Something occurred to me that would make these cases more prosecutable; it may well already be in the literature, I offer it more as a notion flowing from a war story than a proposal or fully-baked idea. Here it is: Why not take victim-witnesses directly from the scene of the arrest to a court reporter, with a magistrate present or available, put them under oath, and take their testimony while it is still fresh? Call it a domestic violence preliminary hearing. Then, if the victim recants, the prior testimony can be used at trial (or to induce a plea).

There are a number of objections, none of which seem insurmountable.

The obvious confrontation clause/due process problems can be resolved. WIthin a few hours, defense counsel would have to be appointed, given an opportunity to meet their client and review police reports and the victim’s criminal record, and then of course to cross-examine. In the absence of some special need for additional time to prepare for cross, a few hours to prepare should be consistent with due process. The defendant could be present, in the custody of the arresting officers.

Another potential objection is that taking testimony while the victim is angry is a strategem to frustrate the will and intent of the victim when calm. This renders the notion objectionable, or not, depending one’s answer to the classic question of whether domestic violence is a private matter between the people involved, or just another public criminal offense like robbery or murder where the interest in prosecution is held by the public. If the latter view is correct, as now-common mandatory arrest/no drop policies suggest, then evading the victim’s presumed future intent is unobjectionable because prosecution is not the victim’s call.

One of my brilliant students who worked in this area suggested that another potential problem is that some people in physical danger will hesitate to call the police if they will be unable to halt a future prosecution. If people in physical danger no longer use the police in emergencies, that would increase violence, and therefore be undesirable. Put another way, there is value in arresting someone to halt an immediate assault even if no criminal conviction results. A couple of days after my student made the point, I came up with this response: the objection assumes legally sophisticated victims. A sophisticated victim calling the police only because of her power to end the case later would know she could still stop the process later. Not showing up or recanting at trial might not work anymore, but refusing to talk at the domestic violence preliminary hearing would. So ultimately, a victim who would not go to the authorities if a prosecution will result still has control, and can still call 911.

I’d be interested in hearing whether people who know much more than I do about domestic violence think there is something worth thinking about here. Meanwhile, see you at the happy hour.

From highest to lowest, put these internal editorial notes in the order of the frequency in which they appear in the published versions of articles, according to the Westlaw JLR database:

A. “Add Cite”

B. “Need Cite”

C. “Make Up Cite”

D. “Insert Cite”

The answer is:

B. Need Cite

A. Add Cite

D. Insert Cite

C. Make Up Cite

For each, I searched for “cite” and “citation,” and for B, “Needed” as well as “Need.” Also following the Leiter Survey methodology, I looked at the first 20 results for each search to find false positives. For example, many Uniform Laws use the phrase “insert citation to Section” whatever in their drafts, and such usage of course is not an error. The numbers came out this way:

Need Cite: 144 total, 5/20 False Positives=108 net

Add Cite: 27 total, 13/20 F/Ps=17.55 net

Insert Cite: 31 total, 15/20 F/Ps=7.75 net

Make Up Cite: 0 Total

In fairness to the law reviews, many of these errors come from published CLE materials not journal articles.

If Michigan’s lawyers took a litigation position that the University felt compelled to repudiate, plaintiff’s lawyers also made an argument that I find hard to believe would have been advanced directly by a faculty member. One of the no votes, plaintiff’s attorneys argued, might well be unworthy of consideration because it was cast by a professor with a mere Ph.D.; this faculty member “has no legal training and is not a lawyer” (page 23 of this document). Wow–many non-J.D.s do spectacular work and have as much to say about legal scholarship as we lawyers–I’ll bet that Yale, for example, lets Susan Rose-Ackerman and Alvin Klevorick vote on important academic matters without fear that their non-J.D.-hood compromises the quality of decisionmaking.

The papers also raise the delicate question of whether membership in a church with discriminatory views is evidence that the member also has discriminatory views. Here is the transcript of a tape recording introduced into evidence on summary judgment. The recording was made by a private detective who chatted up a faculty member’s pastor; the pastor did not conceal the church’s views on being gay. Putting a wire on a priest–that’s hardball.

Len Baynes at St. Johns, Wendy Gordon at Boston University, Jim Gardner at Buffalo, the late Chris Iijima formerly at Hawai’i, Val Vojdik at West Virginia, Robin Kundis Craig at Florida State, Sue Liemer at Southern Illinois, Jay Mootz at Penn State, Lenese Herbert at Albany, Eric Miller at St. Louis, the late Bill Lash who taught at George Mason, Madeleine Placensia at Tulsa, Keith Werhan at Tulane, me at Arizona, and Don Dunn, Dean of the University of La Verne College of Law. On three occasions, two faculty members independently lateraled to the same school: Dennis Patterson and Don Korobkin to Rutgers, Camden, Scott Howe and Dennis Binder to Chapman, David Moss to Wayne, and Joan Mahoney, to be Wayne’s Dean. Taylor Flynn went to Northeastern and came back.

While teaching where Wendy Gordon taught back in the day does not automatically make you as smart or productive as Wendy Gordon, a strong history of mobility suggests effective support for scholarship and the presence of colleagues who can offer good feedback. It also may suggest that a school is trying to hire the best teachers and scholars that it can, without worrying about the probability that the candidate will stay on the faculty for life. At Western New England, the policy was if you love somebody set them free; reportedly, the long-time dean’s opinion was that it was better to get a good person for a year or two than not to have them at all. If a school has a policy like this, other schools will know, and look at that school as a potential source for laterals. By contrast, I’ve heard rumors of schools refusing to let faculty take visits, for fear that they will be lured away.

I don’t expect schools to advertise that lots of teachers have moved on, and it would probably be impolitic to ask, at least before having an offer in hand. Over time, systematic data will be available from the Dan FIller lateral move posts (2007 here, 2006 here) But until a complete study is done, I’d advise candidates interested in the possibility of future mobility to discreetly investigate the history of lateralization in schools they are considering.