Archive for March, 2007
Interested in what’s hot in international law scholarship?
posted by Melissa Waters
Then check out the rising stars who have contributed to Opinio Juris’s inaugural on-line symposium for young scholars. The subject matter runs the gamut, from climate change to compliance to international criminal procedure to WMD proliferation. Authors include Jacob Cogan, Gregory Gordon, Vik Kanwar, Eugene Kontorovich, and Hari Osofsky. Senior scholars in the field serve as commentators for each of the papers.
Kudos to Opinio Juris for offering yet another important contribution to the international law blogosphere!
March 31, 2007 at 7:14 pm
Posted in: International & Comparative Law
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The court comes to school: lessons on prosecutorial discretion
posted by Alice Ristroph
Last Wednesday, my criminal law students had to go only a few feet to hear a session of oral arguments before the Utah Supreme Court. Both the Utah Supreme Court and the Tenth Circuit Court of Appeals hold arguments at the S.J. Quinney College of Law every so often. It’s always a great learning opportunity, and Wednesday’s arguments were no exception. A felony drug possession case raised important questions about efforts to limit prosecutorial discretion in charging decisions.
A police officer found a plastic baggie with methamphetamine residue in the defendant’s pocket. Under Utah law, this evidence could have been used to charge possession of drug paraphernalia (a misdemeanor), or possession of a controlled substance (a felony). The state charged the felony offense. At a preliminary hearing, the defendant successfully invoked State v. Shondel, 453 P.2d 343 (1969), a Utah case that provides that “where there is doubt or uncertainty as to which of two punishments is applicable to an offense an accused is entitled to the benefit of the lesser.” Wednesday’s arguments focused on how courts should decide whether there is uncertainty as to the applicable punishment: should courts look only at the statutory language to decide whether two statutes impose different punishments on identical conduct, or should the courts consider how the statutes are applied given the facts and evidence of the particular case? On paper, Utah’s felony drug possession and misdemeanor paraphernalia statutes look different—there are ways to possess drugs that don’t violate the paraphernalia statute, and ways to possess paraphernalia that don’t violate the drug possession statute. But in this case, the only evidence to support either charge was the presence of the baggie with meth residue in the defendant’s pocket. No doubt there will be disagreement about whether prosecutors faced with these choices should charge the offense with the greatest penalty (as John Ashcroft directed federal prosecutors in 2003—see discussion here) or the offense with the least severe penalty, as Shondel seems to require in at least some cases. But as Doug Berman has often noted, in a world in which concerns about sentencing disparities tend to focus on judicial discretion, more efforts to regulate prosecutorial charging decisions might be overdue.
March 31, 2007 at 6:18 pm
Posted in: Uncategorized
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Can a Person Be Guilty of Murder for Making a False Rape Accusation?
posted by Daniel Solove
Too bad I’m not teaching criminal law this semester, as this case would surely be a topic of discussion. From the Associated Press:
Darrell Roberson came home from a card game late one night to find his wife rolling around with another man in a pickup truck in the driveway.
Caught in the act with her lover, Tracy Denise Roberson — thinking quickly, if not clearly — cried rape, authorities say. Her husband pulled a gun and killed the other man with a shot to the head.
On Thursday, a grand jury handed up a manslaughter indictment — against the wife, not the husband.
The husband has two possible defenses. First, he could be acting under the heat of passion, which would reduce a murder charge to voluntary manslaughter. This would not, however, justify a failure to indict him. He would just be liable for a lesser crime than murder. Second, he could be acting in defense of his wife. This would be a full defense, and it would be the most plausible reason why the grand jury declined to indict him. The facts in the AP story are ambiguous as to whether he would be entitled to a claim of defense of others:
When Tracy Roberson cried that she was being raped, LaSalle tried to drive away and her husband drew the gun he happened to be carrying and fired several shots at the truck, authorities said.
If Darrell Roberson shot LaSalle at a time when he was fleeing and when Roberson believed his wife was no longer in danger, then his defense of others claim would fail. It is not clear whether his wife was still in the truck at the time he shot the man.
The case against Tracy Roberson is more interesting. The facts suggest that she falsely cried out rape since she appeared to be having an illicit affair with LaSalle (though this doesn’t necessarily mean that she wasn’t being raped on this occasion):
The December night before the shooting, Tracy Roberson sent LaSalle a text message that read in part, “Hi friend, come see me please! I need to feel your warm embrace!” according to court papers. LaSalle apparently agreed. . . .
His wife also was charged with making a false report to a police officer — for allegedly saying she was raped — and could get up to six months behind bars on that offense.
The wife might be guilty of manslaughter if she recklessly cried out rape and it caused LaSalle’s death. However, the difficulty will be proving causation — it must be reasonably foreseeable that by crying out rape, it would result in her husband shooting LaSalle. Proving causation when another person must make an independent decision about whether to act can be tricky, as that person’s decision often breaks the chain of causation. More facts are needed for a better analysis, but the case certainly presents a very interesting scenario.
March 31, 2007 at 5:35 pm
Posted in: Criminal Law
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US News Rankings For Newer Law Schools
posted by Dan Filler
I created a list of law schools that have received full ABA accreditation (for the first time) in the last 30 years. (I left off Penn State/Dickinson, which had been previously accredited as Dickinson, Widener – Harrisburg, which is a spin-off campus from previously approved Widener, and UDC…simply because I’m not sure of its Antioch history.) There are 23 schools in all. Of these 23, four – George Mason, Cardozo, Georgia State and UNLV – are ranked in the US NewsTop 104 (four schools are tied at 100). Three others – FIU, Pace, and St. Thomas (MN) – are listed in the third tier. (FIU and St. Thomas have just been fully accredited, and they are clearly succeeding very well.) The remaining 16 are listed in the fourth tier.
I re-ranked them in terms of US News faculty peer reputation and lawyer/judge reputation. Not surprisingly, the three top schools for reputation among law faculty are relatively older: each has been accredited well over 20 years. Remarkably, UNLV comes in at number four despite the fact that it has been around less than a decade. (Dick Morgan, and the UNLV faculty, have done impressive things in Vegas.) Also interesting: the same four schools appear in the top four for lawyer reputation. And here’s a chicken and egg question: all four also appear in the top four for median LSAT.
Here are the rankings.
Faculty Peer Reputation (1-5 scale) (first year of provisional accreditation is in parenthesis)
1. Cardozo (1978) (2.7)
1. George Mason (1980) (2.7)
3. Georgia St. (1984) (2.3)
4. UNLV (2000) (2.2)
5. Pace (1978) (2.0)
6. CUNY (1985) (1.9)
7. St. Thomas (MN) (2003) (1.8)
8. Touro (1983) (1.7)
8. Northern Illinois (1978) (1.7)
8. Roger Williams (1995) (1.7)
8. Texas Wesleyan (1994) (1.7)
12. Chapman (1998) (1.6)
13. Campbell (1979) (1.5)
13. Florida International (1.5)
13. Mississippi College (1980) (1.5)
16. Ave Maria (2002) (1.4)
16. Thomas Jefferson (1996) (1.4)
16. Regent (1989) (1.4)
16. St. Thomas (FL) (1988) (1.4)
16. Whittier (1978) (1.4)
21. Appalachian (2001) (1.3)
21. Florida Coastal (1999) (1.3)
23. Barry (1.2) (2002)
Lawyer and Judge Reputation (1-5 scale)
1. George Mason (3.4)
2. Cardozo (2.9)
2. Georgia State (2.9)
4. UNLV (2.4)
5. Campbell (2.3)
5. Pace (2.3)
7. Mississippi College (2.2)
7. St. Thomas (MN) (2.2)
7. Whittier (2.2)
10. Ave Maria (2.1)
10. Northern Illinois (2.1)
10. St. Thomas (FL) (2.1)
13. Touro (2.0)
14. Roger Williams (1.9)
14. Thomas Jefferson (1.9)
16. Regent (1.8)
17. CUNY (1.7)
17. Florida Coastal (1.7)
19. Appalachian (1.6)
19. Chapman (1.6)
19. Florida International (1.6)
19. Texas Wesleyan (1.6)
23. Barry (1.2)
UPDATE: I mistakenly dropped FIU and Regents from one list each in the first iteration. I have made corrections.
March 31, 2007 at 12:01 am
Posted in: Law School (Rankings)
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More thoughts about Turnitin
posted by Alfred Yen
Thanks to all who have posted interesting comments about Turnitin. I particularly appreciate the thought behind the comments arguing that Turnitin has no fair use defense, but I haven’t changed my mind. Let me explain why I still think it’s fair use in the limited space this forum permits.
At the outset, I’ll concede factors 2 and 3 for the plaintiffs, although in at least some cases the nature of the copyrighted work may be sufficiently factual (i.e. academic research paper) that 3 isn’t the slam dunk that some have suggested. That having been said, remember that factors 2 and 3 alone are not enough to swing fair use for a plaintiff, as we learned in the Sony case, where factors 1 and 4 insulated widespread wholesale copying of fictional works.
It’s true that Turnitin is engaged in a commercial endeavor, but that alone doesn’t swing a fair use analysis either. In Campbell v. Acuff-Rose, the Supreme Court understood that people create parodies for commercial purposes, but still reversed the lower court’s pro-plaintiff decision. In doing so, the Court astutely observed that commercial use is a factor that weighs against fair use, but that a great deal depends on whether the defendant’s use substitutes for the plaintiff’s. Although the Turnitin’s use is commercial, its purpose in doing so is to produce critical information about the scholarly bona fides of the plaintiff and others, and not to create copies that displace the plaintiff’s work in the marketplace.
Now let’s consider the markets that the defendant’s use might affect. First, it may diminish the plaintiff’s ability to sell papers to people who want to plagiarize. Second, the defendant may diminish the plaintiff’s ability to sell his paper to outfits like Turnitin for purposes of trying to catch plagiarists.
As for the first market, Turnitin’s use does not substitute for the plaintiff’s work. Yes, Turnitin’s use affects that market, but that is because Turnitin produces information that exposes the plaintiff and the plaintiff’s customer as dishonest academics. That’s criticism and comment, and it does not count as affecting the marketplace for the copyrighted work. Campbell stands for the proposition that if people don’t want the plaintiff’s product because of something they learned from the defendant’s alleged infringement, that is not an effect on the market for the copyrighted work. To quote the Court, this is the “distinction between potentially remediable displacement and unremediable disparagement.”
As for the sale of the plaintiff’s work for detection of plagiarism, the effect on the marketplace is small at best. If the plaintiff wants to exploit a market for sale of manuscripts to people who want to plagiarize, the plaintiff will not sell into any market for catching plagiarists. Additionally, the plaintiff cannot claim that he writes specifically for the detection of plagiarism because there’s no demand for a work written for that purpose. A work is valuable for detecting cheaters only if it’s already a published work that someone might find and use, or if it has been sold to plagiarists. There is no meaningful independent demand for works used to catch plagiarists. Thus, its elimination would have no effect on the production of copyrighted works. Accordingly, the effect on this market, even if considered an effect on the market for purposes of copyright, is too small to swing factor 4 to the plaintiff.
Accordingly, I conclude that the defendant’s case in factors 1 and 4 is strong enough to overcome the plaintiff’s strength in 2 and 3.
March 30, 2007 at 11:13 pm
Posted in: Intellectual Property, Law School (Teaching)
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Rightward drift at Harvard Law?
posted by Kaimipono D. Wenger
In a recent e-mail I got from a friend who attended Harvard Law in the late 90′s, he asserted that when he attended law school, there was one solitary publicly-declared Republican on the entire faculty. My friend wrote:
Fried was the only professor who was known to be a Republican. Stuntz and Bebchuck were widely believed to be in the closet: Stuntz was the faculty advisor for Christian Fellowship, but he avoided partisan issues to such a degree that I believed the only explanation was a fear of being outed; Bebchuk was known to occasionally attend social Federalist Society functions.
Mary Ann Glendon and the other “conservatives” were either independents or Democrats; Rosenberg’s a borderline anarchist-libertarian who doesn’t vote. Even the faculty advisor for the Federalist Society was a Democrat (Richard Parker, a majoritarian Democrat and an all-around great guy).
My friend’s views echo complaints I’ve heard elsewhere. Nevertheless, the complaint (at least in current form) seems to be dated. A quick glance at the current HLS faculty list shows a surge in relatively recent hires with public Republican connections (job in the administration, Scalia clerkship, or both), including Jack Goldsmith, John Manning, and Adrian Vermeule. (That may not be all, either, given rumors that an offer has been extended to Eugene Volokh.)
Is Harvard Law drifting to the right? Will the day come when Republican faculty at HLS can no longer be counted on one hand, and a second (or even third?) hand is required? And most importantly, what will become of David Horowitz and the rest of the agitprop manufacturers if they are deprived of their favorite whipping boy?
Stay tuned.
March 30, 2007 at 1:23 pm
Posted in: Law School, Politics
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The Vexing Failures of Interdisciplinary Research
posted by Dan Filler
Orgtheory.net has an interesting post discussing the limited success of interdisciplinary scholarship. One commentor, Kieran Healy – a sociologist at Arizona and Australian National University – points to a similarly interesting article of his, The Contribution of Sociology, forthcoming in A Companion to Contemporary Political Philosophy, which discusses how and why sociology has seen more disciplinary heterodoxy than other areas.
Another commentor to the post, Jacob Levy, suggests that one powerful counterexample to the failure of interdisciplinary research is the law and economics movement. And a debate in the comments ensues. All worthwhile reading for people interested in interdisciplinary scholarship as its own social phenomenon.
On balance, it suggests that professors are like lawyers: ever protective of the guild, however that may be defined.
Hat tip: Gordon Smith.
UPDATE: I truly am a cadet, as Patrick’s comment points out: Nate blogged on this issue right here at Co-op a couple of days ago.
March 30, 2007 at 11:43 am
Posted in: Law School (Scholarship)
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Minding the Obesity Epidemic
posted by Frank Pasquale
Jeanne Whalen at the WSJ has a fascinating piece on a slew of new obesity drugs now in clinical trials. There’s a lot to comment on, but I was struck by a chart on the front page, giving the following rates of obesity (BMI > 30) in different countries in 2005:
US: 39%
UK: 23%
France: 7%
China: 2%
Japan: 2%
These are pretty shocking figures. The chart mentions that the obesity rate in the US was 35% in 2002….so the percentage by which obesity increased in the US in three years is double the overall percentage in the Asian countries mentioned. How is it that twenty times as many Americans are obese than Chinese or Japanese nationals?
I plan to look for answers in Avner Offer’s The Challenge of Affluence: Self-Control and Well-Being in the United States and Britain Since 1950. The book is a masterpiece of meta-analysis, reportage, and Jon Elster-style explication of the microfoundations of social action. Offer’s thesis is (inadequately) summarized below:
Resources and cravings do not map precisely on to well-being. . . .Over the last two decades, a new understanding began to emerge, especially from psychology and economics, that what we want and choose can often fail to deliver, and can even be counter-productive. . . . This understanding is the work of many inquiries and disciplines. My effort here is to extrapolate it to the personal dynamics of affluence during the last six decades. . . .
Offer has a whole chapter explaining the ways in which high levels of competition, stress, and inequality in American and British society contribute to compulsive, mindless, or otherwise unhealthy eating.
Kudos also to Cass Sunstein for exploring the issue in his review of Brian Wansink’s diet book Mindless Eating . Bottom line:
Wansink has concluded that much eating is mindless. Americans are fat not because they have made a rational calculation that French fries are so yummy that they are worth the costs in health and svelte. Nor are French fries essentially irresistible. Often Americans eat because of contextual cues, or “hidden persuaders,” to which they are blind, but which greatly affect their behavior. . . . Wansink’s real subject is choosing, not eating, so even thin people should read it.
Philosophers ranging from Aristotle to Dewey recognized the ultimate importance of habit, and Wansink brings their insights into a world of diet fads sorely in need of philosophical perspectives.
So what’s the bottom line for law? Well, given the insights of Offer and Wansink, the agenda for regulation currently pushed at The Situationist makes a lot more sense.
March 29, 2007 at 8:02 pm
Posted in: Health Law
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Studying a Law School
posted by Alfred Yen
Here are some suggestions for studying a law school you may be thinking of attending. A lot of this information can be gleaned from the school’s website, and you can use the time you have on campus to get your questions answered.
First, study the school’s academic program. With respect to the first year, look for courses that distinguish the school’s curriculum from those of others. Pay particular attention to the first year writing course. An attorney’s success depends a lot on writing ability, so it’s worth it if the school you attend has a rigorous program staffed with experienced instructors. You will likely discover a broad range of approaches, from second or third year law students as instructors, to recent graduates as part-time instructors, to teaching fellows on three year terms, to full-time faculty. In my opinion, writing programs taught by full-time, permanent faculty are likely to be most effective because those teachers gain experience that can be lavished on you. Teachers who are themselves students, or whose time at the school is limited, cannot do likewise.
Beyond the first year, look for the richness of program in areas that interest you. Don’t necessarily assume a school’s offerings in an area are superior because they have a specialized “program.” Look under the hood. Does the school have full-time faculty teaching the courses that matter to you, particularly the core courses in your area? Are they experts in the field? There’s nothing wrong with seeing some adjunct (i.e. part-time) faculty in a program. Very often they’re experienced lawyers with a lot to offer. But, if there are too many, there won’t be anyone around for you to talk to when you need it most because the adjuncts will be at their regular jobs. Take some time to study the skills program as well. Clinics or externships offer great exposure to the profession and practical experience that can serve you well.
Second, take a look at the strength of the student services program. Every school has a Dean for Students, career counseling, financial aid, and placement offices. However, not every school puts enough resources behind them. How many people are available to speak with you if you want advice? How many job listings does the placement office have, and in how broad a range of jobs? Is there specialized counseling for public interest or government employment? Are there vibrant student organizations you’d like to join?
Third, get a sense of the library because you’re going to do a lot of research and studying for 3 years. You may be tempted to think all libraries are the same, but they’re not. Collection size matters. If you’re doing research and can’t get a book, you’re stymied while you wait for it to come in on interlibrary loan. Reference staff also matters. They’ll help you find things, and they’ll also be helping you learn to conduct research. Finally, when you visit, go into the library and see if you’d enjoy studying there. Is it quiet, comfortable, and well-lit? Believe me, some libraries will make you want to stay and read, and others will drive you to Starbucks.
Fourth, study the physical facility. Go to a classroom and check out the sight lines, particularly from the back of the room with people sitting in front of you. You might be surprised how many large classrooms make it very hard to see the professor when the room is full. If you can attend a class, make sure you can hear the professor and the students. Are there places for students to gather and talk? Space for student organizations? Take a look too at information technology. Is the library/campus wireless, and are there adequate terminals and printers for your use? Is there power for laptops in the classrooms? Is there audio-visual capacity in classrooms so instructors can use the latest technology? If you’ll be driving to and from school, is there enough parking?
Fifth, try to meet some students and faculty. You’ll spend three years talking to them, so get a sense of whether you’ll enjoy them and learn from them.
And last, but not least, get a feel for the place. Every school has a unique atmosphere. It’s a bit like hunting for an apartment. Ask yourself if it feels right.
March 29, 2007 at 1:52 pm
Posted in: Law School (Rankings), Law School (Teaching), Law Student Discussions
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Students sue Turnitin
posted by Alfred Yen
I saw on a listserv that two high school students have sued Turnitin, a service that identifies plagiarism, for copyright infringement. The apparent basis for the suit is that Turnitin archives papers it reviews for purposes of comparison against future papers. The Washington Post story about this suit contains opinions suggesting that the plaintiffs (who seek $150,000 in damages) have a good case.
While Turnitin does appear to violate the copyright holders’ right of reproduction, I think fair use clearly applies. Even if one considers the use commercial (couldn’t one also characterize the use as for purposes of criticism?), there is, in my opinion, no way that the use affects the marketplace for the copyrighted work. Turnitin’s archiving results in no distribution of the works. There is simply no way that this use injures any of the financial incentives associatd with copyright. What person writes a paper thinking “Hmmmm. Maybe one day I’ll get royalties when my paper gets submitted to Turnitin.”? This case reminds me of the one against Google Print, but I think it’s a lot weaker.
March 29, 2007 at 1:19 pm
Posted in: Education, Intellectual Property
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The Demise of Three Strikes in New York?
posted by Laura Appleman
When discussing modern sentencing, “three-strikes” laws ( laws which enhance sentences based on prior crimes and criminal history) are always a hot topic. Although California can lay claim to the most infamous three-strike law, New York has one as well–a law that was successfully challenged under Blakely last week in Portalatin v. Graham, No. 06 CV 5002 (EDNY Mar. 22, 2007) (hat tip Doug Berman).
This is big news for New York’s criminal justice system, particularly if the decision is affirmed on appeal. If upheld, Portalatin could spell the demise of judicial discretion in the application of NY’s three-strike law…
March 28, 2007 at 9:57 pm
Posted in: Criminal Law
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Law School Quality – a comment for potential law students
posted by Alfred Yen
US News came out with its law school rankings today (the magazine is on newsstands now). Ironically, I found out about it while serving on the ABA site evaluation team for another law school. The juxtaposition of learning about a school through a 3 day visit vs. through US News made me realize anew how problematic US News is.
US News serves two purposes. Applicants use it to help decide which law school to attend, and law school faculty/administrators use it to size up their competition in a rather unseemly show of academic vanity. I’d like to address the former.
If you are an aspiring lawyer and want to know the quality of the schools you’re considering, you really must visit the schools in question. Having just done it for 3 days, there is no substitute for talking to people at a school, meeting students, and studying the components of a law school’s program. US News has not done it for you. Numbers don’t tell you what you really need to know about a school.
Can those numbers tell you who teaches the classes that interest you most? Can they tell you whether the legal writing program is rigorous and staffed by experienced professors? Can they tell you whether the school uses adjunct professors who don’t keep office hours, or full-time faculty that are present in their offices? Can they tell you what kind of clinics, externships, or other skills courses are available? Can they tell you whether the school provides good student services?
I’ve now served on site accreditation teams for two schools that I knew something about before going to the campus. Both times I came away with a much richer and more nuanced understanding of the schools’ strengths and weaknesses.
Yes, reputation matters in choosing an education, and US News is in the business of manufacturing and selling it. But, in the end, people succeed in their careers on the basis of their ability. Please take the time to get the information you need to choose the school that will help you maximize your ability.
p.s. I intend to post in the next day or two with suggestions about how to check a school out when you visit.
March 28, 2007 at 9:18 pm
Posted in: Law School (Rankings)
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Saving “Peyton Manning”
posted by Alfred Yen
File this one under “Thank goodness for the courts!”. Yahoo reports that a Judge in Chicago stopped a Bears fan from changing his legal name to “Peyton Manning.” The fan in question, Scott Wiese, lost a bet on the Super Bowl. If the Bears lost to the Colts, Wiese promised he’d change his name to “Peyton Manning.” The judge stopped him on grounds it might be confusing or invade Manning’s privacy.
March 28, 2007 at 9:00 pm
Posted in: Culture, Intellectual Property, Tort Law
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Google advertises for the slave trade (Really!)
posted by Kaimipono D. Wenger
Really.
The sponsored links on the sidebar I just got while reading this Time Magazine article about slavery reparations include this gem:
“Slave Ship: Looking for slave ship? Find exactly what you want today. africanslaveship.com”
Really. Take a look at the screenshot; this is directly off of my computer screen (click through for the larger image):
The site advertised (africanslaveship.com) appears to be a placeholder and generic advertising site. Which brings us back to the Google ad. I’m not sure whether I find it more weird, since apparently someone has forgotten that the slave trade was abolished over a century ago, or whether I should find it more offensive. Google is making a buck from click-throughs to a site that purports to sell a slave ship, on the sidebar to a reparations article! What ever happened to “Don’t be evil”? For now, I’m just shaking my head in disbelief. (And also, weirdly, the Google ad offers to sell “slave ring tones.” Um, yeah.)
I’m a little worried about what kind of sidebar ads Google might be running on articles about the Holocaust.
March 28, 2007 at 7:33 pm
Posted in: Google & Search Engines, Weird
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Is Chief Justice Roberts a Transnationalist, After All?
posted by Melissa Waters
John Parry at Lewis & Clark has put together a terrific symposium on the Supreme Court’s decision last Term in Sanchez-Llamas v. Oregon, available here. In Sanchez-Llamas, the Court considered the extent to which foreign nationals have judicially enforceable rights and remedies for violations of Article 36 of the Vienna Convention on Consular Relations. Article 36, the so-called “consular notification” provision, requires that foreign nationals arrested by the police be notified of their right to contact their country’s consulate. Sanchez-Llamas and another petitioner, Bustillo, had not been notified of their Article 36 rights upon arrest. Sanchez-Llamas argued that the appropriate remedy for the treaty violation was suppression of incriminating statements taken during his interrogation, on the ground that they had been obtained in violation of Article 36. In Bustillo’s case, the issue was whether a state could apply its procedural default rules to Article 36 violations, despite a ruling to the contrary by the International Court of Justice. Chief Justice Roberts, writing for the majority, ruled against the petitioners on both issues.
Contributors to the symposium explore a wide variety of issues raised by the Court’s decision. Julian Ku suggests that Sanchez-Llamas represents a serious setback to the “burgeoning movement” toward domestic court enforcement of international tribunal decisions. Janet Koven Levit, on the other hand, offers a “glass half full” take, arguing that “a multitude of judicial and non-judicial actors have helped entrench Vienna Convention rights over the past decade, … and the Court did little to stymie or disrupt these constitutive processes.” Peggy McGuinness offers an intriguing take on Sanchez-Llamas as part of the ongoing debate regarding American human rights exceptionalism, “and how judges—implicitly and explicitly—respond to arguments for and against exceptionalism.” Paul Stephan explores a key issue left unresolved by the Court — when a private individual may invoke a treaty provision before a U.S. court. He argues that in addressing the issue, “the Court should enlist the techniques it uses to determine when private litigants may invoke legislative enactments.”
My own contribution to the symposium argues that Sanchez-Llamas reveals the Chief Justice in a new light: Far from a knee-jerk “nationalist” with respect to judicial dialogue with foreign and international courts, Roberts instead demonstrates his transnationalist instincts, engaging in dialogue with both the domestic courts of our treaty partners, and with the ICJ itself.
March 28, 2007 at 1:50 pm
Posted in: International & Comparative Law
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Your money or your life
posted by Alice Ristroph
A flurry of scholarship on Lochner v. New York surrounded its 100-year anniversary in 2005. It’s clear why Lochner gets so much attention. But as a matter of constitutional doctrine, I wonder if we pay insufficient attention to the stealth anti-Lochner, Jacobson v. Massachusetts. The two U.S. Supreme Court opinions were announced just a few months apart, Jacobson in February 1905 and Lochner in April. Both involved claims of individual liberty pitted against public health laws—a mandatory vaccination law in Jacobson, a limitation on work hours (as well as regulations of working conditions) in Lochner. But the outcomes could hardly be more different. Jacobson embraced a broad police power to use coercion to ensure public health; Lochner infamously struck down restrictions on bakers’ working hours as a violation of economic liberty. (Justice Peckham dissented in Jacobson and wrote the Lochner majority opinion; Justice Harlan dissented in Lochner and wrote the Jacobson majority opinion.) Lochner didn’t last, of course, but for a while it seemed that the state could use coercion to protect your life (or health) only if it didn’t mess with your money along the way.
I’ve been thinking about Jacobson and Lochner as I work on an article about the state’s interest in the preservation of life. Jacobson (and maybe, to some degree, the renunciation of Lochner) reflects a widespread assumption that the state has such an interest and may use coercion against citizens’ bodies to further that interest. So we see Jacobson cited in abortion cases to support the state’s interest in the preservation of fetal life, in refusal of medical care or “right to die” cases, and to support indefinite civil commitment (Kansas v. Hendricks) or indefinite detention (Justice Thomas’s dissent in Hamdi v. Rumsfeld) in the name of public safety. In fact, Jacobson has been cited by the Supreme Court more often than Lochner, and the Jacobson references are almost universally favorable while the Lochner references are usually not. A pedagogical question: Should Jacobson get more attention in constitutional law casebooks? And a political / philosophical question: Is it so obvious that the state has an interest in preserving individual lives—especially those of individuals who do not themselves wish to continue living?
March 28, 2007 at 12:42 pm
Posted in: Constitutional Law, Health Law, Legal Theory
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Preaching in the Court House: An Experiment in Blog Advertising
posted by Nate Oman
At last January’s AALS meetings, Larry Solum gave advice to new scholars on the use of SSRN, suggesting that it was a good idea to post short, initial versions of an article as a way of generating interest and invitations to workshop one’s piece at other schools. Perhaps blogs can be used in the same way. Hence this post.
March 28, 2007 at 10:47 am
Posted in: Architecture, Blogging, History of Law, Law and Humanities, Law School (Scholarship), Religion, Sociology of Law, Weird
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Getting Smacked Down When Trying to Propose a More Efficient Contract
posted by Scott Moss
You might think a real estate brokerage would being offered a more generous commission, but you’d be wrong. I’m working on selling my house, and I met with Very Big Brokerage, whose standard form explains their commission: 6%. I made a counteroffer, which I knew was unorthodox but thought they’d like. They thought my house was worth $320K, so I proposed that they get 9% of the amount of the sale price above $90K. So if they sell it for $320K they envision, they get not the $19.2K they proposed (6%), but $20.7K (9% of price-$90K). { Note: 320 and 90 aren’t the actual numbers, but I kept the proportions the same from the actual numbers. }
I wanted a higher marginal rate (9%, not 6%) so they’d have more incentive to maximize sale price: each additional $10K would net them $900, not $600. I made the starting point low, $90K rather than $106.6K (1/3 of anticipated sale price, the “revenue neutral” threshold for increasing the commission percent by half), just as a kicker to them, to make them more likely to agree to my plan.
I thought this would be Don Corleone’s proverbial “offer they can’t refuse,” but apparently the appropriate cultural reference wasn’t Marlon Brando’s Godfather, but Mike Myers’s Lothar of the Hill People: “It is a good idea, but it is a new idea. So we fear it and we must reject it.” (Incidentally, does anyone have a link to this quote? I can’t find anything, which shows the obscurity of this early 90s second-rate Mike Myers character I like.) My broker said she liked it but her boss didn’t; the two specific problems she mentioned are (1) payroll would have a hard time processing this, and (2) they often have to split commissions with other brokers, which would be hard with an unusual rate. (I won’t waste blog ink rebutting these rationales.) The mischief-maker in me wanted to say, “it’s my deal or no deal,” and I bet they’d've budged. But I liked my broker, and she would’ve hated me starting a pissing contest, which might’ve jeopardized the whole point of my plan — to optimize her incentive to work on my behalf.
But there’s a serious point here: a win-win deal was rejected on inane bureaucratic grounds by a major, successful capitalist enterprise that should understand commissions and valuations far better than I. Two of my fields are economics and employment discrimination; a lurking question at the intersection of both fields is: why would a business discriminate, an inefficient decision to turn away good talent? There are several answers (unless you’re Richard Epstein, in which case the simple answer is, “firms don’t discriminate, or they do and it’s efficient, and in either case we don’t need discrimination laws”), but the one illustrated by my broker story is: just as good people do bad things, good companies do dumb things due to a combination of managerial laziness, risk-aversion, status quo bias, etc. Some of the most successful employers subvert themselves by rejecting talented workers, and some of the most successful realtors subvert themselves by rejecting a great deal that almost certainly would net them more money and maximize their brokers’ incentives to maximize sale price.
March 27, 2007 at 9:11 pm
Posted in: Uncategorized
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2008 US News Rankings
posted by Dave Hoffman
It looks like the 2008 US News law school rankings have leaked, a few days early. I saw them first here, and the claim is that US News allowed (for a brief time) subscribers to see them this morning. I can’t warrant the accuracy of the data, nor do I know who deserves credit for this “scoop.”
1. Yale
2. Harvard
2. Stanford
4. NYU
5. Columbia
6. Chicago
6. Penn
8. Michigan
8. UC Berkeley
10. Duke
10. UVA
12. Northwestern
13. Cornell
14. Georgetown
15. UCLA
16. USC
16. Vandy
18. Texas
19. WUSL
20. BU
20. Minn
22. Emory
22. GWU
24. Iowa
25. Fordham
25. Illinois
25. W&L
28. BC
28. Notre Dame
28. Washington
31. W&M
31. OSU
31. Wisconsin
34. George Mason
34. UC Davis
36. IU-B
36. Alabama
36. Hastings
36. Colorado
36. Georgia
36. Maryland
36. UNC
36. Wake Forest
44. BYU
44. Arizona
46. SMU
47. Tulane
47. UConn
47. Florida
47. American
51. Arizona State University (O’Connor)
52. Yeshiva University (Cardozo) (NY)
53. Baylor University (TX)
53. Case Western Reserve University (OH)
53. Florida State University
53. University of Tennessee–Knoxville
57. University of Cincinnati
57. University of Pittsburgh
57. University of Utah (Quinney)
60. Brooklyn Law School (NY)
60. Illinois Institute of Technology (Chicago-Kent)
60. Temple University (Beasley) (PA)
60. University of Houston
60. University of Kentucky
60. Villanova University (PA)
66. Loyola Law School (CA)
66. Pepperdine University (CA)
66. University of Kansas
66. University of Missouri–Columbia
70. Loyola University Chicago
70. Rutgers, the State University of New Jersey–Camden
70. Seton Hall University (NJ)
70. St. John’s University (NY)
70. University of Miami (FL)
70. University of New Mexico
70. University of Oklahoma
77. Rutgers, the State University of New Jersey–Newark
77. University at Buffalo–SUNY
77. University of Denver (Sturm)
77. University of Nebraska–Lincoln
77. University of Richmond (VA)
82. Georgia State University
82. Lewis and Clark College (Northwestern) (OR)
82. University of Oregon
85. Indiana University–Indianapolis
85. Northeastern University (MA)
85. Seattle University
85. St. Louis University
85. University of San Diego
85. University of Toledo (OH)
91. DePaul University (IL)
91. Louisiana State University–Baton Rouge
91. Pennsylvania State University (Dickinson)
91. Santa Clara University (CA)
91. University of Hawaii (Richardson)
91. University of South Carolina
97. Catholic University of America (Columbus) (DC)
97. Marquette University (WI)
97. University of Louisville (Brandeis) (KY)
100. Mercer University (GA)
100. Stetson University (FL)
100. University of Nevada–Las Vegas (Boyd)
100. University of San Francisco
100. University of the Pacific (McGeorge) (CA)
March 27, 2007 at 4:37 pm
Posted in: Law School (Rankings)
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Does An LSAT Score Belong On A Resume?
posted by Dan Filler
In a discussion over at Empirical Legal Studies Blog, on the issue of Vault’s new list of the Top 25 Underrated Law Schools, Jeff Stake and Bill Henderson both bring up the question of whether students ought to put their LSAT scores on their resumes. This turns out to be an interesting and complicated question. Bill suggests that including this information may be dangerous because it:
raises some difficult signaling problems. If it higher than a recruiter might expect, one might wonder why candidate X is not higher in the class; if is lower than expected, it does the candidate no good. These dynamics work against this practice being commonplace.
I’m not sure that Bill has this quite right. Top grades may be a good proxy for attorney quality (though that is far from certain) and firms rely on this information routinely. But they also rely heavily on the identify of the law school to distinguish between students with similar law school records. Maybe that’s because they believe a Harvard education is better than a State U. education. Maybe it’s because law schools are curved, and they figure top grades at Harvard provide more information than top grades at State U. But I suspect they use a student’s law school as a proxy for undergraduate record (as captured by school and GPA) plus intellect (as captured by LSAT scores.) A resume typically includes an applicant’s undergraduate record anyway. Only the LSAT is missing.
The problem is, many students who could attend Top 15 law schools decline to do so. I suspect that the majority of all public law schools, and many reasonably flush private law schools, have a significant student segment sporting impressive LSAT’s. Yet I’m guessing that recruiters at many fancy firms assume that an Alabama or Drexel student could not have gained admission to a Duke or Cornell. And top firms – in NY, at least – give relatively few interviews to students outside of the Top 15 law schools. They demand very high grades and, even then, are quite picky. How do students who do well, and who want jobs typically reserved for graduates of top schools, fight their way into the mix? One way to do this might be to share a high LSAT score.
Unfortunately for student with high scores, including an impressive LSAT on a resume may be viewed as tacky or crass. Or as those etiquette-loving folks at Auto-Admit put it, it makes you look like a bit “toolish.” I don’t disagree that including LSAT’s may trigger social sanctions, but in many ways these sanctions are unfair. Students who apply from Harvard are strutting their LSAT’s every time they send out a resume. Why is it that students at other schools who also earn high LSAT’s can’t share that information – particularly when we know that, implicitly at least, employers rely on this data for hiring?
UPDATE: David Bernstein and Andrew Perlman offer additional comments on this same theme.
March 27, 2007 at 3:00 pm
Posted in: Law Practice
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