May 16, 2012
The Bingham Biography is Done
posted by Gerard Magliocca
Some of you will be thrilled to know that this means there will be no more posts about him.
May 16, 2012 at 4:03 pm
Posted in: Uncategorized
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After Law School Deregulation
posted by Dave Hoffman
As our regular readers know, I’m no fan of the ABA accreditation process. It is expensive, it focuses on the wrong questions, executes like a bureaucracy, and it raises the costs to purchase legal services while depressing the supply of lawyers. That is: the ABA works (not particularly well) to serve current lawyers, while (diffusely) harming current and potential students and lay consumers. Like Brian Tamanaha, I think the ABA ought to be stripped of its power to regulate law schools.
But what then? Or, as the late, great, Larry Ribstein wrote, what happens “after the fall of regulation.” There are four (well-known) secular trends to consider:
- Consistent with an overall decline in civil life, local, state, and national Bar associations are in severe decline. Such associations’ capabilities (intellectual, social, economic, political) are at lows not seen since the early part of the 20th century.
- Jobs - crucially, including state government jobs – aren’t coming back.
- We’ve only begun to see the effects of technological disruption of legal practices.
- Educational accreditation is increasingly professionalized (outside of law), requiring the efforts of ever larger numbers of people to manage it. Accreditors are their own interest group.
When I put this together, what I see looming is the eventual loss of ABA accreditation power, as the association, increasingly hollowed out, surrenders its accreditation power to concentrate on its state-centered monopoly and “fighting offshoring.” For a while, local bars will try to hold onto incumbent-protecting Bar Exam credentialing rules, but pressure from other states (Nevada and Delaware!) will undermine that practice. At that point, I worry, the local university accreditors will sweep in and impose a set of suffocating new and different accrediting requirements, which will be even less tied to the unique situation of professional law schools. We’ll know that this day has come when HLS comes out with an elaborate webpage mapping its curriculum, and Yale is told it has to do interim assessments instead of one final exam. Pitted against this trend toward regional (non-legal) accreditation will be distance teaching, which, ultimately, will differentiate law schools back into the regional and national silos they were in in the 1950s.
Sound about right?
May 16, 2012 at 3:41 pm
Posted in: Law School, Law School (Teaching)
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May 15, 2012
More Bad News About Identity Theft
posted by Danielle Citron
The crime of identity theft is on the rise, in a big way. A recently released Javelin report found that identity theft rose 13% from 2010 to 2011 with approximately 11.6 million victims of identity theft in the U.S. This month’s Consumer Reports paints an even more troubling picture. In a national survey of 2,002 households, the Consumer Reports National Resource Center projected that approximately 15.9 million households experienced identity theft in the past 12 months, up almost 50% from the previous year’s study.
Another troubling finding was that almost half of the victims — 7.8 million — were notified that their personally identifiable information (PII) was hacked or lost by a public or private organization. It’s long been explained that the biggest risk for identity theft stemmed from people who know us or who have access to our wallets or trash. This allowed consumers to ignore reports of data breaches and hacks. That databases of our PII were prone to leaking met with a big so what? So what if Zappos got hacked, exposing over 24 million users’ credit card and other personal information?
Now, it is increasingly clear that insecure databases of our personal information pose serious risks of identity theft to consumers. What is in store for identity theft victims? Victims spend considerable time and money to restore their credit histories. The stain of a thief’s reckless spending can make their way into data brokers’ files, with recurring impact on the ability to get hired, rent apartments, and the like. The FTC’s recent privacy report gives some hope that we may in the future have more transparency and corrective measures with regard to data brokers. But we are not there yet, and that’s a big problem for identity theft victims.
May 15, 2012 at 6:04 pm
Posted in: Privacy, Privacy (Consumer Privacy)
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The Right to Be Forgotten: A Criminal’s Best Friend?
posted by Danielle Citron
By now, you’ve likely heard about the the proposed EU regulation concerning the right to be forgotten. The drafters of the proposal expressed concern for social media users who have posted comments or photographs that they later regretted. Commissioner Reding explained: “If an individual no longer wants his personal data to be processed or stored by a data controller, and if there is no legitimate reason for keeping it, the data should be removed from their system.”
Proposed Article 17 provides:
[T]he data subject shall have the right to obtain from the controller the erasure of personal data relating to them and the abstention from further dissemination of such data, especially in relation to personal data which are made available by the data subject while he or she was a child, where one of the following grounds applies . . . .
Where the controller referred to in paragraph 1 has made the personal data public, it shall take all reasonable steps, including technical measures, in relation to data for the publication of which the controller is responsible, to inform third parties which are processing such data, that a data subject requests them to erase any links to, or copy or replication of that personal data. Where the controller has authorised a third party publication of personal data, the controller shall be considered responsible for that publication.
The controller shall carry out the erasure without delay, except to the extent that the retention of the personal data is necessary: (a) for exercising the right of freedom of expression in accordance with Article 80; (b) for reasons of public interest in the area of public health in accordance with Article 81; (c) for historical, statistical and scientific research purposes in accordance with Article 83; (d) for compliance with a legal obligation to retain the personal data by Union or Member State law to which the controller is subject . . . . Read the rest of this post »
May 15, 2012 at 5:26 pm
Posted in: Anonymity, Privacy, Privacy (Consumer Privacy), Privacy (Law Enforcement)
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John Bingham–The End is Near
posted by Gerard Magliocca
I’m now writing the Introduction, which I plan to post on SSRN if my publisher approves.
May 15, 2012 at 9:50 am
Posted in: Uncategorized
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The NFL Lawsuit
posted by Gerard Magliocca
About a year-and-a-half ago, I wrote a post about how assumption-of-risk principles might apply to the claim that ex-NFL players were suffering from dementia and other chronic brain problems due to repeated blows to the head. I didn’t realize at the time that we would see a lawsuit against the league along these lines so soon. While extensive discovery is still ahead, there is a decent chance that the NFL will be found liable for not doing more to protect players.
One issue in the case is “What did the NFL know and when did they know it?” If this is like the tobacco litigation and NFL officials knew, say, 20 years ago, that there was a problem and did nothing, then liability is all-but-certain. It is more likely, though, that this is not true. What then? Product liability suits with a long latency period (the time between exposure and symptoms) pose very tricky problems. One way of viewing the issue is that it is unfair to hold a firm liable when the consensus was that the product was safe–how were they supposed to know better? Another thought is that a firm that puts a product into the stream of commerce and injures people should always pay because they profited and to do otherwise would force an innocent victim to bear the loss. Complicating that is the extent to which the consumer is aware of a risk, though not THE risk, of the product. Obviously football players knew that they could get seriously hurt. But does it matter that they did not know that they could get hurt in the way that, say, Dave Duerson was?
This is actually not a bad topic for a symposium, but in the meantime what do you think? (The prospective question of how you can make football safer is a separate issue.)
May 15, 2012 at 9:32 am
Posted in: Tort Law
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May 14, 2012
IP Chair Search
posted by Gerard Magliocca
I am pleased to announce that I will be heading up the search committee for the first endowed chair created by the gift of Robert H. McKinney to the (aptly named) Indiana University Robert H. McKinney School of Law. This chair will be in Intellectual Property, and the chair will also serve as the Director of our Intellectual Property and Innovation Center. We are looking for a tenured scholar with a distinguished record of teaching, research, and service. Please forward a cv or any questions to me at gmaglioc@iupui.edu.
May 14, 2012 at 11:20 am
Posted in: Law School (Hiring & Laterals)
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BRIGHT IDEAS: Q&A with Bruce Schneier about Liars and Outliers
posted by Daniel Solove
Bruce Schneier has recently published a new book, Liars and Outliers: Enabling the Trust that Society Needs to Thrive (Wiley 2012). Bruce is a renowned security expert, having written several great and influential books including Secrets and Lies and Beyond Fear.
Liars and Outliers is a fantastic book, and a very ambitious one — an attempt to conceptualize trust and security. The book is filled with great insights, and is a true achievement. And it’s a fun read too. I recently conducted a brief interview with Bruce about the book:
Q (Solove): What is the key idea of your book?
A (Schneier): Liars and Outliers is about trust in society, and how we induce it. Society requires trust to function; without it, society collapses. In order for people to have that trust, other people must be trustworthy. Basically, they have to conform to the social norms; they have to cooperate. However, within any cooperative system there is an alternative defection strategy, called defection: to be a parasite and take advantage of others’ cooperation.
Too many parasites can kill the cooperative system, so it is vital for society to keep defectors down to a minimum. Society has a variety of mechanisms to do this. It all sounds theoretical, but this model applies to terrorism, the financial crisis of 2008, Internet crime, the Mafia code of silence, market regulation…everything involving people, really.
Understanding the processes by which society induces trust, and how those processes fail, is essential to solving the major social and political problems of today. And that’s what the book is about. If I could tie policymakers to a chair and make them read my book, I would.
Okay, maybe I wouldn’t.
Q: What are a few of the conclusions from Liars and Outliers that you believe are the most important and/or provocative?
A: That 100% cooperation in society is impossible; there will always be defectors. Moreover, that more security isn’t always worth it. There are diminishing returns — spending twice as much on security doesn’t halve the risk — and the more security you have, the more innocents it accidentally ensnares. Also, society needs to trust those we entrust with enforcing trust; and the more power they have, the more easily they can abuse it. No one wants to live in a totalitarian society, even if it means there is no street crime.
More importantly, defectors — those who break social norms — are not always in the wrong. Sometimes they’re morally right, only it takes a generation before people realize it. Defectors are the vanguards of social change, and a society with too much security and too much cooperation is a stagnant one.
May 14, 2012 at 2:26 am
Posted in: Book Reviews, Bright Ideas, Privacy, Privacy (Law Enforcement), Privacy (National Security)
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May 13, 2012
Renouncing Citizenship to Avoid Taxes
posted by Gerard Magliocca
There was news in recent days that one of the co-founders of Facebook (Eduardo Savarin) has renounced his U.S. citizenship to avoid paying a hefty tax bill (approximately $600 million) when the company goes public this week. I’m ignorant of the law on this point, but are there really no restrictions on the right to relinquish citizenship on a date of your choosing? If there are equitable limitations, this would seem like a good time to invoke them and say that he cannot opportunistically avoid taxes in this way. If there are no such limits, I wonder if the Government will consider exercising its discretion to deny him entry into the United States from now on.
May 13, 2012 at 5:19 pm
Posted in: Tax
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Happy Mother’s Day!
posted by Gerard Magliocca
My blogging break is done. Good thing nothing happened while I was away. (Just kidding.)
Over the past few weeks, I read Robert Caro’s brilliant (and massive) four volumes on Lyndon Johnson. The fourth one, which covers 1958-1964, came out two weeks ago. I did this for a few reasons. First, I thought that this would help me as I revise the Bingham book. Working for three years a biography feels like a massive project to me, but consider that Caro has spent more than thirty-five years on LBJ! Second, the portion on LBJ’s Senate career contains powerful insights on how Congress works. I’ve written about the Senate filibuster before, and now I’m thinking of moving to the committee structure and rules that relate to party discipline in both Houses. More on that later this week.
Here’s a small point that I found interesting from a constitutional perspective. After Pearl Harbor, about eight members of Congress (including LBJ) enlisted in the Armed Forces without resigning their seats. In 1942, FDR ordered those members to return to politics, on the ground that their service there was more valuable. Some complied, and others quit the House so that they could serve in battle.
My question is why does the President have the authority to tell members of Congress that they cannot serve in the active military? Sure, he’s the Commander-in-Chief, but such an order would seem to intrude unduly on the prerogatives of members of another branch and of the voters who choose them. It’s not a problem that’s likely to recur, but it’s puzzling.
May 13, 2012 at 11:43 am
Posted in: Constitutional Law
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May 11, 2012
Social Search; It’s Might Be Around for a Bit
posted by Deven Desai
Hey! Bing is innovating! It has added social to search based on its relationship with Facebook. Oh wait, Google did that with Google+. So is this innovation or keeping up with the Joneses, err Pages and Brins? I thought this move by MS would happen faster given that FB and MS have been in bed together for some time. So did Google innovate while Microsoft and Facebook imitated? Maybe. Google certainly plays catch-up too. The real questions may turn on who executes and/or can execute better. That seems to be part of the innovation game too.
Facebook is top dog in social; Google in search. The thing they both (with MS lurking in the wings to make a big comeback (an odd thing given how well MS does as it is)) are doing is to take recommendations to a new level (with ads thrown in of course). I have tried logged in search. I must say I was surprised. To be clear, I find there is mainly rot in social network data just as there is in search. Whether I would have used Google+ had I not been at Google is unclear. Probably not. But I did. Then I searched for some law review articles and some basic technology information. WOW. The personal results at the top had links to blog posts by people whom I followed on Google + AND THEY WERE…RELEVANT. Blew my mind. My search time went down and I found credible sources faster. Will that last? Who knows? Someone may find ways to game the system, but the small experiences make me hopeful. Now to Facebook and Bing.
If Google can do well with a much smaller set of users for Google +, Facebook and Bing might do really well. After all, Facebook has the social piece and MS has some search computer science types. Whoever wins here may offer the next thing in search. I like conducting logged out searches and logged in. When logged in, I like the potential for seeing things from friends and people I trust. For example, if I start to be interested in cameras and search gives me posts by friends I’d ask anyway, that is a pretty cool result. I can read the post and call the friend for deeper advice or just use what they posted.
All in this space will, of course, cope with privacy concerns etc. But I think that this new level of relevance has the chance to co-exist with those concerns and users may flock to one of these services to have results well-beyond the current ones in search without social. In other words, let the games continue.
May 11, 2012 at 10:59 am
Posted in: Cyberlaw, Google & Search Engines, Google and Search Engines, Innovation, Intellectual Property
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Prison Brutality: Order Trumps Law
posted by Frank Pasquale
Christopher Glazek’s article “Raise the Crime Rate” challenges recent estimates of crime levels in the US. According to Glazek, crime “has not fallen in the United States;” rather, “it’s been shifted. . . .away from urban centers” and into “a proliferating web of hyperhells.” If you think that last, Dantean flourish is overstated, I highly recommend two recent articles on prisons. The Southern Poverty Law Center has observed the “unbelievable brutality unleashed on kids in for-profit prisons.” Many public facilities are also failing. Graham Rayman reports on institutionalized violence on Rikers Island in New York:
Under a practice known as “the Program,” guards were deputizing inmates, often in the teen jail, and pitting them against one another in fights as a way to keep order and extort them for phone, food, and television privileges.
These revelations are among many that vindicate Mike Konczal’s important essay “Against Law, For Order.” Konczal argues that the latter half of the “law and order” slogan has proven far more important in recent decades than the former:
“Law and order” isn’t just the rallying cry of Southern traditionalists[;] it also forms a core of the neoconservative governance project. Take the influential 1982 Atlantic Monthly essay “Broken Windows” by the neoconservative thinker James Q. Wilson. . . . For Wilson, society took a wrong turn when it viewed the ideal role of policing as detectives solving a crime or a system following clear rules agreed on in advance. The real purpose of the policeman was to preserve order, pushing the limits of his or her authority in an improvisational, eternal combat against an almost self-conscious disorder. . . . The concept of the night watchman is re-purposed: instead of the quiet, passive night watchman looking over the rules of property and law, the government is active, participating, constantly at war with disorder, pushing the laws against its constraints to save the system.
Of course, the ultimate victory in such an ideological struggle is to get rid of nearly all legal constraints on the watchman, as the Supreme Court recently did in a range of situations relating to strip searches after an arrest. As Bernard Harcourt has observed, the Court’s concerns with liberty and due process are minimal in that context:
[The Court] allow[s] federal, state, and local law enforcement officers to force anyone arrested for even the most minor traffic violation to be stripped naked, forced into a delousing chamber, compelled to squat, cough, and lift their genitals under the peering supervision of a jailor. The fundamental values of a liberal democracy, on Justice Kennedy’s view, do not require even one iota of reasonable suspicion, before the state can strip its citizens of all dignity, bodily integrity, and personal autonomy.
As Aaron Bady observes, “the decision accepts the proposition that the rights you have — that the state must obey — don’t need to wait for some juridical process to determine that you’ve forfeited them, that your actions or your situation require a suspension of your default status as rights-bearing citizen.” The ultimate rationale for that position is in turn economic, Bady argues: when the Court calls alternatives unworkable, it essentially laments that protecting liberty is too expensive. It also expresses its profound lack of interest in developing a jurisprudence that might carve out certain basic safeguards for the arrested—a view shared by President Obama’s DOJ.
When administrative discretion trumps legal regularity, the usual rationale is either scientific or political. Only the latter appears relevant here; the triumphs of order over law proceed apace with scant empirical backing. As Glenn Loury has said of Wilson’s approach, “there is little evidence beyond the anecdotal to show that such ‘quality of life’ policing actually leads to lower crime,” however reliably it reinforces “racial stigmata associated with the institutions of confinement, surveillance, and patrol.” Justice Breyer’s dissent in the strip search case offers a litany of studies with a simple message: basing strip searches on “individualized reasonable suspicion” would do virtually nothing to undermine the penological and public safety goals that are the ostensible basis of the blanket discretion endorsed by the majority.
Without scientific basis, it is pure political power that explains the repeated triumphs of order over law. The closest most of us will come to arbitrary police authority is the TSA—an agency whose wide discretion appears to be strongly supported by the majority of Americans who don’t fly much. Until a majority of Americans is directly affected by imprisonment or strip searches, I expect few of the problems mentioned above to abate, or even to be addressed.
May 11, 2012 at 10:36 am
Posted in: Constitutional Law, Criminal Law
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May 9, 2012
Louis Pollak (1922-2012)
posted by Dave Hoffman
From the federal courthouse comes the very sad news that Senior District Court Judge Louis Pollak has died. Judge Pollak, a jurisprudential giant, mentor to many, and former dean of both Yale and Penn Law Schools, served on the bench from 1978 until his death. He will be missed.
(Update: The Inquirer’s brief obituary is here, though obviously there is much more that could and will be said.)
May 9, 2012 at 10:55 am
Posted in: History of Law, Jurisprudence, Law Practice
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Stanford Law Review Online: How the War on Drugs Distorts Privacy Law
posted by Stanford Law Review
The Stanford Law Review Online has just published an Essay by Jane Yakowitz Bambauer entitled How the War on Drugs Distorts Privacy Law. Professor Yakowitz analyzes the opportunity the Supreme Court has to rewrite certain privacy standards in Florida v. Jardines:
The U.S. Supreme Court will soon determine whether a trained narcotics dog’s sniff at the front door of a home constitutes a Fourth Amendment search. The case, Florida v. Jardines, has privacy scholars abuzz because it presents two possible shifts in Fourth Amendment jurisprudence. First, the Court might expand the physical spaces rationale from Justice Scalia’s majority opinion in United States v. Jones. A favorable outcome for Mr. Jardines could reinforce that the home is a formidable privacy fortress, protecting all information from government detection unless that information is visible to the human eye.
Alternatively, and more sensibly, the Court may choose to revisit its previous dog sniff cases, United States v. Place and Illinois v. Caballes. This precedent has shielded dog sniffs from constitutional scrutiny by finding that sniffs of luggage and a car, respectively, did not constitute searches. Their logic is straightforward: since a sniff “discloses only the presence or absence of narcotics, a contraband item,” a search incident to a dog’s alert cannot offend reasonable expectations of privacy. Of course, the logical flaw is equally obvious: police dogs often alert when drugs are not present, resulting in unnecessary suspicionless searches.
She concludes:
Jardines offers the Court an opportunity to carefully assess a mode of policing that subjects all constituents to the burdens of investigation and punishment, not just the “suspicious.” Today, drug-sniffing dogs are unique law enforcement tools that can be used without either individualized suspicion or a “special needs” checkpoint. Given their haphazard deployment and erratic performance, police dogs deserve the skepticism many scholars and courts have expressed. But the wrong reasoning in Jardines could fix indefinitely an assumption that police technologies and civil liberties are always at odds. This would be unfortunate. New technologies have the potential to be what dogs never were—accurate and fair. Explosive detecting systems may eventually meet the standards for this test, and DNA-matching and pattern-based data mining offer more than mere hypothetical promise. Responsible use of these emerging techniques requires more transparency and even application than police departments are accustomed to, but decrease in law enforcement discretion is its own achievement. With luck, the Court will find a search in Jardines while avoiding a rule that reflexively hampers the use of new technologies.
Read the full article, How the War on Drugs Distorts Privacy Law by Jane Yakowitz Bambauer, at the Stanford Law Review Online.
May 9, 2012 at 7:30 am
Tags: Criminal Law, Criminal Procedure, drug policy, law enforcement, Privacy, technology
Posted in: Civil Rights, Criminal Law, Criminal Procedure, Law Rev (Stanford), Privacy, Privacy (Law Enforcement), Technology
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May 8, 2012
A Taxonomy of Litigation II: Eight Typical Clusters of Causes of Action
posted by Dave Hoffman
As I explored in a previous post, some terrific co-authors and I have written a paper which taxonomizes federal complaints- that is, we find patterns in the kinds of causes of action that attorneys plead. In this post, I’m going to explore those patterns in some more detail.
In our data, spectral clustering revealed eight clusters of causes of action. Each grouping organizes together causes of action that are more likely to be pled together than they are to be pled with others. (This eight-cluster finding is probably not generalizable to all litigation – the paper goes into some detail about the kinds of cases that we included and excluded from our dataset.) When you think about it, that there will be some patterns from this kind of exercise is obvious — there are only a limited number of legally cognizable fact patterns that can cause injury, and attorneys often follow form books/precedent when pleading. Still, we didn’t know what the patterns would be before completing the analysis.
The Figure below provides the most common two or three causes of action per cluster:
This illustrates how, for example, intellectual property claims (like trademark infringement) often travel together with consumer protection claims; civil rights claims (like 1983 allegations) accompany state law torts; and tort claims often fit with contract and fraud claims. This should be old news to anyone who has ever practiced law. Moreover, the Figure doesn’t give us a good handle on how alike or unlike each pattern is from another. Follow me after the jump for the Figure that tries to accomplish just that.
May 8, 2012 at 8:09 pm
Posted in: Civil Procedure, Economic Analysis of Law
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More on legal education
posted by Frank Bowman
One of the commenters on my opening salvo on legal education raises a point I thought might come up – essentially the much ballyhooed assertion that clients are no longer willing to pay for the training of young associates. The implication being that because clients are less willing to pay for hours billed by ignorant or inefficient legal rookies then law schools must necessarily adjust curricula to provide training no longer available through law firms. Although I’m in favor of doing more to prepare practice-ready graduates, I’m not at all sure the “clients won’t pay for training” story really flies as a rationale for doing it.
First, I don’t think clients were ever consciously “paying for new associate training.” What may have been true is that, in flusher times, big firm clients more readily accepted the overstaffing of cases and the sometimes comically high hourly rates big firms billed for the low-value-added time of young associates. The result was that big firm clients “paid for” associate training in the sense that the associates were learning on the job and their firms were able to earn big profits from their time while they did so. Now, it appears that big firm clients are more sensitive to overstaffing and are unwilling to pay high hourly rates for inefficient or low-value-added associate labor. The result cannot be that big firms aren’t training their new associates. That would be suicidal. The associates have to be trained or they will be unable to produce the high-quality work for which clients ARE willing to pay and on which the firm’s reputation and long-term survival depends. Rather, to the extent a client rebellion against expensive associate billing is underway, the real effect will be to reduce the number of associates hired because they are no longer automatic profit centers. Which is pretty consistent with what we see in the marketplace.
Now, reduced big firm associate hiring is bad for our graduates because there are fewer job opportunities and bad for law schools in the sense that, as the market for lawyers shrinks, so too does the market for law training. BUT it is not at all clear that this market perturbation can be remedied, or even much affected, by alterations in law school curriculum. We can and should make our graduates more practice-ready, but no conceivable modification of law school curriculum would provide the highly specialized subject matter and skills training necessary to transform a Big Law rookie into a midlevel associate worth her $400/hour. That sort of refined training will always be performed on the job. The very best law schools can do would be to provide a better foundation that might speed the developmental process by 6 mos or a year.
Second, most of the talk about changed client willingness to “pay for” associate training is Big Law talk. In the less rarified regions where most students from non-top-20 law schools find jobs, clients have never been willing to “pay for” young lawyer training in any sense. So firms bill young associate time at low rates or bill for fewer hours than the new lawyers spend in order to avoid alienating clients. Nonetheless, such employers – like those in Big Law – know that they have to train their new lawyers if they are to become assets. And they do – some better than others – as an investment in future improved productivity and economic return. I don’t think there is anything new about this. The change, if any, in current circumstances is the overall decline in legal business with a concomitant lower demand for investment in new associates to grow practices.
Still, law schools may be able to help our students and their prospective employers (large and small) by shortening the interval during which they are unproductive assets of the firm. More practice-ready graduates can develop faster into lawyers worth their hourly rates. This in turn shortens the payout period on a firm’s investment in a new associate and raises its rate of return. All of which should, in theory,increase lawyer hiring (or at least give a competitive advantage to graduates of schools who produce practice-ready diplomates).
Does this make sense?
May 8, 2012 at 12:57 am
Tags: Legal Education
Posted in: Uncategorized
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May 7, 2012
Minnesota Law Review 96:3 (February 2012)
posted by Minnesota Law Review
Volume 96, Issue 3 (February 2012):
Articles
Jeremy N. Sheff, Veblen Brands, 96 Minn. L. Rev. 769 (2012)
Talia Fisher, Conviction Without Conviction, 96 Minn. L. Rev. 833 (2012)
Jason Marisam, The Interagency Marketplace, 96 Minn. L. Rev. 886 (2012)
Samuel R. Wiseman, Waiving Innocence, 96 Minn. L. Rev. 952 (2012)
Notes
May 7, 2012 at 9:46 pm
Posted in: Law Rev (Minnesota)
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KSM’s Resistance Defense
posted by Jenny E. Carroll
Jenny Carroll is a former public defender and Prettyman Fellow. She currently teaches criminal procedure, criminal law and evidence at Seton Hall Law School.
Last Saturday, Khalid Sheikh Mohammed (“KSM”), the self-proclaimed mastermind of the September 11 attacks, and four others were scheduled to be arraigned before a military commission in Guantanamo Bay, Cuba. Things didn’t go exactly as the government had planned. Instead of pleading, the defendants resisted. KSM and the rest of the defendants refused to answer the judge’s questions. One defendant started praying, and another defendant shouted that he was concerned for his own and the other defendants’ safety. The behavior turned the arraignment – usually a fairly brief proceeding – into a disorderly 13-hour hearing.
These are obviously unusual defendants. They claim to have planned a devastating act of terrorism that forever changed our nation’s sense of security and itself. They have been held by their self-proclaimed enemy for nearly ten years awaiting trial. During that time, evidence against them was acquired through mechanisms reminiscent of the Spanish Inquisition — according the military’s own records, KSM was water boarded a total of 183 times in a single month. When their day in court finally arrived, the venue was not the federal court in New York, the most logical jurisdiction and the one Attorney General Eric Holder would have preferred, but a military commission. And while these commissions may have improved markedly since their inception in the Bush Administration, they remain shrouded in mystery with uncertain procedural or Constitutional protections.
Although these are unusual defendants in an unusual case, their strategy of resistance is not entirely new. The strategy declines to recognize the authority of the court and calls into question the legitimacy of the very system that claims the power to adjudicate. A long line of political dissidents and activists have sought to transform their criminal trials into a commentary on the system itself. In my forthcoming article, The Resistance Defense, I examine the implications of this defense. As I suggest there, the defense of resistance highlights two compelling but under-explored components of criminal law. First, the procedural rights that compose the right to a defense are more than individual rights; they have a communal value. The defendant may utilize them to challenge the accusation, but the community relies on them as well to legitimate the process and outcome. If a defendant forgoes these protections, the process is curtailed and questions of its legitimacy inevitably follow. Second, these procedural rights have a substantive component. They help to define notions of guilt and appropriate punishment. If a defendant chooses to forgo these rights, they effectively alter what it means to be convicted or to deserve punishment, skewing the meaning of the law itself.
In the context of these cases, the resistance defense raises larger questions: What do we really have to lose by trying this case, or any of the military commission cases, in the federal court system that we trust every day with our most difficult cases and complex constitutional issues? Why couldn’t New York, the city that no matter what seems to endure and constantly rise ever higher, not handle the trial of the men accused of killing so many of its citizens? I, like everyone else, have heard the warnings of the high costs of security and risk of reprisals. But in allowing these trials to remain in these military commissions so besieged on all sides by questions of their legitimacy and sufficiency, have we lost something is more difficult to quantify but is infinitely more valuable? Have we struck a blow against ourselves as frightening as those imagined by KSM or anyone else who would plot against us? Have we abandoned the procedure and Constitution that we claimed to defend because we were more afraid of the men who would challenge it? In some cruel twist, have we forgotten the very freedom we claimed we were defending?
May 7, 2012 at 4:39 pm
Posted in: Constitutional Law, Courts, Criminal Law, Criminal Procedure
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May 6, 2012
An opening musing on legal education
posted by Frank Bowman
Well, several days later than planned, here I am with my inaugural post as May’s guest blogger here at Concurring Opinions. Thanks to Gerard for the flattering invitation. This is my first venture as a blogger, so I’m not quite sure I’ll strike the right note. But here goes.
I’ve been thinking a good deal about the structure of American legal education lately. This bout of introspection has been prompted by the national mood of unease in the profession, and more personally, by Missouri’s three-year rollercoaster ride in the US News rankings — from 60-something to 100-something and now back up to 70-something — and by my work as chair of a curriculum committee debating whether we have to reinvent ourselves for our own and our students’ sakes. Here, in short form suitable for the blogosphere, are some of my tentative conclusions:
1) So long as US News rankings remain the primary indicator of institutional quality in the eyes of student consumers, the top 20 or perhaps 30 law schools are at liberty to change or stand pat, as suits them. So long as they continue taking in and spending a lot of money per student on whatever it is they do, the combination of reputational inertia and a US News algorithm in which most of the supposed measures of educational quality are actually proxies for money, these schools will remain on top and free to deliver legal education however they like. Their high ranking will guarantee a constant stream of the statistically best students willing to pay top tuition dollar. The raw intellectual talent of their graduates (regardless of how well or badly they were educated) will guarantee employment of those graduates by the most elite employers. And so the cycle will continue, forever and ever. Amen.
2) This model cannot work for the rest of us. In a generally stagnant economy with a legal market offering fewer jobs at less pay, we cannot continue to compete with each other in what amounts to an endless race to drive up per-student costs. Legislatures will not fund perennial increases for state-supported schools like mine. For both public and private schools, philanthropic funding is not bottomless. And trying to fund our academic arms race with ever-rising tuition is neither economically sustainable nor, frankly, moral.
3) Exacerbating the stress on non-elite institutions is the emerging emphasis on producing more practice-ready graduates. I happen to favor this trend. Indeed, over thirty years ago I wrote my third-year paper at Harvard on how to restructure upper-division legal education to achieve this end. But any serious effort to enhance practice-readiness runs head-on into the economics and sociology of law schools:
a) Increasing practice-readiness requires more training in the skills performed by actual lawyers. This in turn requires either more “experiential learning” (basically various forms of clinical education) or more in-house simulation-based skills training or some combination of both.
b) Skills training, whether experiential or simulated, requires much lower teacher-student ratios than doctrinal courses. Therefore, at least if the law school is to maintain quality control and not simply farm the whole thing out to adjuncts, it is probably more expensive.
c) I say that increasing skills training is “probably” more expensive if we conceive of the additional skills training capacity as an add-on to what we already do, and if we assume that the doctrinal faculty of law schools will continue to do what they now do in the same way they’ve grown accustomed to doing it. In other words, if law schools continue hiring the same number of doctrinal tenure-track faculty with the same set of entering qualifications, give them the same teaching loads, pay them in roughly the same way, and set the same standards for type and quantity of scholarship, then adding the staff and programs required to make graduates more practice-ready will necessarily increase the cost of legal education. And I’ve just argued that the vast majority of law schools can’t keep raising costs.
d) There are only two obvious ways out of this box. Either we abandon the objective of making our graduates more practice-ready or we rethink the role of doctrinal tenure-track faculty.
The first option is not crazy. One could fairly argue that law schools should never have gotten into the skills training business in the first place. What was good enough for Langdell should be good enough for us. Teach ‘em basic legal doctrine and the intellectual skill of legal analysis and leave the rest to the first years of practice. Or, less dogmatically, we’ve added a lot of skills training options over the last three decades (legal writing, clinics, trial advocacy) and what we have is enough.
But if you think we could and should do a better job of preparing our students for legal work, then that requires an uncomfortable self-analysis by the tenured and tenure-track class at the top of the law school hierarchy. As a conversation starter, let me suggest several changes in our comfortable lives that would make law schools better for our students, and for matter, for the legal communities of which law schools are a part:
- Reverse the trend toward competing for faculty by offering ever-lower teaching loads to tenure-track professors. I like working less for more money as well as the next guy, but paying law professors premium salaries in relation to virtually everyone else in the university for teaching 11 or 10 or 9 hours per year is increasingly hard to justify. In the Bizzarro World of US News rankings, this practice makes weird sense because reducing professors’ teaching loads requires hiring more of them, which reduces the student-teacher ratio and increases the overall expenditures per student, which raises a school’s ranking. If, however, one is trying to increase skills training without cripplingly raising costs, an obvious means of doing so is by covering the curriculum with fewer faculty and thus freeing budgetary space for the additional staff required for more skills training.
- Rethink the constellation of preferred qualifications for entry-level tenure-track law professors. Right now, we tend to hire young people with high grades from a handful of elite law schools whose work experience consists of a judicial clerkship and a couple of years at a fancy big-city law firm. With all these youngsters’ potential, in practice, no sensible senior lawyer would entrust them with unsupervised responsibility for any matter of real importance. But law schools confer on them the mantle of wisdom that comes with the title “professor” and not only ask them to educate students about a world they themselves have barely experienced, but also to write authoritative “scholarship” about that world. Because they are surpassingly talented people, newby law professors figure out their jobs, teach well enough (and sometimes brilliantly), and churn out law review articles as required. In a Langdellian model of legal education, this approach to hiring works well enough since the core subject matters are legal doctrine and legal reasoning, subjects those in our hiring pool have self-evidently mastered. And if the legal scholarship produced by professorial rookies is not profound, well, no one is much hurt. But if law schools are reimagined as institutions devoted to producing practice-ready graduates, then the practical inexperience of most of the professoriate becomes a problem. Professors with little real-world experience are ill-suited either to teach skills-rich courses themselves or to supervise or assess the content of such courses taught by others.
- Reconsider the role of “legal scholarship” in American law schools. An immediate (and horrified) objection to the suggestion of increased teaching loads will surely be the decreased time available for scholarship. And the idea of hiring more tenure-track faculty with real practice experience will surely be rejected by those who view exposure to the law in action as an irremediable pollution of the mind of the young scholar. To which I say, “Fiddlesticks!” There is far too much “legal scholarship” now. Most of it is mediocre or worse. Much of its mediocrity stems from the naivete of inexperienced professorial authors. Even if it were far better than it is, the sheer number of law review articles spewed forth each year means that only the tiniest fraction of them will ever be read by anyone other than their author’s immediate relatives or P&T committees. In saying this, I cast no aspersions on the talents of my academic fellows. To the contrary, law schools are brimming with brilliant minds, but the odd conventions of our trade often force them to opine too soon about subjects of which they know relatively little and to channel much of their creative energies into the writing of law review articles — an exercise customarily equal in practical effect to shouting down a well. As a class, law professors should probably write less, not more. If possible, they should write about subjects they have some practical familiarity with. If professors come to the academy without such familiarity, they should find ways to gain it. This means we should hire more people with more real-world experience and encourage those already hired to gain it, not only to assist in producing practice-ready graduates, but in order to improve legal scholarship. And, finally, we should most often write with a conscious view to influencing real-world legal actors.
In short, the move to restructure law schools so their graduates are better prepared to practice presents a fundamental challenge to the existing comfortable world of the tenure-track law professor. I think that is a good thing, one that would make our students and the legal profession a good deal better off. But I imagine others may differ…
Frank Bowman
May 6, 2012 at 5:03 pm
Tags: Legal Education
Posted in: Education, Law Practice, Uncategorized
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May 5, 2012
Just Disclaim: Hunger Pains, Games
posted by Deven Desai
Take a look at this cover.
Now compare
May 5, 2012 at 1:06 am
Posted in: Humor, Intellectual Property
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