Archive for May, 2008
Vanderbilt Law Review, Volume 61, Number 3 (April 2008)
posted by Vanderbilt Law Review
Vanderbilt Law Review, Volume 61, Number 3 (April 2008)
ARTICLES
Michael J. Gerhardt, Non-Judicial Precedent, 61 Vand. L. Rev. 713 (2008).
Clare Huntington, The Constitutional Dimension of Immigration Federalism, 61 Vand. L. Rev. 787 (2008).
Noah D. Zatz, Working at the Boundaries of Markets: Prison Labor and the Economic Dimension of Employment Relationships, 61 Vand. L. Rev. 857 (2008).
NOTES
Christyne E. Ferris, The Search for Due Process in Civil Commitment Hearings: How Procedural Realities Have Altered Substantive Standards, 61 Vand. L. Rev. 959 (2008).
Russell Fraker, Reformulating Outrage: A Critical Analysis of the Problematic Tort of IIED, 61 Vand. L. Rev. 983 (2008).
Nicholas Nugent, Toward a RFRA That Works, 61 Vand. L. Rev. 1027 (2008).
May 31, 2008 at 2:16 pm
Posted in: Law Rev (Vanderbilt), Law Rev Contents
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Law & Society Association Meeting Happy Hour
posted by Daniel Solove
PrawfsBlawg and Concurring Opinions will be hosting a happy hour at the Law & Society Association meeting in Montreal, Canada.
It will be at Le Belvedere, the bar at the Hilton Hotel, on Friday, May 30, at 9:30 PM.
I hope to see you there!
May 30, 2008 at 6:56 pm
Posted in: Administrative Announcements
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Triple Playing
posted by William Birdthistle
Let’s say you’re certain that the stock market is about to climb dramatically in the next few days — how can you (or the average person) cash in on such a hunch to the greatest extent possible?
Buy stock in some prominent blue chips? You’ll need a lot of cash and some luck to pick the right ones. Buy an S&P 500 index mutual fund? Possibly, though market timing rules may crimp your ability to bounce in and out of the fund. Buy an S&P 500 index ETF? Not a bad idea, but if you’re sure about the spike, how can you win the biggest returns possible from your certainty?
According to John Spence in the W$J, soon you may be able to buy shares in a new crop of highly leveraged ETFs that promise as much as three times the return of the underlying index. So if the SEC grants Direxion’s pending application for its S&P 500 Bull 3X Shares fund, for example, you could gain 3% on every 1% of the S&P’s rise.
Of course, if the S&P happens to fall 2% instead, you’ll lose 6% — that’s the nasty side of leveraging.
And if you really want to roll the dice, you can always buy these shares on margin (as indeed is possible with ETF, though not mutual fund, shares).
So, to what extent does the SEC have the responsiblity to prevent retail investors from fiddling about with impressively volatile investments? Is it the SEC’s job simply to approve all applications containing adequate disclosure or instead to put some sort of cork on the fork?
May 30, 2008 at 2:20 pm
Posted in: Current Events
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The “Mischief Rule” Rule and the VRA in Riley v. Kennedy
posted by Anita Krishnakumar
Election law experts have been quick to speculate about what the Supreme Court’s decision in Riley v. Kennedy, handed down this past Tuesday, means for the future of Section 5 (the preclearance provision) of the Voting Rights Act (VRA). Rick Pildes argues that the decision reflects a trend, which began in the 1990s, of “greater skepticism from the Court” “regarding the boundaries of the special coverage regime under Section 5 of the Act.” Rick Hasen worries that the decision bodes ill for the Court’s upcoming review of the constitutionality of the recently-renewed Section 5 in the NAMUDNO case. But what is most interesting to me, as a matter both of statutory interpretation and of election law, is Part IV of Justice Stevens’ dissenting opinion, which employs a classic Hart & Sacks Legal Process approach —the “Mischief Rule”— to argue that Section 5 preclearance should be required in a case such as this.
Before delving into this most interesting argument by Justice Stevens, a little background: VRA §5, of course, subjects certain “covered jurisdictions” (which earned that designation through a history of suppressing minority voting rights) to a presumption of bad faith behavior in election administration. It operates by freezing in place the election administration procedures in such covered jurisdictions, and requiring that such jurisdictions obtain “preclearance” from either the Justice Department (DOJ) or the District Court for the District of Columbia before they may make any changes to voting/election procedure. The typical preclearance lawsuit thus tends to involve a proposal by a state entity to implement some new change to election procedure in a covered jurisdiction, and a challenge by a minority group arguing that the proposed change will have the effect of disenfranchising minority voters. Riley turns that classic procedural posture on its head: In 1985, Alabama passed a law adopting a new election practice (changing the procedure for filling midterm vacancies on the Mobile County Commission from gubernatorial appointment to special election), obtained the preclearance required by Section 5, and held an election (in 1987). Soon thereafter, the Alabama Supreme Court invalidated the law under which the election took place on the ground that it violated the Alabama Constitution. When the next midterm vacancy arose (in 2005), the governor sought to fill it by appointment, prompting litigation. The question presented before the Supreme Court = Whether Alabama must obtain fresh preclearance in order to reinstate the election practice —i.e., gubernatorial appointment— that was in place before the special election procedure, ultimately struck down by the Alabama Supreme Court, was enacted? Does reinstatement of the gubernatorial appointment procedure constitute a change/abandonment of the special election procedure used in 1987, and thus require Section 5 preclearance?
May 30, 2008 at 1:01 am
Posted in: Supreme Court
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reProductivity
posted by William Birdthistle
If you have small children you are going to see, you must sacrifice gracious living.
That pithy epigram was the answer of one recently tenured professor and parent of two young children to my question about balancing a successful family and scholarly life. Living graciously appears to have involved, inter alia, hosting dinner parties, writing thank-you notes, reading (not just subscribing) to the New York Review of Books, &c.
She noted further, in response to my question about a fitness regime, that the children have also taken that away.
Having a family, of course, might just be the single greatest challenge to producing scholarship while meeting the other obligations of being a professor. And waiting until after tenure to start a family can be a very risky business, particularly for women, as it will almost certainly require postponing things until what might turn out to be the twilight of fertility.
So what suggestions are there for junior professors hoping to balance work and family? Not many easy ones, I’m afraid:
1. Learn to embrace travel: Several parents told me that they have become incredibly efficient while on the road for conferences and talks, away from their children for a few days in a quiet hotel room with a well-behaved laptop.
2. Cut out the electronic indulgences: One parent told me that she had reduced her web consumption to a diet of “seven blogs in seven minutes” each morning – and applied a similarly ruthless trimming to email checking, headline refreshing, and other electronic twitches.
3. Accept help: If you’re lucky enough to live within striking distance of family, by all means grasp hold of their polite offers to babysit.
Unfortunately, these suggestions aren’t much better than the ones dieters most hate to hear: eat less, exercise more. Here we have the professorial equivalent: dawdle less, concentrate more.
Where is our academic Dr. Atkins who can promise us scholarly success on a buffet of intellectual cheeseburgers?
May 29, 2008 at 7:43 pm
Posted in: Law School (Scholarship)
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The Curiously Non-Ideological Debate over the “Falling Down Professions”
posted by Frank Pasquale
Over the past year, law and medicine have been characterized as the “falling down professions“–losing both status and economic clout to “masters of the universe” in CEO suites and Wall Street offices. We now better understand some of the sources of those Wall Street profits. But as doctors and lawyers in training lament their plights on message boards, I’m struck by the curiously non-ideological nature of their complaints. Most appear to believe themselves afflicted by economic forces as natural and unavoidable as a tsunami–when in fact it’s political decisions that have led us to where we are.
Whatever complaints the young lawyer or doctor has today, they must be contextualized in a larger economy. As Nan Mooney’s new book (Not) Keeping Up With Our Parents: The Decline of the Professional Middle Class argues, most young professionals today feel more financially pressed than their boomer parents. Basic costs of health, education, and housing have skyrocketed. In the health arena, politicians are adopting policies that allow more and more of the costs of health care to be shifted from the government and employers to individuals. Alan Greenspan disastrously inflated the housing market, and anyone in a big urban area on the coast is caught up in the uncertainty of wondering whether an inflation-fearing Fed will shock prices back to normal or if “Helicopter Ben” Bernanke will keep the easy money flowing.
I could go on and on, but just look at the recent spate of books on new middle class anxiety:
*Elizabeth Warren and Amelia Warren Tyagi, The Two-Income Trap.
*Jared Bernstein, Crunch.
*Steven Greenhouse, The Big Squeeze.
*Peter Gosselin, High Wire: The Precarious Financial Lives of American Families.
*Barbara Ehrenreich, Bait and Switch.
*Jacob Hacker, The Great Risk Shift.
Each of these authors examines particular political and legal decisions to shift risk from government and business and onto individuals. So those who feel economically insecure today shouldn’t think their worries are the bane of a particular profession or region, or the inevitable result of global economic change that could be remedied if they could just get a bit more education. And a final note for practicing attorneys: it would be quite surprising if an ideological movement to shut the courthouse door to the injured failed to threaten your livelihood. Just as primary care doctors should not be surprised if their incomes suffer in the face of extraordinary efforts by the federal government to avoid spending money to help those entitled by law to care.
May 28, 2008 at 10:18 am
Posted in: Law and Inequality
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Total Law Professor JD Applicant Statistics: 1997-2007
posted by Daniel Solove
I’ve been posting data about law professor applicants (see here and here), and I thought I’d share some more data that I have that AALS provided me with. Here is data about the schools with the most applicants from 1997-2007. During 1997-2007, there were 8675 applicants with JDs from US law schools. This is not the total number of applicants, as the statistic does not include applicants without JDs and from foreign law schools. The average number of applicants with JDs from US law schools from 1997-2007 is 789 per year.
The table below has more information.
| LAW SCHOOL | TOTAL JD APPLICANTS 1997-2007 | AVERAGE JD APPLICANTS PER YEAR | % OF TOTAL JD APPLICANTS FROM US LAW SCHOOLS |
| Harvard | 675 | 61 | 8% |
| Yale | 435 | 40 | 5% |
| Georgetown | 376 | 34 | 4% |
| Columbia | 307 | 28 | 4% |
| Michigan | 271 | 25 | 3% |
| NYU | 262 | 24 | 3% |
| Virginia | 253 | 23 | 3% |
| Berkeley | 228 | 21 | 3% |
| Chicago | 190 | 17 | 2% |
| Stanford | 176 | 16 | 2% |
| Penn | 167 | 15 | 2% |
| Duke | 148 | 13 | 2% |
| Texas | 134 | 12 | 2% |
| Cornell | 122 | 11 | 1% |
| GW | 122 | 11 | 1% |
| Northwestern | 114 | 10 | 1% |
| Boston U | 112 | 10 | 1% |
| American | 109 | 10 | 1% |
| Tulane | 104 | 9 | 1% |
| Florida | 91 | 8 | 1% |
The 20 schools above comprise 4397 of the 8675 applicants from 1997-2007 — about 51% of all the applicants. An additional 164 schools comprise the remaining 49%.
The first 10 schools above comprise 37% of all applicants. The first 4 schools above — Harvard, Yale, Georgetown, and Columbia — comprise 21% of all applicants.
May 28, 2008 at 12:04 am
Posted in: Law School, Law School (Hiring & Laterals)
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Network Power: Forced and Free
posted by Frank Pasquale
A friend from law school, David Grewal, has recently published Network Power (presently advertised at left). I’m happy to see the book favorably reviewed in the FT by Christopher Caldwell, and I hope to see more attention to it. Grewal’s fundamental insight is that the “individual choice” celebrated in markets (and many other settings) is often simultaneously both “forced and free:”
[T]he network power of English isn’t the result of any intrinsic features of English (for example, “it’s easy to learn”): it’s purely a result of the number of other people and other networks you can use it to reach. . . . The idea of network power captures the ways in which the systematic features of our social world emerge from human action and remain intelligible in light of it, even while they constrain us in ways that do not reduce straightforwardly to the power of command. It explains how the convergence on a set of common global standards is driven by the accretion of individual choices that are free and forced at the same time.
The idea of “network effects” is a familiar one to legal economists, and I have critiqued self-defeating “arms races” of positional competition that erode human welfare. Grewal’s book contributes to these conversations by transcending economic analysis and examining the political, sociological, and philosophical implications of network formation and standards adoption.
Though Grewal’s discussion of gold and English as economic and linguistic standards is fascinating, his discussion of technical standards may be of most interest to lawyers. Both Microsoft Word and the ISO 9000 standards gained power in a self-reinforcing way; as more people adopted them, others anticipated their further adoption and “fell into line” in promoting the standards. Grewal worries that “privately owned technological standards not only [threaten] the freedom of users to choose the best standards for their needs . . . [but also result in] . . .a great deal of power [being] handed over to the private owner of that standard.” What to do in response?
May 27, 2008 at 8:56 pm
Posted in: Articles and Books
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Inequality and Culture
posted by Frank Pasquale
I’ve recently been reading Rachel Sherman’s book Class Acts: Service and Inequality in Luxury Hotels. It’s a fascinating sociological portrait of the intersection of the most and least privileged lives. Sherman describes the nuts and bolts of “anticipation and legitimation of needs” in such settings. As one Beverly Hills manager related, “Waiting for customers to tell you what they need is like driving your car by looking in the rearview window” (32).
Having been ignored by the staffs at several non-luxury hotels, I can see the value of such service. But at what point does customer service slide into servility? Consider Richistan author Robert Frank’s description of a booming butler school:
By the end of Butler Boot Camp, . . . aspiring butlers will be masters at pampering the privileged. The rich, they learn, like their shampoo bottles and toothpaste tubes always filled to the top. If their employers have four homes, chances are they’ll want their dresser drawers and bath-room cabinets arranged exactly the same in every house, so they don’t have to search for their socks or pills. . . . They are taught that sable stoles should never be stored in a cedar closet (it dries them out), and that Bentleys should never, ever be run through the car wash.
Frank observes that the butlers’ clientele had formed a “society within society:”
May 27, 2008 at 8:55 pm
Posted in: Culture
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Productivity: Scheduling the Week
posted by William Birdthistle
For junior professors acutely aware of their chosen vocation’s professional expectations, the academic routine presents an awkward dilemma: tasks that thrust themselves to the front of the daily queue with regular urgency are – in the grand tenure plan – less critical than the momentous obligations smoldering in the background. So while being called upon to teach scores of expectant students in an hour or two is sure to capture the immediate attention of a new professor, the responsibility for producing scholarship lurks silently nearby, patiently lying in wait, never far away.
Perhaps the most important logistical project for new professors, then, is devising a schedule that ensures time will be devoted to the writing enterprise, while realistically accommodating the inevitable slew of daily alarums.
The experienced professors with whom I discussed this topic offered a bountiful if somewhat contradictory crop of suggestions about the ideal way in which to structure one’s teaching schedule:
Clumpers: This school of thought advocates grouping one’s teaching load into as compact a bolus as possible, to be digested in a few rapid bites, thereby leaving a broad expanse of uninterrupted writing time. So, for example, three days of teaching should be scheduled on Monday, Tuesday, and Wednesday, to leave Thursday and Friday entirely clear.
Spreaders: Taking the contrary view, this school suggests instead that the three days should be evenly dispersed across the week as Monday, Wednesday, and Fridays.
Clumpers emphasize that writing requires sustained and uninterrupted time and that clumping, when appended to weekends, will create large blocks of time. Spreaders counter that teaching three days in a row for a new professor can be brutal; so much so, in fact, that the open days will be spent (a) recuperating from the teaching clump and (b) taking care of administrative tasks otherwise ignored during the teaching maelstrom.
A related axis is when, intraday, all this teaching should be done:
Farmers: This school believes in rising early, tackling the teaching in the morning so as to leave the rest of the day free. The emphasis here is that teaching for new professors is a source of worry that will expand to occupy any amount of time open to it – so teaching later in the day will only fill junior professors with greater amounts of nerves while still preempting writing time with class preparation.
Afternooners: Since writing is the task that requires the most discipline, argue the contrarians, juniors should begin the day with that project. Once class prep, emails, phone calls, and colleagues begin trickling in, it’s never easy to regain the concentration necessary to write. Far better to try writing before the machinery of distraction fires up. As for preparing for class, the panic that process inspires ensures that professors will still find reserves of concentration for an afternoon-heavy teaching load.
So, are there other approaches that can bridge these binaries and offer the ideal schedule for junior professors?
May 27, 2008 at 6:30 pm
Posted in: Law School (Scholarship)
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Does the World Need More “Traditional Legal Analysis” in Law Review Notes?
posted by Dave Hoffman
Phil Telfeyan, the Harvard Law Review’s Avenger, Moot Court Winner, and milliner’s dream, has a new note out in the HLR: “Never Again Should a People Starve in World of Plenty“.
Paul Horowitz, noting that Telfeyan also wrote a previous heterodox case comment [see update #2 below], says the controversy about odd writings from the HLR is worth “a two-paragraph blog post and not more. And I am not knocking the observation that injustice is bad; heaven forfend.” But David Bernstein, writing on Volokh, seems to disagree. He writes: “If there is any traditional legal analysis in this Note, it’s not obvious (though I admit that I didn’t read the entire thing).” It’s implied that this absence is a bad thing. [Update: Glenn Reynolds jumps on the bandwagon.]
I have read the whole thing (it was a breezy 22 pages). Apart from an embarrassing error on the first page, I can’t say that I agree that David. On page three (@ 1888) Telfeyan talks about Rawls’ theory of justice; later on, he even cites a case (at note 15, Griffin v. Illinois). But in the bigger picture, the argument sounds pretty ordinary to me: legal rules and, in particular, our professional choices as lawyers, should be infused by equality principles. The driving force is Peter Unger’s work about poverty and our responsibility to alleviate it. It wasn’t a particularly revolutionary piece of writing, but what do people really expect from a student note?
More broadly, as the title of this post suggests, I question whether it is desirable that every law student note play the same doctrinal tune. Law reviews used to be more heterogeneous: case comments, advice on incorporating a business, and high-theory mingled together. Only in the last few decades did we arrive at the modern form of blockbuster article of doctrinal theory (or, today, statistically motivated theory) and, at the back of the book, a series of mini-mes: notes, rarely cited, that followed the same conventions and engaged in the same basic project as the academics’ articles. As I’ve suggested before, I think that the modern student note, chock-full of “traditional legal analysis,” is basically a waste of students’ and readers’ time. This is particular true at schools where student editors will almost certainly never become academics – that is, almost everywhere. Instead, reviews should consider significant changes in their current practices – moving toward collaborative treatises, or, perhaps more radically, legal writing that non-lawyers would want to read. (As a bonus, it could lead more folks to read professors’ boring, but traditional, work in the front of the book.) Shucks, maybe law reviews should follow the example of the Green Bag, and re-write the bible from a lawyer’s perspective.
[Update: Someone claiming to be Telfeyan is blogging about the note. Another entrepreneurial idea for law reviews - blogs about student notes!]
[Update #2: I've been informed by a reliable source that (1) Telfeyan didn't write the earlier Phillip Morris case comment; and (2) there is a dispute as to whether he wrote the posts on ATL under the name "Harvard Law Avenger". More if I hear more.]
May 27, 2008 at 11:11 am
Posted in: Uncategorized
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Microsoft Gives Up on Book Search
posted by Deven Desai
Until last week Google had a competitor of sorts on the book scanning front. Now, however, Microsoft has abandoned its role in the book scanning world. One rather disturbing issue is that the service seems like it will go somewhat dark: “[T]he Live Search Books and Live Search Academic projects … will be taken down next week. Books and scholarly publications will continue to be integrated into our Search results, but not through separate indexes.”
As the New York Times notes another one major problem with this shift is that it:
leaves the Internet Archive, the nonprofit digital archive that was paid by Microsoft to scan books, looking for new sources of support. Several major libraries said that they had chosen to work with the Internet Archive rather than with Google, because of restrictions Google placed on the use of the new digital files.
Most likely Siva Vaidhyanathan will have more to say on this one. For now given that the Internet Archive has a nice record of defending against over-reaching searches I hope that the Archive continues to receive support.
The reasons behind Microsoft’s decision are difficult to parse. Is it leaving search? Is it focusing on one sector? Why is it trying to buy Yahoo!? Here is what MS said, “Given the evolution of the Web and our strategy, we believe the next generation of search is about the development of an underlying, sustainable business model for the search engine, consumer and content partner.”
The once mighty (and let’s face it still rather mighty) MS seems to be lost. It is searching for search and other ways to stay relevant. Whether Google will step in and be better remains to be seen. But on this score, MS seems better at supporting open uses of the digitized books. Having everything now go through Google with its suspect policies is less than ideal. In addition, how MS can fail to figure out a business model with all its talent presents an interesting problem: either MS is weak, bloated and has no vision or Google is wasting money to capture everything it can and then leverage it into an advertising, data mining world. Or more than likely it is a bit of both. MS is in that difficult place large companies are bound to encounter and Google is placing bets that mirror Yahoo! Of seven or eight years ago and will face its obsolescence soon enough.
Image: Interior photo of the Bibliotheca Alexandrina in Alexandria, Egypt; WikiCommons
Author: Hajor; License: GNU Free Documentation license, Version 1.2
May 27, 2008 at 10:38 am
Posted in: Intellectual Property, Technology
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More Statistics on Law Professor Hiring
posted by Daniel Solove
Last week, I posted data about the success percentage of law professor teaching candidates who obtained their JDs from particular law schools for the 2006-07 and 2007-08 hiring seasons. This data was based on applicant totals by law school from AALS and applicant hired totals compiled by Larry Solum. Although Solum’s data is incomplete (it is based on reports he receives from applicants and others), it is currently the best (and only) data about hiring I could find.
The data I posted last week focused on schools with a US News ranking of between 1 and 29. Here is data on schools not included in last week’s data. In Table 1 below, I’ve included all schools (not already included in my previous post and charts) with 10 or more applicants combined for 2006-08 – an average of 5 or more per year. In Table 2 (after the continuation break), I list schools with fewer than 10 applicants for 2006-08 that had successful applicants.
What these tables show is that any school regardless of US News ranking can have successful applicants. Some of the schools below have placed more successful applicants than a number of schools in the top 20.
TABLE 1
Table 1 includes all schools not included in my previous post (i.e. those having a US News ranking below 29) with 10 or more applicants combined for 2006-08 – an average of 5 or more per year.
| LAW SCHOOL | TOTAL JD APPLICANTS 2006-08 | JD APPLICANTS HIRED 2006-08 | % HIRED 2006-08 |
| Tulane | 25 | 5 | 20% |
| Case Western | 15 | 2 | 13% |
| Florida | 18 | 2 | 11% |
| Cincinnati | 10 | 1 | 10% |
| Texas Southern | 10 | 1 | 10% |
| Howard | 11 | 1 | 9% |
| Rutgers (Camden, Newark) | 15 | 1 | 6% |
| Wisconsin | 16 | 1 | 6% |
| Syracuse | 10 | 0 | 0% |
| Northeastern | 11 | 0 | 0% |
| UNC | 12 | 0 | 0% |
| Brooklyn | 12 | 0 | 0% |
| Hofstra | 12 | 0 | 0% |
| Ohio State | 14 | 0 | 0% |
| Temple | 15 | 0 | 0% |
| Suffolk | 17 | 0 | 0% |
| U.C. Hastings | 19 | 0 | 0% |
| Indiana | 22 | 0 | 0% |
| American University | 27 | 0 | 0% |
TABLE 2
Table 2 contains a list of schools that had under 10 total law professor teaching candidates in 2006-08 – an average of less than 5 per year – but that had one or more graduates hired during this time. I list these schools separately because they have sent so few to the teaching market that any one hire will have a dramatic effect on their success percentage. With numbers so low, the success percentage has little indicative value.
May 26, 2008 at 8:07 pm
Posted in: Law School, Law School (Hiring & Laterals)
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Honoring Veterans on Memorial Day
posted by Frank Pasquale
Memorial Day is a good time to reflect on the current conflict in Iraq. Given the thousands of American dead (and tens to hundreds of thousands of Iraqi dead) due to the invasion, many will be seeking a proper way to memorialize the occasion. I personally recommend viewing the documentary Alive Day Memories, full of extraordinary stories of the post-war resilience of those who served among those we remember today. (For those pressed for time, the story of the former gymnast who is now a triple amputee is first in the documentary, and is particularly compelling–as is the story of the mother now taking care of a son severely brain-damaged by shrapnel.) The Brian Lehrer show also showcased two books today: Mary Tillman’s Boots on the Ground by Dusk: The Remarkable Life and Death of Pat Tillman, and Jim Sheeler’s Final Salute: A Story of Unfinished Lives–which follows the “man responsible for the Marines’ casualty notification–informing families that their loved one has died in combat.”
In addition to these remembrances, a Memorial Day might properly include some advocacy for basic changes in the administrative law governing veterans’ benefits. Many Iraq War veterans are now trapped in a Kafka-esque bureaucratic maze once they return home from combat and attempt to get benefits. Huge caseload backlogs have led to ever more stress and strain for veterans seeking basic care they are due. According to one advocate, “Some two-thirds of the VA’s initial [denials] are typically found to be in error by the court, but rather than overturning the decision and ordering payment of benefits, the court usually sends the appeal back to the VA to take a second look.” Given the huge number of meritorious claims that are initially (and sometimes repeatedly) denied, Linda Bilmes proposes an elegant solution to the problem:
The best solution might be to simplify the process — by adopting something closer to the way the IRS deals with tax returns. The VBA could simply approve all veterans’ claims as they are filed – at least to a certain minimum level — and then audit a sample of them to weed out and deter fraudulent claims. At present, nearly 90 percent of claims are approved. VBA claims specialists could then be redeployed to assist veterans in making claims, especially at VA’s “Vet Centers.” This startlingly easy switch would ensure that the US no longer leaves disabled veterans to fend for themselves.
Like the “cheap grace” Bonhoeffer described in a religious setting, there is a “cheap patriotism” that would honor soldiers while denying them benefits they are due. We already have a model for finding the funding that would be necessary:
A bill to expand education benefits to veterans of the wars in Iraq and Afghanistan – paid for by a tax increase on the wealthiest Americans – passed the House [in mid-May]. [The bill] increases an individual’s taxes by a half-percent on all income above $500,000 and would generate an estimated $56 billion over ten years.
Given how unlikely it is that folks from this income bracket are heavily represented among ground troops, it makes sense to spread the burden of the war in this direction.
May 26, 2008 at 5:08 pm
Posted in: Administrative Law
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Blogger Power in Politics
posted by Deven Desai
Many readers know about Talking Points Memo or Huffington Post. A New York Times article shows that in state races smaller, local blogs may have greater impact on a race. The Franken-Coleman race in Minnesota provides the backdrop to the story. Apparently an independent blogger who has previously worked for the Republican Party has found some anomalies in the management of Franken’s finances. A Democrat-leaning blog in the state has noted that similar issues have arisen in the Republican Party’s management of its finances. In both cases the power of young (one blogger is 34; the other is 24) writers having an impact on the race is striking.
As general point whether this extra information on either side will matter or should matter may be the larger question. The reputation smearing or questioning possible with the Internet can mean that we have more information about candidates. Yet, as many notes the quality of such information can be and often is suspect. Should every candidate have a spotless record? Indeed, could every candidate have a spotless record? What are the right metrics or proxies for character? Do people have the skills to discern what is learning moment, a problem borne of bureaucracy and tax systems, or a tough choice that had no perfect solution? Do people even want these skills or to engage with such nuances?
In political races at least such questions and paths of reflection are likely unwelcome. We seem to prefer some sort of resonance with a candidate and then allow that to color how we judge whatever information comes our way. Perhaps politics has always been that way. Still it seems that the ability to distract and further confuse whatever critical reflection one does has increased. It is a sort of noise pollution. So one can either exert the energy to sort the information or one can flee to a noise cancelling headset with one station that tells one what one wants to hear. Hopefully, the same power that fuels the noise pollution will fuel noise neutralization. Those who offer more nuanced or honest presentations of the good, the bad, and the what was that for both parties may rise and gain acceptance as excellent news sources. Given the way news and politics has proceeded in the recent decade that shift would surprise me. Nonetheless, as long as the Internet stays open enough it seems to keep such a possibility open and that is a good thing.
Image: WikiCommons
May 26, 2008 at 12:46 pm
Posted in: Blogging, Politics
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10 Tips for Law Students Who Want to Pursue Careers in Legal Academia
posted by Daniel Solove
I recently posted data about law professor hiring statistics per institution where teaching applicants earned their JD. Some students from schools that did not have high success percentages have expressed despair that their chances are low because of the school they graduated (or will be graduating) from.
My intent in collecting and analyzing this data was to encourage more applicants to the teaching market, not discourage them.
So why are certain schools doing so disproportionately well in placing their graduates in teaching positions? Is it all based on a school’s prestige?
The answer, I believe, is no, it isn’t primarily based on prestige. Certainly, the prestige of one’s law school will get attention in the AALS hiring process, but the most important criterion is scholarship. One thing that the statistics I posted don’t reveal is the quality of the applicants’ scholarly records.
Many teaching applicants don’t have a strong record of scholarship, so they would be weak candidates no matter what school they graduated from. One of the reasons that Yale, Harvard, and a few other schools have so much success is because they train students to do the things they’re supposed to do to be successful on the teaching market. Not only do they provide a lot of advice about the teaching market and hiring process, but they have their students start doing the two things key to becoming a strong law professor applicant — read and write legal scholarship.
At Yale, for example, students have to write at least two big papers in order to graduate – which can often readily be turned into law review articles. Classes frequently assign a heavy dose of law review articles, thus getting students acquainted with legal scholarship. Students at Yale who know they are interested in teaching early on have a great advantage — they start reading and writing legal scholarship during law school and have a big head start toward becoming a law professor.
Here’s my advice in a nutshell to law students who desire to be law professors:
(1) Find a Mentor. Seek a mentor at your school and tell that professor about your desire to teach law.
(2) Write and Publish. Write, write, write! Publish, publish, publish! One caveat — be sure that what you publish is good. Quality beats quantity hands down. I’ve seen many a candidate with many publications who was sunk because of just one weak article. Everything you publish should be very good.
(3) Read. Read lots of legal scholarship. The best way to learn how to write law review articles is to read them. Read the legal scholarship in the fields you are interested in. Look for articles to model your own work after. Find articles that have placed well and articles that have been cited a lot.
(4) Think. Start thinking about ideas for papers. Keep a journal of ideas as they come to you. If you do a lot of reading of legal scholarship, you should start to get some ideas about issues that aren’t being discussed or arguments about particular issues that aren’t being made.
(5) Seek Writing Opportunities. Take as many classes with writing opportunities as you can or do an independent writing project under a professor’s supervision.
May 26, 2008 at 12:09 am
Posted in: Law School, Law School (Hiring & Laterals)
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Personal Blogging: The Dangers of Too Much Information
posted by Daniel Solove
Former Gawker editor Emily Gould has an interesting article in the NY Times Magazine about the perils of revealing too much information online:
It’s easy to draw parallels between what’s going on online and what’s going on in the rest of our media: the death of scripted TV, the endless parade of ordinary, heavily made-up faces that become vaguely familiar to us as they grin through their 15 minutes of reality-show fame. No wonder we’re ready to confess our innermost thoughts to everyone: we’re constantly being shown that the surest route to recognition is via humiliation in front of a panel of judges.
But is that really what’s making people blog? After all, online, you’re not even competing for 10 grand and a Kia. I think most people who maintain blogs are doing it for some of the same reasons I do: they like the idea that there’s a place where a record of their existence is kept — a house with an always-open door where people who are looking for you can check on you, compare notes with you and tell you what they think of you. Sometimes that house is messy, sometimes horrifyingly so. In real life, we wouldn’t invite any passing stranger into these situations, but the remove of the Internet makes it seem O.K.
At her blog, Emily Magazine, she has a post about reading my book, The Future of Reputation, on the subway: “If I saw me reading that book on the subway I would think it was funny too.”
May 25, 2008 at 10:46 am
Posted in: Privacy (Gossip & Shaming)
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The Rise of the Conservative Non-Trademark Use
posted by James Grimmelmann
Steven Teles’s The Rise of the Conservative Legal Movement features a clever cover design. It shows a white man in a suit, wearing a maroon Federalist Society tie, and holding a book instantly recognizeable as a legal text, whose title is Teles’s subtitle: “The Battle for Control of the Law.”
So here’s the lazy Saturday question. The book is instantly recognizeable as a legal text because it uses the instantly-recognizeable trade dress of the Aspsn series of casebooks. It has the same red cover, the same pair of black boxes, the same five golden stripes (one above the boxes, five between, and four below), and the same golden lettering. The typeface and layout of the text are admittedly different: Teles’s book has a sans-serif, which any self-respecting conservative would disdain as a modernist liberal fad. Also, the upper box, where the authors’ names go on an Aspen casebook, is empty. The Aspen/WoltersKluwer names and logos don’t appear in the image. Does or should Aspen have any right to object to the use of its trade dress in this manner?
May 24, 2008 at 1:59 pm
Posted in: Intellectual Property
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Bringing the Race to the Bottom to Health Care
posted by Frank Pasquale
What’s the most important part of McCain’s plan for health care? Writing in Slate, Robert Gordon suggests that it’s his effort to bring to insurance policy the current conservative movement to limit states’ abilities to govern their own affairs. Here’s Gordon’s take:
McCain . . . proposes to change the market for health insurance that people buy on an individual basis—he says that “families should be able to purchase health insurance nationwide, across state lines.” . . . . [Currently, many states] set a floor of protections. New York laws, for example, require that companies issue coverage to all new customers and not set higher rates for people who are already sick. . . . These rules may increase premiums for healthy folks, but they also give people with pre-existing conditions a decent chance to afford health insurance in the market for individually purchased policies. . . . [McCain] would allow insurers to choose the state laws under which they are regulated.
Americans with pre-existing conditions—cancer, asthma, diabetes, and the like—would need to pay even more than they do today. Through no fault of their own, more of them would end up without insurance. Meanwhile, insurers would improve their own profits by offering targeted policies to people with the fewest health expenses. . . . [I]t’s Robin Hood in reverse. Apart from the obvious injustice, this approach could add to spiraling health costs. The sickest 10 percent of Americans are already responsible for 70 percent of the nation’s health expenses. When more such Americans go uninsured, skip checkups, and land in the emergency room, they end up costing taxpayers more.
So I suppose someone who favored universal access to care could support McCain’s proposal. . . if they believed in Marx’s immiseration hypothesis.
May 24, 2008 at 10:35 am
Posted in: Health Law
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Wired Coverage of Computers, Freedom, and Privacy Conference
posted by Frank Pasquale
I’ve been at the Computers, Freedom, and Privacy conference this week–there were many interesting panels which I hope to blog about soon. Wired has some good coverage of it, including this commentary on a panel I organized:
[P]rofessor Samir Chopra [asked] “Suppose Google was subject to a law which required all persons to report knowledge of a crime to the authorities. . . . Could Google be sued for breach of statutory duty if AdSense knew about people using drugs?”
While that’s still hypothetical, other panelists emphasized that computer systems are already acting as agents in our world, making decisions about whether someone is a known terrorist, a likely threat at the border or a deadbeat parent late on child support. Or put another way, software is already policy. [As] panelist Danielle Citron, a University of Maryland law professor put it: “Where agencies used to use computers to store data to help agencies make decisions, now computers make decisions.”
On the comments to Ryan Singel’s post, Chopra notes:
[Our] comfort with Adsense, and our intuitions about it, would be shaken very quickly if the interface for Gmail was slightly different (with no change in functionality). Right now, the ads just show up unobtrusively. What if the interface was modified so that a little figure would pop up as you reading your email, and say “Hey, I see you are writing about Australia. Would you like me to show you ads for cheap flights to Australia?”. I suggest that people’s sense of there being nothing untoward would be shaken and yet, this would have happened with no difference in the underlying functionality.
Our “reasonable expectations of privacy” may be quite deeply affected by seemingly superficial design decisions.
May 23, 2008 at 6:07 pm
Posted in: Privacy
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