Author Archive for jason-mazzone
Constitutional Law as Computer Science
posted by Jason Mazzone
Within universities there is a lot of talk about gender distribution in various academic specialties. It is well known, for example, that there are many more men in the field of computer science than there are women. Indeed, the gender gap appears to be widening. I wonder about legal specialties? Which fields have the largest gender gaps? It would be interesting to know the figures in legal practice as well as among law professors. It would also be interesting to know the numbers with respect to the most prominent people in particular fields.
In my own field, Constitutional Law, my impression, is that among the most prominent scholars there are far more men than women. (Here is an exercise: write down the ten best-known Constitutional Law professors: how many are women? And another exercise: how many prominent Constitutional Law professors who are women can you name?) There seem to be more men than women on panels at high-level conferences. Men seem to be quoted more often in national newspapers. More men seem to publish books with prestigious university presses than do women. And so on.
Some will say that women are not invited to appear on panels (and excluded from other opportunities as well) and that’s why the men are prominent. My impression, though, is that conference organizers at least try very hard to invite women as panelists. Women who have achieved a measure of prominence in the field are in high demand at events and often have to say no to many opportunities. Others will say that women do not get hired to teach in Constitutional Law in the same numbers as men. Again, though, my impression is that many schools aggressively try to find promising women candidates. If my impression about the gender distribution is right, the causes of the distribution would require research.
How about other fields of legal academia? Where are the largest gender gaps likely to be found? And what are some hypotheses about their causes? One might also look at sub-specialties within fields. (Do women work more on Equal Protection issues than on federalism questions?) It seems to me that somebody with some good statistical skills could generate a a study gender distribution in law and seek to test some hypotheses about its causes. Such a study would contribute to the existing literature done in other academic disciplines.
Finally, I should say that whether gender clustering in law (or other fields) is bad, good, or neither is a separate issue. People will formulate different views on that issue once the evidence is in.
February 8, 2009 at 12:31 pm
Posted in: Uncategorized
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Mid-terms and more?
posted by Jason Mazzone
This is the time of the year when 1Ls have received their first set of law school grades and are asking what went right, what went wrong, and what they can do differently the next time around. These conversations inevitably raise the point that the final exam counts for the entire grade for the course. Many students who do poorly consider this unfair: they do all the work during the semester but none of that is rewarded if they have an off-day when the exam is given. In thinking recently about this issue, I have been asking upper-level students whether they would preferred as 1Ls to have had mid-terms and a series of other graded assignments during the semester so that less depended upon the final exam. Under the model I suggested to them, the professor would give back the graded assignment so students would know how they were doing during the semester. Many of these students have taken seminars and other upper-level courses in which there is component grading. The feedback I have received from upper-level students has surprised me.
Upper-level students tell me to stick with final exam as final grade model. This is as true of students who did very well as of students who did poorly during their first year. These students tell me that component grading would have been much more work for them because they would have had to prepare for every graded assignment. (More work for professors, too, of course.) In addition, they say, component grading would increase the level of stress during the first year. Their reasoning is that students would be worried about every assignment; that getting a bad grade on a mid-term or other assignment would make them panic; and that it is less stressful to get a grade after the course has ended (and, in the spring semester, after everyone has headed off for the summer). Even if they would have done better under a component grading system, the costs, they say, are not worth the grade bump.
February 8, 2009 at 12:01 pm
Posted in: Law School (Teaching)
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Red Herring
posted by Jason Mazzone
Writing in the New York Times, Adam Liptak casts the Supreme Court’s recent decision in Herring v. United States as a big step towards repealing the exclusionary rule the Court crafted in 1961 in Mapp v. Ohio. Liptak emphasizes that Chief Justice Roberts, the author of the majority opinion in Herring, had advocated doing away with the exclusionary rule while he served as a government lawyer under President Reagan. In predicting where the Court is headed, Liptak places greater stock in memos Roberts wrote as a government lawyer than I would. I doubt the Court is likely to overrule Mapp any time soon.
February 3, 2009 at 2:16 pm
Posted in: Criminal Procedure
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One president at a time, thanks.
posted by Jason Mazzone
Why is Michelle Obama giving a speech on CNN today? She wasn’t elected President and she has not been appointed to any position that entails making speeches. In this instance, Ms. Obama spoke about education, during a trip (purportedly) to thank employees at the Department of Education for their service.
Here is what the AP reports:
“So many of you have been here struggling and pushing for decades and Barack and I want to say ‘thank you’ for what you’ve done and ‘thank you’ for what you will continue to do,” she told 350 employees who filled a department auditorium to capacity. “But we also know that there are new faces coming into this work and we want to welcome you and thank you for the hard work that you’re going to put in.” Mrs. Obama said the department will “be at the forefront of many of the things that we have to do in this administration” before she ticked off such agenda items as renovating and modernizing schools, increasing Pell Grants and providing tuition tax credits to college students.
Who is the “we” who will be doing “things” in “this administration”? Ms. Obama is not, thus far, part of the current administration. If the President wants to make her part of it, there are appointment procedures that need to be followed.
February 2, 2009 at 7:49 pm
Posted in: Politics
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Audit them all
posted by Jason Mazzone
Tom Daschle, former Senator and nominee for Secretary of Health and Human Services, didn’t fully pay his taxes. Apparently, Daschle didn’t tell his accountant about a free car service (worth a whopping $250,000) and consulting income (another $88,000) over a three year period. Tax laws are complex and so perhaps Daschle didn’t realize at the time that these things constituted taxable income. Regardless, the perception Daschle leaves is that powerful people don’t pay everything they owe.
In the world of tax compliance, perceptions matter a good deal.
February 2, 2009 at 5:18 pm
Posted in: Tax
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Hyperpackaging
posted by Jason Mazzone
I recently bought a country house. Having an empty house leads immediately to many trips to buy all of the things a house needs to become a home. In making these trips, I learned two things.
First: stuff is really cheap. You can buy a coffee maker, a toaster, and a blender for $15 a piece. $20 gets you cutlery for six. Sales at Pier One offer up good quality dishes for a buck. A stop at the dollar store yields giant bags of cleaning supplies, kitchen gadgets, a hammer and a set of screwdrivers, plastic storage containers, and curtains: $40 total. A mere $49 gets a vacuum cleaner. Home Depot has nice rugs for $99. Bath towels are $3.99 at Target (I bought a dozen).
The second thing I learned in filling my house up with all these products is that the hardest part is accessing them once you get them home. Packaging is out of control. Virtually every household good is embalmed in cardboard, plastic, Styrofoam, metal, tape, and glue.
February 2, 2009 at 8:17 am
Posted in: Culture
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Who’s Your Daddy?
posted by Jason Mazzone
The New York Court of Appeals has held that:
[A] man who has mistakenly represented himself as a child’s father may be estopped from denying paternity, and made to pay child support, when the child justifiably relied on the man’s representation of paternity, to the child’s detriment. We reach this conclusion based on the best interests of the child as set forth by the Legislature.
The case is Matter of Shondel J. v. Mark D.
The opinion indicates that under New York law the doctrine of estoppel in paternity matters focuses on the child and as such is gender neutral. The court demonstrated this neutrality by citing to a case where a wife was not allowed to challenge paternity when she had treated and accepted the husband as the father for two and half years before challenging his paternity and “permitted her husband and child to form strong ties together.”
The court also noted that when a man “acquiesced in the establishment of a strong parent-child bond between the child and another man” he would be precluded from asserting paternity because “the child would be harmed by a determination that someone else is the biological father.”
This case reminded me of Jared Diamond’s, The Third Chimpanzee. In that book he noted that one study indicated that 10% of babies in the study were not biologically related to the legal father. One blog has dug into the mistaken paternity numbers issue and lists several studies before concluding that the rate may be closer to 2-4%.
By the way one study seems to show that when a father is pretty certain about paternity the rate of finding non-paternity is low (median 1.7%) but when the father has questions about paternity the rate is high (median 29.8%). The full paper is How well does paternity confidence match actual paternity? Evidence from worldwide nonpaternity rates by Kermyt G. Anderson.
Which bring us to the dissent in the case. Judge Smith argues forcefully that the evidence shows that the mother lied and committed fraud (she swore she did not have sexual relations with any other man) and that the ostensible father did not commit a fraud of any sort and as such should not be subject to the doctrine. The argument denies the majority’s position that the child is the one upon whom the fraud is committed.
The majority opinion countered the dissent by putting the problem this way:
Given the statute recognizing paternity by estoppel, a man who harbors doubts about his biological paternity of a child has a choice to make. He may either put the doubts aside and initiate a parental relationship with the child, or insist on a scientific test of paternity before initiating a parental relationship. A possible result of the first option is paternity by estoppel; the other course creates the risk of damage to the relationship with the woman. It is not an easy choice, but at times, the law intersects with the province of personal relationships and some strain is inevitable. This should not be allowed to distract the Family Court from its principal purpose in paternity and support proceedings — to serve the best interests of the child.
Thus it seems that if someone is in that high doubt range that Anderson documents, he should ask for a paternity test and risk his relationship with his wife.
I do not claim to have an answer here. I am merely teeing this one up to see what comments if any can enlighten me on the issue of when paternity should be found despite a lack of biological connection between the father and child.
July 11, 2006 at 1:31 pm
Posted in: Culture, Sociology of Law
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James Joyce & Fair Use
posted by Jason Mazzone
Represented by Larry Lessig, Carol Loeb Shloss, an English professor at Stanford University, has filed a law suit in the U.S. District Court for the Northern District of California, against the Irish estate of James Joyce.
The lawsuit alleges that the estate has improperly interfered with the professor’s efforts to reproduce, consistent with the provision of “fair use” under copyright law, portions of Joyce’s writings. The estate reportedly has a long history of telling scholars and others that they cannot reproduce anything Joyce wrote without the estate’s permission. The professor seeks a declaratory judgment that her reproductions constitute fair use and, further, that the estate has engaged in copyright misuse and therefore cannot enforce its copyrights against her. The complaint is available here. The New Yorker also recently published an account of the case.
My article, Copyfraud, published this month in the NYU Law Review, deals with the problem of publishers, archives, and estates leveraging copyright law to prevent legitimate forms of copying and makes some proposals for how Congress and the courts should respond to this problem, including by expanding the rarely used “copyright misuse” doctrine.
Though I’m all in favor of developing the law in this area, I’m not sure that this is the right case to do it.
Some judges are going to bristle at this lawsuit. The materials at issue are excerpts from Joyce’s writings that the professor’s own publisher told her to remove from her book. At Lessig’s suggestion, she decided to post those removed excerpts on a website and provocatively told the Joyce estate of this plan. Copyright misuse, like patent misuse, is normally a defense once you’ve been hauled into court and found guilty of infringement. Here, the professor has not even been sued by the Joyce estate for infringement. Granted, she fears a lawsuit (as did her publisher), but there is a good chance that the court will deny the motion for declaratory relief–not wanting to intervene until the professor is actually sued.
This is a case to watch.
June 14, 2006 at 2:20 pm
Posted in: Uncategorized
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Mary Cheney
posted by Jason Mazzone
Mary Cheney’s book, Now It’s My Turn, is a flop.
With just a few thousand copies sold, the publisher will never recoup the $1 million advance. One explanation for the poor sales figures is that Republicans don’t want to read about lesbians in their ranks. And vice-versa.
I buy a lot of books but in this case I was turned off by the title. It seems to me that it’s been the Cheneys turn for an awfully long time. Surely by now it’s somebody else’s.
June 14, 2006 at 12:29 pm
Posted in: Current Events
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The Pop-Up President
posted by Jason Mazzone
President Bush has made a surprise visit to Iraq this week. Even Iraqi Prime Minister, Nouri al-Maliki, had no idea he was coming. During the past few years the President and other members of his administration have with some frequency popped up in Iraq, Afghanistan, and other places unannounced. Is this normal behavior for a President? Anybody know whether prior Presidents regularly surprised us and their hosts with unannounced trips abroad?
June 13, 2006 at 2:58 pm
Posted in: Current Events
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Hill v. McDonough
posted by Jason Mazzone
Yesterday the Supreme Court decided Hill v. McDonough. In its unanimous opinion, authored by Justice Kennedy, the Court held that a death-row inmate could invoke section 1983 to seek an injunction against Florida’s method of three-drug lethal injection, which, the inmate contended, caused intense pain in violation of the Eighth Amendment.
The district court and the Eleventh Circuit had dismissed the inmate’s action on the ground that it was the functional equivalent of a habeas petition and, since the inmate had already sought habeas relief, the claim was barred as a successive petition.
In reinstating the inmate’s section 1983 suit, Justice Kennedy reasoned that the inmate’s claim was not a challenge to his actual sentence (the subject of a habeas petition) but only to the mode in which the state sought to carry it out.
Though the holding of the case is narrow, and the Court expressed no view on the merits of the Eighth Amendment claim, it’s rare to see a unanimous decision in a death penalty case.
More evidence perhaps that Justice Roberts’ magic dust is working.
June 13, 2006 at 11:59 am
Posted in: Criminal Law
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Internet Security
posted by Jason Mazzone
Texas Governor Rick Perry has a plan to install night vision web cameras at the border. Internet users at home will monitor the live feed and call a toll-free number to report people crossing from Mexico.
June 9, 2006 at 10:07 am
Posted in: Privacy (Electronic Surveillance)
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Al Zarqawi and the Marriage Amendment
posted by Jason Mazzone
Within hours after the U.S. Senate refuses to write discrimination into the Constitution, the U.S. Air Force is led to and kills #1 Iraq terrorist Abu Musab al Zarqawi.
It can’t be a coincidence. Jerry Falwell must be right after all:
I really believe that the pagans, and the abortionists, and the feminists, and the gays and the lesbians who are actively trying to make that an alternative lifestyle, the ACLU, People For the American Way – all of them who have tried to secularize America – I point the finger in their face and say ‘you helped this happen.’
Well done.
June 8, 2006 at 9:15 pm
Posted in: Current Events
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Canada’s Balance
posted by Jason Mazzone
Do the recent arrests of suspected terrorists in Canada show that the country has struck the right balance between security and civil liberties?
A New York Times article suggests that requiring the police in Canada to obtain a warrant before conducting surveillance and covert searches was conducive to thwarting the terrorist plot. The article quotes Mike McDonell, assistant commissioner of the Royal Canadian Mounted Police: “I never sought greater authority to conduct monitoring and surveillance, and I don’t expect to be asking for any more now.” A scholar is also quoted as saying that Canada doesn’t need broader government surveillance of the N.S.A. variety.
(While the article reports that the Canadian Security Establishment is permitted to intercept foreign communications upon authorization by the Minister of Defense (but without the need for a judicial warrant), the article suggests that the CSE was not involved in the recent terrorist arrests.)
It’s easy to say you’ve struck the right balance when you work within the law and manage to stop a terrorist cell. I’m not sure, though, that that’s the best basis for assessing whether we’ve struck the right balance between security and liberty. If the terrorists in Canada had succeeded in blowing up buildings and people, would we conclude that the Canadian balance was wrong and needed to be readjusted?
The right balance between security and liberty might allow for some failures, i.e. some acts of terrorism that don’t get stopped, because stopping them would involve too great a limit on liberty. On the other hand, the right balance might be security measures and restrictions on civil liberty greater than necessary (as measured by the number of actual terrorist incidents) because we’d rather err on the side of caution.
June 8, 2006 at 8:52 pm
Posted in: Privacy (National Security)
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The Class of 2006
posted by Jason Mazzone
Today is Brooklyn Law School’s Commencement. Congratulations to the members of the Class of 2006. These students started at Brooklyn the same year I began teaching.
Our commencement is always a lavish affair. We take over Tavern on the Green for brunch and then the commencement exercises are held at Lincoln Center. Many of our students are first generation lawyers; a good number are immigrants. Our commencement speaker this year is Richard Goldstone, formerly of the Constitutional Court of South Africa. A preview we got last night at dinner suggests his speech will be a highlight of the day.
In a few months, we’ll have a new crop of 1Ls. Nobody is quite the same after they are done with law school; there are things we all wished we knew before we began.
In that spirit, I ask our readers who are graduating this year or who have already graduated from law school: if you, older and wiser now, could send back in time some advice to yourself in the summer just before you began law school, what advice would that be?
June 6, 2006 at 7:43 am
Posted in: Law School
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Student # 43 Unmasked!!
posted by Jason Mazzone
I posted earlier about an answer to my exam question on constitutional amendments written by student with ID number “43.” I said that I gave “43″ a C.
Most readers, I think, got it. But based on reactions posted by dolts at lesser blogs and some strange e-mails I received, some didn’t. (Who knew there were so many literalists?)
So, for the benefit of everyone, I’m hereby posting “43′s” facebook photo.
No, I didn’t give my current Constitutional Law students the question I discussed (though I’m confident if I had they would have had no trouble coming up with more carefully thought out proposals than the Federal Marriage Amendment). And I certainly can’t imagine posting a real student’s exam answer on a blog and telling the world how I graded it. That would be outlandish behavior–even for a law professor.
I appreciate the many thoughtful comments I received about this (fictional) post.
June 5, 2006 at 10:40 pm
Posted in: Constitutional Law
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Uses of Legislative History: Scalia v. Alito
posted by Jason Mazzone
Today the Supreme Court held unanimously in Zedner v. United States that a defendant may not prospectively waive the application of the Speedy Trial Act and, therefore, a defendant’s agreement to waive the Act’s protections “for all time” in his pending criminal case was ineffective. Justice Alito wrote the majority opinion in which he reasoned that the language and purposes of the Speedy Trial Act led to the conclusion that the Act did not permit prospective waivers and that this conclusion was supported by the Act’s legislative history. Justice Scalia wrote the single concurring opinion, joining the majority opinion except for it’s use of legislative history.
Sharply criticizing Alito’s reliance on legislative history, Scalia wrote:
I believe that the only language that constitutes “a Law” within the meaning of the Bicameralism and Presentment Clause of Article I, §7, and hence the only language adopted in a fashion that entitles it to our attention, is the text of the enacted statute. . . .
It may seem that there is no harm in using committee reports and other such sources when they are merely in accord with the plain meaning of the Act. But this sort of intellectual piling-on has addictive consequences. To begin with, it accustoms us to believing that what is said by a single person in a floor debate or by a committee report represents the view of Congress as a whole—so that we sometimes even will say (when referring to a floor statement and committee report) that “Congress has expressed” thus-and-so. . . . There is no basis either in law or in reality for this naive belief. Moreover, if legislative history is relevant when it confirms the plain meaning of the statutory text, it should also be relevant when it contradicts the plain meaning, thus rendering what is plain ambiguous. Because the use of legislative history is illegitimate and ill advised in the interpretation of any statute—and especially a statute that is clear on its face—I do not join this portion of the Court’s opinion.
Given that the decision is 9-0, it’s hard to read it as early evidence of a large difference between Scalia and Alito. For that, we’d need a case in which Alito uses legislative history to buttress a statutory interpreptation with which Scalia does not otherwise agree.
June 5, 2006 at 4:10 pm
Posted in: Supreme Court
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The Problem of the 28th Amendment
posted by Jason Mazzone
Here is a question from my exam in Constitutional Law:
The U.S. Constitution contains 27 amendments; the most recent (the 27th), was ratified in 1992. Write a proposed 28th Amendment and explain why your proposed amendment should be adopted. The proposal may deal with any issue you wish.
In addition to giving me something interesting to read when I’m grading, this question is very useful for seeing how well a student understands the Constitution. It’s not easy to draft an amendment that accomplishes what you want (no more, no less) and that fits into the existing Constitution as a whole.
In grading answers, I’m not much concerned with the particular change a student suggests making—my main focus is on how well the student executes the proposal.
If, for instance, a student proposes abolishing the Supreme Court, I expect to see some thinking about how appellate cases will henceforth be decided. If a student wants states to have a power to maintain armies, there should be some attention to resolving the likely federal-state conflicts that will arise. Form also matters: a 2,000 word amendment dealing with the minutiae of traffic regulation would be out of place in a document that creates the structures of government and secures our most important freedoms.
Exam-taker with ID number 43 thinks it’s a good idea to amend the Constitution to prohibit, as he puts it, “activist judges” and maverick local officials from allowing same-sex couples to get married. To accomplish those ends, 43 proposes the following amendment as the 28th Amendment to the U.S. Constitution:
Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.
How well did 43 do?
June 5, 2006 at 10:18 am
Posted in: Constitutional Law
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Don’t Know Much About Driving
posted by Jason Mazzone
In the spirit of fair and balanced reporting, here now some positive news about our non-East Coast readers. According to a new study, the nation’s drivers with the least knowledge of the rules of the road are in the East: in Rhode Island to be exact–followed by Washington D.C., Massachusetts, New Jersey and New York. Next time you cross a street in Providence, Boston, Newark or Brooklyn, keep in mind that one in three drivers don’t think they have to stop or slow down for pedestrians and one in five have no idea roads are more slippery when wet. Oregon has the most knowledgable drivers, followed by Washington State. Vermont is third–the only Eastern state in the top twenty-five.
In fairness to East Coasters, knowing how to drive might not necessarily translate into skill behind the wheel. New York cabbies seem oblivious to rules but their passengers are rarely injured.
June 4, 2006 at 3:17 pm
Posted in: Current Events
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The Conservatives’ Gay Kids
posted by Jason Mazzone
With the Federal Marriage Amendment coming before the Senate this month, it’s a good time to ask: why do so many conservatives have gay offspring? To name just a few: Phyllis Schlafly (son, John), Dick & Lynne Cheney (Mary), Randall Terry (Jamiel), Sonny Bono (Chastity), Alan Keyes (Maya) and Pete Knight (David). Meanwhile, those liberal Kennedys of Massachusetts appear to have no gay children of record. Is there something about the Republican lifestyle that leads to homosexuality?
June 3, 2006 at 3:33 pm
Posted in: Current Events
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