Author Archive for alfred-brophy
enjoyed the visit
posted by Alfred Brophy
Since I’ve already overstayed my announced visit of a couple of weeks, I figure it’s time to go before I wear out my welcome. It’s been fun commenting on such diverse issues as images of property in landscape art, legal realism and fashion consulting, the Ann Coulter Talking Doll, 1950s and 2000s conservatism, the history of the book, state funding for preservation of cemeteries, and even a few unexpected topics–like suggestions for US News’ ranking system, horror movie director Wes Craven’s insights for law professors, the intellectual origins of Roe v. Wade in, of all places, Tuscaloosa, and Fanny and Ralph Ellison. Of course, nothing gets attention like navel-gazing, so I shouldn’t be surprised that the post that generated the most attention (not much competition here, really) was on the implications of law review citations for law school rankings.
I’d hoped to comment a little on recent articles (like Kenneth Mack’s brilliant article on “Civil Rights Lawyering and Politics Before Brown“) and books in legal history, though my day job interfered with putting us as many posts as I’d hoped. So let me put in a brief mention for a wonderful book, which I recently read: Laura Kalman’s Yale Law School and the Sixties.
December 14, 2005 at 10:58 am
Posted in: Administrative Announcements
Print This Post
3 Comments
Monument Law
posted by Alfred Brophy
Ah, public monuments. They’re how we remember important events and help define who we think we are. Dan Solove’s recent posts on courthouses reminds me of how much we’re concerned with presenting the right image to communities. And there’s been a lot of writing about the function that courthouse architecture has served in American history. Moreover, lots of folks are writing these days about monuments and their meaning. Sanford Levinson’s charming book, Written in Stone covers a lot of ground in a little bit of space. And people are talking more about removing monuments from parks or renaming them (such as the Nathan Bedford Forrest Park in Memphis). Sewanee: The University of South is going through something like this right now.
I haven’t seen any serious commentary (in the blogosphere or elsewhere) on the United Daughters of the Confederacy v. Vanderbilt University, decided last May by the Tennessee Court of Appeals. Perhaps, though, it warrants a little bit of attention. It has some things to say about long-term contracts, the right of donees to alter monuments (like changing the names of buildings), and even how we remember the Civil War. The case arose from the effort of Vanderbilt University in 2002 to rename a dormitory on its campus from “Confederate Memorial Hall” to “Memorial Hall.
December 12, 2005 at 11:10 am
Posted in: Architecture, Property Law
Print This Post
4 Comments
Call Parker Brothers!: Scenes from An Exciting Evening in Tuscaloosa
posted by Alfred Brophy
Last night, a few colleagues were over at my place and we discussed the local gossip: the storm on campus over the sex column in our student newspaper, the Crimson-White, (which, btw, made the front page of the Tuscaloosa News this morning). Not a bad article on the controversy; it has a first amendment analysis of why the University can’t censor the column. And to their credit, the administration doesn’t want to. The article would, of course, have benefitted from a quotation from Dan Solove.
Then we turned to a game: “name professors at that school.” The gist here is to have one person name a school and then see who can name the most professors at that school. There’s a permutation, which Scott England developed: pick a name out of the AALS Directory and ask where that person teaches. Of course, it has to compete with other Tuscaloosa faculty favorites, like “name the most important article in [pick a field] in the last decade.” Or, “what’s the most under-appreciated article in [pick a field].” Or, “what article/book do you wish you’d written?”
When I woke up this morning, it dawned on me that the game isn’t as much fun as the Ann Coulter Talking Doll. Perhaps Parker Brothers won’t be interested, afterall.
December 10, 2005 at 2:47 pm
Posted in: Uncategorized
Print This Post
2 Comments
Ann Coulter: Come to Tuscaloosa
posted by Alfred Brophy
Thanks to one of my star students, Lee Birchall–a man with a degree from Dartmouth and a varsity athlete there who’s now on the Alabama Law Review (look for a great article on golf law as a measure of American society coming soon to a law journal near you)–there are yet more phrases for the Ann Coulter talking doll! This time, it’s “I love to engage in repartee with people who are stupider than I am.”
Lee’s a big fan of Ms. Coulter. After reading about her speech at the University of Connecticut, he’s starting a move to get her to speak at UA. I know she’ll get a warmer reception here than at U.Conn, at least if you can judge from the reception that Phyllis Schlafly received last spring at UA. And the good news is that he’s offered to serve as her social host.
December 9, 2005 at 2:41 pm
Posted in: Uncategorized
Print This Post
5 Comments
Fanny Ellison
posted by Alfred Brophy
Thanks to my friend and Ellison scholar Lucas Morel, I found out that Fanny Ellison, Ralph Ellison’s widow, died recently in New York of complications of hip surgery. She was 93. I had not known, until I read the New York Times obituary, how important she was in civil rights, theater, and culture in the 1940s, nor of her role in helping with Invisible Man.
I’m a huge fan of Ralph Ellison. Invisible Man, of course, has much to recommend it, particularly for lawyers. A lot of Ellison’s mission in IM runs parallel to what the NAACP was trying to do through litigation in the years leading into Brown. And while it may be stretching the case to say that the invisible man authored Brown, I think Ellison’s goal of focusing on our common humanity and on seeing people as individuals, rather than members of despised groups, appears in Brown as well.
One of my favorite passages in IM involves the elderly couple, who’re being evicted from their Harlem apartment. The couple’s meager possessions are strewn on the sidewalk; there are fragments of life stretching back to the era of slavery–emancipation papers, a picture of Abraham Lincoln, a commemorative plate from the St. Louis World’s Fair, a newspaper account of Marcus Garvey, letters from their grandchildren, cheap furniture. The Invisible Man’s refrain was, “[W]e’re a law abiding people.” Yet, the elderly couple was being evicted. So Ellison asked by what law were the couple being evicted? How could that eviction be consistent with law? The eviction was demanded by the “laws,” it is true:
[L]ook up there in the doorway at that law standing there with his forty-five. Look at him, standing with his blue steel pistol and his blue serge suit, or one forty-five, you see ten for every one of us, ten guns and ten warm suits and ten fat bellies and ten million laws. Laws, that’s what we call them down South! Laws!
The couple had almost nothing from which they could be evicted. All they had was “the Great Constitutional Dream Book” and even that they could not read.
December 8, 2005 at 3:58 pm
Posted in: Culture
Print This Post
No Comments
Law Review Citations and Law School Rankings
posted by Alfred Brophy
There’s no shortage of writing on law reviews or law school rankings, to say the least. So why not combine the two?
Questions about law review ranking abound. How does one compare offers from journals at relatively equal schools? Is it better to publish with a journal that is more frequently cited or with one at a higher ranked law school? Is it better to publish with a main law journal at a top 40ish law school or the secondary at a top 10 law school? Questions about law school rankings abound as well, particularly for schools outside of the top 30 or so. (Or so it seems to me.)
I’m partial to citation studies as a way of judging quality. I know that citations have lots of problems as a way of ranking journals (or individual authors). However, I like the objectivity citation studies provide. And so I’m partial to the Washington and Lee Law Library’s website, which provides comprehensive data on citations to hundreds of law journals by other journals and by courts. I’ve found it useful in trying to draw some comparisons between journals. Other people often draw comparisons between journals by looking to the US News ranking of the journal’s school.
December 7, 2005 at 11:44 am
Posted in: Law School, Law School (Law Reviews), Law School (Rankings), Law School (Scholarship)
Print This Post
10 Comments
Memory on the Sewanee Campus
posted by Alfred Brophy
It doesn’t take a lot of skill to predict that this New York Times article about the controversy over what we used to call “The University of South” and what’s now called “Sewanee: The University of the South” is going to generate, well, a lot of controversy.
First, some background. A few years ago, apparently motivated by a marketing study, the University of the South began emphasizing the “Sewanee” part of its name. Alumni have been concerned (to put it mildly) that it’s not just about the name, however. They think there is a lot more at stake on the campus–like how the University deals with its distinguished and complex history. At the center of that history is the University’s founder, Leonidas Polk. Bishop Polk was, also, a general in the Confederate States Army.
November 30, 2005 at 12:12 am
Posted in: Architecture, Politics
Print This Post
5 Comments
History of the Book
posted by Alfred Brophy
Folks here at concurringopinions have been talking a lot about books recently–Nate Oman’s had posts on the appeal of law books (particularly old ones) and law reviews and Dan Solove’s posted about the open library. I find student-edited law reviews problematic in some ways, and the smell of old books doesn’t do much for me. But there is magic, imho, in libraries. Libraries are great enlightenment vehicles of improvement. They’re the places that knowledge is collected and disseminated. (And that’s why I find the stories about segragated libraries particularly important in understanding our history.)
I remember the excitment I used to feel on walking in Van Pelt Library as an undergraduate. The entire world of knowledge, it seemed to me at the time, was open to anyone who had the inclination and time to visit it. In keeping with the Supreme Court’s administrative law opinions of the early 1970s, like Overton Park (about the importance of getting information in front of regulators), I thought that the knowledge in those books held most, if not all, of the keys to a better society.
Sometimes, if I get to the University of Alabama’s library early enough on a Saturday (so there aren’t many other people around), and I’m working on an original project, and the light strikes the windows in the great reading room just right, that enthusiastic eighteen-year old I remember appears again, even if only for a short while.
When I’m thinking about old books, I’m partial to library catalogs. Because they give you a sense of the ideas that people had access to and the kinds of ideas they found appealing. The 1853 library catalog of the University of Georgia is available on the Georgia library’s webstite. Through the magic of the internet, you can see exactly what the catalog looked like. And you can also see what books were in the Georgia library. Historians in recent years have been talking a lot about the “history of the book.” They ask who was reading books, who was writing them, and how books were useful in transmitting ideas.
November 29, 2005 at 2:06 pm
Posted in: Articles and Books
Print This Post
One Comment
Voices from the Past
posted by Alfred Brophy
This very fine New York Times article on the New York Historical Society’s exhibit on slavery in New York begins by talking about visitors recording their reactions to the exhibit. We should also think about listening to the voices of people who had lived as slaves.
Some of the great treasures of American history are the slave narratives collected by the WPA. And through the magic of the internet, you can listen to the Library of Congress’s audio collections of the voices of people who were born into slavery.
I’ve enjoyed listening to them, because I love hearing the songs (like Keep your Lamp a’ Trimmed and Kingdom Coming), the accents, and the recollections of the folks.
Of course, the WPA and other New Deal agencies recorded a lot of other folks, too. I highly recommend the audio downloads that are available on the LOC’s website. And the LOC has some other great audio collections, like these fiddle tunes recorded in the 1960s.
The picture is from the Library of Congress’ collection of black and white photographs from Great Depression to World War II, LC-USF34- 044206-D.
November 28, 2005 at 11:34 am
Posted in: Culture
Print This Post
No Comments
The intellectual origins of Roe . . . in a law review
posted by Alfred Brophy
Here’s a nice piece of trivia: what law review article laid the blueprint for Roe v. Wade?
Thanks to Orin Kerr’s link to Judge Raymond Randolph’s thought-provoking speech to the Federalist Society on Judge Friendly’s unpublished 1970 draft opinion on abortion rights, I learned something about my school’s history: that Roy Lucas, then an assistant professor at the University of Alabama, published an article in 1968 in the North Carolina Law Review, which (according to Judge Randolph) “laid out a blueprint” for applying Griswold to state anti-abortion laws. Of course, proving influence in the evolution of constitutional thought is a remarkably difficult enterprise. But some knowledgeable people nevertheless believe the article to have been quite important. N.E.H. Hull, Williamjames Hoffer, & Peter Hoffer include an excerpt from the article in their important book, The Abortion Rights Controversy. They say of Lucas’ article that it was a “vital source of ideas for the frontal attack on criminal abortion statutes.”
Hmm, I thought upon reading this, how surprising. I try to pay some attention to my school’s history. I’ve heard some pretty interesting stories about Alabama law faculty. For example, Professor Jay Murphy’s advocacy in the pages of the Alabama Law Review helped defeat some of the legislature’s proposals to resist desegregation in the immediate aftermath of Brown.
November 26, 2005 at 8:50 pm
Posted in: Constitutional Law
Print This Post
4 Comments
Of Names, Auctions, and Contests
posted by Alfred Brophy
Lemony Snicket auctioned the naming right to a character in a forthomcing novel. (Sold for a lot–something like $6000.) So why shouldn’t Professor Eric Muller solicit help in naming his new book on the administration of the internment of Japanese-Americans during World War II? Looks like a great book, btw, judging by his introductory chapter. And, of course, the contest has the virtue of getting lots of folks reading the introduction and driving traffic to his blog. This may catch on–at least I hope it does, because I enjoy hearing about new scholarship and it’s sort of a fun contest.
Alas, I have no good idea about the name for the book–I’d probably go for something dull like Administering Injustice. But it’ll be an important addition to the literature on the history of administrative state in the twentieth century, which has been drawing attention from really strong scholars, like Reuel Schiller.
One more thing: I was a coerced watcher of Snicket’s Series of Unfortunate Events last January on a flight out to Seatle. And, after the first couple of minutes when I couldn’t quite figure out what the was going on, I enjoyed the movie. Plus, I dig the role of a trust in shaping the plot.
November 23, 2005 at 11:35 am
Posted in: Articles and Books
Print This Post
One Comment
Private Accrediting: If you can’t beat ‘em, join ‘em
posted by Alfred Brophy
US News’ rankings are exerting powerful influences over law school practices, in areas like admissions (and presumably hiring and promotion of faculty, to enhance reputation scores). They’re beginning to look like an accrediting agency that operates parallel to the ABA. US News arguably sets benchmarks for such areas as admissions, faculty-student ratios, and library size.
(Jeffery Stake’s article “The Interplay Between Law School Rankings, Reputations, and Resource Allocation” and posts like this one by Brian Leiter explore how US News is affecting (or might affect) class size and other admissions decisions. My (admittedly impressionistic) sense is that a great many law schools are bending their behavior to US News factors.)
In the spirit of “If you can’t beat them, join them,” maybe what we should be doing is lobbying US News to change the factors that count in their rankings. Perhaps, for example, we should encourage US News to take diversity of student body into account. If US News gave (even small credit) for diversity, perhaps it would cause (major) shifts in law schools’ admissions decisions. I wonder if US News is already poised to do this? In 2005 they began publishing a diversity index, but it doesn’t yet count towards a school’s overall rank.
November 22, 2005 at 7:12 pm
Posted in: Law School
Print This Post
2 Comments
A whole lot has changed in the last fifty-six years
posted by Alfred Brophy
I recently had the pleasure of introducing Paul Jones to speak to the Black Law Student Association at the University of Alabama. Dr. Jones is one of our nation’s leading collectors of African American art. He was born in the 1920s in Bessemer (a town near Birmingham) and grew up there. He shared a dream of generations of boys in this state–to play for the University of Alabama’s Crimson Tide. But he could not realize that dream. Instead, he played for Alabama State. Then, in 1949, as a student at Howard University, he applied to the University of Alabama’s law school. Again, he was a generation too early. He was told that while the administrators here were aware that the United States Supreme Court might mandate that the University admit students like him, he should not pursue a lawsuit:
While this may be gratuitous, I am adding that we at the University of Alabama are convinced that relationships between the races, in this section of the country at least, are not likely to be improved by pressure on behalf of members of the colored race in an effort to gain admission to institutions maintained by the State for members of the white race. On the contrary, we feel that inter-racial relationships would suffer if there is insistence that the issue be joined at this time. The better elements of both races deplore anything that tends to retard or jeopardize the development of better relationships between the races. For these reasons, therefore, we hope that you can persuade yourself not to press further your application for admission here.
November 20, 2005 at 4:49 pm
Posted in: Law School
Print This Post
One Comment
Does this insight apply to law professors as well?
posted by Alfred Brophy
Some years ago (I’m guessing sometime around 1997 from internal references, as historians would say), I saw in a newspaper a quote attributred to “Veteran horrormeister and Scream 2 director Wes Craven”:
After you stop moaning about being stereotyped as a horror guy, you can say, “I’m employed doing interesting movies that can be called, in some sense, auteur work. Nobody’s telling me what to do, I have final cut and there’s virtually no limitation except my imagination, and I have to stay within a certain subject matter. But you can put as much comedy as you want in the movie, as much romance or philosophy; anything, as long as you scare the bejesus out of people six or 10 times.”
November 18, 2005 at 10:49 am
Posted in: Law School
Print This Post
2 Comments
I don’t know why Jack Chin says Goodbye; the Virginia Legislature Says Hello
posted by Alfred Brophy
In a recent issue of Constitutional Commentary, Gabriel J. Chin has a very thoughtful article, “Jim Crow’s Long Goodbye,” [21 Constitutional Commentary 107 (2004)]. I applaud Professor Chin’s research, which measures vestiges of the Jim Crow era in education, primarily through a study of statutes left on the books, which are now largely unenforced. Such statutes, for instance, provided for public financing of segregation academies. While the statutes are now largely symbolic, Chin identified several that have some continuing impact on state budgets. Alabama and Mississippi both allow teachers at private schools to join the teachers’ retirement system.
Chin is correct that in order to understand the appropriate legal and legislative response to Jim Crow we must have accurate data on its extent and continuing impact.
I don’t know why Professor Chin says goodbye; the Virginia legislature says hello. Well, hello, at least, to funding the memory of the Confederacy. The Virginia Code, § 10.1-2211, provides for a modest grant ($5 per grave per year) to be administered by the United Daughters of the Confederacy for the maintenance of graves of Confederate soldiers.
State funding for cemeteries is appropriate, in my opinion. We ought to remember our ancestors and preserve their places of repose. So funding for the graves of Revolutionary War soldiers, which the legislature began to do in 2002, is appropriate. Va. Code § 10.1-2211.1. Civil War cemeteries (and in an earlier era pensions for Civil War veterans) pose particular questions, however. For in the years after the war, as the nation struggled to reunite itself, cemeteries and the seemingly ubiquitous public monuments in both north and south were places where the memory of suffering at the hands of the former enemy was kept alive and where the place of slavery in the war was forgotten. The understanding of the war in both North and South become one of Southerners fighting honorably for preservation of their homeland and for a cause they honestly (if mistakenly) believed to be just.
November 15, 2005 at 8:58 pm
Posted in: Uncategorized
Print This Post
4 Comments
Images of Property in American Landscape Art
posted by Alfred Brophy
For a number of years I’ve been giving a lecture at the end of the year to my property students about images of property (and particularly development of property) in landscape art. It’s a fun talk, which I give when I realize that folks are tired after nearly a year of law school and need a break from the typical routine. I got the idea from Leo Marx’ Machine in the Garden and then refined it while reading Angela Miller’s Empire of the Eye. I often begin with a quote from Ralph Waldo Emerson’s Nature. Something along the lines of:
The charming landscape which I saw this morning, is indubitably made up of some twenty or thirty farms. Miller owns this field, Locke that, and Manning the woodland beyond. But none of them owns the landscape. There is a property in the horizon which no man has but he whose eye can integrate all the parts, that is, the poet. This is the best part of these men’s farms, yet to this their warranty-deeds give no title.
Then I begin to show some ways that American artists have depicted (and celebrated) our development of land. I use George Inness’ Lackawana Valley (shown below). Look at the machine going through the the fields of cut-stumps; the railroad roundhouse in the background; the smoke stack even further off; what a strange juxaposition (it seems at first) of humans and nature. While it seems strange at first, my point is that landscape art is part of the celebration of human’s use of land.
November 13, 2005 at 9:50 am
Posted in: Property Law
Print This Post
3 Comments
Want better student evaluations?
posted by Alfred Brophy
I read an advertisement for the University of Virginia’s Darden School of Business Administration in the US Airways magazine recently, headlined “The best professors in the World don’t like hearing themselves speak.” The advertisement continued, “To develop great communicators and leaders we ask students to, quite simply, communicate and lead. That’s why Darden professors spend the least amount of time lecturing of any of the top MBA programs. We believe this is one reason the Princeton Review ranked our professors the #2 teaching faculty in the nation.”
So, to improve teaching scores, talk less. Hmm, something to think about as I prepare for class today.
November 11, 2005 at 8:52 am
Posted in: Humor
Print This Post
6 Comments
Legal Realism and Fashion Consulting: A Misunderstood Relation?
posted by Alfred Brophy
Some years ago a colleague gave me a copy of John Molloy’s 1975 book Dress for Success. Perhaps the fact that he asked me whether I own an iron contains a clue to his message; I’m not sure.
I found it buried in a box of books I unpacked recently and began to read the chapter “For Lawyers: How to Dress Up Your Case and Win Jurors and Judges.” It contains the following sage commentary on the behavior of judges:
Before the urban judge you should avoid the Ivy League tie. You should avoid any sign of ostentation. You should avoid any look that is with-it, chic or “in.” Urban judges tend to be quite ticklish about their newfound socioeconomic positions, even if they’ve held them for some time, and often look upon anyone coming into their courtroom as a threat to them personally. Anybody who doesn’t treat their courtrroms with respect, and that means anyone who dresses in a manner that they find is unbecoming, will be dealt with harshly. Their response may well be subconscious; no judge will ever tell you that he’s ruling against you because of your smartass tie, but believe me, many of them will.
November 10, 2005 at 10:47 am
Posted in: Legal Theory
Print This Post
8 Comments
1950s and 2000s Conservatism
posted by Alfred Brophy
Last spring I went to a talk by Phyllis Schlafly at the University of Alabama. It was the most entertaining evening I’ve spent in years, much better even than the O’Reilly Factor on a good day. And I left with an “I love capitali$m” poster, which is one of my prized possessions.
Ms. Schlafly did what I take to be her usual stump speech-–opposing judicial activism and, of course, feminism. She was plugging her new book, The Supremacists (about left-wing judges). She had some amusing lines. Something along the lines of, “Feminists are pushing their way into the military. Forty-five percent of women can’t throw a hand grenade far enough to keep from killing themselves. So I guess you can say that feminism leads to death. Ha, ha, ha.” I took the laughter to be a realization that her arguments in this case were laughable–a wonderful self-insight. I have a warm spot in my heart for people who don’t take themselves too seriously. It’s an appealing character trait, to be able to be not too serious. Wish I had more of it.
November 9, 2005 at 9:49 am
Posted in: Politics
Print This Post
10 Comments
New Phrases for the Ann Coulter Talking Doll?
posted by Alfred Brophy
In the spirit of Dan Solove’s recent posting on the airport security playset, I would like to recommend the Ann Coulter talking doll.
Check out the link and you can hear sample phrases. My favorite is the one about liberals hating American more than terrorists. God bless politics.
Perhaps a phrase that could be added to the next edition of the doll is this one, which Dave Hoffman includes in his discussion of Coulter’s attack on Harriet Miers: “[A]ll the intellectual firepower in the law is coming from conservatives right now.”
All of this leads me to some serious questions (which modify Ms. Coulter’s statement): are conservative legal academics the ones producing the most influential or the most interesting scholarship these days? There was a time (in the nineteenth century) when the legal treatises were almost all written by conservatives (James Kent’s Commentaries; Joseph Story’s Commentaries; Timothy Walker’s Introduction to American Law). I can only think of one important antebellum legal treatise writer who was a Democrat: Henry Sedgwick. And his treatise on constitutional law was a success because he did not let his Democratic politics interfere with reporting on the law as it was.
November 7, 2005 at 10:38 am
Posted in: Humor
Print This Post
8 Comments
