The Daily Mailreports on an interesting judicial opinion from Montana. The judge asked Andrew McCormack, a Beatle-loving beer thief, what he thought his sentence should be.
He wrote: “Like the Beetles say, Let It Be”. But his cheeky quip did not impress Gregory Todd, a 56-year-old district court judge in Montana.
In a sentencing memorandum Judge Todd first corrected McCormack's misspelling and then gave the defendant a lesson in The Beatles discography.
Billie Holiday and Louis Armstrong, "Do You Know What It Means?":
In 1947, the movie "New Orleans" featured a number of jazz greats performing songs interspersed with the rest of the plot. A few of the songs can be found on YouTube, and the best of the lot is this clip of Billie Holiday and Louis Armstrong — along with several other important early jazz musicians — performing "Do You Know What It Means?" It's a short clip, under two minutes, mostly featuring Billie. Check it out:
(Okay, so it's obviously dubbed for the movie, but it's still worth a watch and a listen. I particularly like the sailor leaning against the piano playing the beer; he's a very skilled beer player. For an introduction to the real musicians in the band, watch this clip.)
The Ethics of Libertarian Academics Employed by State Universities:
Is it wrong for libertarian academics who oppose government ownership of universities to take jobs with state schools? This issue came up in the comments to my previous post, and is raised often enough on this site and elsewhere that I think the time has come to address it more systematically.
In an ideal libertarian world, all (or nearly all) universities would be private. However, we do not live in that ideal world and are unlikely to achieve it in the near future. Therefore, libertarian academics have only two choices: 1) take jobs at state universities (if that is the best or only offer available), or 2) refuse any such offers, thereby ensuring that all the jobs in question will go to advocates of statist ideologies.
Picking Option 2 does not reduce the overall amount of statism. The job will not be abolished, but will instead go to a nonlibertarian. Moreover, Option 2 also probably undermines the cause of libertarianism. To the extent that academics influence political debates, picking Option 2 means that fewer such opportunities to influence opinion will be in libertarian hands and more will be controlled by our ideological rivals. Obviously, picking Option 1 serves the self-interest of libertarian academics (myself emphatically included). But it's also the right choice for an altruist whose only goal is advance the cause of libertarianism (and, no, I am not claiming to be such a person).
Finally, it's worth noting that private universities are also heavily subsidized by government in ways that most libertarians disapprove of. And many public universities earn a significant percentage of their revenue through the (relatively) free market, in the form of tuition payments and alumni donations. From a libertarian point of view, the difference between public and private universities is one of degree rather than kind. If the "right" decision for libertarians is to refuse jobs at any school funded by the state in ways that we find objectionable, the result would be a complete absence of libertarian faculty at almost every school. That outcome is hardly likely to advance the cause of limiting government power.
The police chief at City College of San Francisco has resigned over a question of security. He wanted his officers to be able to carry guns on campus, especially in light of a recent incident, but he was overruled.
In late April, 52-year-old Peter Lee rushed into a classroom in the science building, dressed in camouflage. Students say he threatened to kill everyone. But campus police had to wait until S.F.P.D. arrived before they could respond. That's because campus cops don't carry guns -- only pepper spray and batons.
Fortunately, Lee was not armed either and they arrested him without incident....
Carl Koehler, CCSF Police Chief: "In this day and age, there are guns on campus, but the police don't have them." ... [Koehler] was fighting a 70-year-old college policy prohibiting its officers from carrying guns.
I'm not a policing expert, so maybe there is some reason to leave armed intervention to the city police rather than having on-campus police able to do it. Certainly not all organizations employ armed guards; and despite the occasional high-profile campus shooting, my sense is that universities generally aren't that dangerous. Nonetheless, my first reaction is that armed protection is likelier to be more effective -- not just against mass shootings, but also rapes, robberies, and the like -- than unarmed protection. Any thoughts on this, or more specific facts about the CCSF situation?
The Ethics of Benefiting From Policies that You Oppose:
David's post on Robert Bork's effort to take advantage of aspects of the tort system that he has condemned in the past, raises a more general issue: when, if ever, is it ethical to take advantage of the benefits of policies you oppose?
Public figures on both the left and the right are constantly accused of hypocrisy whenever they benefit from policies that they criticize. Consider the attacks on Al Gore's extravagant energy use (indulging in practices that he claims should be curtailed to fight global warming) or the ongoing criticism of Clarence Thomas for opposing affirmative action even though he himself probably benefited from it. Going back in history, many of the Founding Fathers (including Thomas Jefferson, George Washington, and George Mason) owned slaves, even though they recognized that slavery was an evil.
Even we bloggers are not immune to the problem. For example, I oppose the deductibility of state income taxes from federal income taxes; high-tax states should not be subsidized by the rest of the country. Yet, every year, I deduct my state income taxes on my Form 1040, and save several hundred dollars as a result.
Which of these cases are defensible and which are not? There is no easy answer, but let me suggest a helpful way of thinking about the problem.
Some policies are wrong in an absolute sense: every individual instance of the practice they promote is an evil. Even if no one else owned slaves, Thomas Jefferson's owning some was a grave evil. In cases of this kind, it is indeed wrong to take advantage of practices that you oppose. Even if Jefferson lacked the political leverage necessary to get slavery abolished throughout the country, his failure to free his own slaves was a serious injustice in and of itself.
Some actions, however, are only wrong because of their aggregate effects. An individual instance of deducting state income taxes or burning oil does little if any harm. It is only the aggregate impact of these practices that does damage. Thus, no good would be achieved by my deciding to forego my income tax deduction. Only an across-the-board policy change would do any real good. The same goes for Al Gore and his contributions to the greenhouse effect. OK, maybe this is my way to get myself off the moral hook (even at the cost of doing the same for Al Gore). But I think that the argument is sound, even if self-serving.
What about Robert Bork and Clarence Thomas? These are intermediate cases, it seems to me. Some critics of affirmative action primarily decry what they see as its harmful aggregate effects (admitting lower-qualified students; increasing racial conflict; contributing to negative stereotypes of minorities as underqualified). Others argue that each individual instance of affirmative action is itself an injustice because of the "reverse discrimination" it inflicts on white and Asian students or job applicants. Critics of affirmative action who emphasize systemic harm are not being inconsistent if they take advantage of affirmative action policies where they exist. On the other hand, those who accept the benefits of AA even though they oppose it on absolutist grounds, are indeed complicit in what they consider to be injustice. One can make a similar distinction between aggregate and absolute criticisms of the tort system.
The bottom line: Not all people who benefit from policies they oppose are inconsistent or hypocritical. It depends on the policy in question, and on the reasons for their opposition to it.
NOTE: I am not going to regulate the comments. However, I think it will be more productive if people focus on the general issue of benefiting from policies that one opposes rather than on arguments about the merits of the specific policies that I used as examples.
UPDATE: Ted Frank of Overlawyered made a related point about hypocrisy and the state income tax deduction in this November post.
Take ... the following passage from an unpublished federal opinion:
The Beatles once sang about the long and winding road. This 1992 case has definitely walked down it, but at the end of the day, the plaintiffs and their counsel were singing the Pink Floyd anthem "Another Brick in the Wall" after consistently banging their collective heads against a popular procedural wall-Northern District of Illinois Local Rule 12 governing the briefing and submission of summary judgment motions.
The court's use of the "Long and Winding Road" and "procedural wall" metaphors coupled with the reference to Pink Floyd in this instance is counterproductive [among other things, because] ... the court's use of metaphor does little to assist the reader in understanding the court's meaning in any meaningful way. If one of the purposes of metaphors is to allow people "to understand one phenomenon in relationship to another and to illuminate some salient details while shading others," the "Long and Winding Road" metaphor just barely serves this purpose. Litigation often takes a lot of twists and turns and may take a long time. We get it. There is nothing particularly wrong with The Beatles metaphor; however, if one assumes that one of the purposes of metaphors is to make a point in a more concise manner, then the inclusion of the metaphor fails this purpose....
Contrast that example with the California courts' use of the "you don't need a weatherman to know which way the wind blows" metaphor used to explain under what circumstances expert testimony is required. [This observation has become almost boilerplate included in the deci-sions of the California appellate courts when ruling on when an expert testimony before a jury is required. According to a California appellate court, Dylan states "the correct rule," and the California courts are simply in harmony with his statement of the law.] The metaphor is effective in that it serves the purpose of metaphors by "making abstract concepts more concrete" and aids in understanding; the court's use of it is also pretty darn funny. Both the inherent truthfulness and applicability of Dylan's statement are so spot-on that even one who dislikes or is ambivalent toward Dylan would be hard pressed to quibble about a court's use of the phrase.
The pop culture allusion seems a little forced, even given the "planet" in the litigant's argument; still, it struck me as worth passing along:
At the outset, we note that we decline to elaborate on many of Calvin's "issues" raised in his briefs that are utterly without support. For example, Calvin goes on at some length in both his opening and reply briefs to contend all of California's statutes which have been codified in the various codes are void under the Northwest Ordinance of 1787, arguing that only common law exists and therefore the trial court had no jurisdiction to determine any of the marital dissolution issues in this case. Although a court could well engage in some scholarly analysis of the plenary power of the California Legislature to enact laws and the irrelevance of the Northwest Ordinance of 1787 to any examination of the validity of the California codes and the trial court's jurisdiction, we decline the opportunity to do so. Propositions raised in the briefs which are patently absurd do not require in-depth analysis or discussion.
This is also particularly true for Calvin's argument, contrary to his contention the California codes are invalid, that the Uniform Commercial Code (UCC) is the "supreme codified law of the planet" which makes his separate claim to all property in this dissolution matter superior to any purported community property claim. With apologies to the former television series Star Trek, we decline "to boldly go where no [rational analysis] has gone before." (Star Trek: Episode Introduction monologue.)
The court upholds, correctly, a deceptively executed police seizure of a car; for details on the elaborate scheme and why it's legal, read the short and clear opinion. But in the process, Kozinski writes:
If people can't trust the representations of government officials, the phrase "I'm from the government and I'm here to help" will become even more terrifying.
Our expensive, capricious and unpredictable civil justice systems present precisely the kind of conflicting and costly state regulation of commerce that the Commerce Clause was designed to solve. Lawsuits, verdicts, settlements and the insurance necessary to defend and indemnify against them, are driving up the cost of goods and services everywhere, and consumers are paying the bill. The litigation explosion has no respect for the state lines because commerce and insurance are now national. Interstate commerce and trade have become the principal victims of a runaway liability system.
Courts are now meccas for every conceivable unanswered grievance or perceived injury. Juries dispense lottery-like windfalls, attracting and rewarding imaginative claims and far-fetched legal theories. Today's merchant enters the marketplace with trepidation - anticipating from the civil justice system the treatment that his ancestors experienced with the Barbary pirates.
Bork and Olson, Trial Lawyers and Other Closet Federalists, Wash. Times, March 9, 1995.
As I wrote in the comments to Eugene's post below, I don't think that someone with such views is in any way barred morally or otherwise from using the tort system to redress an injury, but as a prominent attorney himself, Bork could instruct his attorneys not to assert "far-fetched legal theories" (e.g., punitive damages for a routine negligence case), or to request a "lottery-like windfall" (over $1 million in damages).
Gay-Straight Alliances and Free Speech in K-12 Schools:
I've often noted cases in which government-run K-12 schools discriminated against private religious student speech, for instance by excluding distribution of religiously themed leaflets where distribution of other ideologically themed material was allowed. Nearly all the cases in which this issue has been litigated have (entirely rightly, in my view) come out in favor of a right to equal treatment, both under the First Amendment and, as to exclusion of religious clubs, under the federal Equal Access Act. The chief exceptions have involved religious speech in the context of school curricular activities, whether the speech, even if chosen by students or parents, becomes part of the school's own speech; there it does make sense that the school may choose what goes into its own speech and what is left out.
But I should also note that the Equal Access Act has come in handy for another kind of club that is often discriminated against — Gay-Straight Alliances. Gay-Straight Alliance of Okeechobee High School v. School Bd., 2007 WL 1031701 (S.D. Fla. Apr. 6), is a recent example: The principal refused to grant recognition to a Gay-Straight Alliance club that some students were trying to form. But the school "permit[s] numerous non-curricular clubs to meet on school grounds during non-instructional time and to use school facilities" — and under the Equal Access Act, allowing such noncurricular clubs creates a "limited open forum," and covered schools are barred from
deny[ing] equal access or a fair opportunity to, or discriminat[ing] against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings.
The principal's justification?
Defendant argues that it can refuse to officially recognize the OHS GSA because it is a "sex-based club" and courts have held that a school can restrict sexual material in a public school with children, and allowing such would be contrary to the well-being of students and would disrupt order and discipline on the school premises.... This Court agrees ... that in public schools with students under the age of 18, the school may restrict access to and expression of obscene and explicit sexual material and innuendo. However, this Court is not persuaded that this proposition applies to the present situation.... Defendant offers no evidence to ... show that the OHS GSA would be involved with accessing or sharing with other students obscene or explicit sexual material; rather, this appears to be an assumption or conclusion derived from the name of the club....
Defendant also argues that it can refuse to officially recognize the OHS GSA because allowing any sex-based club official recognition and privileges would interfere with Florida's and the school's abstinence based sex education curriculum, and this would be contrary to the well-being of students and would disrupt order and discipline on school premises.... But Defendant's ... do not offer any clear reason to believe that the OHS GSA would hinder the teaching of the benefits of abstinence at the school. In fact, there is no apparent reason why the OHS GSA might not be an advocate for abstinence in the school.....
Defendant also argues that granting the OHS GSA official recognition and all privileges allowed other clubs, would permit "circumstances under which health and safety problems for students might invite lawsuits [which] are also disruptive to the educational process." ... [T]he Plaintiffs state that the official purposes of OHS GSA are the "promot[ion of] tolerance and equality among students, regardless of sexual orientation and/or gender identities through awareness building and education," "[t]o create a safe respectful learning environment [sic] for all students," and "[t]o work together with administration and other school clubs to end prejudice and harassment in school functions." So the expressed purposes of the OHS GSA are to prevent the very harassment and injury that [an earlier court decision in a different district that came out the other way] was concerned would lead to lawsuits. Also, in this case, Defendant has questioned whether harassment of homosexual students is a pervasive problem at OHS. Def. Resp. at 3 ("When questioned about the specifics of the instances of harassments, none of the students were able to identify any harassing incidents involving them specifically."). Further, the Court questions how many lawsuits are likely to arise against the school because it has followed an order of this Court.
This analysis strikes me as generally quite right; the "expressed purposes ... are to prevent the very harassment and injury" argument is a little glib — that the GSA's purposes are noble doesn't mean that recognizing it won't have bad effects. But under the EAA, the principal can't just exclude a group because of a hypothesis that maybe its presence will lead to harassment of its students.
In any case, the court rightly found that the students had shown a likelihood of success on the merits, and granted a preliminary injunction ordering "that the Defendant shall, so long as it maintains a limited open forum under the EAA, grant official recognition and grant all privileges given to other clubs at the school to the Okeechobee High School Gay-Straight Alliance club."
Overlawyered and New York Personal Injury Law Blog have details and pointers to more details, and commentary. The latter blog suggests some of the claimed damages are extremely weak:
3. The Complaint doesn't even come close to explaining why punitive damages would be warranted in such a routine negligence matter. My gut reaction is that it is frivolous.
4. The Complaint asked for attorneys fees. Why? You can't get them in New York for a standard personal injury claim.
5. The Complaint asks for pre-judgment interest. Why? You can't get that here either. Sad, but true. Interest runs from the date of the judgment not from the date of the accident ....
6. The Complaint asks for an amount "in excess of $1,000,000" (not merely $1M, but in excess of). Where are the damages for making such a huge demand? [EV: The complaint asserts that Judge Bork required surgery, and months of physical therapy, was rendered "largely immobile during the months in which he received physical therapy, preventing him from working his typical schedule before the injury," "suffered excruciating pain," and caused a continuing limp and a continuing need to use a cane -- it's possible that lost income coupled with pain and suffering would justify a substantial award, though I agree that $1 million seems high.]
I know zip about New York personal injury law, so I can't evaluate this myself; if others have contrary evidence about New York law, please let me know.
Engineering and Law Comment Thread:
Oops — Thanks to reader e-mail, I just learned that I had accidentally turned off comments on my post yesterday about the differences between studying engineering and law. (I drafted most of this post several weeks ago, and for some reason the VC software seems to set comments to closed when you put a draft in storage for a while. I know this has happened before, but once again I forgot about it.) Anyway, I have just opened comments, so comment away, throw rotten fruit, etc., if you're interested. Sorry about the confusion.
One more thought; please note that the topic of the post is the difference between studying engineering and studying law, not the difference between practicing engineering and practicing law. That is, I'm trying to explore how a student encounters the two subjects; that's the question that I often receive from prospective law students who are/were engineering students in college. How the two two fields differ from a practitioner's perspective is a terrific question, but wasn't what I was getting at in my post. (Of course, feel free to discuss it in the comment thread if you find it interesting.)
Dogpile No Longer Flags "Gun" Searches as Likely Yielding "Adult Content" To Be Filtered Out, But Related Search Engines Continue:
James Grant reports that dogpile.com has stopped reporting a "likely to contain adult content" -- adult defined as "sexually explicit" -- for searches that use the word "gun." But webfetch.com, webcrawler.com, and metacrawler.com, which, Grant reports, are owned by the same company (Infospace), continue to do the same thing dogpile used to do.
In what I think is a genuine effort to express tolerance and openness, an article in Time Out London about a potential future "Islamic London" often reads like a parody:
On the surface, Islamic health doesn’t look good: the 2001 census showed that 24 per cent of Muslim women and 21 per cent of Muslim men suffered long-term illness and disability. But these are factors of social conditions rather than religion. In fact, Islam offers Londoners potential health benefits: the Muslim act of prayer is designed to keep worshippers fit, their joints supple and, at five times a day, their stomachs trim. The regular washing of the feet and hands required before prayers promotes public hygiene and would reduce the transmission of superbugs in London’s hospitals.... Application of halal (Arabic for 'permissable' [sic]) dietary laws across London would free us at a stroke from our addiction to junk food [ed: who says Muslims can't eat junk food?], and the general adoption of a south Asian diet rich in fruit juice, rice and vegetables with occasional mutton or chicken would have a drastic effect on obesity, hyperactivity, attention deficit disorders and associated public health problems.
Studying Engineering and Studying Law:
I enrolled in law school after engineering graduate school, and people occasionally ask me if I have advice for engineering graduates planning to study law. I get questions like, "Is studying engineering good preparation for law school?" Or, "How should I make the transition from engineering to law?" I thought it might be worth blogging about this, as my answers hinge in part on something that should be of broad interest to readers: the differences between how engineers and lawyers look at the world.
I tend to think engineering education provides a pretty good background for law school, but that there are some pitfalls to keep in mind. Engineers tend to have two possible advantages over other entering law students. First, engineers usually have a very high tolerance for pain. It takes a lot of time and energy to "get" law school, and former engineers are used to facing that kind of challenge. (If you survived diffies, civ pro is nothin'.) Second, studying engineering trains students to think logically, step by step, and that kind of logical thinking can sometimes help students see relationships more easily than students with some other backgrounds.
I mentioned a pitfall, however, and that pitfall is that the nature of law and engineering are profoundly different in a very important way: Engineers study nature, while lawyers study something man-made. The goal of engineering education is to understand how the world works so we can design useful tools that help manipulate it. Engineering education focuses on describing that world using mathematical equations and relationships that the world follows. There's an objective truth that can be and has been proven by experiment: either the beam will bend .2479 inches under the stress load X or it won't. After a few years of engineering education, engineers sometimes think that the world always works this way. If you can only figure out the underlying principle that the world follows, the thinking goes, you can model that world and calculate the correct answer.
Law isn't like that. Law is man-made, and has all the uncertainty and open texture of any human endeavor. Roughly speaking, legal systems are made when a bunch of people get together and agree to form a set of rules for making rules. They write down those rules, and then enough people respect that agreement that they start to see themselves bound by it. The people in the institutions set up by the agreement start issuing new rules, and they write those down, too. So whereas in engineering, the "laws" come from nature, in the law we have man-made rules devised under man-made rules for making those rules.
Why does this matter? For a student, I think it's different for two reasons. First, studying law means studying the man-made process of how law is generated. You read the actual opinions that made the law, and you see human beings making choices about what the law will become. This opens up a really important normative dimension of legal edication. If the law is man-made, you're going to be interested in why they made the choices they made as well as whether they made the best choice. Rules can change, so your opinion about the rules actually sorta matters.
This is totally foreign to an engineer. When you study Newton's Laws in Physics, you don't imagine Newton pondering whether F should equal MA, or perhaps MA squared, or maybe it should be Pi/M. There's no point in voicing your opinion as to whether force should equal mass times acceleration. Nature is nature, and that's just how it is. Law is different; at bottom, it's the collective product of human opinion.
Second, you need to learn to deal with ambiguity. Engineering offers certainty, at least subject to assumptions; if an equation describes how the world works, then it describes how the world actually works. You have certainty in the equation. But man-made processes are very different. Those rules are bound to have some areas of certainty and other areas of uncertainty, and you need to get used to it. You need to know how to identify when something is (or is not) uncertain and why, and to know the typical arguments for how that uncertainty could be resolved if someone (such as a judge) must resolve it.
A Tip for Authors or Publishers Who Send Drafts to Others to Read or Review:
Make them as easy to read and carry as possible. Thus,
If it's a book manuscript, send it double-sided, and stapled or otherwise bound, rather than as a thick stack of single-sided pages.
Print it single-spaced with wide margins, like a published work. There's a reason that this is the way journals and books are published, and the reason isn't just saving space -- my sense is that such text is easier to read. Double-spaced text may be useful when you're expecting lots of interlineated comments, but not otherwise.
Use a proportionally spaced font, both for the text and the footnotes, rather than a typewriter font.
Maybe these are just my idiosyncratic reactions -- please let me know if that's so. But I suspect not; it seems to me that the traditional journal/book layout and format is inherently easier to read than the alternatives I recommenda gainst.
Enraged mobs from one of India's myriad lower castes blocked roads with fiery barricades, stoned police and battled rival castes across a wide swath of northern India for a week to make a single, simple point: They want to be even lower.
With 25 people dead, the unrest spread to the fringes of the capital before the Gujjars — a class of farmers and shepherds — called off their protests.
They did so only after officials agreed to consider their demand to be officially shunted to the lowest rung of India's complex hereditary caste system, so they can get government jobs and university spots reserved for such groups....
Discrimination under the system was outlawed soon after independence from Britain in 1947, but its influence remains powerful and the government has sought to redress discrimination against those on the lower rungs by setting up quotas for government jobs and university spots.
But instead of weakening caste affiliations, the result has been a fracturing of politics along caste lines, with each of the lower groups vying for its share of the quotas....
"Nowhere in the world do castes queue up to be branded as backward," [the Indian Supreme Court] said. "Nowhere in the world is there a competition to become backward."
Affirmative action has its good points and bad points, but I think it's undeniable that when government distributes benefits based on particular characteristics, lots of people will want to be identified as having those characteristics, there will be lobbying to ensure that the relevant characteristics become legally immutable at a minimum ,or broadened, and people will organize and lobby around their common claim to the relevant characteristic. This all makes it a lot less likely that the relevant societal distinctions that led to the need for the affirmative action policies to begin with will wither away.
Query: If the Irish, Scandinavians, and Italians in the United States--all groups that were once suffered a great deal of discrimination and were relatively disadvantaged compared to the Anglo-Saxon/German majority (plurality?)--had been offered government benefits based on their ancestry one hundred years ago, would these groups be as integrated into American life as they are today? If not, then this is a cost to such policies that must be weighed against the benefits.
Thanks to my colleague Lloyd Cohen for the pointer.
UPDATE: The Comments function seems to be malfunctioning, at least for now. Sorry.
Our Very Own Randy Barnett, on a Second Amendment Panel at the Brookings Institution:
The panel will be next Monday, from 10 am to 11:30 am at Brookings in D.C. (1775 Mass. Ave., NW, in the Falk Audotirum). The panelists are Randy; Josh Sugarmann, executive director of the Violence Policy Center; Jens Ludwig, professor of public policy at Georgetown University and nonresident senior fellow at Brookings; and Benjamin Wittes, guest scholar at Brookings. Stuart Taylor, a nonresident senior fellow at Brookings, a writer for National Journal and Newsweek, and one of my favorite political journalists, will be the moderator.
Wittes and Randy will, I think, endorse the individual rights view (Wittes might perhaps do it somewhat reluctantly, but that's fine). Sugarmann will surely take the opposite view, and I imagine Ludwig, who is a criminologist who has generally come to pro-gun-restriction conclusions, will likely also endorse gun restrictions as a policy matter though I don't know how much he'll say about the Constitution. If you want come, please go here, or call 202-797-6105.
Maryland High Court Judge Urges Vulgar Clothing Exception to the Fourth Amendment:
Paulino v. State, decided Monday by Maryland's highest court, asked whether a particular search incident to arrest was reasonable. The police officers who arrested Paulino didn't just normally search him (just fine, even without a probable cause or a warrant, and even if done in public). They also, in a relatively public place, "lifted up Paulino's shorts" and "spread[] apart the cheeks of [his] buttocks" -- which revealed some drugs that Paulino had hidden between the cheeks (which is where an informant had told them Paulino often hid drugs).
The court held that under the circumstances in this case the search incident to arrest exception didn't justify such an intrusive search (which was not as intrusive as a manual body cavity search, but was more intrusive than most searches). That's an interesting and technical question that I won't get into here.
What struck me about the case, though, was Judge Cathell's short dissent:
I join Judge Battaglia’s dissent and would further hold that when a person wears their
pants below the level of their buttocks [as the defendant was -EV], he or she is intentionally offering that area for observation by the public and obviously has no expectation of privacy sufficient to prohibit a police officer from also looking.
If a person wants to have an expectation of privacy in that area of his or her body, he
or she should keep their pants up when in public.
I don't see how this can make sense. Paulino wasn't wearing his underwear pulled down so that the drugs were visible; the underwear had to be pulled down for the police to find the drugs. The drugs were still hidden by the clothing; it was just one layer of clothing, customarily used as an undergarment, not two.
Imagine that Paulino wasn't wearing pants at all, either because he was at the beach or at a pool, or because he was just wearing only boxer shorts -- jarring and socially unacceptable in public, but surely no crime. I take it no-one would think that he had "no expectation of privacy" in what was under his swim trunks or boxers. No-one would say that since people at the beach, for instance, aren't wearing pants, there's no expectation of privacy (and therefore for constitutional purposes no Fourth-Amendment-triggering search at all, whether incident to arrest or otherwise) restraining the police from just looking under the trunks, or under the bottom or top of a bikini. Why then does wearing a pair of pants that doesn't entirely cover the shorts leave the police free to look under the shorts?
Am I missing something here? Thanks to Lowell Rudorfer for the pointer.
Somewhere midpoint in trial, in overruling one of plaintiffs’ objections, the judge held up a hand-lettered sign, apparently prepared by him, stating “overruled.” The next day, when the court overruled another of plaintiffs’ objections, defendants’ attorney presented the judge with a different sign, stating: “Your honor, I want to help you if I may. This is a much nicer version. [¶] The Court: Better than my homemade one. [¶] Ms. Reinglass: Plaintiffs object to Mr. Callahan presenting another ‘overruled’ sign to the court. The court’s sign was adequate enough. [¶] The Court: The court will await receiving a ‘sustained’ sign from plaintiff[s] so we can split the benefits here. [¶] Ms. Reinglass: How many do I get?”
A week later, when plaintiffs’ lawyer objected to a question, the court apparently used Mr. Callahan’s “overruled” sign. “Ms. Reinglass: [I am objecting to a]ny reading of the document not in evidence. [¶] The Court: He’s not reading, [he’s] asking questions. [¶] Ms. Reinglass: Hopefully he won’t read. [¶] The Court: And hopefully he won’t keep talking. [¶] Mr. Callahan: Your honor, I didn’t get a chance to make that. [¶] The Court: It took too much time to make that sign. [¶] Ms. Reinglass: And there’s a sign, and I object to that. [¶] The Court: He is directing it to me. It’s lightening things up. And the jury nods.”
Midway into the trial, the court stated, “Jeffrey [the clerk], we’re going to the soccer style method here. Red card, 50 bucks each. Okay. If I say, red card plaintiff, write it down, 50 bucks. Red card defense, 50 bucks. [¶] We’ll keep a running tab. End of trial, we’ll collect it from them and we may take you guys [presumably the jury] to lunch at a very nice place. Okay. Court has enough money for now, and that will either stop the talking or give you a very nice lunch.” (Italics added.)
Over the next 20 pages of transcript, during which plaintiff Litton was being examined, defendants’ lawyer raised at least nine objections, six of which were overruled, with no mention of a red card. Then, when plaintiffs’ counsel stated she was reading the last portion of a deposition, defendants’ counsel stated, “Very good. [¶] . . . [¶] I probably shouldn’t say very good. No objection.” The court states, “That’s an orange card, not a red card.”
During the next 12 pages or so in the transcript, defendants’ lawyer made three objections, two of which were overruled. As plaintiffs’ lawyer continued her examination of Litton, she noted she was almost finished with a section. Defendants’ counsel stated “352.” The court responded, “351 and a half. [¶] Go ahead.” After several questions, defendants’ lawyer stated, “351 and three-quarters,” to which the court replied, “Overruled. Numbers junky.” No red cards were mentioned.
Over the next 10 pages of transcript, defendants’ lawyer raised two more objections, one of which was overruled. Defendants then interposed a hearsay objection. The court asked, “We’re going to have [the expert witness] testify, right? [¶] Ms. Reinglass: Pardon me? [¶] The Court: We’re going to have him testifying, right? [¶] Ms. Reinglass: Yes. [¶] The Court: And [Litton] is testifying to his numbers pretrial and questioned on the complaint and not about experts and discovery, so we’ll wait for the expert to tell us what those numbers were and how had he arrived on them. [¶] Sustained. [¶] Ms. Reinglass: May I? [¶] The Court: Red card plaintiff, Jeffrey. [¶] Ms. Reinglass: I was asking. [¶] The Court: 5-0. Next question.”
In testifying as to his emotional distress, Litton stated that he felt like he was in a white room without doors or windows that had no boundaries. On cross-examination as to this testimony, the following exchange occurred:
“Mr. Callahan: Q Have you ever heard of The Twilight Zone?” [¶] A Yes sir. [¶] Q Goes kind of like this, do do, do do. [¶] Ms. Reinglass: Your Honor, I would just object. This is argument. [¶] The Court: Your objection’s on the record, ma’am. [¶] Ms. Reinglass: Also improper argument. [¶] Mr. Callahan: You’re traveling through another dimension, a dimension not only of sight and sound, but of mind, a journey into a wondrous land, whose boundaries are that of imagination[;] that’s a sign post up ahead, your next stop, The Twilight Zone. Do do, do do. Do do, do do. [¶] The Court: That was terrible. Get to the question, please. [¶] Ms. Reinglass: Noting for the record, counsel was singing The Twilight Zone theme song. [¶] The Court: And how the jurors left it will be reflected on the same record. [¶] By Mr. Callahan: Q Endless white room with no doors or windows. [¶] Is that where you got your idea of this white room theory? [¶] . . . [¶] A From where? [¶] . . . [¶] The Court: Twilight Zone. That’s his question. [¶] The Witness: No sir. [¶] Mr. Callahan: Do do, do, do. Do do, do do. [¶] Ms. Reinglass: I request that counsel stop singing. As entertaining as it is for the jury, it’s mocking my client and mocking the trial. [¶] By Mr. Callahan: Q Ever heard of The Twilight Zone, the show? [¶] A Yes sir. [¶] The Court: For the record, he hit a few notes of The Twilight Zone theme song which I don’t see as mocking. He was off color [sic]. [¶] Mr. Callahan: I go through life tone deaf and colorblind. This is tough.” . . .
There's more; see here for details. The Court of Appeal's conclusion (again, see the opinion for its supporting arguments): 'Judicial ethics require a judge to 'be patient, dignified, and courteous to litigants . . . [and] . . . lawyers . . . and . . . require similar conduct of lawyers . . . under the judge’s direction and control.' (Cal. Code Jud. Ethics, canon 3(B)(4).) The delineated exchanges between the court and counsel are the antithesis of judicial decorum and courtesy."
Free Paris!:
Paris Hilton has been let out of jail after five days; her sentence was changed to home confinement in light of an "unspecified medical condition." I know all VC readers join me in urging Governor Schwarzenegger to pardon Paris Hilton immediately. The case against Paris was terribly unfair: she was jailed on a mere technicality, namely violating the terms of her probation. Shockingly, the prosecutors never came forward with a single iota of evidence that Hilton actually harmed anyone. None. Nada. And yet the prosecutors ran amok, piling charges upon charges against her. Our commitment to the rule of law -- not to mention homage to Alexander Hamilton and Federalist No. 74 -- demands that Paris must be set free from her cruel home confinement immediately.
Law Review Publication -- Main at #40 School, or Specialty at #10 School?
People often ask me: Is it better to publish in the main journal at a school ranked, say, #40 in the U.S. News rankings, or in a specialty journal at a school ranked about #10? Of course, they also keep asking me this about, say, #100 main vs. #30 specialty, and so on.
One possibility is to look at the Washington & Lee law library citation rankings, but I'm not sure how helpful that it is -- it might reflect the quality of the articles the journal publishes, but authors tend to care more about the journal's reputation. They want to know what will look better on their resume, and what will help the article get noticed when it's one of twenty articles that comes up in a Westlaw or Lexis search. And that turns mostly on what the public thinks of the journal, not on what the citation counts say.
Another possibility is that this varies considerably from field to field -- for instance, my sense is that specialty journals are considered especially reputable in international law -- so I advise students to ask a professor who works in the field.
Another possibility is not to worry so much about these things, and to focus instead on the likely quality of students who'll be editing the piece: Students who are interested in the specialty and are at the #10 law school will, on average, do a better job than students who aren't that interested in the specialty and are at the #40 law school (is that so?).
Anything more helpful I should tell students? Is this even an answerable question?
Former federal prosecutor William Otis has an interesting op-ed in the Washington Post today suggesting that President Bush should consider commuting Scooter Libby's jail term instead of pardoning him. I found it fairly convincing. It begins:
Scooter Libby should not be pardoned. But his punishment — 30 months in prison, two years' probation and a $250,000 fine — is excessive. President Bush should commute the sentence by eliminating the jail term while preserving the fine.
There is a legal principle at stake in this case greater than either Libby or the politics of the moment. It is a fundamental rule of law that the grand jury is entitled to every man's evidence. The grand jury cannot survive as the essential truth-finding tool it is if witnesses can lie with impunity. True, Libby committed a "process crime" — that is, so far as has been established in court or even alleged by the prosecutor, he committed no crime until after the government initiated its investigation of the underlying act (namely, the revelation of Valerie Plame's CIA employment). But for obvious reasons it is not for grand jury witnesses to determine when an investigation is legitimate. As the Supreme Court has noted, there are many ways to challenge questions one believes the government should not be asking, but "lying is not one of them."
I agree with Orin below that perjury and obstruction of justice are very serious crimes, particularly when committed by a high-level government official. I did not follow the trial closely enough to have a judgment on Libby's guilt, but he was convicted by a jury of his peers. Absent strong evidence he is truly innocent of the crimes for which he was committed, commutation seems more reasonable than a pardon. As Otis concludes:
To pardon Scooter Libby would not be consistent with the imperative that the mechanisms of law be able to demand, and receive, the truth. But to leave the sentence undisturbed would be an injustice to a person who, though guilty in this instance, is not what most people would, or should, think of as a criminal. Commutation offers a middle ground.
UPDATE: Edward Lazarus argues that, under the Federal Sentencing Guidelines, "Libby's 30-month sentence is justifiable, but that a more lenient outcome would also have been appropriate."
FURTHER UPDATE: Eric Muller thinks Otis' argument is "garbage" and hypocritical given Otis' defense of the sentencing guidelines (which, Muller notes, were followed in Libby's case). I readily confess that I probably know less about federal sentencing than either Muller or Otis has forgotten, but this also means I am not wedded to the idea (that Otis has apparently defended) that the federal guidelines produce fair and just outcomes.
Perjury and Obstruction of Justice Not So Bad After All?:
Back during the Clinton impeachment, I read a lot from conservatives about how perjury and obstruction of justice were dangerous crimes that struck at the very heart of our legal system. Given that, it's been interesting to see the recent conservative calls for Scooter Libby to be pardoned for his perjury and obstruction of justice crimes. As I understand the New Learning, the real question now is whether the witness was put under oath for a really good reason. If not, then lying and obstructing justice are understandable; the witness shouldn't have been put in the position to lie in the first place, so it's not really so culpable that he did. Poor Bill Clinton. I guess he was just ahead of his time.
The WSJ law blog reports that writer Rebecca Eckler is suing Judd Apatow and Universal Studios for copyright infringement alleging the hit movie "Knocked Up" is partially based upon Eckler's book. I have no idea whether this suit has any merit, but I do know that "Knocked Up" is hilarious.
In today's W$J, Brian Carney reports (link for subscribers) from a Venice conference on the difference between American and European perspectives on the challenge of climate change policy.
The story according to which politically connected industries block economic developments that would be beneficial overall but redound to the detriment of the big players is one expounded mostly by cranks in the U.S., but is commonly accepted in Europe. This results from the fact that in Europe, this kind of thing happens. Market signals on employment, wages and production are all attenuated by government's heavy hand to a much greater extent than they are in the U.S. Stagnation in Europe has many faces, but one of the most important is the stasis of the corporate constellation: Most European economies are dominated by the same large companies that ruled the roost decades ago, while in the U.S., many of our largest and most successful companies didn't exist a generation ago.
This comparison is not new. But its relevance to the global warming debate is not well-understood. As a former Carter administration official at the conference put it, "America is, psychologically, an open-frontier society. Europe's frontier closed a millennium ago." In other words, the characteristic American response to, say, climate change, is to believe that technologies— and even companies—that do not now exist will crop up to solve the problem, assuming there is a problem. The characteristic European response, as exemplified by the German conspiracy theorist in Venice, is to focus on how to get the businesses to behave "better."
The open frontier view was captured by a Silicon Valley representative in the room. He stood up to announce that "clean tech" would be to this decade what high-tech was to the 1990s. The companies that would revolutionize our energy usage, he claimed, were now being funded by venture capitalists, and the Ciscos, Microsofts and Googles of the next decade would be the companies that solved the energy puzzle. We hadn't heard of any of them now, he insisted, but they would be huge. Is he right? Maybe. Who cares? It's his money, and the money of his colleagues in the Valley. The point is, if there's a conspiracy to keep revolutionary clean technology down, he didn't get the memo. The notion that this is simply a trans-Atlantic divide can easily be overstated. There are statist Americans and entrepreneurial Europeans. But the divide between the open-frontier camp and the closed-frontier camp is very real, and of the utmost importance to the global warming debate.
A question for law students who wrote law review pieces while in school: When you were doing your research, did you ask your school library's research librarians for help, either on (1) specific matters (e.g., how can I track down this unpublished document?) or on (2) big-picture items (e.g., can you give me some advice about my research plan?)?
If not, why not? If yes, what good advice did they give you? I'm trying to come up with good advice to give to law students about taking advantage (in the best possible sense of the term) of their reference librarians. Thanks!
"Ninth Circuit Judicial Conference Brings Federal Bench, Bar to Honolulu": The Public Information Office of the U.S. Court of Appeals for the Ninth Circuit issued this news release today. One of the scheduled presentations is titled -- I kid you not -- "Killer Asteroids and What We Can Do About Them."
OK, judges are just as entitled as anyone else to have some general interest presentations to add variety to their conferences, and I'm told Hawaii is known for its astronomers. Still, it's at first glance a funny juxtaposition.
A fascinating Ninth Circuit opinion upholding a conviction of a would-be child molester (U.S. v. Mayer), a conviction that flowed from an FBI agent's infiltration of the North American Man/Boy Love Association.
The Ninth Circuit rejects, in my view quite rightly, the First and Fourth Amendment challenges to the conviction. One of the ways that the government can fight the harm caused by groups that advocate illegal conduct, whether NAMBLA, the KKK, the Communist Party, or what have you, is precisely by watching the group closely, including from the inside. The groups ought to have the right to speak; but the government is entitled to listen, at least from any vantage that any private citizen can listen from.
I should note, incidentally, that this is not simply a "the government is watching our association" case. The agent not only infiltrated NAMBLA, but also (1) "published an article in the [NAMBLA] Bulletin and wrote a policy statement for NAMBLA's privacy committee, which he had joined," and (2) "offered to host the [2005] NAMBLA conference, and NAMBLA was unable to reschedule it after he revealed his identity." Nonetheless, neither of these items are reason to throw out the defendant's conviction, as the court correctly held (though it acknowledged that the latter action might be an infringement of the organization's First Amendment rights, and might under the proper factual circumstances justify a lawsuit by the organization).
One tidbit from the defendant, though I acknowledge that it's certainly possible that he was mistaken in his opinion: "Agent Hamer suggested that they form a travel group [for traveling to Thailand to have sex with boys]. [Defendant] Mayer responded with NAMBLA kept up pretenses of trying to change society when in fact its members only wanted to travel to meet boys."
"Defendants note that Wesley's babysitter, Judy Harper, testified that Wesley's favorite book in kindergarten was 'Brown Bear, Brown Bear.' Defendants contend that the Bible is really Plaintiff's favorite book." Busch v. Marple Newtown School Dist., 2007 WL 1589507 (E.D. Pa. 2007).
I should say that I'll be the first to admit that I've been exposed to a limited set of small children, and preferences may be very different in more devout households. Still, beating Brown Bear, Brown Bear strikes me as mighty hard, and I somehow doubt the Bible is up to the challenger.
In Massachusetts v. EPA, the Supreme Court ruled that Congress delegated to the Environmental Protection Agency authority to regulate carbon dioxide and other greenhouse gases as pollutants under the Clean Air Act. Some members of Congress do not seem too happy with this result. How else to explain draft legislation, noted on the Warming Law Blog, that would limit the EPA's ability to impose greenhouse gas regulations? It also seems that this legislation, drafted by Democrats in the House Energy and Commerce Committee, would prevent the EPA from granting California a waiver of preemption for its regulations controlling greenhouse gas emissions from new motor vehicles (see also here). Automakers would not be completely off the hook, however, as the draft legislation would require the National Highway Transportation and Safety Administration to tighten federal automobile fuel efficiency standards. Oil companies would also be required to reduce the carbon content of their fuel offerings. "Discussion drafts" and summaries of the legislative proposals are available here
If this legislation seems to be tailored to the needs of the automobile industry, it should be no surprise. Michigan Representative John Dingell, a longtime ally of the auto industry, chairs the House Energy and Commerce Committee. But industry-friendly emission controls did not begin with him. Back in the 1960s, after California adopted the first-in-the-nation automobile emission controls, and other states appeared ready to follow suit, the automakers ran to Congress asking for uniform federal standards. The automakers feared a patchwork of variable state standards, and also believed that federal rules would be less stringent than those developed in the states, particularly those states without a significant auto industry presence. So began federal regulation of automotive emissions.
I'd like to add to my Academic Legal Writing book a list of research tips, chiefly focused on things many law students don't know about, but should know about. They could be very specific things (the Lexis ATLEAST and NOT W/ connectors, Westlaw SY,DI() searching, the various 1600s, 1700s, and 1800s full-text searchable databases of books and newspapers) or broader research concepts that people miss. Any suggestions that you'd like to pass along?
Criminal Justice in New Orleans:
My friend Brian Privor recently returned to his law firm following a six-month stint as a public defender in New Orleans. Brian kept a blog about his experience, and I wanted to point out some interesting posts for those curious about the criminal justice system in New Orleans post-Katrina (or at least one public defender's take on it). I recommend Time's Up, Pencils Down from November '06, Drunk Justice from December '06, and Misdemeanor Murder from April '07.
In 2004, the woman who would become legal writing director at Florida A&M University's law school posted a working paper online [using Berkeley Electronic Press] so legal scholars nationwide could see her work....
But [the director's] paper was so riddled with grammatical errors and mangled writing that some FAMU law students are now using it to help build a case that [the director] is not qualified to teach and was hired primarily on the strength of her personal ties....
Pat Daniel, an English education professor at the University of South Florida who reviewed [the director]'s paper at the Times' request [which has since been removed from the service -EV], said in an e-mail that it was "sloppily written, in need of serious proofreading." ...
Fast Facts: Excerpts from the paper
* "This reports served as a welcome-mate to concerned groups seeking to resolve potential conflicts regarding international environmental concerns, thus allow disputing parties the opportunity to be heard in an agreeable dispute resolution procedure."
* "This inherent conflict between economic development and environmental protection needs and interest and the focus of managing environmental disputes for sustainable results is the cause of a 10-day delay in productions and obligations."
* "Such an institutional framework would include implementation of sound sustainable development strategies and international treaties by countries should contribute to improved socioeconomic and environmental conditions, and help reduce potential sources of conflict between countries."
* "International environmental disputes can involve parties who hold very strong feelings that they are right and other parties are wrong present unique challenges if fundamental values are in conflict."
* "Borrowing from the environmental dispute strategy of the local threats and the focus of Agenda 21 with the sustainable development flavor it is dispute settlement that is one of the key elements to ensure that the environmental dimensions of security can be maintained."
My quick take: We should cut people some slack with their working papers. Such working papers aren't intended to be final versions, and my sense is that most authors edit the papers fairly heavily after they put out the first working paper draft.
Still, you'd expect that a working paper that's circulated to law reviews, to be considered by editorial boards in competition with other papers, would be at least decently polished. [UPDATE: Also, some might expect, as commenter Anderson points out, that a skilled writer wouldn't produce those sentences even on a first draft, though I'm not positive about that.]
I surely wouldn't advise firing someone, even from a position in which she teaches writing, simply because she didn't adequately edit an earlier draft. But such inadequate editing does say something about how careful the person is, and what her editing habits are. And, more broadly, I would advise people to make sure that articles they expose to the world as thought-through scholarship (rather than, say, off-the-cuff mailing list posts or even blog posts) are at least moderately well edited.
Court Citation Counts For Harvard, Yale, and Stanford Student Notes:
Looking at citations from 2001 on, and controlling for different numbers of notes in each journal by dividing by the count of all published notes from 1995 on:
Harvard: 358 citations.
Yale: 106, with 78% of the number of notes in Harvard.
Stanford: 48, with 40% of the number of notes in Harvard.
I count here only articles denominated as "Note" (not "Recent Case" or some such), and citations that refer to them as "Note." There are a few false positives and surely some false negatives in each query, but I have no reason to think they'd throw the results off.
(1) The saying that real estate is all about location has never seemed more true. Last Sunday, I attended an open house at a beautiful, well-priced house well inside the Beltway in a nice neighborhood in Bethesda, but not near a metro, and I was one of very few visitors (around 5) for the entire day. My next stop was an unrenovated old house in Chevy Chase near the Metro that cost close to $1 million. This open house attracted around a hundred people.
(2) Real estate agents in the DC area, and perhaps elsewhere, have developed norms that make in their lives a lot easier, but redound the detriment of sellers. For example, a few years ago my wife and I made an offer for a house with an escalation clause to $525,000. We lost the house to a couple who offered $526,000. We certainly would have come back and offered, say, $530,000, had the sellers made this counteroffer. Apparently, this would have been considered an "unfair" tactic by the sellers' agent, though I have a hard time understanding why. This was NOT a situation where the seller had said "all contracts will be reviewed Tuesday at 5:00 p.m.," which I can see includes an implicit promise that buyers won't be played off against each other.
My father experienced a similar phenomenon as a buyer in Long Island a few years back. He purchased a house via a closed bid auction among interested buyers(his wasn't the highest bid, but the highest bid offer fell through), and acknowledges that he would almost certainly have been willing to raise his offer if the agent had conducted an open auction among interested buyers, though this would have involved substantially more work for the agent.
(3) The houses that just sit and sit on the market are houses that were purchased, or refinanced for full market value, in 2005, at the market peak. Inevitably, these houses are priced so that the seller will make a profit or least break even after commission. But of course no buyers are willing to pay a premium from the market peak's price. I'm not sure if this is supporting evidence for the loss aversion hypothesis (that people "feel" a loss much more than they "feel" a gain) that is a popular in law and economics circles these days, or if the sellers simply can't afford to sell for less than the purchase price.
Seeking Good "Basics of American Government and History" Book for Incoming Law Students:
Brian Kalt, a lawprof at Michigan State, asks this question, which struck me as much worth raising:
What is a good book to recommend to students who
(whether because they are from another country, were engineering or
fine arts majors, or just plain didn't pay attention in high school)
don't know the basics of American history and American government?
What do you folks think?
UPDATE: The introductory paragraphs that preceded the question were removed at the questioner's request.
Academic Freedom and Student In-Class/For-Class Speech:
I'm on the UCLA Academic Freedom Committee, and we're discussing an academic freedom policy -- guidelines, not legally enforceable rules -- related to student in-class (and for-class) speech. As to outside-class speech, I have pretty well-settled views, but in-class speech has always puzzled me. I'd love to hear your input on this, though note that we're talking here about ethical guidelines, not First Amendment doctrine or proposed statutes.
There are three main complicating factors here, I think.
1. Some in-class speech, as well as most for-class speech, must be evaluated by the professor; and this evaluation, while it should be "fair" (whatever exactly that means), can't be entirely viewpoint-neutral. For instance, a geology professor can accept in a paper or on an exam the undefended assertion that the world was created several billion years ago, but he may properly mark down a similar assertion that the world was created six thousand years ago (set aside the special case when someone says "I believe it was six thousand years ago, but for purposes of this class I know we're supposed to say several billion years ago").
He's treating different viewpoints differently; but that has to be permissible, I think. Nor is the matter cured by focusing on the amount of evidence that the writer adduces: The several billion year answer may often rightly get full credit without any supporting evidence (unless the question is all about giving the evidence for this assertion). It
So outside class, we can generally demand that the university not impose any content-based restrictions on student speech (setting aside some narrow exceptions, such as threats). Even when subject-matter-based restrictions (e.g., only curriculum-related speech gets funding, access to classrooms, and the like) are involved, the rule is one of broad viewpoint neutrality. But I can't quite see how this would apply to evaluation of students -- even though I agree that some kinds of viewpoint discrimination are impermissible.
2. A professor must also be able to control the pace of class, and maximize the pedagogical value of the class, for instance by cutting off digressions or errors, or by stopping students from hissing each other and being otherwise rude. Sometimes an error or a rudeness may be an occasion for a debate, not for professorial fiat. But only sometimes; every professor decides which things to discuss in detail from all sides, and which things to just assert.
Thus, for instance, I'm not going to just assert that the First Amendment must protect advocacy of nonimminent violence -- in fact, I spend a couple of class sessions airing the arguments on both sides of that. But I do assert that the Supreme Court has held that the First Amendment applies to the states via the Fourteenth Amendment just as it applies to the federal government. If someone wants to argue that the Court hasn't so held, I'll just alert the class that this is mistaken, and offer to discuss it more with the student after class. If someone wants to argue that the Court was wrong, I'll say that there are serious debates about this, but this is a topic that we're not going to study in detail in class, except to say that the Court held what it held. (Again, I'll offer to discuss the issue more with the student after class.)
This means that claims of a student's "right" to present dissenting views in class, or even a professor's obligation to make sure that the discussion includes diverging views, can't be categorical (though I do think there is a good deal of merit to them). It has to be, in some cases, constrained by the professor's choices about what to discuss as a debatable point, and what to present as background facts that enable the other discussions. I agree that some such judgments by the professor would be wrong, but I can't say that all of them are.
3. A professor also has his own interests in speaking candidly, tempered by the professor' professional responsibility. So it's generally right to require that the professor be respectful to students personally, and to people and ideas he discusses generally. But that can't be entirely true -- a professor may express disdain or even disgust for, say, Nazi views, Communist views, and the like (especially when they are tangential to the core class subject matter), and sometimes expressing this disdain can help students go beyond the assumption "Wow, he supports free speech for the KKK, he must be a Klansman."
Likewise, I have a problem about astrology in my textbook; do I really have to be respectful of beliefs in astrology, at least when they are beliefs I mention rather than beliefs a student in the class is insisting on? For that matter, does a professor have to be respectful (not just not profane, but actually respectful) about beliefs in the 6000-year-old Earth? What about creationism? (Again, set aside the situation in which a discussion of evolution is the core subject matter of the class; being disrespectful of the rival view would keep that discussion from being sensible.)
Relatedly, there is the question of letters of recommendation from professors, an important part of the value provided by a university or graduate school education (see here for one interesting example). For instance, I wouldn't, of course, reduce a student's grade because he expressed anti-Semitic views outside class, or even responded to a question about Nazi speech with the view that, no, it's not as bad as I make it out to be.
But I wouldn't write a positive letter of recommendation for him: I would thus be discriminating in my passing out of praise in letters of recommendation based on the student's viewpoint, even the student's outside-class viewpoint. My sense is that there ought not be any ethical constraints on that; though I do think that it is intolerant and unethical to act the same way based on the student's belonging to the Democratic Party when the professor is a Republican, or the student's being pro-choice when the professor is pro-life. Again, then, neither a categorical "no viewpoint discrimination" / "no punishment of dissent" ethical principle nor a categorical "refuse to write positive letters of recommendation whenever you disagree with the student's viewpoint" ethical principle sounds right.
* * *
So my question: Can any of you suggest possible ethical guidelines that (1) would be clear and precise enough -- not perfectly, but enough -- to convey the message to a wide range of students and professors, and that (2) would mirror as faithfully as possible the Right View, whatever that is, about what professors should be ethically constrained from doing? Many thanks.
I am currently blogging from Buenos Aires Argentina, where I will be teaching a course on constitutional theory at the University of Torcuato Di Tella over the next three weeks.
Blogging may therefore be light over that time, though I may try to blog about the experience of teaching this subject in a country with a very different legal and educational culture than the US.
In March, congressional Democrats resuscitated the Equal Rights Amendment, which fell just short of ratification in 1982. Renamed the Women’s Equality Amendment, the ERA is now up for consideration again after a 25-year hiatus...
The conventional wisdom among jurists and legal scholars is that the ERA will make little difference . . .
In reality, the ERA may well have a considerably greater impact than many imagine. Perhaps predictably, some effects will be welcomed by supporters and will upset social conservatives.
What is surprising, however, is how many of the ERA’s probable effects will come as an unpleasant surprise to the amendment’s predominantly liberal supporters. If enacted, the ERA will likely curtail governmental affirmative action for women and invalidate public school programs that provide targeted assistance to African-American boys, results that many liberals are likely to deplore.
The article focuses on predicting the likely consequences of the ERA. It does not address the question of whether those consequences are desirable or not. However, for what it's worth, I personally support the ERA because I think that most of the likely effects discussed in the article are good ones.
Yesterday the U.S. Court of Appeals for the Second Circuit's struck down the Federal Communications Commission policy governing "fleeting expletives" as "arbitrary and capricious." FCC Chairman Kevin Martin responded with an expletive-laden statement. Given the Second Circuit's ruling, could a network air Martin's remarks without fear of federal sanction? Discuss.
I've Got a Gal (but no health benefits) in Kalamazoo:
After we were told that the various state marriage amendments around the country were just about "protecting" marriage from gay couples, we're starting to see consequences that go well beyond marriage. In Michigan, an appeals court has ruled that the state marriage amendment passed in 2004 forbids public entities from offering even health benefits to same-sex domestic partners. While the case is pending in the Michigan Supreme Court, one city has decided to drop the benefits it previously offered:
The City of Kalamazoo no longer will offer health insurance benefits to the partners of gay workers, becoming Michigan's first public employer to take away such benefits in the wake of a 2004 ban against gay marriage.
Kalamazoo City Manager Kenneth Collard confirmed Monday that the city will eliminate domestic partner benefits for four non-unionized employees effective June 30. He cited a May 23 order from the Michigan Supreme Court.
The high court agreed to hear an appeal of a state Court of Appeals decision blocking same-sex benefits, but it also let the earlier decision take immediate effect.
"We have no authority, as being a creation of the state, to ignore the (Michigan) constitution as defined," Collard told The Associated Press. The affected employees were informed last week and their partners have about a month to get other insurance, Collard said.
Gary Glenn, president of the American Family Association of Michigan, said public universities and state and local governments should follow Kalamazoo's lead and "honor the will of the voters." . . .
Up to 20 public universities, community colleges, school districts and local governments in Michigan have same-sex benefits policies. Universities, which employ most of those affected, argue that not being able to offer the benefits will hurt recruitment of faculty and staff.
At least 375 university and government employees in Michigan have partners who qualify for same-sex benefits.
Yesterday the U.S. Court of Appeals for the Sixth Circuit struck down a Michigan law banning "partial-birth abortion." According to the court's opinion, written by Judge Boyce Martin, the statute imposed an unconstitutional "undue burden" on a woman's right to an abortion under applicable Supreme Court precedent. State partial-birth abortion bans are consitutional, the court held, so long as they do not constitute an "undue burden." Michigan's statute, however, went too far because it could be construed to prohibit other procedures. As the Court concluded,
We certainly are reluctant to interfere with a statute that represents the will of the elected representatives of the people of Michigan, and do not do so lightly. If, however, the Michigan legislature had sought in good faith to enact a statute that prohibited the abortion procedures it deemed objectionable while complying with the limits imposed by the Constitution, it had plenty of guidance on how to proceed. The Supreme Court’s decision in Stenberg predates the Michigan statute by five years. Further, in Taft, we fully upheld an Ohio statute pertaining to such procedures the year before the Michigan statute was passed. Michigan could have simply copied that statute word-for-word, and been virtually guaranteed a favorable result in the courts of this Circuit. It instead opted to use statutory language that pushed almost every boundary that the Supreme Court has imposed for these types of laws, and which have recently been reaffirmed in Gonzales. Because the statute cannot be squared in any way with these limitations, and the Attorney General’s opinion is similarly inconsistent with the relevant court decisions and with the statute itself, the district court correctly determined that invalidation is the only available course.
Note that the court here is not simply relying on the recent Supreme Court decision upholding the federal PBA ban (Gonzales v. Carhart), but also the reasoning of the Supreme Court's earlier decision invalidating Nebraska's PBA ban (Stenberg v. Carhart). At least in the Sixth Circuit, this means that Stenberg survived the Supreme Court's more recent abortion decisions. The ACS Blog has more here.
Richard Sander -- no stranger to controversial empirical work -- has an interesting post on the Empirical Legal Studies Blog summarizing evidence that law school GPA correlates with success in large law firms. Specifically, Sander presents evidence that those with higher law school GPAs became partners at large law firms at a significantly higher rate than those with lower GPAs. Writes Sander, "this data shows clearly that GPA matters a lot to one's success and longevity in the world of big firms." I will be interested to see what others have to say about this analysis.
Is the USDA barring private companies from testing cattle for "mad cow" disease in order to protect major beef producers' profits? Not based on the materials presented in a recent legal case, according to Stuart Buck. (LvIP)
An Odd Request for an Out-of-Town Research Assistant:
Can you recommend someone who lives in or near
New Haven
Bloomington, Indiana
Brunswick, Maine
Northfield, Minnesota
New York City
Clinton, New York
Cincinnati
Abington, Pennsylvania
Charlottesville
Dublin (yes, in Ireland)
Ceredigion, Wales
or Leeds, England
and would be willing and able to read some volumes of a mid-1700s translation of Livy's history of Rome, and find all references to a particular two-word phrase? We'd pay for the person's time, though at an unprincely rate: The likely range would be $10 to $16 per hour, depending on the person's educational status — that's just the normal UCLA rate, which is calibrated to whether the research assistant is an undergraduate student or a graduate student, though presumably we can fit nonstudents in somewhere there.
The person need not have any knowledge of Roman history, though I suppose interest in Roman history may make the task less tedious. The person does need to have the (not that common) ability to read text and spot every occurrence of the phrase, which will likely be fairly rare in the work (if it occurs at all).
The reason for the request, as you may have guessed, is that (1) no library is willing to interlibrary-loan these 250-year-old books, (2) this edition (unlike many 1600s and 1700s books, including several 1600s translations of Livy) doesn't seem to be online in scanned form anywhere, and (3) this particular edition is especially important for my research. But the bottom line is that we need someone local in one of those places whom we can hire as a long-distance research assistant — and the chief condition is that the person be a careful, attentive, and not easily bored reader.
In any case, if you know someone who answers to this description, and whose reliability you personally know about, I'd love to hear about it. Please e-mail me, at volokh at law.ucla.edu, if you'd rather not post the person's name and coordinates in the comments. Many thanks!
Judge McConnell's Take on Post-Booker Reasonableness:
If you're interested in sentencing law, and in particular appellate review of sentences in the federal system, you don't want to miss Judge Michael McConnell's powerful concurring opinion in United States v. Pruitt. It's basically a short law review essay critiquing the current state of sentencing law. While I'm normally a bit uneasy about law-review-articles-as-opinions, McConnell's opinion is tremendously thoughtful and definitely worth a read. (LvHB)
"The Lost Promise of Civil Rights":
The Virginia Law Review has posted an excerpt from Risa Goluboff's new book about the history of the civil rights movement,"The Lost Promise of Civil Rights." The book looks at some of the now largely-forgotten threads of the early civil rights movement outside the familiar road to Brown v. Board. I read a few chapters recently and found it fascinating: engaging, thought-provoking, and well-written.
Here are a few pagraphs that I plan to add to my Academic Legal Writing book on this subject; comments are welcome.
Over two hundred student articles cite the online Wikipedia encyclopedia. Unlike with most encyclopedias, anyone is allowed to create Wikipedia entries, and generally to update existing entries. An unorthodox approach for an encycloped, but the theory is that (1) those people who want to spend time writing entries tend to be knowledgeable, and (2) even when they err, the errors end up getting corrected by others.
Surprisingly, the theory works, most of the time. Wikipedia entries tend to be relatively accurate, probably no worse and possibly better than the typical newspaper article. (This is especially so given that many newspaper articles are written by generalist reporters who are relying on hastily assembled materials from others.)
Nonetheless, while Wikipedia may sometimes be a good place to look, I advise you not to stop looking there. Instead, find the original sources that the Wikipedia entry’s author relied on — they’ll often be cited in the entry — and read, quote, and cite them.
First, that’s the standard procedure you should use for intermediate sources (including, as I said before [earlier in the book chapter], newspaper articles). Second, whether or not Wikipedia is more reliable than the typical newspaper article, many readers will assume that it’s less reliable; citing to it may thus decrease your credibility.
UPDATE: I at first noted that "I don't feel the need to mention that Wikipedia's contents may change over time, since I endorse citing to original-source Web pages, while recommending that the author print, save, and possibly even post and link to a copy of the page as of the time the article is written." D'oh! Forgot all about Wikipedia's change tracking system, which will let readers see the page as of any particular date (usin the oldid= feature). Thanks to Dan Lewis and RichardP for pointing this out.
Wikipedia, Law Review Citations, and the Passive Voice:
I find Wikipedia quite useful, in the proper context, chiefly when I'm trying to find out about (1) something that's not terribly controversial, so the risk of Wikipedia error or spin is likely lower, (2) and — more importantly — something that's not very important to my work, so the cost of possible Wikipedia error is lower. We rely on plenty of less reliable information under those circumstances; for instance, we might rely on our own recollections' of partly forgotten sources, or conversations with friends. There's no reason to categorically disqualify Wikipedia in those situations.
On the other hand, some uses of Wikipedia strike me as unsound. Consider this, from a law review article:
The history of the concept of "responsibility to protect" [FN1] sounds almost like a fairy tale. The International Commission on Intervention and State Sovereignty developed this concept in its 2001 report The Responsibility to Protect.... In December 2004, this idea was taken up in the context of the debate on United Nations reform.... In March 2005, this finding was endorsed by the report of the UN secretary-general .... [More historical details omitted. -EV]
Not long ago, the notion of "responsibility to protect" was added as a key word to the Wikipedia Free Encyclopedia, where it is defined as a recently developed concept in international relations that aims at "provid[ing] a legal and ethical basis for 'humanitarian intervention.'"
The articulation of the concept of responsibility to protect is a remarkable achievement.
The seeming success of the movement to recognize a responsibility to protect may well be a remarkable achievement generally — but having something "added as a key word to the Wikipedia Free Encyclopedia" is not a remarkable achievement: It can be done by one person anywhere in the world, with a modest investment of effort. It's even less of an achievement than being nominated for a Nobel Peace Prize.
Note also how the passive voice (another thing that I've defended, when it's used in the proper context) hides the unsound argument. The notion of responsibility "was added" to Wikipedia, the article says. But who did the adding? Some unknown and unscreened contributor.
Recasting the sentence in the active voice, as "Not long ago, a Wikipedia contributor added the notion of 'responsibility to protect' as a key word to Wikipedia," would have exposed the error. The passive voice conceals the error, especially to readers who don't fully understood how Wikipedia works. (And even if the author himself didn't fully understood how Wikipedia works, trying to recast the sentence in the active voice might have led him to figure the matter out.)
Last week I asked how often courts cite student articles, and how often they cite articles by nonstudents. So far, my research results are tentative -- I need to confirm them in a few ways, which I hope to do over the next several weeks. But my tentative answer is about 500 cites of student articles per year (the ones denominated Notes, Comments, and Casenotes, and not counting professor-written Comments), and 3000 cites of nonstudent articles. Every average weekday, two court decisions are citing a student article.
Moreover, it seems that there are about 3 times as many nonstudent articles published each year as there are student articles. It thus means that student articles are cited about 50% as often per article published as are nonstudent articles -- a higher ratio than I would have expected.
My estimate is also that there are about 15,000 cites of student articles per year.
Who came closest among the commenters? ElChato for the student articles, but he underestimate the academic articles by a factor of 3. Roger and guest314159265 came close for the professor articles, but they overestimated the student articles by a factor of pi. No, actually, by a factor of 10 for Roger and 5 for guest314159265. Dave N came closest to the right ratio, but underestimated both by a factor of roughly 8.
One commenter predicted: "You'll see lots more citation of student-written pieces in state-court appellate opinions than in federal-court appellate opinions." My tentative findings are contrary to this -- in my initial sample (and I'll go through the data in a somewhat broader sample in a few weeks), about half came from federal courts and about half from state courts. Of the recent decisions on Lexis, federal decisions made up about 40% and state decisions about 60% (though I'll have to recalculate this once I figure out how to omit the one-line orders), so the citation patterns seem roughly comparable.
Incidentally, less than a quarter of the state citations in my sample were to in-state articles focused on the law of the state involved; over 75% of the state citations were to articles dealing with nationwide (or out-of-state) issues.
Rare Error Correction:
Does anyone know the backstory to Erickson v. Pardus, a per curiam summary reversal handed down today? It looks like a relatively routine pro se prisoner lawsuit; the Tenth Circuit had denied relief in an unpublished opinion. Based on the docket sheet, it looks like the inmate petitioned pro se, and the state initially waived its right to file a brief. The Court called for a response, later called for the record, and then after holding the case for a while reversed 7-2.
An Unusual Aside:
Here' the conclusion of Justice Stevens' dissent today in Uttecht v. Brown, a case that overruled a Ninth Circuit decision by Judge Kozinski:
Judge Kozinski’s opinion for the Court of Appeals in this case is solidly grounded on the entire line of our cases recognizing the basic distinction dramatically illustrated by Justice Powell’s opinion in Darden and by Justice Rehnquist’s statement in Lockhart. He surely was entitled to assume that the law had not changed so dramatically in the years following his service as a law clerk to Chief Justice Burger that a majority of the present Court would not even mention that basic distinction, and would uphold the disqualification of a juror whose only failing was to harbor some slight reservation in imposing the most severe of sanctions.
(emphasis added)
Does anyone know the relevance of Kozinski having been a law clerk to Chief Justice Burger?
Supreme Court Reverses Ninth Circuit in AEDPA Case:
A post titled "Supreme Court Reverses Ninth Circuit in AEDPA Case" is sort of like a post titled "Sun Rises in East Today" or "Sunny and Warm in San Diego"; it describes an event so common it's hard to make it sound newsworthy. Still, I thought I would point out today's 5-4 decision in Uttecht v. Brown, a death penalty case considering whether the state trial judge had properly ruled that a particular individual in the jury pool was ineligible to serve on a capital jury. Justice Kennedy wrote for the majority, joined by Roberts, Scalia, Thomas, and Alito; in their view, the trial judge acted within his discretion in striking the prospective juror. Justice Stevens dissented, joined by Souter, Ginsburg, and Breyer. The lower court opinion by Judge Kozinski, joined by Reinhardt and Berzon, is here.
Law school deans (and many professors) like to complain about the influence of U.S. News law school rankings. My colleague Andrew Morriss and William Henderson think some law schools doth protest too much. In an interesting article in The American Lawyer they suggest that law schools themselves should share much of the blame for the rank influence of rankings.
If you listened only to law faculties and deans, you’d think that U.S. News & World Report’s ranking of law schools was a terrible development. Virtually every dean of every law school approved by the American Bar Association annually signs a letter (173 of 194 deans in 2007), sent to everyone who takes the Law School Admission Test, enumerating the flaws in the magazine’s “mathematical formulae” and concluding that any ranking system that purports to measure all law schools by a single yardstick is “unworthy of being an important influence on the choice you are about to make.”
We’re not convinced. U.S. News is influential among prospective students at least in part because the magazine does what the law schools don’t: give law students easy-to-compare information that sheds light on their long-term employment prospects. Law schools could easily supply that information themselves, but they choose not to. In fact, as the collective head shaking about the rankings has increased, the growth of the large law firm sector—which pay salaries that justify the rapidly escalating cost of legal education—has made the rankings more important.
The article is based on a longer work forthcoming in the Indiana Law Journal available on SSRN here.
That's the title of my latestRocky Mountain News media column, addressing the numerous problems of Bill O'Reilly and of the Denver talk show "Caplis & Silverman" in their coverage of a panel that spoke at Boulder High School last April. For a good collection of primary sources, and links to some of the media coverage, the BVSDwatch website is a good start. My column only scratched the surface of the disinformation that has been created on this controversy. Later this week, the Independence Institute will be publishing a detailed Issue Paper on the many and very serious ethical violations by the O'Reilly and Caplis & Silverman on the topic.
NY Times: Liberals are good people. Conservatives are bad people. Clarence Thomas, who is black and grew up under modest circumstances, and once was liberal himself, should be the first one to realize this. Instead, not only is he conservative, but he hangs around with bad people like Rush Limbaugh. This is an enigma, and an especially troubling one now that the Court is moving in Thomas's direction.
Sunday Song Lyric:
With immigration such a big issue right now I've been trying to think of an appropriate song lyric. Led Zeppelin's "Immigrant Song" has the right title, but the lyrics have more relevance to Nordic mythology than contemporary discussion. Genesis' "Illegal Alien," on the other hand, would seem to fit the bill (and it has a funny video). Here's a taste of the lyrics:
Down at the office had to fill out the forms
A pink one, a red one, the colours you choose,
Up to the counter to see what they think
They said "it doesn't count man, it ain't written in ink"
I don't trust anybody, least not around here, 'cos
It's no fun being an illegal alien . . .
Consideration for your fellow man
Would not hurt anybody, it sure fits in with my plan
Over the border, there lies the promised land
Where everything comes easy, you just hold out your hand
Are there other immigration-relevant songs I should have considered?
