Archive for November, 2005
Who’s Your Daddy?
posted by Jason Mazzone
Nepotism is at work in the legal academy. The next time you wonder how a professor with an unremarkable resume landed a job, check the family tree. You’re likely to find—sometimes even in the very same school—a professor parent.
Or spouse. Husband and wife professors complain about the burdens of finding work as an academic couple, but being married to a high-profile professor can be a significant career booster. Schools that badly want a professor will lower their standards and hire that professor’s spouse—or work things out so that the spouse can teach at another school in the vicinity. (The practice seems to be a benefit of heterosexual marriage: I’ve never heard of a same-sex couple being treated so favorably.)
Judicial clerkships are a route to teaching but here too nepotism is common. Judges are prohibited from hiring their own family members but the rule doesn’t extend to the family of a current or former law clerk. Husbands and wives, brothers and sisters, sometimes even parent and child, clerk for the same judge or justice—passing around the clerkship like it’s the family silver.
November 30, 2005 at 12:51 pm
Posted in: Law School
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The Ontology of Blogging
posted by Greg Lastowka
Dan’s critique of some of the interesting mistakes made by Pajamas Media is dead on, in my opinion. His post also calls attention to the fact that blogs and blogging have qualities that are not always grasped easily — even by businesses heralding the medium. For instance, here’s what PM says about blogs:
Readers unfamiliar with blogs are sometimes puzzled by the concept, thinking that they are mere online “diaries,” where egoists and sentimentalists record their thoughts and feelings. But the phenomenon of blogging is much more than that; it’s the modern equivalent of the Gutenberg revolution, a way of putting not just published material in the hands of the public—but publishing itself.
Sounds wonderful, but I’m going to agree and disagree with them a bit.
November 30, 2005 at 11:03 am
Posted in: Blogging
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Memory on the Sewanee Campus
posted by Alfred Brophy
It doesn’t take a lot of skill to predict that this New York Times article about the controversy over what we used to call “The University of South” and what’s now called “Sewanee: The University of the South” is going to generate, well, a lot of controversy.
First, some background. A few years ago, apparently motivated by a marketing study, the University of the South began emphasizing the “Sewanee” part of its name. Alumni have been concerned (to put it mildly) that it’s not just about the name, however. They think there is a lot more at stake on the campus–like how the University deals with its distinguished and complex history. At the center of that history is the University’s founder, Leonidas Polk. Bishop Polk was, also, a general in the Confederate States Army.
November 30, 2005 at 12:12 am
Posted in: Architecture, Politics
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Pajamas Media
posted by Daniel Solove
A CSM article discusses the Pajamas Media, an entity that aims to gather together the best of the blogs under one umbrella:
If a single thought-provoking weblog can find a large audience, might 70 or more linked together start a revolution?
That’s what Pajamas Media hopes to find out. Backed by $3.5 million in venture capital, the nascent media company has gathered some of the most highly regarded bloggers on the Internet at one site (osm.org), hoping, as co-founder Roger Simon puts it, “to be the place for breaking Internet opinion.”
According to Pajamas Media, the goal is:
PJM’s mission is to expand the influence of weblogs by finding and promoting the best of them, providing bloggers with a forum to meet and share resources, and the chance to join a for-profit network that will give them additional leverage to pursue knowledge wherever they may find it. From academics, professionals and decorated experts, to ordinary citizens sitting around the house opining in their pajamas, our community of bloggers are among the most widely read and influential citizen journalists out there, and our roster will be expanding daily. We also plan to provide a bridge between old media and new, bringing bloggers and mainstream journalists—more and more of whom have started to blog—together in a debate-friendly forum.
Pajamas Media has thus far landed with a thud. Its website has been criticized as being too boring and corporate. People are claiming it is politically unbalanced with too many conservative bloggers.
In response, Pajamas Media founder Roger L. Simon explains in the CSM article:
Simon promises a livelier front page that will pose a controversial question such as “Should the UN run the Internet?” and then let its bloggers have at it from all sides. The site employs editors in Los Angeles, Sydney, Australia, and Barcelona, Spain, so that it can be updated 24 hours a day. And it’s streaming in feeds from conventional news sources while developing its own “fact checking” system to ensure the quality of its information.
Some of my thoughts and reactions:
November 30, 2005 at 12:01 am
Posted in: Blogging
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Law & Order
posted by Jason Mazzone
I’m a Law & Order fan. I love all of them: Original, Criminal Intent, Special Victims, and Trial by Jury. I also like the re-runs—even when I’ve seen an episode before there are always enough twists and turns and details to get my attention.
I’ve often gone to watch scenes being filmed in lower Manhattan. A neighbor in my building is a script checker for the show and so on occasion I’ve also been able to sneak a peek at draft scripts left in the recycling bin.
Though in real life no criminal case is resolved in one hour, Law & Order is pretty good on the substance of the law. The precedents mentioned are typically real cases. The rulings by the judges (at lightening speed) are often correct. I tell my students they can learn a lot by watching.
One curiosity is that most of the judges on Law & Order are black women. This is not realistic. Even in New York City black female judges are few and far between.
November 29, 2005 at 5:24 pm
Posted in: Criminal Law
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Markel in Slate
posted by Dave Hoffman
My friend and our former co-blogger Dan Markel has a new essay out in Slate on the death penalty that is well worth reading. Dan analogizes the recent news about wrongfully executed Ruben Cantu to the movie “The Life of David Gale.” In the essay, Dan links to his relatively new Harvard CR-CL piece about retributivism and the death penalty, which is also worth a read (although it will take somewhat longer to digest than the Slate piece.)
November 29, 2005 at 2:27 pm
Posted in: Criminal Law
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History of the Book
posted by Alfred Brophy
Folks here at concurringopinions have been talking a lot about books recently–Nate Oman’s had posts on the appeal of law books (particularly old ones) and law reviews and Dan Solove’s posted about the open library. I find student-edited law reviews problematic in some ways, and the smell of old books doesn’t do much for me. But there is magic, imho, in libraries. Libraries are great enlightenment vehicles of improvement. They’re the places that knowledge is collected and disseminated. (And that’s why I find the stories about segragated libraries particularly important in understanding our history.)
I remember the excitment I used to feel on walking in Van Pelt Library as an undergraduate. The entire world of knowledge, it seemed to me at the time, was open to anyone who had the inclination and time to visit it. In keeping with the Supreme Court’s administrative law opinions of the early 1970s, like Overton Park (about the importance of getting information in front of regulators), I thought that the knowledge in those books held most, if not all, of the keys to a better society.
Sometimes, if I get to the University of Alabama’s library early enough on a Saturday (so there aren’t many other people around), and I’m working on an original project, and the light strikes the windows in the great reading room just right, that enthusiastic eighteen-year old I remember appears again, even if only for a short while.
When I’m thinking about old books, I’m partial to library catalogs. Because they give you a sense of the ideas that people had access to and the kinds of ideas they found appealing. The 1853 library catalog of the University of Georgia is available on the Georgia library’s webstite. Through the magic of the internet, you can see exactly what the catalog looked like. And you can also see what books were in the Georgia library. Historians in recent years have been talking a lot about the “history of the book.” They ask who was reading books, who was writing them, and how books were useful in transmitting ideas.
November 29, 2005 at 2:06 pm
Posted in: Articles and Books
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A common-law right to attend Eagles games
posted by Kaimipono D. Wenger
Also in Eagles news (all strange, all the time) is this story: “Man spreads mother’s ashes on Eagles field.” The man in question, Christopher Noteboom, claims he chose Eagles field because his mother was a lifelong fan of the team. Noteboom is being charged with trespass. The police chief seems unsympathetic to Noteboom’s claims, points out that a number of fans were probably terrified when a strage man began spreading an unknown powder at the football game.
Did Noteboom also secure for himself a right to attend Eagles games? Guest blogger Al Brophy has written about the ancient common-law rights of family members to visit the graves of loved ones. Perhaps Noteboom can offer a settlement — drop the charges, and I won’t press my common-law rights of access to a grave. (And if he does try to press them, we may see a very interesting grave-rights case).
Meanwhile, I’ll be busy this weekend, spreading ashes at the Met, the Philharmonic, Madison Square Garden, Yankee Stadium, the Four Seasons . . .
November 29, 2005 at 10:47 am
Posted in: Property Law
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Senator Specter on Terrell Owens
posted by Dave Hoffman
My state’s senior senator, Arlen Specter, who has lots on his plate, held a news conference this morning:
[He said that] it was “vindictive and inappropriate” for the league and the Eagles to forbid [their] all-pro wide receiver [Terrell Owens] from playing and prevent other teams from talking to him.
“It’s a restraint of trade for them to do that, and the thought crosses my mind, it might be a violation of antitrust laws,” Specter said, though some other legal experts disagreed.
“I am madder than hell at what he has done in ruining the Eagles’ season,” the Pennsylvania Republican said. “I think he’s in flagrant breach of his contract and I believe the Eagles would be within their rights in not paying him another dime or perhaps even suing him for damages.”
But Specter said, “I do not believe, personally, that it is appropriate to punish him (by forcing him to sit out the rest of the season). He’s not committed a crime, he’s committed a breach of contract. And what they’re doing against him is vindictive.”
There are several statements here that are interestingly wrong. One worth thinking about is the idea that the Eagles are punishing Owens by enforcing the contract’s “conduct detrimental” clause. On one level this can’t be right – the Eagles are paying their employee for not working, hardly an onerous result. But theory notwithstanding, reading the arbitrator’s decision, it sort of feels like punishment. Doesn’t it?
November 29, 2005 at 9:26 am
Posted in: Contract Law & Beyond
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On Becoming a Supreme Court Clerk
posted by Dave Hoffman
This article about David Bragdon, who was just hired to clerk for Justice Thomas, is worth reading, especially for those who miss their A3G fix. Bragdon is significantly more forthcoming in print than I would have expected. Two choice quotes:
“I think conservative justices are more likely to hire conservative clerks,” he said. “I interviewed with Justice Thomas and his clerks, and his clerks really drilled me on my judicial philosophy, both to see how much I knew and to test my ability to argue various issues.”
“There could be some shifts in the way the Supreme Court decides certain issues [based on the new justices coming to the court],” he said. “I don’t think Roe vs. Wade will be overturned, there aren’t enough votes to change that decision, but other key issues could be affected.”
Too bad the interviewer didn’t ask the obvious follow-up question: which “key issues” does this rising Supreme Court clerk think will be affected by the confirmation of Justice Roberts and the possible confirmation of Judge Alito?
(Hat Tip: Howard B.)
November 29, 2005 at 9:14 am
Posted in: Law School
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Google’s Empire, Privacy, and Government Access to Personal Data
posted by Daniel Solove
A New York Times editorial observes:
At a North Carolina strangulation-murder trial this month, prosecutors announced an unusual piece of evidence: Google searches allegedly done by the defendant that included the words “neck” and “snap.” The data were taken from the defendant’s computer, prosecutors say. But it might have come directly from Google, which – unbeknownst to many users – keeps records of every search on its site, in ways that can be traced back to individuals.
This is an interesting fact — Google keeps records of every search in a way that can be traceable to individuals. The op-ed goes on to say:
November 29, 2005 at 12:01 am
Posted in: Google & Search Engines, Privacy, Privacy (Law Enforcement)
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The End of Shame
posted by Jason Mazzone
With talk these days about the decline of privacy, the disappearance of shame deserves attention. People have become less self-conscious—more willing to let the world into their intimate spaces without any sense of embarrassment. Webcams, whose operators actually invite voyeuristic strangers to observe their every move, are just one example.
The past few years have also seen a marked rise in the number of people who believe it is acceptable to take care of personal hygiene and grooming in public. Every morning I ride the subway, professional women in my car are busy applying makeup. I don’t mean making last minute touch-ups—with makeup kits perched on their knees, they’re painting a blank canvas.
I frequently also see otherwise normal looking subway riders filing and trimming their fingernails. I’ve seen eyelashes curled, eyebrows plucked, and nose hairs removed with little tweezers. (Where do these people suppose all their personal droppings end up?)
November 28, 2005 at 5:29 pm
Posted in: Privacy
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Clearly I’m teaching the wrong classes. . .
posted by Kaimipono D. Wenger
The CNN headline pretty much says it all: “Girl with peanut allergy dies after kiss.” It is proof of my through law-geekiness that my first thought was “that would make a great question for a torts exam!”
Torts finals always seem to involve strange hypotheticals. I still remember my own torts final as a law student — it involved a man who opened his umbrella in the rain, and was struck by lightning.
It’s pretty hard to work a peanut-kiss-death into my Wills final or my Securities Regulation final. (I suppose I could try to work it into some strange hypothetical to test the statutory bar on inheriting from a decedent who is murdered by the devisee, but that would be a stretch. And besides, those exams are already written.).
But if I ever teach torts, I’ll be thinking back to the peanut case — and wondering if I can turn it into a good hypothetical about a “kiss of death.”
November 28, 2005 at 2:17 pm
Posted in: Law School
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Voices from the Past
posted by Alfred Brophy
This very fine New York Times article on the New York Historical Society’s exhibit on slavery in New York begins by talking about visitors recording their reactions to the exhibit. We should also think about listening to the voices of people who had lived as slaves.
Some of the great treasures of American history are the slave narratives collected by the WPA. And through the magic of the internet, you can listen to the Library of Congress’s audio collections of the voices of people who were born into slavery.
I’ve enjoyed listening to them, because I love hearing the songs (like Keep your Lamp a’ Trimmed and Kingdom Coming), the accents, and the recollections of the folks.
Of course, the WPA and other New Deal agencies recorded a lot of other folks, too. I highly recommend the audio downloads that are available on the LOC’s website. And the LOC has some other great audio collections, like these fiddle tunes recorded in the 1960s.
The picture is from the Library of Congress’ collection of black and white photographs from Great Depression to World War II, LC-USF34- 044206-D.
November 28, 2005 at 11:34 am
Posted in: Culture
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Why does the Supreme Court accomplish so little?
posted by Jason Mazzone
Last term, the Supreme Court issued opinions in just 74 cases. That’s pretty pathetic. It means there are many areas of the law that are unsettled or unreviewed; many important issues in which the Supreme Court could helpfully weigh in but it doesn’t; many issues that, once decided, will not reach the Court again for decades, if ever.
A low number of cases does not, however, mean light reading. Many of these 74 cases produced multiple opinions by sub-groups of justices. It’s not hard to see why this is true. Divide 74 up among nine justices and 30-plus law clerks and the temptation to write separately is irresistible.
Most of the 74 opinions are also lengthy and convoluted, larded with unnecessary detail and footnotes, and containing inappropriate swipes at the work of the other justices. As a result, most opinions are inaccessible to non-specialists. It is a rare delight these days to get an opinion that crisply and simply sets out the decision of a unanimous Court. Were it not for people like Linda Greenhouse of The New York Times, skillfully decoding the justices’ language, the general public would have no idea what the Court was doing.
November 28, 2005 at 7:45 am
Posted in: Constitutional Law
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Introducing Guest Blogger Greg Lastowka
posted by Daniel Solove
We’re extremely fortunate to have Greg Lastowka visit here with us for the next few weeks.
Greg is an Assistant Professor of Law at Rutgers School of Law-Camden. He earned his B.A. from Yale College and his J.D. from the University of Virginia Law School. Before entering the legal academy, he clerked for the Honorable Walter K. Stapleton of the Federal Court of Appeals for the Third Circuit and practiced intellectual property and technology litigation at Dechert LLP. His recent articles include Amateur-to-Amateur, 46 William & Mary Law Review 951 (2005); The Trademark Function of Authorship, 85 Boston University Law Review 1117 (2005). To read more of his articles, click here.
We’re delighted about Greg’s visit. Please give him a warm welcome.
November 28, 2005 at 12:02 am
Posted in: Administrative Announcements
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Introducing Guest Blogger Jason Mazzone
posted by Daniel Solove
It is my pleasure to introduce Jason Mazzone, who will be visiting with us for the next few weeks.
Jason is an Assistant Professor at Brooklyn Law School where he teaches Constitutional Law and American Legal History. His recent works include The Security Constitution, 53 UCLA Law Review 29 (2005); Unamendments, 90 Iowa Law Review 1747 (2005); and Copyfraud, forthcoming in the New York University Law Review. He is a graduate of Harvard College and Harvard Law School and he received his doctorate from Yale Law School in 2003. He is revising his dissertation, “Organizing the Republic: Civic Associations and American Constitutionalism, 1780-1830,” for publication as a book. He was born and grew up in Tasmania.
You can read more of Jason’s articles by clicking here.
We’re extremely excited about Jason’s visit. Welcome aboard Jason!
November 28, 2005 at 12:01 am
Posted in: Administrative Announcements
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What Law Review Articles Had a Major Influence on the Law?
posted by Daniel Solove
Al Brophy’s post about Roy Lucas’s law review article helping to form the intellectual foundations for Roe v. Wade has got me thinking about other law review articles that have had a lasting influence on the law.
Over on his new blog, Follow the Flag, Alan Tauber mentions Abbot Lawrence Lowell, The Status of Our New Possessions – A Third View, 13 Harv. L. Rev. 21 (1899), which formed the basis for the Territorial Incorporation Doctrine.
I’m most familiar with the articles in my field, privacy law, which has two law review articles having a major impact on the law.
First is Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890), a law review article that spawned the four privacy torts, most of which have been adopted in most states.
William L. Prosser, Privacy, 48 Cal. L. Rev. 383 (1960), also had an impact in the development of privacy law, as his formulations of the privacy torts were adopted by the Restatement of Torts, and they are the most common formulations of the torts today. [Of course, it helped that Prosser was the Reporter for the Second Restatement of Torts.]
Can anybody identify others? I’m looking for law review articles that have had a major influence on the law — statutory law or court decisions. I’m not looking for just a local impact — so if an article just influenced a particular state court decision or law, this isn’t broad enough. I want to identify articles that have changed the law in numerous states (as with the Warren and Brandeis article) or sparked a federal law. I’m also not looking for articles that are merely cited a lot by court decisions; I’m looking for ones that influenced a particular doctrine. Of course, articles can be influential in other ways, such as influencing other scholars, etc., but I want to keep the focus of this question on articles having a major legal impact.
November 27, 2005 at 5:37 pm
Posted in: Articles and Books
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The intellectual origins of Roe . . . in a law review
posted by Alfred Brophy
Here’s a nice piece of trivia: what law review article laid the blueprint for Roe v. Wade?
Thanks to Orin Kerr’s link to Judge Raymond Randolph’s thought-provoking speech to the Federalist Society on Judge Friendly’s unpublished 1970 draft opinion on abortion rights, I learned something about my school’s history: that Roy Lucas, then an assistant professor at the University of Alabama, published an article in 1968 in the North Carolina Law Review, which (according to Judge Randolph) “laid out a blueprint” for applying Griswold to state anti-abortion laws. Of course, proving influence in the evolution of constitutional thought is a remarkably difficult enterprise. But some knowledgeable people nevertheless believe the article to have been quite important. N.E.H. Hull, Williamjames Hoffer, & Peter Hoffer include an excerpt from the article in their important book, The Abortion Rights Controversy. They say of Lucas’ article that it was a “vital source of ideas for the frontal attack on criminal abortion statutes.”
Hmm, I thought upon reading this, how surprising. I try to pay some attention to my school’s history. I’ve heard some pretty interesting stories about Alabama law faculty. For example, Professor Jay Murphy‘s advocacy in the pages of the Alabama Law Review helped defeat some of the legislature’s proposals to resist desegregation in the immediate aftermath of Brown.
November 26, 2005 at 8:50 pm
Posted in: Constitutional Law
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Legal Realism and the Lefty Blogosphere
posted by Dave Hoffman
The dispute between Prof. Althouse and various lefty blogs continues. Most recently, “Armando” of Dailykos posted this screed. Armando concludes:
In short, does not Althouse admit that she too, is a legal realist? And given that admission, is it not fair to expect that Althouse would approve of a query in detail regarding Alito’s views on legal issues? Is it not fair to expect that Althouse would not condemn critiques of the results of Alito’s opinions without trying to engage in hypertechnical “gotcha-isms”?
I am interested in the idea that legal realism entails a commitment to “query in detail . . . Alito’s views on legal issues.” There are lots of different types of folks who we might think of as legal realists, and I doubt that they could find a consensus about a definition of the school of thought, let alone a position on the scope of the Senate’s advise and consent role. But it is an provocative idea, wrapped in some hyperbolic clothing.
Armando continues:
[E]ven a legal realist like myself understands that the judicial rules place limits on how much wiggle room judges have to achieve their desired results. Concepts like precedent, consistency, rules of construction, political question doctrine, etc., place limits on the ability of judges to render any result they deem the correct one. And in a case like Bush v. Gore, adhering to those rules is more important by a factor of 10 than in any other case. It is precisely because of what was being decided that the SCOTUS’ actions in Bush v. Gore were egregious in a manner almost unequalled in the history of the Court. They should never have taken the case period . . .
Finally, what was the essential difference between the actions of the Florida Supreme Court as compared to the SCOTUS’? Very simple. The Florida Supreme Court HAD TO DECIDE the case. It had no choice. It could have ruled in favor of Bush or in favor of Gore. But it HAD to rule.
The Supreme Court of the United States had no such compulsion. Cert denied is all they had to say. They chose to do otherwise.
I think Armando is flat wrong here. Gore v. Harris, the ultimate Florida Supreme Court merits decision in the litigation, appears to be an exercise of discretionary jurisdiction under Section 3(b)(5) of the Florida constitution. But maybe that is the type of “hypertechnical gotcha-ism” that I ought to be avoiding. Whoops.
November 24, 2005 at 1:08 am
Posted in: Constitutional Law
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