Author: Jaya Ramji-Nogales

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Introducing Guest Blogger Adam Steinman

Steinman_PhotoIt’s a pleasure to introduce my law school classmate Adam Steinman as a guest blogger for the month of December.  Adam is a Professor of Law at the University of Cincinnati, where he teaches Civil Procedure, International Business Transactions, and International Trade.  Like yours truly, Adam is a proud procedure nerd, and his guest post on Iqbal last August generated much interest and thoughtful discussion from Co-Op readers.

Adam received his J.D. from the Yale Law School and his LLM from Georgetown University Law Center.  Prior to joining the legal academy, he clerked for Judge Buchmeyer of the U.S. District Court for the Northern District of Texas and Judge Garza of the U.S. Court of Appeals for the 5th Circuit, held a clinical teaching fellowship at Georgetown Law, and litigated with Perkins Coie LLP in Seattle.

Adam’s scholarship focuses on civil procedure and federal courts.  His most recent article, The Pleading Problem, is forthcoming in Volume 62 of the Stanford Law Review (2010).  Recent publications include:

What Is the Erie Doctrine? (And What Does It Mean for the Contemporary Politics of Judicial Federalism?), 84 Notre Dame L. Rev. 245 (2008)

Reinventing Appellate Jurisdiction, 48 Boston College L. Rev. 1237 (2007)

The Irrepressible Myth of Celotex: Reconsidering Summary Judgment Burdens Twenty Years after the Trilogy, 63 Washington & Lee L. Rev. 81 (2006)

Adam also co-edits the Civil Procedure and Federal Courts blog.

Welcome, Adam!

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Integration through contract?

contractThough European states have received increasing numbers of immigrants over the past few decades, they have failed to integrate these immigrants as successfully as traditional immigrant-receiving nations such as the United States and Canada.  There are undoubtedly many factors that contribute to this differential in integration success rates, but access to education and employment may be the most important.  Examining these measures, a recent OECD report found that the children of migrants living in Europe have significantly worse education and labor market outcomes than the children of migrants in the United States, Canada, Australia, and New Zealand.

So what then should we make of German Immigration Commissioner Maria Boehmer’s proposal to address Germany’s integration problem through contracts?   Expected to be introduced during the current legislative period, these contracts will explain the services and assistance available to immigrants while requiring immigrants to learn German and avow their support for liberal values such as freedom of expression and equality of women.  Dr.  Boehmer acknowledges that the key to integrating immigrants is access to schooling and employment markets (the latter through recognition of qualifications from abroad). Read More

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An Anecdotal Survey on the Mommyprof Track

A couple of weeks ago, I invited readers to participate in a survey on maternity leave policies at various law schools.  This effort was aimed at provoking open dialogue on the topic rather than providing a scientifically defensible sample or survey of law school practices (a worthy endeavor but not one that this mommyprof can fit into her schedule!).  I received 22 responses to the survey, which could include some overlap from the same law school, so the results are not even close to representative of the 193 ABA-accredited law schools in the U.S.  Nonetheless, I think the findings are interesting.

It was striking that all but one of the respondents said that their law school did not expect women to wait until tenure to have children.  The other respondent was not sure how her school would view pre-tenure childbearing, but worried that a leave might attract stigma from male colleagues.  On the brighter side, one commenter noted that at her school, all of the junior women in relationships had children before tenure in recent years.  While I know from conversations with friends at other law schools that this norm is not universal, it’s nice to see that it may be more widespread than I had expected.

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The Mommyprof Track

In many ways, law teaching is an ideal job for ambitious women who value a balance between work and family.  Many (though by no means all) law schools have generous maternity leaves — a semester paid, and if you can time your baby at the beginning of the calendar year or the end of the academic year, you can tack on a summer and win nine months at home with your newborn.  Once you’re back to teaching full time, the flexible schedule makes it possible to spend quality time with children during the hours they are available and to get your work done after the little ones have gone to bed.   And, at least in an ideal world, your colleagues view you as a lifetime investment rather than a disposable worker, so they will be flexible and supportive at this particularly challenging stage of your life.

That has been my experience and that of several of my friends, but I have heard significantly more negative stories from other women, ranging from law schools that refuse to provide more than six weeks paid leave to schools that expect female professors to wait until they have tenure to bear children.  I’ve heard of other schools that require women to “make up” the classes they miss while on leave; I can only imagine what a 2-2 or 2-3 teaching load while juggling a toddler (or nursing!) does to one’s research agenda.  And of course, for all of us, there’s no “part-time” option as a law professor; while working moms in many other fields can opt to work only two or three days a week for less pay, there’s no “mommy track” to tenure.  So while law prof moms often have the flexibility to work from home two or three days a week, those days must be productive and can’t be spent playing with little ones.  (To be sure, that’s just fine with many of us, including yours truly, but may not be ideal for all law prof moms.) Read More

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Teaching Sexual Violence

teacherI’m into week two of Evidence, which is one of my favorite classes to teach — full of vivid examples and fun hypotheticals, which make it relatively easy to keep students engaged.  Each year, however, I hit the tricky problem of how to deal with the sections of the course that cover crimes of sexual violence while maintaining the pedagogical goals of maximizing participation in class discussion and encouraging thorough and comprehensive study habits.  There are two main parts to this question — how to approach cold-call questioning in this area of the course and how to test these issues.  I’m sure others who teach evidence, criminal law, international criminal law, and similar courses have faced these problems, and I’m eager to hear how you’ve addressed them. Read More

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Re-reading Iqbal (a new take on the 12(b)(6) wars)

My friend and law school classmate Adam Steinman tempted the civ pro geek in me with his thoughtful and thorough discussion of the recent Iqbal decision, which has caused more excitement in proceduralist circles than I’ve seen in quite some time!  His thoughts should prove most helpful to those of you figuring out how to teach the case in your Civil Procedure class this fall . . .

Thanks to the folks at Concurring Opinions for giving me the opportunity to share some thoughts on last Term’s decision in Ashcroft v. Iqbal, which dismissed a civil-rights complaint filed against John Ashcroft and Robert Mueller by Arab Muslim men detained in the weeks following 9/11. I realize my comments are glacially slow-in-coming by blogosphere standards (Iqbal came down over two whole months ago). But it’s been back in the news lately, including Adam Liptak’s NYT article and Senator Specter’s introduction of the Notice Pleading Restoration Act (which would legislatively overrule Iqbal, although even Iqbal’s critics concede that the bill may have little chance of becoming law).
Iqbal has been of immense interest to litigators and civil-procedure scholars, because it embraces the 2007 decision in Bell Atlantic v. Twombly as reflecting the generally applicable pleading standard in federal court. Twombly had dismissed an antitrust conspiracy claim for lacking sufficient “factual enhancement” to make it “plausible.”  Twombly was quite controversial in its own right, but some had speculated it might be narrowly confined to complex antitrust cases.

The response to Iqbal reveals a sharp divide between those who “are lovin’ Iqbal” (in the words of a recent WSJ headline) and those who are, well, not lovin’ Iqbal. But there has been very little disagreement about how to read Iqbal—everyone seems to agree that Iqbal imposes significant new obstacles on plaintiffs at the pleadings phase and, thereby, discards the liberal, notice-pleading paradigm that most lawyers, judges, and law professors alive today learned in law school. The focus of the debate has been whether this result is proper or desirable. I want to challenge the premise that this is the correct reading of Iqbal. In fact, if read carefully, Iqbal can be fully reconciled with the pre-Twombly view of pleading. (If readers are interested, this argument is explored in more detail in my article “The Pleading Problem“, which is available on SSRN.)
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Measuring Gender Discrimination

ruler1I’m normally a fan of the statistical reports produced by the OECD, so was surprised to find myself in disagreement with the methodology of their recently-created Social Institutions and Gender Index (SIGI). The idea behind SIGI is a good one — to get at the root of gender discrimination by examining traditions and social norms that impede women’s empowerment. To this end, SIGI assesses twelve variables in 102 non-OECD countries and then ranks these countries based on their “performance in social institutions.” The selection and evaluation problems with their study highlight the difficulty of empirically measuring and ranking intangible phenomena such as social norms.

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Judging Motherhood

milk-bottle1Sarah Waldeck’s recent post on the consequentialist rationale for publicizing breast-feeding’s benefits for mothers was right on the mark; breast-feeding can be challenging in the best of circumstances, so those who believe that “breast is best” should appeal to women’s self-interest rather than or as well as their noble sense of self-sacrifice.  In addition to the argument she lays out, there’s also expressivist value in changing the way we speak about, and thus perceive, breast-feeding. 

The discourse of breast-feeding has long been about everything but the mother; women who wanted to breast-feed were once told that they shouldn’t do so because formula was better for their child, now mothers are told that they must breast-feed because of all of the benefits for their child — higher IQ, less risk of obesity, diabetes, ear infections — you name it.  Inundated by these questionable claims during my pre-natal classes, I wondered how studies could possibly control for factors such as the socio-economic background of the mother.  It turns out they can’t, as Hanna Rosin explained in The Atlantic last month (in an article Sarah posted on here).  As Toto pulls open the curtain on its lack of empirical grounding, the breastfeeding orthodoxy is revealed as a stunningly paternalistic judgment on motherhood and women’s agency.

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What’s Wrong with Teen Sexting?

The teen pastime of “sexting” has taken a serious tangle with the law of late in our fair state of Pennsylvania. For those who haven’t heard of the phenomenon, “sexting” is the practice of sending nude or semi-nude pictures of oneself (or of one’s closest friends or enemies) via cell phone to a love interest, a friend, or as many classmates as possible. A recent study by the National Campaign to Prevent Teen and Unplanned Pregnancy found that 20% of teens surveyed had electronically sent or posted online nude or semi-nude photos or videos of themselves — so this appears to be a sizeable and quite serious problem. Even worse is the jaw-dropping response from local law enforcement.

In one example, last fall, school officials from the Tunkhannock School District in Wyoming County, Pennsylvania, seized several cell phones from high school students. The officials searched the phones and discovered that male students had been using them to trade photos of semi-nude and nude female students. The local district attorney threatened to charge three girls — two photographed in white bras and one with a towel covering her from the waist down — with child pornography or open lewdness unless they agreed to participate in probation in the form of a five-week re-education program. He did not threaten to bring charges against any of the boys trading photographs on their cell phones. The concerns raised by this approach abound: privacy, free speech, proportional punishment (if found guilty of child pornography, the teens would be subject to Megan’s Laws disclosure requirements and other sex offender laws), and, of most interest to yours truly, the gendered nature of this particular bit of legal discourse.

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Bring on the Deans!

With Yale Law Dean Harold Koh’s nomination as State Department Legal Adviser, the Obama administration has tapped the deans of the country’s top two law schools, and is populated by numerous law professors, including, of course, the president himself. There’s nothing new in that observation, but it was still of interest to a European law professor who was visiting Temple Law School yesterday. In his country, there’s no such intermingling between academia and government — the executive bureaucracy remains in place regardless of electoral outcomes; a new political party in power leads to change at the very top but otherwise few shifts occur. Though there may be some efficiency benefits to a permanent bureaucracy, I can’t say that I see much more to recommend it, and nor could our guest. While permanent executive officers would develop significant expertise in the subject area relevant to their post, I can’t imagine that luminaries such as Koh and Kagan, with not only deep knowledge but also serious candle-power, would migrate in large numbers to such positions. A permanent bureaucracy might result in increased ideological stability, without the migration between the left and the right that we see in the U.S., but I query whether this outcome is possible (can permanency eliminate political inclinations or does it simply entrench them?) or even desirable. At least in our system of government, the executive branch should be responsive to the will of the people, and the cyclical shifts in ideological inclinations help to moderate extreme influences on both sides of the political spectrum. As long as excellence and experience, rather than ideology, are the central rationales for selection of political appointees, these swings should improve governance in the long run, by bringing in fresh ideas and new perspectives every four to eight years. So bring on the deans, I say — our government will be a richer place for it.