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Blogger sued for trade libel

From the Boston Globe:

A coastal Maine blogger who criticized the state's tourism office has been hit with a lawsuit seeking potentially more than $1 million in damages for allegedly making false statements and posting on his website, Maine Web Report, images from proposed tourism advertisements a New York agency prepared for Maine officials. . . .

The advertising agency is suing Dutson on three counts: copyright infringement, defamation, and trade libel/injurious falsehood. It seeks statutory damages of $150,000 for each of six images it alleges were infringed upon, as well as unspecified punitive damages and legal fees.

This suit has various elements, and it's hard to say how much of it would go forward in the absence of the (more conventional) copyright claims. This is not purely a trade libel suit based on blog content. But it contains that claim, and as such, it's a sobering data point. In particular, if these kinds of suits (trade libel over blog content) become a broader trend, that will have serious effects on blogs. After all, a good deal of the blogosphere is dedicated to criticism of some industry or other. There is the classic "I had a bad experience with X airline" post; there are series of posts criticizing a business or industry; and so on.

Trade libel requires (as far as I'm aware, in every jurisdiction - though I'm not an expert) actual falsehood, so that is a potential defense. But even a successful defense can be costly and time-consuming and stressful, and I suspect that few bloggers would want to risk a lawsuit. Thus, the real effect of such lawsuits is the chilling effect -- that bloggers will become more hesitant in their criticisms. This may be a good thing in some cases -- Heaven knows thablogs often generate more heat than light -- but is certainly not an unalloyed good.

In the mean time, let me say that my New York trip has been great. Loved the food. Even the subways smelled nice. Please don't sue me, Mayor Bloomberg. Or the blog. I was just kidding when I complained about that stale bagel. And I deleted that post, anyway. What post? I didn't see any post about a stale bagel. Did you, guys? Didn't think so. Carry on. Nothing to see here.

Posted by Kaimipono at 10:04 AM | Comments (3) | TrackBack

What your Representative really thinks of you

Last time that I wrote to my Representative, I received a pretty generic form letter in response. And I had sort of assumed -- till now that most everyone gets a similar form letter. It turns out, however, that some folks get a somewhat more personalized reply. From the Associated Press (hat tip to reader Marc B):

Nobody expects to get a letter from a member of Congress that ends with an expletive. But that's what happened when Rep. Jo Ann Emerson, R-Mo., recently corresponded with a resident of her southeast Missouri district. The letter ended with a profane, seven-letter insult beginning with the letter a - "i think you're an. ..."

No word on whether the constituent in question really is an asshole. Meanwhile, reactions have been mixed, with at least some folks loving it. (Not surprisingly, Wonkette loves it.) Which kind of makes you wonder -- if this story helps her poll numbers, will copycat politicians everywhere start mailing asshole letters to their constituents?

Posted by Kaimipono at 08:51 AM | Comments (4) | TrackBack

Get High (and Identified) With a Little Help From Your Friends

It's time to modernize the lyrics to some old Beatles songs. The University of Colorado police are using a website to post surveillance photos of students and other individuals it wants to identify for smoking pot on Farrand Field. Apparently, there's a tradition at the University of Colorado for students to spoke pot on Farrand Field on April 20th of each year. According to the Rocky Mountain News:

University of Colorado police have posted pictures of 150 people on a website smoking pot on the "420" day celebration last week and are offering a $50 reward for anyone who can identify them.

Police spokesman Lt. Tim McGraw said they received more than 50 calls within the first hours of posting the pictures online Thursday afternoon. He said police were in the process of confirming the tips today.

According to the website:

The University is offering a reward for the identification of any of the individuals pictured below. After reviewing the photos (click on a photo for a larger image), you may claim the reward by following the directions below:

1. Contact the UCPD Operations section at (303) 492-8168
2. Provide the photo number and as much information as you have about the individual.
3. Provide your name and contact information.
4. If the identity is verified to be correct, you will be paid a $50 reward for every person identified.
5. The reward will be paid to the first caller who identifies a person below, multiple rewards will not be paid for individuals listed below.

Is this just good police work? After all, if a person is caught on camera doing a wrongful act, the police can certainly go around and ask people to identify that person. What's wrong with doing it via a website? One problem is that the website disseminates permanent images of people smoking pot on the Internet. It forever memorializes a person's youthful infractions to the world. Is such a police investigation tactic problematic or just efficient?

Hat tip: Michael Zimmer

Related Posts:
1. Solove, Seeking Justice Against Bad Business – Blogosphere Style
2. Solove, Internet Shaming Redux: The Case of the Stolen Cell Phone
3. Solove, Of Privacy and Poop: Norm Enforcement Via the Blogosphere

Posted by Daniel Solove at 01:17 PM | Comments (18) | TrackBack

City A Hub For Alien Transport

Seriously. That's the headline from today's Birmingham News. Pardon me while I go find my spacesuit.

Posted by Dan_Filler at 11:05 AM | Comments (1) | TrackBack

The Harvard Bloggership Conference in a Nutshell

I have returned from the bloggership conference at Harvard Law School. This conference has already been blogged about (big surprise), with Ann Althouse and Larry Solum live-blogging it and Michael Froomkin, in grand meta fashion, blogging about those blogging about the conference.

I thought I'd contribute to all this blogging by translating the conference into "blog" (the punchy to-the-point language of blogging). You can get everything you need to know about the conference from this post -- absolutely free of charge. It's as if you had gone to the conference yourself -- only better, because I've saved you hours of time and engaged in extensive analysis to bring you the key points. [Warning: The summaries below are caricatures. Plenty of more serious commentary about the conference has already been done -- see the links above and below.]

INTRODUCTION:

Paul Caron: "Who are we? Why are we here?" Answer: we're bloggers, and we're great. [And we're here because of the free grub at Harvard.]

PANEL 1:

Doug Berman: Blogging brings us to the people; it is less hierarchical than normal scholarship -- and it's fun.
Larry Solum: Blogs are short, open source, and without mediation.
Kate Litvak: Blogging is akin to a "bugged water cooler" conversation; we should get a grip because blogging ain't that revolutionary.
Paul Butler: The blog "is slapping legal scholarship in the face" and it brings power to the people.
Jim Lindgren: Why should we want to know whether blogging is scholarship?
Ellen Podgor: Everybody is right.

PANEL 2:

Gail Heriot: Blogging is fun and makes the academy less cloistered; 40% of law review articles never get cited -- not even by their own authors -- ouch!
Orin Kerr: The problem with blogs is tyranny -- yes, tyranny -- which is the result of the fact blogs are in reverse chronological order rather than focused around the best and most lasting posts.
Gordon Smith: Blogs connect you into the network.
Randy Barnett: Blogging can seduce you away from scholarship [don't be seduced to the dark side young Skywalker], but blogging can help advertise your stuff.
Michael Froomkin: We should blog more about law review articles we like. [But can we find enough?]

More below the fold.

PANEL 3:

Glenn Reynolds: Bloggers are not likely to be sued for libel [because they're mostly poor schmos], but that might change.
Eugene Volokh: Many laws protect free speech above and beyond the First Amendment.
Eric Goldman: Bloggers should be afraid . . . very afraid -- co-bloggers can be liable for each other's posts. [In other words, don't trust your co-bloggers -- got that Kaimi, Dave, and Dan?]
Besty Malloy: The law must do a better job protecting anonymous speech.
Daniel Solove: We have a romantic conception of the blogger, envisioning someone like Eugene Volokh, when many bloggers may be more akin to Jessica Cutler who blogged about her sex life. [Solove had so many profound things to say, but unfortunately, I wasn't paying much attention.]

PANEL 4:

Larry Ribstein: Blogging can help you be a public intellectual.
Ann Althouse: Stop asking questions; stop making rules; just blog.
Christine Hurt: Blogging without tenure has some risks, but they are outweighed by the great benefits, such as networking and getting known in the academy. [You might not get tenure, but you'll know a lot of people with tenure who will feel sympathy for you.]
Howard Bashman: Blogs are great publicity.
Peter Lattman: Journalists read and learn from blogs.

CONCLUSION:

Charles Nesson: Ok, get the hell out of here and crawl back into your caves. . .

And that's a wrap. It was great to meet bloggers in person rather than in pixel. It was an interesting conference, although there were no paradigm-altering insights. Nobody is prepared to give up writing law review articles in lieu of blogging, although Orin Kerr resolved to write only 18 articles per year rather than 20 to make time for his blogging.

Basically, here's what we learned:
1. Law review articles are long; blog posts are short.
2. Blogging is fun.
3. Blogging can be scholarly, except when it's not.

Conference papers are here.

UPDATE: Beyond the live blogging linked to above, there are a lot of good recaps about the conference sprouting up around the blogosphere. If you want a more serious discussion about what people said (beyond my silly caricatures), be sure to check out Roger Alford's terrific compendium of quotable quotes; Doug Berman's historical reflections on the conference; Eric Goldman's thoughtful recap; Orin Kerr's reply to Larry Solum's critique of his talk; Tim Armstrong's very detailed summary of the conference presentations; and Michael Froomkin's comprehensive collection of links to discussions about the conference.

Finally, I want to note that in all seriousness, this was a terrific and interesting conference. Paul Caron deserves a round of applause for bringing us together to reflect upon the role of blogs in legal scholarship. It is definitely very worthwhile to take time to think about what we have been doing and how we should be blogging in the days to come.

Posted by Daniel Solove at 12:05 AM | Comments (3) | TrackBack

Quantifying the Effect of Good Teaching

Why should law professors invest in being better teachers? Different professors would give you (no doubt) different answers. Similarly, the question of why we write has been asked, and answered, in a variety of ways.

I bet that for some law professors, the answer to the write/teach question is the same: they want to sell ideas to an audience and thereby change the world in some way. The transmission of law memes has historically been seen differently in scholarship and in teaching, however. Teaching is said to impart doctrine (the black letter law), and (to a greater extent) the method of legal practice. That is, law teachers help students to "think like a lawyer." By contrast, scholarship is said to influence the world by changing theoretical perspectives. (Check out lists and criteria of "important" law review articles here and here.) A basic conclusion: important scholarship moves doctrine (i.e., judge's minds). Important teaching moves hearts.

Since most scholarship isn't read, and since most read scholarship isn't read by judges, this view of the relative unimportance of teaching to doctrinal development feels off. But I wonder: has anyone tested the hypothesis empirically? A quick look on WL found no studies - but it might be there. Basically, the idea would be to look to the natural experiment of multiple scholars with different views teaching thousands of law students over the last century. Some of those thousands of students became judges. Some of those judges wrote opinions about topics discussed in the law school classroom. It would be interesting to know if there is any statistically significant relationship between being taught the law is X (or the way to approach the problem is Y) and writing an opinion holding X, or using method Y. To give a concrete example, do judges who were once students in Larry Tribe's con law class produce similar opinions about the commerce clause as those who were once students of Charles Fried?

Obviously, coding and controlling the data would be tricky. You'd ideally want to look at the first-year subjects only, to avoid the selection biases that the Fried/Tribe example raises. You'd also want to find scholars who taught together at an institution, but who differed sharply on a easily codable area of law. Ideas include: the scope of the parol evidence rule; the enforceability of adhesion contracts; the usefulness of enterprise liability; the proper test for insanity in the criminal law; or even an Erie controversy. Finally, you'd want folks who entered teaching some time before, say, 15 years ago, so that you could have a significant enough crop of resulting judges.

Let's pretend this project is possible and non-preempted. Do folks have ideas for professor pairs?

Posted by hoffman at 12:30 AM | Comments (9) | TrackBack

Fun! Fun! Fun! In The High Court Of Justice, Chancery Division

Mr. Justice Peter Smith, the British judge hearing the Da Vinci Code copyright case, has issued an opinion which contains some sort of hidden message. Italic letters in the first seven paragraphs spell out "Smithy Code." In subsequent paragraphs, other letters also stand out, but they have yet to be deciphered. The judge was very candid about his work, saying in an interview "I can't discuss the judgment, but I don't see why a judgment should not be a matter of fun." Gowri Ramachandran over at Prawfs agrees.

This is not the first time that a judge has crafted an opinion with an eye towards entertainment. Judge Kent's famous order denying a motion to transfer has long been a Smoking Gun staple. Judge Buchmeyer's opinion in Rimes v. Curb Records, written to the tune of Leann Rime's "How Do I Live" is another goodie. (A portion of it can be found here.) Indeed, there is a whole website dedicated to curious and entertaining judicial opinions.

Are there institutional costs to using opinions in this way? In the individual case, it would seem to make little difference how funny or dry the opinion. But over time, if judges start to be seen as frustrated comedians, I wonder if the judiciary writ large loses some of its gravitas. Can a judicial comedian command the respect necessary to desegregate a school district, put a sitting governor in jail, or override a jury's death verdict and impose life? (I discuss some of these issues in my piece, From Law to Content in the New Media Marketplace.)

I suspect that judges reap a benefit from these opinions beyond the opportunity to flex their funny muscles. I'm guessing - and I'd love to hear if this is right from those who know - that funny judges like Kent and Buchmeyer do particularly well hiring law clerks. Who wouldn't want to clerk for a judge who airs it out from time to time?

There is also a broader question about whether the social role of judicial opinions changes when they are marketed by media outlets as "fun reading". Will these content distributors push judges to produce more such opinions? Judicial decisions are, after all, free content. They aren't copyrighted and the authors are paid with tax money. And the sale of quality free content produces very nice profit margins. Think these concerns are a bit silly? Think that nobody would really look at an opinion for fun? Consider today's Birmingham News, where on the front cover the editors tease: "CAN YOU CRACK THE CODE? See the ruling online at www.al.com/birminghamnews/documents. "

Will Shortz, watch your back!

Posted by Dan_Filler at 12:19 AM | Comments (2) | TrackBack

Wanna hobnob with George Clooney this weekend?

Then come join the crowds at the Save Darfur Coalition's "Rally to Stop Genocide" on the National Mall in Washington, D.C., this Sunday, April 30. Other luminaries appearing at the event include Senator Barack Obama, Nobel Peace Prize winner Elie Wiesel, rap impresario Russell Simmons, and Paul Rusesabagina (whose story was depicted in the superb film Hotel Rwanda, which you should rush out and rent tonight if you haven't seen it yet). The Save Darfur Coalition brings together more than 160 faith-based, human rights, and humanitarian organizations, and the list of speakers at Sunday's event reflects the incredibly diverse, grass roots nature of this effort. Here's the blurb from the Coalition's website:

"The rally is part of the "Million Voices for Darfur" campaign to generate one million postcards for delivery to President Bush, who recently pledged to push for additional UN and NATO help to protect the people of Darfur. We applaud the President's leadership, but the work is far from done. We are urging President Bush to take steps necessary to end the genocide and build a lasting peace."

Organizers estimate that around 20,000 people will attend the rally in DC, with smaller rallies to be held in cities around the country. Even if the crowds defy expectations and number in the hundreds of thousands, they will be dwarfed by the figures coming out of Sudan itself: According to the Coalition website, in just three years, 400,000 people have died and nearly 2.5 million have been displaced.

How many political issues out there can unite Barack Obama and Sam Brownback in common cause? Kudos to both Senators, and to the many other politicians, celebrities, and ordinary folk who have put compassion and principle above partisan bickering, in an attempt to shake us all out of our apathy.

Posted by Melissa_Waters at 09:23 PM | Comments (3) | TrackBack

Should Schools Invite Controversial Speakers?

An article in Inside Higher Ed discusses the position of the American Association of University Professors (AAUP) with regard to inviting controversial speakers (such as Ann Coulter and Michael Moore) to university campuses:

Since the 2004 election, the American Association of University Professors has been reviewing the issue of controversial political speakers and it has now published a proposed statement reiterating the importance of inviting such people to campuses — and rejecting the idea that speakers must be balanced, person by person, as invitations go out.

The new AAUP statement rejects two arguments commonly given for disinviting Moore last election cycle and some controversial figures generally: that they lack balance or that their presence on campus could endanger an institution’s tax-exempt status.

I certainly agree that schools shouldn't shy away from controversy, and I agree with the AAUP position, but I also agree with this comment to the Inside Higher Ed article:

The problem that isn’t being addressed here is that provocateurs like Moore and Coulter are brought in as speakers in the first place. They command high fees to present recycled tedious, predictable polemical rants that lack intellectual depth and rigor. They substitute cleverness and wordplay for genuine argument, and they offer little or nothing that is new or imaginative.

The money would be better spent on bringing in genuine scholars and intellectuals (our college has recently hosted W.S. Merwin and Seamus Heaney, for instance), in which case the need for this sort of policy would vanish.

Posted by Daniel Solove at 08:44 AM | Comments (12) | TrackBack

The New Orleans - Iraq Election Metaphor

Bill Quigley, a law prof from Loyola (New Orleans) who stayed in the city during the Katrina nightmare, and continues his activism today, posted one of his passionate analyses of the New Orleans situation over at Alexander Cockburn's Counterpunch. I don't want to get into the details of his piece - read it and agree or disagree. But I was intrigued by one point he made about long-distance voting in New Orleans. He wrote:

The state refusal to set up satellite voting for those displaced outside the state resulted in exactly the disenfranchisement predicted. While Iraqis who had not lived in Iraq in years were helped to vote in the US by our government, people forced out of state by Katrina for seven months were not allowed to vote where they are temporarily living.

Of course, whip-smart lawyers will be able to distinguish these two cases on multiple bases. New Orleans residents weren't forced out by a dictator. It's a lot easier to go back to New Orleans for a day. And although there was no effort by the relevant authorities to allow remote voting in Houston, and the many other out-of-state homes of these displaced residents, they could have voted absentee. But it struck me that the metaphor remains powerful. Given that we have accepted, as a nation, that displaced people ought to be helped to make sure they have a voice in democracy, shouldn't the federal government have made a serious effort to promote or authorize remote voting in a place like Houston? Is absentee voting really sufficient access, particularly when the roles of displaced voters were - contrary to normal procedure - not made public? Like Iraqis, the future of those displaced citizens - and their ability to return - will be shaped by the new leaders. Is the task of re-enfranchising these citizens appropriately left to the state, particularly when so many of these folks don't currently live in Louisiana? Is Iraq the right metaphor?

Posted by Dan_Filler at 12:21 AM | Comments (3) | TrackBack

Karl Rove is the Subject of this Blog Post

Robert Luskin, Karl Rove's lawyer, released the following statement after Rove's appearance today before the Plame grand jury:

Karl Rove appeared today before the grand jury investigating the disclosure of a CIA agent's identity. He testified voluntarily and unconditionally at the request of special counsel Patrick Fitzgerald to explore a matter raised since Mr. Rove's last appearance in October 2005. In connection with this appearance, the special counsel has advised Mr. Rove that he is not a target of the investigation. Mr. Fitzgerald has affirmed that he has made no decisions regarding charges. At the request of the special counsel, Mr. Rove will not discuss the substance of his testimony. (H/T: The Corner)

This isn't the first time that Luskin has made this claim. But the news media still aren't really digging into what this means.

Being "not a target" is a good thing for Rove. But it would be better if he were "not a subject" of the grand jury's inquiry either, and the failure of the Special Prosecutor to say so means that KR remains in some (unknown) amount of legal jeopardy. The distinction between these two concepts has been usefully discussed on Talkleft: for a recent post see here. Before today's appearance, there was a rumor that Fitzgerald sent Rove a target letter. Either that rumor was false, or Luskin will some day have some explaining to do. I'm betting on the former. Because it would be frankly shocking were Rove to have testified before the Grand Jury after receiving a target letter. I'm not saying it couldn't have happened under some immunity agreement that hasn't surfaced, but it is exceedingly unlikely.

Posted by hoffman at 11:07 PM | Comments (2) | TrackBack

Trial by Stealth

This month's ABA Journal Report has an amusing article regarding the growing problem of so-called "stealth jurors" -- jurors who "lie on questionnaires and during voir dire to land seats on high-profile cases for bragging rights." A jury consultant quoted in the article estimates that roughly 15 to 18 percent of today's jurors view jury service not as a civic responsibility, but as "a way to comment on or influence the outcomes of trials."

I thought these concerns might be a bit overblown, until post-exam-writing insomnia had me up at 3 a.m. last night doing an Amazon search on the subject. Turns out that someone has written a book entitled, appropriately enough, "Stealth Juror: The Ultimate Defense Against Bad Laws and Government Tyranny." According to the author, "A stealth juror is an ordinary citizen serving on a jury who understands and is not afraid to exercise his right to judge not only the evidence in a case but the very law upon which the prosecution is based. If the law is bad or unfair, he secretly works to acquit any defendant being persecuted for a nonviolent, victimless crime. He must remain undercover because he represents a direct threat to the power of judges and prosecutors. He is the last champion of justice in the American courtroom." The book promises to teach its readers "exactly how to become a stealth juror, including how to get yourself seated on a jury where you can do the most good for just causes (from preserving gun rights to opposing the War on Drugs), recognize and avoid the games that lawyers and judges use to manipulate the outcome of a case, secretly win over your fellow jurors in the deliberation room and much more."

Hmm ... I'm not sure this is exactly what Henry Fonda had in mind.

The ABA article points out that the "stealth juror" problem is exacerbated by the way in which voir dire is typically conducted: Potential jurors who might be biased against a particular defendant, for example, may be reluctant to speak up about their prejudices in an open courtroom, with tens or even hundreds of spectators watching.

Of course, sometimes the biases revealed during voir dire cut the other way. My father, a federal judge for twenty years in Arkansas, once conducted a criminal trial of a county judge who had been accused of buying up votes to win his election. At the beginning of voir dire, the judge informed the potential jurors of the charges against the defendant. A woman in the back row immediately stood up, hands on hips and full of indignation, and said, "Well, I guess you don't want me, then. My husband and I always sell our votes. We get three dollars a piece for ‘em – five if it’s a close race.” The judge, without missing a beat, replied, "No ma'am, I don't think we'll be needing you today. Thank you for your service to the community."

But those were 1980s dollars – I’m sure the price of a vote in Arkansas has gone up considerably since then.

Posted by Melissa_Waters at 08:07 PM | Comments (0) | TrackBack

Counter-cyclical journals

Everyone knows that law reviews pick piece up in the Spring and in the Fall.

Except when they don't. A growing number of journals seem to be bucking the trend and seeking at least some summer solicitations. For example, the front page for the Duke Law Journal website states outright that "We will review articles throughout the summer."

This post hopes to collect some data from our readers: Which are the counter-cyclical journals (either this year, or in general)? Which journals are seeking summer submissions? If you're an editor or otherwise knowledgeable on the specifics of a journal that is presently pursuing (at least in part) a counter-cyclical strategy, please weigh in in the comments; ditto if you recently published an off-season piece or picked up an off-season piece from the journal side.

Posted by Kaimipono at 06:28 PM | Comments (3) | TrackBack

Memento Mori, and Constraining of Executive Power

Clifford Ando's book on Imperial Ideology and Provincial Loyalty in the Roman Empire is being passed around the family lending library. It, together with a recent conference invitation, has gotten me to thinking some about the different ways that the American legal system works to constrain executive power. This may all be old hat to some, but, hey, this is just a blog entry!

The legal system offers two major methods of constraining executives: incentives and structural checks. Both approaches are formal, and to a large extent, treat subject executives as rational, wealth-maximizing, actors. Incentive-based constraints follow a fairly traditional carrots-and-sticks approach.

Corporate law relies mostly on carrots. Punishments in corporate law are rarely felt by individual Directors and officers due to the BJR and D&O Insurance. SOX is a notable, and contested, exception. By contrast, control of public sector executives (like agency heads, police, and military officers) is largely based on sticks: court marshals; public shaming, etc.

Control of the government’s chief executive is largely left to institutional constraints. President Bush, not so long ago, reminded Americans that a second-term President has a wide latitude to act in ways that might seem unpopular: "We had our accountability moment, and that's called the 2004 elections." That is, elections provide limited incentives; impeachment an impractical stick. Congressional control of subpoena power is the real hammer.

The Romans had a somewhat different model. They had exceptionally few state administrators - a few thousand folks in total at the empire's height. Those administrators were governed and constrained in a variety of ways. The preeminent, according to Ando, seems to have been socialized norms. Thus, famously, Roman generals on their victory parade were accompanied by a slave whispering in their ear: "Memento Mori." Remember, you are mortal.

Are there interesting ways to pay-off this analogy? Perhaps we might achieve more efficient corporate and federal executive control through socializing norms of humbleness, loyalty, and self-control. Maybe this humbling function could be served by independent directors, in a reinvigorated real devil’s advocate way. Or, if we wanted to really re-engineer the system, perhaps SOX should be amended to rely less on punishment and more, as in the sexual harassment context, on a system of presumptions that encourages training and socialization of pro-social norms. In the federal government arena, perhaps we need to hire someone who will remind Presidents of the limits of their power, and the fact of their morality. Hmm. Actually, maybe those positions are filled already.

Posted by hoffman at 02:06 PM | Comments (4) | TrackBack

Roberts' And Alito's Pragmatic Turn

In an otherwise mundane decision yesterday, Day v. McDonough, Justices Alito and Roberts joined a surprisingly pragmatic habeas corpus decision penned by Justice Ginsburg. The case involved a state prisoner who filed his habeas papers 23 days after the federal statute of limitations had run. A negligent attorney for the State of Florida, however, had miscalculated the time and the state conceded in briefs to the district court that the petition was timely. Fortunately (or unfortunately, depending on your perspective) a johnny-on-the-spot federal magistrate took out his abacus and discovered the error. He then dismissed the petition sua sponte.

The Supreme Court affirmed the per curiam decision of a conservative 11th Circuit panel (Pryor, Dubina and Tjoflat) holding that the district court was permitted to dismiss the case sua sponte on statute of limitations grounds. It held that the State's waiver of the issue did not forfeit its statute of limitations claim. The issue is controversial because the Federal Rules of Civil Procedure generally provide that statute of limitations defenses are forfeitable. As Justice Scalia pointed out, the majority opinion "disregards the Federal Rules of Civil Procedure in habeas corpus cases chiefly because it believes that this departure will make no difference." Scalia describes the holding as "novel presumption against" applying these rules.

On its face, the decision might be termed "conservative" because, well, the criminal defendant loses. (That is how Sunstein, at least, would probably classify it - based at least on his methodology in Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation.) But in fact this relatively loose play with the Federal Rules of Civil Procedure is pretty darn pragmatic. Scalia makes a good case that precedent and Congressional action both cut against this snubbing of the Federal Rules. Based on everything we've heard to this point, I wouldn't have been surprised to see Roberts and Alito share Scalia's skepticism. (And what about the uber pragmatist, Breyer? What's he doing in bed with his nemesis?)

I'm neither a Supreme Court scholar nor a civil procedure buff. (I learned civil procedure from John Sexton, which means that I'd be an AWESOME law dean!) But does this configuration provide a hint - if only that - that Rolito (can I trademark that term, kind of like Three-peat?) will be more Rehnquist than Scalia? I guess we'll just have to see.

Hat tip to a former student.

Posted by Dan_Filler at 12:00 AM | Comments (11) | TrackBack

Lay-ing it into the Wall Street Journal

Ken Lay, testifying yesterday and especially today at the Enron trial, has been attacking the WSJ pretty harshly. The Journal forms one part of Lay's new axis-of-evil (as reported at the stupendous and invaluable Houston Chron trial blog):

"Enron's failure was caused by a run on the bank," Lay said, adding, "It all begins with the deceit of Andy Fastow and probably not more than one or two other people."

Fastow, the former chief executive of Enron has admitted to running a sham at Enron where he profited personally to the tune of millions of dollars.

Short sellers, Lay continued, also contributed. He then blamed the Wall Street Journal for articles that were critical of Enron in 2001, the year Enron filed for bankruptcy.

Here's the thing. Obviously, this is a prepared trial strategy. Fastow, short-sellers, and the media killed Enron, not Jeff or me. Repeat. But I wonder whether the emotional valence that jurors normally might get from attacks on "the media" are as present when the media in question is the WSJ, a highly respected publication that to me smells like money and Republicans. I can understand attacking the Times - even saying the word connotes liberal elitism in some quarters. But is the Journal the same? Maybe to jurors from Texas it is. And, notably, I'm not nearly as well-positioned on this particular issue as the defenses' jury consultant, who might have blessed this strategy after subjecting it to focus-grouping.

Still, as I just told a reporter, this feels risky. Can't the prosecution, on cross, now lead Lay through the reporting and ask what was wrong with what was said? To the extent that the reporting was mostly accurate, and the market reacted to it, doesn't that mean that this wasn't an irrational market run, but instead a reaction by the market to a perceived failure of those internal control mechanisms which Enron had been known for?

[Update: The article resulting in part from the conversation with the reporter I mentioned above is now up on the Business Week Online's website here.]

Posted by hoffman at 06:19 PM | Comments (2) | TrackBack

Michelle Anderson's New Deanship

There is terrific news to report. Our current guest blogger, Michelle Anderson, was just appointed as the new dean of CUNY Law School. This news is proof that if you blog at Concurring Opinions, great things will happen to you. From the CUNY Law School press release:

Prominent legal scholar Michelle J. Anderson, Esq. has been appointed by the Board of Trustees of the City University of New York as Dean of the CUNY School of Law, effective July 1, 2006.

An academic leader with a passion for social justice, Professor Anderson is a graduate of Yale Law School where she was Notes Editor of the Yale Law Journal and Editor of the Yale Journal of Law & Feminism. A member of the faculty of Villanova University School of Law since 1998, she has taught criminal law, criminal procedure, children and the law, and feminist legal theory and received top rankings as a classroom teacher. . . .

Professor Anderson is one of the nation's leading scholars on the legal aspects of sexual assault. Widely published, her articles have appeared in the University of Southern California Law Review, George Washington Law Review, University of Illinois Law Review, and Boston University Law Review, among other journals. Recently, in Commonwealth v. King, a case involving the admission of a first complaint of child sexual abuse, the Massachusetts Supreme Court, the state's highest appellate court, cited two of Professor Anderson's published pieces. . . .

Opened in 1983, CUNY School of Law, located in Flushing, Queens, is the only law school which, from its inception, has defined its mission as training law students for public service. In addition to its unique educational mission, the Law School takes pride in its national leadership in clinical education, its affordable cost, and its distinction as the nation's most diverse law school. The School is a national leader in progressive legal education with the highest rate of placement of graduates in public interest and public service careers.

Congratulations!

Hat tip: As usual, Brian Leiter had the breaking news. In fact, he probably knows whether you're moving before you do.

Posted by Daniel Solove at 05:13 PM | Comments (4) | TrackBack

Stuntz Responds: Further Thoughts on Privacy and Transparency

A few weeks ago, I wrote a post criticizing an essay by William Stuntz (law, Harvard) in The New Republic. Today, he has responded to my post in The New Republic Online.

I'll reply briefly here to a few of Stuntz's points in response. Stuntz observes:

What are the worst things governments do to their citizens, the abuses that most characterize despots and dictators? For my money, spying and snooping are pretty far down the list. I'd rank these much higher: torture and other physical abuse, harassment of political and religious dissidents, and (most of all) arbitrary punishment--prison sentences handed down not because the prisoners did some terrible wrong or caused some horrible injury, but because they got on the wrong side of some local party boss.

Stuntz seems to assume that privacy and transparency are separate issues from the ones he lists above, but I see privacy and transparency as integral checks to prevent the kinds of abuses Stuntz mentions.

Stuntz then writes:

Solove says that it's "silly" to say that we're better off if the government listens to lots of phone conversations rather than only a few. If so, then current law is silly--for as he knows, the law today and for some time has drawn precisely that line. That is why the police can set up roadblocks and stop every car to check for drunk drivers, even though the cops have no reason to suspect any one driver. In my view, the same principle should apply to phone calls, and to DNA tests. If I understand the news stories correctly, nearly all the members of Duke's lacrosse team were tested in connection with the ongoing Durham rape investigation. That strikes me as a very good thing: DNA tests reduce the odds that the guilty will escape punishment, and also reduce the odds that innocents will suffer it. Does Solove disagree?

I am not an absolutist when it comes to protecting privacy. I believe that the police should have the power to conduct a variety of investigations; they should be able to conduct DNA tests; they should be able to wiretap and engage in surveillance. The issue isn't whether or not they should be allowed to do these things; rather, it is what kinds of oversight and accountability do we want in place when the police engage in searches and seizures. The police can employ nearly any kind of investigatory activity with a warrant supported by probable cause. This is a mechanism of oversight -- it forces the police to justify their suspicions to a neutral judge or magistrate before engaging in the tactic. Driver checkpoints are limited in the kinds of questions the police can ask; in what they can stop motorists for; in how long they can stop people; and so on. The law allows for wiretapping but only under judicial supervision, procedures to minimize the breadth of the wiretapping, and requirements that the police report back to the court to prevent abuses. It is these procedures that the Bush Administration has ignored by engaging in the warrantless NSA surveillance. The question is not whether we want the government to monitor such conversations; it is whether the Executive Branch should adhere to the appropriate oversight procedures that Congress has enacted into law or whether it should be allowed to covertly ignore any oversight.

Regarding the DNA tests of the Duke lacrosse members, there was a legitimate reason to suspect them of a crime, so they should be tested. Moreover, DNA presents very different considerations from surveillance. Because current DNA typing uses only parts of DNA and cannot be used to ferret out medical histories and conditions (at least not currently), it might not present as substanial a privacy risk. In one post a while ago, I examined whether everybody should be included in a DNA database. As my post indicates, I believe that with the right set of protections, DNA identification can be successfully used. The question is not one of yea or nay to DNA databases, but of whether they can be implemented in ways with the appropriate oversight and protections. Other forms of surveillance poste different problems, such as the NSA surveillance, which is far more troublesome because of the kind of information it can reveal.

Turning to transparency, Stuntz argues:

As I understand American political history, we once had a political culture in which the legislative and executive branches operated much like appellate courts. There were public debates and votes that produced public decisions. But before those debates and votes, a good deal of discussion and analysis happened behind the scenes, outside public view. Not coincidentally, that style of governing seemed to accomplish more than the transparent government we usually see now. I'd like to return to that older style. For the life of me, I can't understand why that makes me an enemy of freedom.

I disagree with several premises. I'm not so sure that we have progressed from a golden era of a highly functional government to the dark ages of a disfunctional one. The government has had its high points and low points in history, and I don't think that transparency is the problem. The problems, as I see it, are excessively divisive partisan politics and a government that isn't responsive enough to the people -- it serves the interests of the rich and powerful, the big corporations, or the highly vocal interest groups. Closed doors facilitate the kind of Washington lobbying and special influence culture that often makes the government out of touch with the people it governs.

Finally, Stuntz observes:

Limits on government power that look wise when the other side holds the reins sometimes look foolish when your side is in charge. Better to put aside today's partisan debates and think about the long term. Not all civil liberties are created equal; some matter more than others. If we protect the wrong ones too much, we're liable to protect the right ones too little.

I have several responses. First, it doesn't strike me as inevitable or likely that by protecting some civil liberties that we won't protect others. If anything, Stuntz's logic works better when it comes to particular security measures. We have limited money and resources, and thus we have to choose which security measures to adopt. In my view, we should be focusing on tracking down loose nukes and other serious threats; securing our ports; and so on. Engaging in random subway searches or spending millions of dollars on data mining systems that have no proven track record of actually working strike me as making the wrong security choices. Privacy and transparency force some debate into the mix when it comes to these measures, and this debate might steer the government away from some very poor security choices.

Second, limits on government power are especially important when one side controls many of the branches -- whether it is your side or not. Stuntz may have legitimate gripes about a government that is not working as efficiently and intelligently as it should be, but the cause isn't privacy or transparency. It is a two-party system that doesn't adequately represent the views of many citizens. It is the constant game-playing and partisan rancor that persists in Washington. It is a system that faciliates gerrymandering to keep incumbents in power and less accountable for their actions. It is the profound influence of money in politics. It is politicians voting for measures not because they're good for the country, but because they help out local interests or companies that make robust financial contributions. There's a lot that is wrong with government, but it surely isn't privacy and transparency.

Posted by Daniel Solove at 02:04 PM | Comments (7) | TrackBack

Pseudonymity and Ethics

Last week, the Los Angeles Times suspended the blog of Michael Hiltzik, one of its columnists, when he admitted posting comments both on his blog (which was hosted by the paper) and on other blogs under pseudonyms. Apparently these efforts were a ham-handed attempt at creating an ego chamber by suggesting that there were other participants who agreed with Hiltzik’s views. The L.A. Times has posted a notice at Hiltzik’s blog, stating that Hiltzik’s actions were “a violation of The Times [sic] ethics guidelines, which requires editors and reporters to identify themselves when dealing with the public.”

Put to the side for the moment what Hiltzik actually did, which, if nothing else, was not a bright career move (and serves as yet another reminder to the public of the existence of IP addresses). What if Hiltzik had used a pseudonym to comment on another blog merely to engage in a discussion without revealing that he was a columnist for the L.A. Times? What if the resulting discussion then became interesting enough that Hiltzik or another reporter decided to write about the debate? Is there something improper or unethical about the fact that the hypothetical Hiltzik did not disclose his identity in the course of the discussion? Assume, even, that Hiltzik engaged in pseudonymous commentary precisely to spark a discussion on a given topic — which is, of course, what many blog authors do on a daily basis — to see if it would develop into any interesting column fodder. Would he have acted unethically? Given that the participants responding to such comments are engaging with a pseudonymous individual in an open forum in any event, does it matter whether that individual is the hypothetical Hiltzik or a CPA in Schenectady? Or whether the individual is a reporter for the L.A. Times rather than the author of AcmeBlog?

Presumably the L.A. Times does not enforce its policy to the extent of requiring its reporters to “identify themselves when dealing with the public” when they are, say, participating in an online dating service or ordering a burger at the local fast food joint. I would imagine that the point of the policy is to protect members of the public who would unwittingly say something in a conversation with a nonreporter that they would not say if they knew the comment could potentially be published in the paper. But when the hypothetical (i.e., nonlogrolling) Hiltzik comments pseudonymously on another’s blog and encourages comments that are intended for public consumption from the moment the "post" button is hit, is he “dealing with the public” in the way that the paper’s policy contemplates?

(To be clear: I am in no way defending Hiltzik's actions. But I am curious about where the line between proper and improper is in a medium in which pseudonymity is not only accepted but often encouraged.)

Posted by Laura_Heymann at 03:25 AM | Comments (13) | TrackBack

Law School Clinics: What Exactly Does Student Tuition Subsidize?

In his recent post about ABA law school accreditation, Dave Hoffman suggests that law school clinics provide (among other things, presumably) legal services for the poor, subsidized by student tuition. For Dave, this is probably a social good. For many others, however, this might be seen as an undesirable tax on those students uninterested in such issues. I'd like to take issue with this whole premise, however.

Painting with a broad brush, law clinics are split between two different models: those driven by the need to provide services and those driven by pedagogy. Clinics on the service model are constantly struggling to provide services to a relatively substantial client base. These clinics are typically funded by soft money - grants provided by some interested group for the purpose of delivering particular legal services. As a result of these grants, these clinics cost law schools - and students - far less money. Their cost is underwritten by third parties, not tuition. But these clinics have pedagogical problems, because their need to serve many clients conflicts with the clinical pedagogy calling for students to dig very deeply into a small number of cases.

The other model - the one typically funded by hard money, and thus tuition dollars - takes on cases primarily for the purpose of training students how to practice. Because these clinics serve the goals of the law school (albeit with social justice issues still hovering about), they provide services to a relatively small number of clients. Instead, they train students in "best practices", teaching them the ideal way to provide legal services. The thinking is that once you train a student how to practice well, she will use better judgment later when her caseload demands more corner-cutting.

So who exactly is receiving the benefit of these highly subsidized clinics? Law firms (and their clients) lacking in-house training programs. Big firms train lawyers themselves. But small firms, legal service offices and - this is a big one, in a place like Alabama - government agencies (i.e., DA offices) need law schools to train students in concrete lawyering skills. For economic reasons, they simply can't do an adequate job themselves.

So the ABA requirement that schools provide experiential education (and that those teachers be treated as legitimate members of the law school community) actually speaks to the needs of the small town law firm and client, the shingle hanger and her clients, the indigent client, and that entire public consuming such goods as crime control, pollution suppression, and housing safety. Perhaps we shouldn't worry about these folks - us, that is - but maybe worrying about "us" is exactly what motivates states to grant such power to the ABA. It's hard to imagine, but maybe in this respect, the guild is actually doing right by the public at large.

Posted by Dan_Filler at 12:39 AM | Comments (3) | TrackBack

Looking Out Over the Crowd: A Moderate's Take

In a previous post, I asked whether there was anything new to be said on the issue of the role of foreign and international law in interpreting the U.S. Constitution. Roger Alford wrote a thoughtful comment (also posted on Opinio Juris), laying out what he sees as some of the big issues that remain to be explored among scholars and courts. His post got me thinking: How will the debate over foreign and international law evolve over the next, say, ten years? And what will second-generation scholarship in this area look like? I, for one, hope it looks something like the following:

First, I hope we all tone down the rhetoric. Justice Ginsburg has a point when she blames the hysterical tone struck by many Congressmen (and, I would add, by Justice Scalia) for fueling the death threats that she and Justice O’Connor have received from the “irrational fringe”. On the other hand, she and others in the so-called “internationalist” camp surely deserve some of the blame for the ratcheting up of the rhetoric: They wrongly dismiss the democratic legitimacy concerns of those in the so-called “nationalist” camp as just so much neo-isolationist thinking. Is the simplistic, Crossfire-esque tone of the debate really helpful, and why does everyone feel the need to choose up sides? Am I an internationalist or a nationalist? I have no idea, because I don’t know what these labels MEAN.

Instead, I hope future debate on these issues becomes increasingly dominated by moderates, who reject these simplistic labels. In fact, the tide may already be turning: A recent editorial in the Washington Post called for moderation, and pointed out that “in the debate over foreign law, neither side has a monopoly on wisdom.” So what does a nuanced debate on the role of foreign and international law – one dominated by moderates in both camps -- look like?

It begins with some honesty about what exactly is going on here. Internationalists harm their own position when they argue that courts who rely on foreign and international law in interpreting the U.S. Constitution are not doing anything new – that “international law is part of our law,” and courts are simply interpreting and applying it as they have since the Founding. But international human rights law is largely a twentieth century creation, and the Founders certainly never envisioned a world in which international human rights treaties would purport to regulate the treatment of a nation state’s own citizens within its own borders. Internationalists, in my view, need to admit that the sources of international law have changed – and with that transformation come serious questions regarding the legitimacy of incorporating foreign and international human rights norms into the American Constitution – questions that deserve to be taken seriously. Similarly, internationalists take the easy way out when they assert that “these sources of international law are not binding, they’re merely persuasive.” But labeling a particular source “persuasive, not binding” does not necessarily render it a legitimate source for constitutional interpretation. (I might consider a Supreme Court citation to Shakespeare “legitimate”, while a citation to commentary from the The Daily Show or the Bill O’Reilly Show might be less “legitimate”.) Similarly, it might be perfectly sensible to rely on a judicial decision from the UK, because we share a common legal, social and political history with England – whereas citation to a decision from the Zimbabwe Supreme Court might be more problematic, for obvious reasons. (In fact, Justice Breyer conceded that his reliance on the Zimbabwe Supreme Court’s views on the death penalty a few years ago may have been a “tactical error" -- after all, he admitted, Zimbabwe is not exactly the "human rights capital of the world.") Finally, the “persuasive, not binding” argument merely begs the question: Just how persuasive? How much weight is a court giving to a particular foreign source?

Nationalists, on the other hand, need to recognize what lies at the heart of this debate. It is not simply a debate over the relevance of foreign legal materials in interpreting the Eighth Amendment of the U.S. Constitution. It is, in a larger sense, a debate over what role U.S. courts will play in the emerging transnational judicial dialogue among the world’s courts on a whole range of legal issues. And the outcome of that debate will have enormous implications, not just internally for the Court’s jurisprudential approach to domestic constitutional analysis, but also externally: It will have a tremendous impact on the ability of U.S. courts to play a role in shaping and influencing the development of transnational judicial dialogue, and through that dialogue, the development of international legal norms on a wide variety of issues – not just human rights issues. Nationalists tend to the view the conversation as a unidirectional monologue, in which U.S. courts simply act as passive recipients of foreign norms. Instead, it can and should be a true dialogue, in which U.S. courts -- through assertive and robust participation in transnational judicial dialogue -- can serve as powerful champions for American norms at the transnational level.

In short, I predict that future scholarly, judicial, and political debate on these issues will be led by moderates who defy easy pigeonholing into either "internationalist" or "nationalist" camps. The moderates will recognize the reality that the world’s courts, through transnational judicial dialogue, are playing an increasingly powerful role in shaping the norms that govern the international legal system, and they will shape their views of the debate accordingly. My personal moderate’s take is this: U.S. courts should participate in dialogue on a whole range of legal issues -- not only because we can learn from the experiences of other countries, but because our participation will ensure that American norms (for example, on speech) play a powerful role in the development of international law. Moreover, by participating in dialogue, the U.S. Supreme Court can become a leader among the world’s courts in developing rigorous analytical approaches to consideration of foreign and international legal sources -- thus ensuring the development of a transnational judicial dialogue that is not only robust, but also principled.

Posted by Melissa_Waters at 03:23 PM | Comments (26) | TrackBack

Rankings and Precision

A very interesting take on B-school rankings, from organization scholar Rhakesh Khurana (via Pub Sociology):

Rankings provide the illusion of scientific rigor vis-à-vis a process that actually calls for careful judgment and nuanced interpretation. It is one thing to give Wharton, Tuck, or Columbia a rating as a top business school; this leaves some room for interpretation. However, to say that Wharton is number one, Columbia number 3 and Tuck number 2 indicates a level of precision that just cannot be achieved, except on the cover of a newsmagazine and then in the minds of students.

I've previously suggested that law school rankings have some real benefits in reducing search costs; and I continue to think that rankings are helpful for many people. However, the problem of quantification and incomensurability, as ably discussed in Khurana's post, is one of the real weaknesses of an ordinal ranking system like that used by U.S. News.

Posted by Kaimipono at 01:09 PM | Comments (2) | TrackBack

Whither Law School Accreditation?

Over at ToTM, Josh Wright has a post on the ABA's accreditation role. He's responding to David Bernstein's post here. David and Josh both seem to support attempts to strip the ABA of its accreditation role, in whole or part. The disputed provisions are:

• 205(c): "Except in extraordinary circumstances, a dean shall also hold appointment as a member of the faculty with tenure."
• 405(c: Law schools "shall afford full-time clinical faculty members a form of security of position reasonably similar to tenure, and non-compensatory perquisites reasonably similar to those provided other full-time faculty members."
• 603(d): "Except in extraordinary circumstances, a law library director shall hold a law faculty appointment with security of faculty position." (Comment: " The granting of faculty appointment to the director of the law library under this Standard normally is a tenure or tenure-track appointment.)"

Obviously, the group of Deans who wrote this letter aimed it carefully. Indeed, the letter has been read by many folks (Leiter; Manne) as a rather targeted campaign against over-reaching by the ABA into what are seen as institutional prerogatives. But now that I've finally gotten around to reading the letter and the commentary, I simply don't see the limiting principle here. This is about whether the ABA should be permitted mandatory accreditation power, not whether some aspect of that power is efficient or not.

Indeed, the arguments in the letter work as well (if not better!) against standard 405(b): "The law school shall have an established and announced policy with respect to academic freedom and tenure . . . "? I imagine that if you were to ask many Deans who should decide if their institution ought to have a tenure system, they'd say: "me." When pushed, they'd add "and the folks who pay the lighting bills too." And their arguments (flexibility; efficiency; cost) would be precisely the same as in the clinician context.

Thus, Geoff's Manne's argument here seems somewhat wrong to me. This could very well be the thin end of the wedge, directed at those segments of the law school community least able to speak up for themselves. (Yes, Niemoller's poem is an obvious link, although I think it is crass in this context. )

It seems pretty clear that were the ABA to lack the power to de-accredit schools for employment practices, some schools would choose not have tenure at all for law professors. I imagine the number of such schools would be small (due to market pressure), but it wouldn't be zero.

This post isn't going to be a defense of tenure. But I thought it might be worth it to stop for just a moment to consider the arguments for why have an ABA accreditation process at all. Tenure is part of what it guarantees the world. It also gives us clinical legal education (meaning legal services for the poor, subsidized by law student tuition), law libraries of a certain size, etc.

I don't think it can be denied that the primary economic effect of the process is to raise the cost of legal education and ultimately the cost of legal services. This is a problem because the poor will increasingly be priced out of the market.

But that doesn't end the story. Unregulated market outcomes - what the Law Deans presumably would want - aren't necessarily welfare maximizing. They just often are. So I suppose we have to ask: is there any strong evidence of market failure in the law school industry (inputs & outputs) that would justify continued intervention by the ABA.

I'm unconvinced by the argument that we need accreditation to protect consumers from bad lawyers. This seems like an expensive way to work a consumer protection regime: why not just make the Bar harder to pass? (Yes, I know that I'm parting ways with Solove. But he is, I think, missing the trade-off problem here. We've three options: regulate law school so that it is hard; rejigger the Bar until it is a real barrier, or change the rules to make malpractice claims cheaper to bring and easier to win. Of the three solutions, making the Bar much harder is the most efficient by a mile. Screening is almost always cheaper than remedial action. Screening by a licensing exam is surely better than micro-managing the content of a legal education. The expensive version of the legal education is a signal to potential employers of diligence and acumen, not (really) proficiency in basic legal skills. )

The other justification for continued ABA oversight that I imagine folks have in mind is a lack of demographic diversity in graduating classes. This is a serious problem, not least because lawyers continue to retain a significant amount of power to reshape society in their own image. But why would we want to assume that a deregulated legal education industry would be weaker in this respect than one goaded by the ABA? The thought has to be that the relevant players aren't sufficiently motivated to create a diverse class. But even if that were so - and I don't think it is at most institutions - the accreditation regime is a notoriously blunt hammer to bring to the table. Not only is the process episodic and retrospective, but the sanctions aren't targeted at the right folks. It's a bit like holding the city government responsible for the actions of individual police officers. Sure, it has some corrective effects, but not as strong as when you hold the cops personally liable.

In sum, I'm just not convinced by the arguments for continued ABA oversight over the employment and acceptance practices of law schools. But the question is a close one - and for some accreditation practices (like those for the public good like law library) I think the balance favors a continued ABA role.

Is there a case to be made that I haven't considered?

Posted by hoffman at 01:36 AM | Comments (3) | TrackBack