Archive for May, 2007
A Proposed Alternative to Law School Exams
posted by Nate Oman
Spring is here and with it comes the bane of academic life: grading exams. Finishing up my first year in academia, I can confidently say that grading exams is the only part of the job that I positively despise. Even faculty meetings have their entertainment value. Indeed, over the last couple of days I have thought repeatedly that grading exams is much like document review, although not quite as fun. After all, even priv review holds out the possibility (however remote) of discovering some new and interesting fact. Exams, however, leave you with the same fact pattern page after page after page. Given how little both students and professors enjoy law school exams, I wonder if it might make more sense to simply got to an auction system for grades.
Law students, it seems to me, are interested in good grades for two reasons. First, they are neurotic, driven to always get “the Best” (best school, best grades, best clerkship, best firm, etc.). The neurosis frequently leads to awesome feats of discipline and can be quite productive, but it is also deeply unhealthy and self-destructive at some level. (As one who suffers bouts of this neurosis, I can testify to the truth of this). The second reason law students care about grades is because they are signals to future employers. If professors were to auction off grades, I suspect that the neurosis underplaying the first reason would remain, but would the second purpose be undermined?
Clearly, an auction in the absence of a curve would destroy virtually any signaling power that grades might possess (Cf. Yale Law School and Lake Wobegone), but what if we kept the curve and proceeded with the auction. What do grades actually signal to employers? One answer is intelligence, but there are other equally useful (or useless) signals of intelligence, such as LSAT scores. Another possible answer is that they signal self-discipline. It is hard to get good grades, and the attributes that make for a high GPA also make for a productive employee. I am sympathetic to this notion, but I wonder if an auction might signal many of the same attributes. After all, an auction ought to signal who places the greatest value on the signal. Such subjective valuation is not such a bad indicator of personal drive and commitment. It is, of course, far from perfect, but then so are law school exams. A law firm might think that straight As signals high-value employee, while it may simply signal neurosis.
Of course, one might object to the auction model by arguing that it favors the wealthy students. There is some truth to this, but generally speaking law students have access to fairly cheap credit, so this is not as great of a problem as one might think. Those who are driven but poor can simply borrow money to bid against their slacker but wealthy classmates.
The real value of the auction system, however, is that it could transform the stack of exams on my desk from hours of discomfort into cold, hard cash. Who can be against that?
May 12, 2007 at 6:33 pm
Posted in: Law School (Teaching)
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Milking The Secret
posted by Frank Pasquale
It looks like pressure from the Physicians Committee for Responsible Medicine (via the Federal Trade Commission) has gotten the Dairy Industry to stop touting milk as a diet food. They need to provide more substantiation of the link between “dairy consumption and weight loss.”
So what about The Secret? For those unfamiliar with this self-help phenomenon, here’s a nice summary from Emily Yoffe:
There are now 5.3 million copies of the book in print in the United States. . . .[i]t is a No. 1 best seller in Australia, England, and Ireland, and it is scheduled to be translated into 30 languages. . . There’s no secret to The Secret. The book and movie simply state that your thoughts control the universe. Through this “law of attraction” you “manifest” your desires. “It is exactly like placing an order from a catalogue. . . . You must know that what you want is yours the moment you ask.” “See yourself living in abundance and you will attract it. It works every time, with every person.”
Even Oprah is buying it . . . despite the fact the book contains such extraordinarily irresponsible claims as “You cannot ‘catch’ anything unless you think you can, and thinking you can is inviting it to you with your thought.”
Could the FTC do anything to stop the marketing of The Secret? At first this case reminded me of the not-so-clairvoyant Miss Cleo, but it turns out her transgressions were mainly of rules regarding 1-900 numbers. A quick perusal of Rebecca Tushnet’s fantastic blog led me to this post about a big fine against makers of the Q-Ray bracelet for “infomercials . . . falsely representing that (1) the bracelet provides immediate, significant or complete pain relief and (2) scientific tests prove the pain-relief claims.”
Perhaps The Secret lacks the “immediacy” prong of that accusation. But it does rely pretty heavily on both scientific and religious rhetoric. Consider this little tidbit from Yoffe, describing its author:
She asserts that “the discoveries of quantum physics … are in total harmony with the teachings of The Secret.” To prove this, she explains, “I never studied science or physics at school, and yet when I read complex books on quantum physics I understood them perfectly because I wanted to understand them.”
And I want to devise a perpetual motion machine! I’ll just envision it working and it’ll come true, right?
A few more thoughts beneath the fold….
May 11, 2007 at 8:05 pm
Posted in: Consumer Protection Law, Intellectual Property, Legal Theory, Politics
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When Words Lose Their Meaning
posted by Frank Pasquale
I’ve recently been reading James Boyd White’s wise book When Words Lose Their Meaning. His take on Thucydides is particularly relevant to our predicament. Given that it’s graduation speech season, I thought the following lines might be of particular interest:
Imagine you are invited to give a speech in appreciation of a public or private figure you actually admire. How can you do it without sounding like an idiot? (“Unparalleled devotion to public service”; “wonderful family man, loyal friend”; “great personal sacrifice”; “exemplar of American ideals”, etc., etc.). It is not an adequate response to say that one will simply state in plain terms what one means, as if language were a simple intellectual instrument for naming qualities and expressing judgments. (118)
Rather, White argues, “It is the task of the writer on such an occasion to remake his language so that it and his judgments are sound and fresh. . . . ”
But what if this seems impossible? Steven Millhauser has a fascinating short story in the New Yorker about a PR man who loses all faith in the ability of words to communicate. He once celebrated business for “the precision of its vocabulary—a self-enclosed world of carefully defined words that permitted clarity of thought.” But doubt sets in:
I was still able to do some work, during the day, a little work, though I was also staring a lot at the screen. I had command of a precise and specialized vocabulary that I could summon more or less at will. But the doubt had arisen, corroding my belief. Groups of words began to disintegrate under my intense gaze. I was like a man losing his faith, with no priest to turn to.
White’s solution to such a dilemma is to call for the use of language that is “literary–merging fact, value, and reason, fusing the particular and the general, uniting thought and emotion, logic and image–rather than theoretical or conceptual” (229). He insists that “the law is less a branch of the social sciences than of the humanities in that it seeks not to be a closed system but an open one” (273). That may well be an overreaction to the types of Law & Econ and CLS dominant at the time he wrote the book (1984). But it is a good guiding sentiment for how we allow the specialized vocabularies of other fields of knowledge to inform our work. . . . and how much confidence we should have in the degree of fit between our own conceptual apparatus and a messy world.
May 11, 2007 at 7:32 am
Posted in: Behavioral Law and Economics, Culture, Current Events, Economic Analysis of Law, Law and Humanities, Law School, Philosophy of Social Science
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Should the Law Recognize Grandparents’ Changing Roles?
posted by Solangel Maldonado
Social scientists have long been aware of the significant role that grandparents in many minority and low-income families play in their grandchildren’s upbringing. These grandparents often live with or in close proximity to their grandchildren and provide much of their day to day care. The reasons are, in part, economic as the cost of child care has become prohibitive for many families, but they are also cultural. For example, African-American families have long been more likely than the rest of the U.S. population to rely on extended family members for child care. They are also more likely to encourage what I call quasi-parental relationships between grandparents and grandchildren as opposed to the “companionate” role that, according to sociologists Andrew Cherlin and Frank Furtensberg, the majority of grandparents play. Companionate grandparents play with their grandchildren, they buy them presents, and according to Dr. Kornhaber, the author of various grandparenting books, they become “a buddy,” “pal,” “secret confidante, and, at times, even a lighthearted conspirator” to their grandchildren. However, companionate grandparents have relatively little influence over their grandchildren’s upbringing and little desire for greater involvement.
If the majority of grandparents play only a companionate role in their grandchildren’s upbringing, current jurisprudence on grandparents’ rights makes a lot of sense. The Supreme Court in Troxel v. Granville (2000) held that parents’ constitutional right to raise their children as they see fit requires that their decisions to deny grandparents and other non-parents access to their children be granted “special weight.” Although the Court never defined “special weight,” the majority of lower courts interpreting Troxel have applied a presumption that parents’ decisions to deny non-parents visitation with their children is in children’s best interests.
May 10, 2007 at 7:13 pm
Posted in: Family Law
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Limits of Performance Enhancement
posted by Frank Pasquale
Imagine it’s 2020, you’ve begun working at a firm, and you’re having trouble keeping up. All the other employees are working 75 hours a week, take no vacations, and seem both alert and happy all the time. You ask some confidantes there “how do you do it?” All mention some variety of cognitive enhancement: one takes modafinil to concentrate, another uses chemicals that were originally designed for fighter pilots. Do you take the pills to keep up?
That was one of a few hypos posed yesterday during a presentation I made to the Yale Information Society Project. Though I thought the problematic nature of that situation pretty intuitive, I got pushed to specify exactly what was wrong. So here are some ideas, from different perspectives:
1) Safety: What if the drug shortens lifespan? Surely that’s a problem that would make this scenario pretty analogous to steroids in sports. I hope no one seriously thinks that we want to allow athletes to risk terrible consequences in the future to compete better today. I also think that even a small increase in risk to health ought to render the “super worker” pills problematic. . . . though I admit it’s hard to specify how much. Shortening life expectancy by a month? a year? 10 years? I’ll admit that the choice between those options is an inevitably ideological one.
But let’s assume for now these pills are as safe as caffeine. What’s the harm then? Four takes below the fold…
May 10, 2007 at 12:36 pm
Posted in: Bioethics, Intellectual Property, Law and Humanities, Legal Theory, Philosophy of Social Science, Politics
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Corporate Law And Democracy Joins The Blogosphere
posted by Dan Filler
For those of you who have missed it thus far, Renee Jones at BC Law has started up a new blog, Corporate Law and Democracy. Here’s how she describes her agenda:
My aim is to bring together concepts and theories from a variety of legal disciplines that touch on questions related to the internal governance of corporations and the influence of corporations and corporate law on our political and social structure.
Best of luck to Renee – I look forward to watching her develop the blog.
May 9, 2007 at 5:23 pm
Posted in: Blogging
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Five Years On… How Significant is Padilla?
posted by Steve Vladeck
May 8 already has several claims to fame throughout history, including, perhaps most significantly, V-E Day — May 8, 1945, on which German forces unconditionally surrendered, ending World War II in Europe.
Today is also a slightly more dubious anniversary. Five years ago today, May 8, 2002, Jose Padilla was arrested at Chicago’s O’Hare Airport on a material witness warrant issued by the U.S. District Court for the Southern District of New York. In June 2002, Padilla was transferred to military custody, where he was detained as an “enemy combatant” until January 2006, at which time he was transferred to civilian authorities here in Miami pending trial on criminal charges.
Five years after his initial arrest, Padilla’s criminal trial appears finally destined to actually take place, with jury selection concluding today and opening arguments scheduled to begin next Monday, May 14. The beginning of Padilla’s criminal trial and the coincident anniversary leave me to wonder just how significant this trial actually will be, the ultimate result notwithstanding. I’m not nearly the criminal law or procedure expert that many of our readers are, and so won’t deign to speak with any authority as to the merits or the likely result here. Rather, there are two points that I think bear mentioning, even if together they may be somewhat irreconcilable.
1. It’s remarkable, in its own right, that the trial is actually happening–that Padilla got what, in effect, he had sought from the get-go, i.e., a meaningful day in court.
2. It’s a troubling reflection upon the law “after 9/11″ that it’s taken five years to get to this point, without any final and determinative resolution of the merits of Padilla’s military detention, and with the almost summary rejection of the argument that such a delay violates Padilla’s right to a speedy trial. If Padilla is ultimately convicted, one could see this case as setting a dangerous precedent for the future, where the government can hold terrorism suspects in military custody up until the point that a court is set to rule on the merits of such detention, and then moot such a decision by indicting the individual in a civilian criminal court. [It is this reality against which Justice Kennedy was arguably inveighing in his opinion respecting the denial of certiorari in Padilla last January.]
Ultimately, I’m not sure these points are in as much tension as they might seem to be. The system is working the way it’s supposed to; it just took the better part of five years to get there, and much will turn on the extent to which this case becomes precedent over the next five years.
Until then, happy anniversary.
May 8, 2007 at 1:52 pm
Posted in: Constitutional Law, Criminal Law, Criminal Procedure, Current Events
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The Lingua Franca
posted by Kaimipono D. Wenger
Coming to law school is sort of like learning another language; and for the most part, the vocabulary is clearly marked. No one really expects students to know the meaning of res ipsa loquitur means before law school, and so the professor will explain the concept. Ditto for expectation damages, or piercing the corporate veil, or other peculiar vocabulary terms.
However, underlying these explicit (and usually well-explained) new words is a minefield of other new words and ideas, many of which may be second-nature to the law professor — and so, which may never be explicitly defined or explained. These are words that students will be simply expected to know or understand. When students don’t know these words, it can cause no end of grief.
I still remember vivid law-student experiences of my own with three such words. I remember sitting through several very muddled days of 1L year because I had no idea what “prima facie” meant. The professor used the term constantly, and I could not figure out from context what it meant; unlike other terms, it was never really defined in class, and Black’s Law Dictionary was ^&* useless. Eventually, I fumbled my way to a half-definition, but I never did really pick up what the term meant during that class.
It wasn’t just prima facie, either. Embarrasingly, I discovered halfway through my 2L year that “conflate” was a real word, and not just a weird idiom used by my Civ Pro TA. And I wasn’t the only one who had these kinds of troubles — during my 3L year, I walked in on a conversation between two of the top law review editors who were debating whether “dispositive” was a real word or a professor-made-up word.
These words too often cause law students to trip up. And they’re often missed, because they’re not the hard legal terms like rule-against-perpetuities, but the other terms that make up the soup of legal discourse, an understanding of which is often assumed.
So, for our law student readers, let me offer a few quick definitions of some such terms (as I see them). I realize that my observation is very anecdotal, and I’ve surely missed some common landmines of this sort — feel free to suggest your own too-often-undefined (or -misunderstood) terms as well.
Dispositive means something that tends to resolve an issue (i.e., move it toward a disposition). So, an argument or a piece of evidence that is dispositive is one that tends to answer the question. Or, someone will say, this [evidence/argument/etc] is helpful, but _not_ dispositive — meaning, that it doesn’t really close the door.
Conflate means to combine two arguments or issues, typically not in a good way. Usually, it’s in the context of not answering one of them — when someone points out that a student is conflating two issues, it’s to say that the issues are distinct and need to be addressed distinctly.
Superfluous means excessive or extra (often regarding language, as in extra language not really needed to understand or apply a document). I use this term a lot when I teach, and every semester, it seems like I get someone asking what it means.
Alienate means to transfer property to someone else, via a sale, trust, whatever.
Real property = land, and Personal property = not land.
Okay, readers – what terms am I missing? Which ones confused you, your 1L year, until you fumbled your way to some muddled definition?
May 8, 2007 at 4:07 am
Posted in: Law School (Teaching)
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May SSRN Download Counts
posted by Dave Hoffman
From the Department of Possibly Misleading Information comes the Law School SSRN Rankings for May. See previous installments here and here. I originally highlighted in blue schools that significantly outperformed my impression of their popularly conceived rank; and in red those that underperformed. But then I reconsidered and concluded that this was an unproductive exercise. So I am presenting these data without further interpretation.
By Total Downloads
1 Harvard University – Harvard Law School 209695
2 University of Chicago – Law School 188088
3 Columbia University – Columbia Law School 149467
4 Stanford Law School 136852
5 University of Texas at Austin – School of Law 124802
6 University of California, Los Angeles – School of Law 114838
7 Yale University – Law School 111644
8 Georgetown University – Law Center 103398
9 George Washington University – Law School 91441
10 University of California, Berkeley – School of Law (Boalt Hall) 81539
11 University of Southern California – Law School 80660
12 University of Illinois – College of Law 79954
13 Vanderbilt University – School of Law 79510
14 New York University – School of Law 74137
15 University of Minnesota – Twin Cities – School of Law 70470
16 University of Pennsylvania Law School 62323
17 Duke University – School of Law 50452
18 University of Michigan at Ann Arbor – Law School 49161
19 Emory University – School of Law 48911
20 George Mason University – School of Law 46048
21 University of San Diego – School of Law 45385
22 University of Virginia – School of Law 42921
23 Boston University – School of Law 35095
24 Ohio State University – Michael E. Moritz College of Law 34651
25 Northwestern University – School of Law 34541
26 Boston College – Law School 33519
27 Florida State University – College of Law 32810
28 Yeshiva University – Benjamin N. Cardozo School of Law 30092
29 Cornell University – School of Law 29511
30 Fordham University – School of Law 28711
31 Loyola Law School – Los Angeles 25838
32 Michigan State University – College of Law 25441
33 Temple University – James E. Beasley School of Law 17913
34 Washington University, St. Louis – School of Law 17536
35 New York Law School 17094
36 Case Western Reserve University – School of Law 16896
37 Indiana University School of Law – Bloomington 16583
38 Rutgers, The State University of New Jersey – School of Law-Camden 14568
39 University of North Carolina at Chapel Hill – School of Law 14084
40 Washington and Lee University – School of Law 13188
41 University of Maryland – School of Law 12471
42 University of Colorado Law School 12403
43 Notre Dame Law School 12216
44 Brooklyn Law School 12096
45 University of Tennessee, Knoxville – College of Law 11952
46 University of Cincinnati – College of Law 11671
47 University of Iowa – College of Law 11637
48 University of California, Davis – School of Law 11310
49 University of Arizona – James E. Rogers College of Law 11202
50 University of Wisconsin – Law School 11106
May 7, 2007 at 11:43 am
Posted in: Law School (Rankings)
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Why So Few Black Ballerinas?
posted by Solangel Maldonado
There was an interesting article in yesterday’s NY Times discussing the absence of Black ballerinas in prominent ballet companies in the U.S. The reasons are many and complex, including economic (ballet is expensive), the pool of qualified dancers is very small, and access to ballet training is quite limited in the U.S. But I was struck by the suggestion that ballet companies are reluctant to hire even exceptionally gifted Black ballerinas because they are afraid to challenge their subscriber base and their expectation of “a ballet company, the way you thought ballet was.” Other Black ballerinas suggested that stereotyping of Black women was a major obstacle to their success because “Black women are perceived as being forceful, which doesn’t square with the ethereal image of a ballerina.”
I must confess that my exposure to ballet is quite limited. Thus, I found it hard to believe that dance companies would pass up the opportunity to recruit talented dancers because they feared their audience reaction. Then I remembered a column which appeared in the NY Times Magazine last December. A reader asked “The Ethicist” columnist whether she was racist because her enjoyment of “The Nutcracker” ballet had been “severely marred by the appearance of a black snowflake and then, even worse, a black Snow King.” According to this anonymous reader, “the aesthetic incongruity was inconceivable. The entire ballet was spoiled.” I am not sure what to make of this reader’s question, but it does suggest that ballet companies’ concerns about their audience’s ability to welcome Black dancers are not completely unfounded. Any thoughts?
May 7, 2007 at 10:48 am
Posted in: Feminism and Gender, Race
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Hadley v. Baxendale, a One Act Play
posted by Nate Oman
Apparently Ben Davis of the University of Toledo law school really gets into the facts of Hadley v. Baxendale, acting out the various parts for his students. (Who, of course, have taped his performance and posted it to Google Videos.) For the non-contracts geeks in the audience, Hadley is a famous case on the recoverability of consequential damages for breach of contract. The facts had to do with late delivery of a replacement mill shaft, and the mill owner’s claim for lost profits. Here is professor Davis, complete with mill shaft…
I am still trying to decide if this is a case of creative pedagogy, or a cautionary tale about students, cameras, and Google…
May 7, 2007 at 10:44 am
Posted in: Contract Law & Beyond, Law School (Teaching)
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“Split-the-Difference-ism:” Journalistic Heuristic for Credibility
posted by Frank Pasquale
Having earlier gibed at law profs for irrelevant articles, Adam Liptak tacks back in an article entitled “Liberal Case for Gun Rights Sways Courts.” Pace Pierre Schlag, it appears that scholars are able to influence judges. But it’s the “surprising” positions that are getting traction; “liberal” scholars are at their most effective embracing “conservative” stances:
“Contrarian positions get play,” Carl T. Bogus, a law professor at Roger Williams University, wrote in a 2000 study of Second Amendment scholarship. “Liberal professors supporting gun control draw yawns.”
The article provides several quotes to support that idea, suggesting a conversion narrative for Levinson, Tribe, and other big names who’ve adopted an “individual rights” view of the Second Amendment.
I suppose those types of “conversions” are newsworthy, in a “man bites dog” sense. But what kind of assumptions underlie them? Are the “liberal” results from the “liberal” law professor just a product of his/her ideology? Is everyone to be assigned some sort of ideological set point and then have their scholarship’s credibility measured by how far it deviates from its author’s partisan idees fixes?
A position like that itself manifests an ideology that I like to call “Split-the-Difference-ism.” It assumes that there is some reasonable middle ground in our political struggles, and if everybody would just give a little, we’d all be better off. Moderation becomes the statesman. When a conservative adopts some liberal position, suddenly the conservative (and the liberal position) gain credibility, independent of the reason for the conversion.
This is a decent heuristic in a world of information overload, but there are many better ones available here. Randy Barnett starts asking some of the right questions in his blog post on the piece:
[This debate is] conducted almost exclusively on originalist grounds, even by nonoriginalists such as Judge Reinhardt. While all who criticize the individual rights position on originalist grounds are themselves nonoriginalists, Michael Dorf is a rare writer on the Second Amendment who expressly defends a nonoriginalist approach to the issue.
May 6, 2007 at 7:36 pm
Posted in: Constitutional Law
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Entrepreneurs for Guaranteed Health Insurance
posted by Frank Pasquale
I know many people who would love to start small businesses. They’ve got great ideas, loads of creativity, and even some financing. But the one thing stopping them is fear of losing health benefits. They remain tied to their current jobs out of fear that an arbitrary and dysfunctional insurance market will wipe out whatever gains they make.
Are they too risk-averse? Well, consider this story from today’s NYT:
After a long bout with emphysema an employee at Varney’s, a family-owned business in Manhattan, Kan., died several years ago. But for Varney’s health insurer, her legacy lived on. The next year, 2002, the insurer raised Varney’s premiums by 28 percent — even though most of the other three dozen employees were significantly younger and healthier than their departed colleague, who had been in her mid-70’s. And Varney’s premiums continued to climb.
So the current health insurance market encourages small businesses to get rid of their sickest and oldest employees….exactly the people who most need coverage and the social network a job can provide. And many small businesses choose not to insure at all, driving away potential employees and exacerbating America’s bigness complex.
You might think this situation would at least satisfy larger businesses–those big enough to negotiate lower group rates should get a competitive advantage. But many of them are sick of it, too. A Safeway that pays health benefits is rightly upset by the competitive advantage WalMart gains by failing to do so–or by offering stripped down plans.
My hope is that the economics of spillover effects will help us realize what a drag the lack of fairly priced, guaranteed health insurance is on labor mobility and entrepreneurial endeavors. Busineses need water, roads, electricity, and enforceable contracts to run efficiently. Perhaps guaranteed health insurance should be considered part of that essential infrastructure.
May 5, 2007 at 10:08 am
Posted in: Health Law
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Law Clerks and Book Proposals
posted by Steve Vladeck
There’s a fairly disturbing (at least to me) book proposal making its way around the e-mail universe, disturbing not because of the subject (the current debate over habeas and the war on terrorism), but because of the occupation of the authors/editors — two current D.C. Circuit law clerks. Indeed, the proposal itself harps on this fact, suggesting that the two clerks “are uniquely suited to moderate this debate,” having “spent a year in the legal trenches, as it were; each serving as law clerks on the Court of Appeals for the District of Columbia Circuit during a year that saw several landmark detention decisions likely to end up before the Supreme Court.”
My initial reaction is that this rubs me totally the wrong way. Wholly separate from the prospect of law clerks speaking to reporters about their jobs after their clerkships are over is clerks using their position as a ground for a book deal. If I remember right, the relevant provision of the Code of Conduct for Judicial Employees is Canon 3D, which provides:
A judicial employee should avoid making public comment on the merits of a pending or impending action and should require similar restraint by personnel subject to the judicial employee’s direction and control. . . . A judicial employee should never disclose any confidential information received in the course of official duties except as required in the performance of such duties, nor should a judicial employee employ such information for personal gain. A former judicial employee should observe the same restrictions on disclosure of confidential information that apply to a current judicial employee, except as modified by the appointing authority.
So I guess there are three questions here: First, is using your current position as a law clerk to promote a book deal in effect (if not actually) employing “confidential information received in the course of official duties . . . for personal gain”? Second, even if not, aren’t we opening a can of worms if clerks start using their position to hawk book deals? Third, although we’ll probably have no sense of the answer, does their judge know, and if not, shouldn’t s/he?
UPDATE: I should be clear, as some have noted in the comments, that the proposal is for a volume of essays from multiple contributors, and that the clerks do not appear to be planning to write anything themselves. There also does not appear to be an actual book deal; the e-mail referenced in the post is effectively gauging interest for possible contributors. I’m not sure that changes the issue, but wanted to clarify the original content.
May 5, 2007 at 8:16 am
Posted in: Articles and Books, Current Events, Legal Ethics
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Roman Law and the Virtual Death Penalty
posted by Nate Oman
Criminal law is not really my area of interest, but some reading in Roman law has got me thinking about the death penalty. I’ve always found Roman history — particularlly the Republican period — very interesting and were I better at languages I would love to have been a classicist. Roman politics, especially in the late Republic, was a full contact sport as it were. Bribery, organized violence, assination, and — most importantly — criminal prosecution were an ordinary part of political hard ball.
If you read the texts of various Roman laws, particularlly very early legal texts like the Twelve Tables, it is awfully bloody minded stuff. (My favorite provision is the one that allows a debtor’s creditors to divide shares, meaning literally that they could dismember his body for non-payment of debts, presumeably on a pro rata basis.) In practice, however, the Romans were remarkably fastidious about killing one another. There was no system of incarceration, and generally speaking citizens were never executed. On the other hand, numerous Roman laws did call for the death penalty. In practice, however, someone sentenced to death was given several days before the sentence was carried out in which they could either kill themselves (this was a way of preserving the family estate) or go into exile. Indeed, by the late Republic the assumption was that a death sentence, particularlly for a political crime such as treason, was a de facto sentence of exile.
May 4, 2007 at 2:35 pm
Posted in: Capital Punishment, Criminal Law, History of Law
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China Tightens Restrictions on International Adoption—Will Demand for African-American Children Increase?
posted by Solangel Maldonado
Thank you for the introduction and the opportunity to guest blog this month. I look forward to everyone’s comments.
The Chinese government’s new restrictions on international adoptions went into effect earlier this week. The new rules require that all adoptive parents be married at least two years (to a person of the opposite sex), that they have at least a high school education, and that their family assets total at least $80,000. Most Americans seeking to adopt internationally have no objection to the educational and financial requirements, possibly because most Americans adopting from China are upper middle class. However, there has been a lot of discussion on the adoption blogs about China’s new age and health requirements. According to the U.S. Department of State, China now requires that all foreigners seeking to adopt be 50 years of age or younger. They also must be free of certain medical conditions such as “mental disorders requiring medication for more than two years, including depression, mania, or anxiety neurosis” or a “Body Mass Index (BMI) of 40 or more.” Persons with severe facial deformities, limb paralysis or dysfunction, or blindness (even if only in one eye) are also disqualified.
Many sending countries place even greater restrictions on foreigners seeking to adopt. In addition, Russia has recently stopped accepting applications from American adoption agencies as it attempts once again to curb rampant corruption in its adoption system. Guatemala has similarly announced that it will impose greater restrictions on international adoptions as it attempts to comply with Hague Convention on Intercountry Adoption. As a result, many Americans must come to terms with the reality that their odds of creating or expanding their families through international adoption anytime soon might be reduced.
May 4, 2007 at 2:32 pm
Posted in: Family Law, Race
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Conglomerate Call for Papers
posted by Dave Hoffman
The Conglomerate has posted a call for papers for its Third Annual Conglomerate Junior Scholars Workshop. In past years, this has been an incredibly valuable and substantive forum, and if you have a piece in progress, I encourage you to submit it to them.
May 4, 2007 at 2:09 pm
Posted in: Law School (Scholarship)
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Law Review Symposia Clearinghouse
posted by Frank Pasquale
My last post led me to want to find out about other symposia that happened this year. Law review editors (and others), please feel free to mention your symposia in the comments to this post…it would be nice to have a clearinghouse for all the symposia that were held this year. (And if one already exists out there, please point me to it!).
May 4, 2007 at 2:03 pm
Posted in: Law School
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Social Justice Symposia
posted by Frank Pasquale
I just wanted to quickly recommend two outstanding recent law review symposia:
–U.C. Davis Symposium on Intellectual Property and Social Justice. I’ve seen Bartow, Cohen, and Fisher present on their article topics, and highly recommend those pieces. I look forward to reading many of the rest.
–St. Louis University Health Law Symposium, “From Risk to Ruin: Shifting the Cost of Health Care to Consumers.” A very timely topic. As Tim Jost states in the introduction to his piece, “Of all developed countries, the United States is the one country where obtaining basic health care is most likely to result in financial ruin.”
May 4, 2007 at 1:51 pm
Posted in: Current Events, Economic Analysis of Law, Health Law, Intellectual Property, Law School
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Three Views of Education as an Associative Good
posted by Frank Pasquale
The Posner-Becker blog had a good discussion of education rankings 2 months ago. I was particularly struck by Posner’s observations on the self-fulfilling prophecy aspect of rankings:
The effect of college ranking on the education industry is unclear, but my guess is that it is negative. . . .Given the high costs of actually evaluating colleges, employers and even the admissions committees of professional and graduate schools are likely to give weight to a school’s rank, and this will give applicants an incentive to apply to the highest-ranking school that they have a chance of being admitted to (if they can afford it). The result will be to increase the school’s rank, because SAT scores and other measures of the quality of admitted students are an important factor in a college’s ranking. That increase in turn will attract still better applicants, which may result in a further boost in the school’s rank. The result may be that a school will attract a quality of student, and attain a rank, that is disproportionate to the quality of its teaching program.
Henry Hansmann wrote an interesting piece on this phenomenon, calling education an “associative good,” since, “when choosing which producer to patronize, a consumer is interested not just in the quality and price of the firm’s products, but also in the personal characteristics of the firm’s other customers” (emphasis added). Hansmann concludes by wondering if “the increasing technological sophistication of our society, which is fueling the trend toward stratification among the elite educational institutions, will someday produce technologies that make it less important for elite higher education to be a residential experience, and hence remove much of the associative character of higher education.” Franklin Snyder offers evidence that blogging is one such technology.
But don’t underestimate dominant interests’ passion for rankings, cautions McKenzie Wark (whose bookpage for the source I’m quoting interestingly fails to mention it was published by Harvard University Press). He claims that “Education is organized as a prestige market, in which a few scarce qualifications provide entree to the highest paid work, and everything else arranges itself in a pyramid of prestige and price below. Scarcity infects the subject with desire for education as a thing that confers a magic ability to gain a ‘salary’ with which to acquire still more things.” In other words, the rankings are the purest form of artificial scarcity. . . . a precious commodity in an era when the diminishing scarcity of resources that meet basic needs limits their contribution to economic growth. Wark worries that education will “split[] into a minimal system meant to teach servility to the poorest workers and a competitive system offering the brighter workers a way up the slippery slope to security and consumption.”
I’ll expressly disclaim endorsement of any of these three theories. I just find it interesting how the staid and sober observations of a Posner can resonate with Wark’s radical theory, once we interpose the “associative goods” concept.
May 3, 2007 at 1:51 pm
Posted in: Education, Intellectual Property, Law and Humanities, Law School (Rankings)
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