the Jesus Seminar for a good example of this liberal/post modern dominance.

Title IX Protects Whistleblowers:

Today's Supreme Court opinion in Jackson v. Birmingham Board of Education holds, 5-4, that Title IX protects whistleblowers who accuse their universities of gender discrimination from retaliation. Justice O'Connor wrote the majority opinion. Justice Thomas wrote a dissent. The Associated Press reports on the decision here.

Related Posts (on one page):

  1. Title IX Protects Whistleblowers:
  2. Tempest Over Title IX:
  3. New Title IX Test:
The Liberal Academy (Again):

The Washington Post reports on yet another study documenting the leftward tilt of the academy. The study is published in the March issue of The Forum, an online political science journal.

The Post summarizes the study's conclusions as follows:

By their own description, 72 percent of those teaching at American universities and colleges are liberal and 15 percent are conservative, says the study being published this week. The imbalance is almost as striking in partisan terms, with 50 percent of the faculty members surveyed identifying themselves as Democrats and 11 percent as Republicans.

The disparity is even more pronounced at the most elite schools, where, according to the study, 87 percent of faculty are liberal and 13 percent are conservative. . . .

The findings, by Lichter and fellow political science professors Stanley Rothman of Smith College and Neil Nevitte of the University of Toronto, are based on a survey of 1,643 full-time faculty at 183 four-year schools. The researchers relied on 1999 data from the North American Academic Study Survey, the most recent comprehensive data available.

Ponnuru v. Tribe - The Final Chapter

National Review Online has posted Harvard Law Professor Laurence Tribe's response to Ramesh Ponnuru's attack on him, along with Ponnuru's rejoinder.

Harken Ye Libertarians: Come to Boston! Libertarian students throughout the Northeast should make plans now to come to the "Cradle of Liberty (& Larry Summers)" to attend the second annual Liberty Conference organized by the Boston University Libertarian Society on Saturday, April 9th at BU. Details and registration information is here. The first 30 people to register will receive a complimentary Boston University Libertarian Society mug at the conference. I have one already and it holds coffee and other hot liquids with style.

The speakers this year are:

Gary Lawson, my libertarian-originalist law professor buddy at BU. Gary likes Rand. Everyone likes Gary. His topic is "Naragansett Shrugged: When Should Judges Disobey the Law?" I have no idea what "Naragansett Shrugged" means, but am looking forward to finding out.

Glen Whitman, Cal State Northridge econ guru and Agoraphilia blogger extraordinaire, will explain how, by highlighting how human behavior deviates from the standard assumptions of rational choice, behavioral economics potentially provides a new justification for paternalist government intervention. How should libertarians react to this challenge? His lecture will discuss several lines of response to the behavioral economics literature, along with their policy implications. What, no pithy title like "Behavior Economics: Threat or Menace?"

Will Wilkinson of the Cato Institute and Flypaper blog will speak on "Pluralism, Sympathy and Lifestyle Entrepreneurship" or something along those lines. I know I always wanted to be a "lifestyle entrepreneur" and I finally get to find out how. My guess is that it is probably too late for me, but not for you.

Oh yes, and I will be speaking on (what else?) "Medical Cannabis & Ashcroft v. Raich." I will try to keep the audience awake with riveting tales of my duel with Justice Breyer and the Killer Genome "Tomato Children" (see oral argument transcript on page 30--I am not making this up).

Registration for students currently enrolled in accredited Boston areas school is FREE! So is registration for everyone else if you register now.

Update: Glen writes to offer this "pithy" title: "Meet the New Boss, Same as the Old Boss: Thoughts on the New Paternalism." The Who, Glen? Not exactly the cutting edge of popular culture. I like my proposed title better.

Wall Street Journal on Tom DeLay: These are familiar charges, notable chiefly because they are coming from the Wall Street Journal's editorial page:
  By now you have surely read about House Majority Leader Tom DeLay's ethics troubles. Probably, too, you aren't entirely clear as to what those troubles are--something to do with questionable junkets, Indian casino money, funny business on the House Ethics Committee, stuff down in Texas. In Beltway-speak, what this means is that Mr. DeLay has an "odor": nothing too incriminating, nothing actually criminal, just an unsavory whiff that could have GOP loyalists reaching for the political Glade if it gets any worse.
  The Beltway wisdom is right. Mr. DeLay does have odor issues. Increasingly, he smells just like the Beltway itself.
  . . .
  Taken separately, and on present evidence, none of the latest charges directly touch Mr. DeLay; at worst, they paint a picture of a man who makes enemies by playing political hardball and loses admirers by resorting to politics-as-usual.
  The problem, rather, is that Mr. DeLay, who rode to power in 1994 on a wave of revulsion at the everyday ways of big government, has become the living exemplar of some of its worst habits.
  . . .
  Whether Mr. DeLay violated the small print of House Ethics or campaign-finance rules is thus largely beside the point. His real fault lies in betraying the broader set of principles that brought him into office, and which, if he continues as before, sooner or later will sweep him out.
California Speeches This Week: On Thursday of this week (March 31th), I will be speaking on "Medical Cannabis, The Commerce Clause & Arguing in the Supreme Court" at at Chapman University School of Law at Noon in room 237a. The talk is open to the public.

On Friday night (April 1st) I will be speaking on the same topic at Reason Weekend at the Ritz-Carleton in Laguna Niguel.

Next week I have three talks:
Tuesday (4/5) at Bridgewater State
Thursday (4/7) at Texas Tech
Saturday (4/9) at the BU Libertarian Society

Later in April I will be at:
(4/14) University of Arizona
(4/27) The Social Law Library, in Boston.
ABC, Washington Post, & NY Times Taken in by Another Phony Memo?--

Last week there was another probably forged memo that was attributed to Republicans, even though the NY Times reported that Democratic staffers were spreading it around.

This one involved the supposed Terri Schiavo talking points. John Hinderaker has the story (tip Instapundit).

UPDATE: A reader points me to this story indicating that the memo did, in fact, come from a Republican Senator's staff. Kudos to the Washington Post for nailing down the story--better late than never.

Related Posts (on one page):

  1. Still More on the Schiavo Memo:
  2. Update on the Schiavo Memo:
  3. ABC, Washington Post, & NY Times Taken in by Another Phony Memo?--

Monday, March 28, 2005

Brian Leiter on new U.S. News Ranking: Over at the Leiter Reports, Brian Leiter offers some commentary on the new U.S. News law school ranking:
The most worrisome aspect of the new US News data (which should be on-line by Friday) is that it is now clear that the academic reputation survey component of the ranking is completely unhinged from any actual change in either faculty or student quality at the law schools in question. (A stunning example: UCLA, which made several significant faculty appointments last year, saw no change in its academic reputation score. Other schools in similar situations even saw their academic reputation scores decline! In general, the pattern is clear: the "peer reputation" scores among academics are basically gravitating towards the typical overall US News rank of the school, i.e., the "reputation" is being determined by the typical US News ranking which, itself, purports to be based in significant part (25%) on reputation. Talk about an echo chamber!)

Related Posts (on one page):

  1. Brian Leiter on new U.S. News Ranking:
  2. New U.S. News Law School Ranking:
Patriot Act Abuse and the Banach Case: Over at CrimLaw, Mike argues that the case of a man indicted recently for directing a laser at a Cessna plane should be considered an abuse of the Patriot Act. I think he may be right, although it depends on a factual question about which I don't think we quite know the answer.

  The man, David Banach, was indicted under a Patriot Act provision codified at 18 U.S.C. 1993(a)(5) that imposes liability against
whoever willfully . . . interferes with, disables, or incapacitates any dispatcher, driver, captain, or person while they are employed in dispatching, operating, or maintaining a mass transportation vehicle or ferry, with intent to endanger the safety of any passenger or employee of the mass transportation provider, or with a reckless disregard for the safety of human life.
  Banach allegedly pointed a handheld laser at a chartered Cessna jet with six people aboard when the plane was flying at about 3,000 feet near Teterboro Airport in Parsipanny, New Jersey. He did this three times. According to news reports, the pilot and co-pilot were temporarily blinded by the laser, but were able to land the plane safely.

  According to CrimLaw, the indictment filed in the case charges that
Banach did knowingly and willfully interfere with, disable, and incapacitate a driver, captain, and person, namely aircraft pilots, while those aircraft pilots were employed in operating and maintaining a mass transportation vehicle, namely the Aircraft, with reckless disregard for the safety of human life.
  Mike argues that this is an abuse of the Patriot Act on the theory that what Banach did was clearly an accident:
  Does anyone with any common sense or common decency really think Mr. Banach was trying to disable an airplane? . . . The guy is more like Bozo the Clown than Osama bin Laden. And the law should be able to charge Bozo and Osama appropriately. Charging Mr. Banach under the PATRIOT Act is abusive.
  Whether that's right depends on a factual question, I think. Did Banach intend to interfere with, disable, or incapacitate the pilot of the plane? Mike sees the answer as obvious, but I think it's a bit too early to tell. It seems to me that if the government has solid evidence that he did, then the charge seems appropriate; if the government lacks such evidence, however, then the charge is unwarranted and inappropriate.

  So which is it? Banach's lawyer says that his client was acting innocently; according to the lawyer, Banach was just stargazing with his daughter when the laser pointer just happened to hit the plane. If that is true and the government knows it, then yes, I think this is a case of Patriot Act abuse: the evidence simply does not satisfy the elements of the crime, and the charge should be dismissed.

  At the same time, we don't yet know all the evidence that the government has, so it seems a bit early to condemn the prosecution for abusing the law. We'll have to wait and see what evidence the government offers to support the charge.

  UDPATE: Reader (and pilot) Jeff Moersch asks whether the jet in the case counts as a "mass transportation vehicle" under the law. The statute defines "vehicle" very broadly, and the definition of "mass transportation" states that
"mass transportation" has the meaning given to that term in section 5302(a)(7) of title 49, United States Code, except that the term shall include schoolbus, charter, and sightseeing transportation.
49 U.S.C. 5302(a)(7) in turn defines "mass transportation" as
transportation by a conveyance that provides regular and continuing general or special transportation to the public, but does not include school bus, charter, or sightseeing transportation.
I don't know if there are judicial opinions construing the term, but that's the statutory language.

  ANOTHER UPDATE: The criminal complaint filed in the case is available here.
FIRE in Mallard Fillmore:

FIRE is also mentioned in today's Mallard Fillmore comic strip, including noting that FIRE's "Guide to Free Speech on Campus" can be obtained free by students. According to the comic strip (that's a phrase I never thought I would write) FIRE's book discusses student's free speech rights, campus speech codes, and how students can fight them.

Related Posts (on one page):

  1. FIRE in Mallard Fillmore:
  2. Humility and Free Speech on Campus:
Should You Try Out for Law Review?: The law student group blog De Novo is seeking guest submissions for a blog symposium on the topic.
Camping Out for Supreme Court Arguments: The Supreme Court will be hearing the Grokster case tomorrow, and it seems to be the hottest ticket of the Supreme Court Term. The hot ticket means that a number of people likely are planning to brave the cruddy weather and get in line early on Tuesday morning (or even camp out Monday night) to try to get one of the first-come, first-served seats.

  Being mentioned on the VC isn't much in the way of consideration, but I would be very interested to hear reports from people who wait in line for the Grokster case and either a) make it in to see the argument or b) get turned away. (I would be happy to anonymize any reports if you would prefer not to have your name mentioned.) I'll be particularly curious to hear how early you need to be in line to get a seat, and also whether the people who waited and made it in thought it was worth it in the end.

  My own take is that it's usually not worth it to camp out for a high-profile oral argument. The Supreme Court press covers arguments quite well, and transcripts are released relatively soon after argument. While you get to soak in the aura of being there at the live argument, you never quite know if the argument will be particularly illuminating. Plus, you can soak in that same aura of being at the Court another day when no high-profile cases are being heard and you don't need to wait in line. But of course lots of people see it differently.
New U.S. News Law School Ranking: While the U.S. News rankings shouldn't matter as much as they do, it's news worthy that the new law school rankings reportedly are out. I haven't confirmed that the rankings posted on a law school discussion board are accurate, but the rankings purporting to be the new list can be found here.

  As usual, not much motion relative to the previous year's rankings. (As I noted two years ago, commenting on the 2003 rankings: "It's basically the same as last year, which was basically the same as the year before that, which was basically the same as the year before that.") Of interest to the frequent posters here at the VC, UCLA was 16 and is now tied at 15; GW was in a 3-way tie for 20 and is now in a 2-way tie for 20; BU was in a tie for 23 and is now in a tie for 20 with GW; and GMU was tied for 38 and is now in a 6-way tie for 41.

  Thanks to lawprof Roger Alford of 22-spot jumping Pepperdine for the link.

  UPDATE: For a good explanation of the U.S. News methodology and its considerable flaws, see this page from Brian Leiter.

Related Posts (on one page):

  1. Brian Leiter on new U.S. News Ranking:
  2. New U.S. News Law School Ranking:
New US News Rankings:

The new U.S. News rankings of law schools are out. Yes, these are authentic. Please use them wisely.

Does the Right to Arms Impede or Promote Economic Development?

That's the title of a forthcoming article I've co-authored for Engage, the journal of The Federalist Society. Gun prohibition advocates and their United Nations supporters claim that the presence of "small arms and light weapons" causes economic underdevelopment. The Engage article studies Latin America, Kenya, and Zambia, and concludes that the claims about small arms are implausible. The article also explains the extremely harmful economic effects of UN policies regarding malaria and AIDS in the Third World. Finally, the article observes that bad, corrupt government is the most significant impediment to economic development, and that in some cases, citizen possession of small arms can provide protection from abusive government. (The article link is to a PDF.)

Humility and Free Speech on Campus:

FIRE's Greg Lukianoff observes:

[At] the core of the philosophy of free speech is a very beautiful idea: humility. None of us is omniscient and we must at all times recognize that wisdom can arise from unexpected sources.... Professors who remember that their students present a constant opportunity for them to learn and are not merely inductees to be reformed to a “correct” way of thinking better represent the true spirit of both liberty and education. If more professors, students, and administrators approached the views of others with humility and a willingness to learn through the process of debate and discussion we would see far fewer of the types of abuses FIRE fights every day.

Nicely said.

Related Posts (on one page):

  1. FIRE in Mallard Fillmore:
  2. Humility and Free Speech on Campus:
Amtrak and the Weaknesses of Modern Liberalism:

I have been criticized in the past for suggesting that modern liberalism often seems to support government spending, as such, without much regard to the need for and efficacy of any particular program. Thanks to Leonard Fein for unintentionally supporting my point. In essay in the April Moment magazine, Fein, in the course of explaining why American Jews should stay liberal as a matter of Jewish values, critiques the president's latest budget proposal:

It is a budget of a poor country, a country that cannot afford food stamps a hungry, that plans to cut between it to the 2003 and thousand people from the program mostly working people with families and children; a budget that says to Amtrak "if you can't make it in the open market, you don't deserve to survive"...

Hold on! Amtrak? You mean the Amtrak that is largely used by wealthy business travelers (with poor people using Greyhound?) The Amtrak that wastes billions of dollars running nearly empty trains to the districts of influential congressmen? The Amtrak that spent untold millions purchasing new high-speed trains, but never got around to upgrading the tracks to accommodate higher speeds? An Amtrak, in short, that redistributes wealth upwards, is run in a corrupt manner, and is grossly mismanaged? Is protectinig this was modern liberalism is all about? In fairness to Fein, he does go on to talk about Pell grants, Medicaid, and other programs intended to help the poor. But I think his inability to distinguish between government spending that actually serves liberalism's purported goals, and wasteful government boondoggles that receive reflexive support because they exist outside the market is an endemic problem that modern liberalism has yet to adequately address.

Sunday, March 27, 2005

Do Law Professors Need Practical Experience?: Lawprof Amy Cohen spent a semester-long sabbatical from Western New England College School of Law working at a law firm practicing IP law, an area of law she has taught for many years. On her return she wrote an interesting article: The Dangers of the Ivory Tower: The Obligation of Law Professors to Engage in the Practice of Law, 50 Loy. L. Rev. 623 (2004) (not available online). Cohen writes that the experience of working at a firm was quite useful both to her and her students:
  What I learned from this experience was more valuable than I had expected. First, I learned quite a bit about the practical aspects of copyright law and trademark law that I had not and probably never would have encountered in the ivory towers of academia. For example, I learned how actual trademark searches are done and what issues are frequently raised by trademark examiners who evaluate trademark applications. I also learned how to search for a design mark and where to look for descriptions of goods and services that are acceptable to the trademark office. These may seem like simple and perhaps even trivial matters, but in reality these are the type of matters about which students often ask and with which I previously had no direct experience.
  Furthermore, I was able to do research on a number of cutting edge, substantive issues that I might never have realized were of practical significance had I not been there to see how such issues arise in practice. As an illustration, I did some research on the copyrightability of a magazine layout and learned that the Copyright Office has been quite strict in its interpretations of the standards of originality, despite a contrary Supreme Court decision, which had led me to assume otherwise. . . . The fact that th[is] issue came up in the context of a real client's problem, as opposed to purely academic meanderings, made it much more exciting and interesting for me to try and understand the underlying issues.
  These experiences will also undoubtedly enrich my teaching. For one thing, I have a new appreciation for what kinds of issues arise in practice and how practicing lawyers resolve them. I am hoping to modify my syllabi to emphasize those issues and to illuminate for my students why such issues are important on more than a purely "academic" level. Additionally, I can develop a whole set of "hypotheticals," problem sets, exam questions, and paper topics from the actual case files that I reviewed and discussed while at the firm. To be able to use materials that are based on real client problems and to be able to talk about the arguments made by the lawyers, clients, and the decision-makers in the actual cases will add a level to my teaching and to the understanding of my students that I could not have provided without this experience.
  This experience observing the world of practice will also make me a better scholar. Although legal scholarship has moved in a more theoretical direction in the years I have been teaching, I continue to believe that much good can be accomplished by traditional scholarship. Lawyers and judges can still benefit from thoughtful analysis of case law and statutes. My experience at the firm made me aware of a number of questions in copyright and trademark law that scholars should address, and it has provided me with the inspiration to write about such questions, knowing that in the world of practice there is still a need for the analysis and insights that a traditional scholar can provide.
  Just a few quick (and probably unoriginal) observations on my part --

  As a general matter, I think there is a lot to this. Although I don't think law professors have an obligation to practice law, an awareness and understanding of the issues that arise in legal practice can be tremendously valuable for professors both in terms of teaching students and writing scholarship. In most cases, understanding the real world can make academics much better at what they do. Even those who bring a more theoretical bent to their work can benefit, as it always helps to understand the real world details that you're theorizing about.

  At the same time, it's important to note that the usefulness of practice expeience depends on the subject. With a few exceptions, a couple of years at a firm won't help you teach or write in the area of constitutional theory or jurisprudence. Law schools host a wide range of subjects and approaches, and some are less related to legal practice than others.

  Thanks to Out-of-the-Box Lawyering for the lead.