The politics of integration are also complex.  When is integration in a neighborhood cause for celebration and when has it shaded into the dreaded gentrification?  Are poor children of color most likely to be effectively educated in opportunity rich, integrated schools or will the teachers and administrations in such schools favor kids from wealthy families with helicopter parents?  These questions are real and should be topics for debate among policy makers, researchers, community residents, and parents.   

Unfortunately, this complexity and, to an even greater extent, anxiety about even [...]]]> Most of us recognize that our society will be stronger if our students are educated in diverse settings and our neighborhoods not divided by race or ethnicity.  Yet integration in education and housing remains an elusive goal and is often seen as secondary to measurable academic achievement or affordable housing.   

The politics of integration are also complex.  When is integration in a neighborhood cause for celebration and when has it shaded into the dreaded gentrification?  Are poor children of color most likely to be effectively educated in opportunity rich, integrated schools or will the teachers and administrations in such schools favor kids from wealthy families with helicopter parents?  These questions are real and should be topics for debate among policy makers, researchers, community residents, and parents.   

Unfortunately, this complexity and, to an even greater extent, anxiety about even acknowledging race have led many to shy away from these issues.  Not everyone, though.  Over 300 people attended a conference this past week at Howard University School of Law, entitled Reaffirming the Role of School Integration in K-12 Public Education Policy: A Conversation Among Policymakers, Advocates and Educators. The conference brought together Obama administration officials, civil rights advocates and researchers, educators, and parents.  If you are interested in the discussion, you can access the live blog here.

On Monday, the Massachusetts Supreme Court considered a variant of the autonomy/obligation condundrum in Pierce v. Pierce  - in which the Court was basically asked to decide whether a higher earning spouse has a “right to retire” and be exempted from otherwise on-going alimony obligations.

Rudolph Pierce was a well-compensated attorney.  In the divorce agreement from Carniece, his wife of 32 years, he agreed to pay $110,000 year in alimony until either party died or she remarried.  When he decided to retire [...]]]> Courts regularly grapple with the competing principles of autonomy and obligation in the context of family law.   How to reconcile these principles – when gender, money, relative status, jealousy, spite, avarice are involved – is a fascinating challenge for judges.  These issues are also fun to teach since they are often uncomfortably close to most people’s own experiences. 

On Monday, the Massachusetts Supreme Court considered a variant of the autonomy/obligation condundrum in Pierce v. Pierce  - in which the Court was basically asked to decide whether a higher earning spouse has a “right to retire” and be exempted from otherwise on-going alimony obligations.

Rudolph Pierce was a well-compensated attorney.  In the divorce agreement from Carniece, his wife of 32 years, he agreed to pay $110,000 year in alimony until either party died or she remarried.  When he decided to retire from his partnership at age 65, he argued that he should be relieved of any obligation to pay alimony and asked the court to adopt a rebuttable presumption that all alimony should be terminated when (1) the supporting spouse retires from employment at a customary retirement age and has no actual earned income, (2) the parties’ marital assets, including their retirement assets, had been equally divided at the divorce, and (3) the parties have the same amount of liquid assets at the time of the provider spouse’s retirement.  

 The trial court agreed to a significant modifcation of Rudolph’s obligation – to $42 k – but held that in light of Carniece’s recent loss of her job, the fact that she was not yet t entitled to Social Security, and that Rudolph continued to have significant earning capacity (in addition to his assets and his current wife’s salary), he wasn’t off the hook altogether.   The Supreme Court rejected Rudolph’s rebutabble presumption and affirmed the multi-factoral test generally applicable to modification requests.

My first thought (which the Court echoed) is why (at age 57), Rudolph agreed to such a high alimony award without a change upon his retirement.   A cynic would suggest that this might have been  intentional so that his wife would agree to a fairly equal division of property despite the parties’ differential earning capacity (his wife had been the primary caretaker of the children and home though she worked outside of the home as well).

Cynicism aside – this is a difficult issue.  Rudolph’s arguement that declining to accept the presumption would grant the recipient spouse “effective veto power over the provider spouse’s retirement decision” was wildly exaggerated.   But the Court did impose limitations on when a “supporting spouse” will be able to retire – and for some, the idea of having to continue to work to support a former spouse will seem deeply problematic.

Needless to say, I acknowledge the difference.  We on the interviewing side are happily (hopefully) ensconced as academics – a position that is frankly worth running from hotel suite to hotel suite.  We are (hopefully) happy to talk about the benefits of our particular institution.  And it has been fabulous to read the scholarship [...]]]> It has been a decade since I slept poorly at the Wardman in November – and I must admit to having some unpleasant flashbacks.  Last night, like 10 years ago, I got lost on my way to an interviewing suite.  I still find the bar scene a little anxiety producing.  So – to those of you interviewing today – many of us on the other side of the couch do have empathy for you!

Needless to say, I acknowledge the difference.  We on the interviewing side are happily (hopefully) ensconced as academics – a position that is frankly worth running from hotel suite to hotel suite.  We are (hopefully) happy to talk about the benefits of our particular institution.  And it has been fabulous to read the scholarship of those on the market. 

I thought I’d post this morning mainly to wish you all good luck — and to explain why I am not posting anything substantive until next week.  And a quick tip:  when you are given the opportunity to ask any questions – find a question that allows for an interesting and idiosyncratic answer.   I promise that every school will have an identical answer to the ubiquitous “what support does your institution have for junior faculty.”  We all have colloquia, research stipends, and collegial sharing of documents.  We all generally do try to give junior faculty reasonable teaching loads, etc.  And if we don’t do any of these things, we won’t acknowledge it here!

While I have been wrestling with these challenges, some of our academic colleagues, have I think, been meeting them – Richard Thompson Ford’s, The Race Card, Kenji Yoshino’s, Covering are two examples.  Most recently, and in some ways the most salient to my own aspirations, is Paul Butler’s recent book, Let’s Get Free:  A [...]]]> I am thrilled to be back at Concurring Opinion – thanks to Solangel, Dan and the other regulars for having me.   The timing of this visit is propitious for me – I am returning from a policy-focused (and surprisingly non-academic) sabbatical and I have been thinking a great deal about how best to stay engaged in policy/politics while also returning to academic culture.  The worlds of advocacy and academia are distinct, obviously, and reconciling them can be challenging.

While I have been wrestling with these challenges, some of our academic colleagues, have I think, been meeting them – Richard Thompson Ford’s, The Race Card, Kenji Yoshino’s, Covering are two examples.  Most recently, and in some ways the most salient to my own aspirations, is Paul Butler’s recent book, Let’s Get Free:  A Hip-Hop Theory of Justice. 

Butler’s book is extraordinary – he is a wonderful writer and tells a compelling story about his days as a prosecutor and his own improbable arrest and trial.   But while books by lawyers about their practice are often fun reads – and this one is – what is most impressive is that Butler’s book is a theory of criminal justice.  Butler is doing far more than telling a good story about lawyering.  He has taken his scholarly agenda (which as many of us know has landed him impressive placements in law reviews) and rendered it readable.  He weaves high level traditional theory, data, narrative, very candid self-critique, and insights from hip-hop.  It may seem like a gimmick to have a sentence containing Snoop Dogg and Jeremy Bentham – but in Butler’s book, it’s not.  He obviously knows both intimately and uses them to brilliant effect (and for the record, I don’t particularly like hip-hop). 

This book intends to engage people outside academia into joining a political/legal struggle for a dramatically different method of criminal justice - most notably for drug offenders.   The first half is a critique of our current system – from Butler’s perspective as an insider resulting from his years as a federal prosecutor.  The second half is his alternative theory of criminal justice – drawn from the outsider’s perspective of “the hip hop nation.”   The first half is fabulous – primarily because Butler is so brutally honest about his own experience and his own complicity in what he now considers to be a failed system. 

 I admit to being more skeptical when I began the second half – which presents his “hip hop” theory of justice.  As a teen ager in the 80s, I danced to “Rapper’s Delight,” too, but I stick with late Temptations rather than many of the other artists he relies upon.    But after reading the book through, I think the idea of bringing insights about crime and punishment from this particular community has enormous utility.  What ultimately persuaded me was Butler’s argument (relying upon Rawls) that the people best situated to devise a system of punishment are those who aren’t sure how they will fare under the system.  And Butler is exactly right that those who make up “the hip hop nation” are “both the most likely to be arrested and incarcerated for crimes and  the most likely to be victims of crimes.”  (131).  Therefore, their ideas about who should be punished and how should be heard.

I don’t necessarily adhere to all of Butler’s arguments, but I deeply admire the book – and the method of bringing his academic ideas into popular culture – while also relying upon one particular form of popular culture’s own ideas.   I would love to hear about other examples of engaged – and engaging – scholarship!

I would like to revisit Dave Hoffman’s concern that this blog may have let its readers down by failing to address the habeas/torture legislation passed last week. I have felt similar angst not as a blogger, but as a lawyer/law professor more generally. Do I (do we) have an obligation to be involved when critical legal rights are at stake? Like many who have been deeply troubled by the administration’s treatment of Guantanamo detainees and its actions undermining civil liberties during the years since September 11, I have excused my lack of involvement on grounds that the issues are not my area, or are outside the bounds of my expertise.

During this same period, two of my colleagues, Mark Denbeaux and Baher Azmy, have [...]]]>

I would like to revisit Dave Hoffman’s concern that this blog may have let its readers down by failing to address the habeas/torture legislation passed last week. I have felt similar angst not as a blogger, but as a lawyer/law professor more generally. Do I (do we) have an obligation to be involved when critical legal rights are at stake? Like many who have been deeply troubled by the administration’s treatment of Guantanamo detainees and its actions undermining civil liberties during the years since September 11, I have excused my lack of involvement on grounds that the issues are not my area, or are outside the bounds of my expertise.

During this same period, two of my colleagues, Mark Denbeaux and Baher Azmy, have thrown themselves into the fray and are hosting a teach-in tomorrow at Seton Hall Law that will be webcast to colleges and universities around the country. Mark and Baher have both represented Guantanamo detainees — indeed, Baher’s client, Murat Kurnaz, was released August 24, 2006 after being held by the United States since October 2001. The teach-in program looks to be extraordinarily informative and I encourage people to find a way to connect to it.

Some of those who responded to Dave’s post suggested that our country is not at the point where the failure to respond can be likened to the Germans during the holocaust. But is that our standard? I accept that the general concept of a division of labor gives me leave to allow others to become expert on important legal topics. It is also true that multiple tragedies in this country and around the world are ongoing and one can’t take personal responsibility for them all. The difference of course is when our own government is responsible — and particularly when clear political moments arise as they did last week. I appreciate the efforts of many law professors to lobby Congress — and the many terrific discussions in the blogosphere. But I join Dave in thinking that those of us who think that our government has gone seriously awry (and I recognize that not all share this view) have some obligation.

What might our obligations entail? At the very least, we should all have weighed in to our representatives about last week’s legislation. Likely those of us who have a platform — like a blog — should acknowledge critically important political or legal events if only by linking to those whose blogs contain extensive discussions. Today, for example, Frank Pasquale posted a thoughtful discussion of both the teach-in tomorrow and John Yoo’s troubling interview on NPR. Linking to others has the effect both of alerting our readers to where they can find sound analyses and also adding to the chorus of dissenting voices. We should also aspire to deeper engagement. I feel an enormous debt of gratitude to those, like Baher and Mark, who have devoted extraordinary time and energy to representing detainees and organizing a sustained response. I am confident that tomorrow’s teach in will contain a detailed discussion of ways to become involved. I will provide a full description in a post tomorrow.

In her essay, Brooks describes gendered challenges to academic success. The most salient is the time many women spend engaging in caretaking and housework — to the detriment of scholarship. The fact that women are often more pressed for time than men might suggest that valuable time should not [...]]]> In Yale Pocket Part, two new essays raise the question of whether women in legal academics should spend time blogging. Only one of the essays discusses this question explicity — Rosa Brooks in her candid and thoughtful What the Internet Age Means for Female Scholars? However, for women academics deciding whether to blog, I think the other essay, Brian Leiter, Why Blogs are Bad for Legal Scholarship may also be a must read.

In her essay, Brooks describes gendered challenges to academic success. The most salient is the time many women spend engaging in caretaking and housework — to the detriment of scholarship. The fact that women are often more pressed for time than men might suggest that valuable time should not be spent blogging. (Why am I not finishing the paper I am working on right now instead of musing about blogging!?)

However, Brooks also notes that not only must legal academics write great scholarship, they also have to ensure that their scholarship is read and noticed. Typically, conferences, colloquia, and visiting semesters are the best ways to promote scholarship. More women than men are also hampered here by family obligations or working spouses who are unwilling to uproot themselves for cross-country semesters or years. So, Brooks suggests, the internet provides a convenient way to advance own’s ideas and name. Though she observes that blog culture can be hostile to women and overly testosterone driven, Brooks seems cautiously optomistic that the internet and blogging might prove quite useful to women:

I can think of several younger scholars—including some women—whose careers have clearly been helped by blogging and commenting on blogs, activities that have gotten them noticed by people who then go on to read and be impressed by their more “serious” work. It’s too soon to say, but I suspect that the Internet age may gradually help eliminate the practice of making visits a predicate of lateral faculty offers. To the extent that blogging can help people get to know a scholar’s style of thinking, why put everyone to the trouble and expense of term- and year-long visits?

Enter Brian Leiter. Leiter appears hostile to blogs as means for those not already recognized as legal superstars to promote their ideas. He says so quite explicity:

[M]y sense is that blogs have been bad for legal scholarship, leading to increased visibility for mediocre scholars and half-baked ideas and to a dumbing down of standards and judgments.

Two mechanisms still exist for counteracting these developments. First, more first-rate scholars may enter the blogosphere, and use their pre-Internet gravitas to shift the terms of discussion. Second, the shift to peer-refereed publications in the legal academy—most of the best work in law and economics and law and philosophy, for example, now appears in faculty-edited journals—will ameliorate the significance of availability cascades on non-expert mediators like students and journalists.

It seems therefore, that Leiter (and any who agree with him) will give little credence to ideas posted in the blogosphere unless an already established legal superstar (those with pre-Internet gravitas) provides an introduction or some other sort of cover. Now, I presume Leiter would respond that he is not arguing that an idea or theory is mediocre simply because it is advanced by someone not already known by the heavy weights of the legal academy. However, the challenge for those not already in the club is to find vehicles for their work to be read. Once it is read, hopefully it will be judged on its merits. If Leiter’s view is widely shared, blogs will not prove useful alternatives to conferences or visits.

So –for women deciding whether to spend precious time blogging, the big question appears to be whether Leiter’s view will prevail.

Let’s imagine a couple — Catherine and Fred. Catherine is a 23 year old nurse and Fred is a 39 year old neurosurgeon. On the night before their wedding, [...]]]> Gender wars are alive and well in the blogsphere recently. While it seems to me that more than enough cyber ink has been spilled over boobgate and the fracas over Above the Law, I do think that the role of gender in law and culture continues to be actually difficult and worth discussing. I am teaching Family Law for the first time this semester and have noticed that my students often find ideals of formal sex equality extremely unsatisfying. As an example, I offer the enforceability of the eve of wedding prenup.

Let’s imagine a couple — Catherine and Fred. Catherine is a 23 year old nurse and Fred is a 39 year old neurosurgeon. On the night before their wedding, Fred’s lawyer presents Catherine with a prenup limiting her to support payments of $200 per week with a max of $25,000 should their wedded bliss end in divorce. Catherine signs — without any legal advice. Should this be enforceable?

This hypothetical is of course a case, Simeone v. Simeone, which was decided in 1990 by the Supreme Court of Pennsylvania. The majority rejected the old rule that prenups would be enforced only if they made reasonable provisions for the other spouse or were entered into after full disclosure of finances and statutory rights. The court’s new rule — that prenups should be treated like any old contract — ostensibly rested upon the invalidity of old stereotypes of women as homemakers and men as breadwinners. The court also suggested that treating prenups differently than other contracts would be akin to finding that women were the weaker sex, uninformed, uneducated and subject to unfair advantage in marital agreements. A paean to formal equality!

The concurrence mocks the majority’s assumptions about women’s “equality” in the real world. Justice Papadakos writes: “Mr. Justice Flaherty believes that, with the hard-fought victory of the Equal Rights Amendment in Pennsylvania, all vestiges of inequality between the sexes have been erased and women are now treated equally under the law. I fear my colleague does not live in the real world. If I did not know him better I would think that his statements smack of male chauvinism, an attitude that ‘you women asked for it, now live with it.’”

Would a legal rule that prenups should be treated differently than other contracts akin to the old rules that paternalistically protected women from both the stresses of society and themselves — like those that prevented women from tending bar? We could of course fashion a gender neutral rule that had the intended effect: prenups are unenforceable unless both parties had legal advice. Our reasoning might be that the parties are emotionally unable to engage in arms-length bargaining. They are about to get married, after all, and are likely in the throngs of idealism. Of course — someone is pushing the prenup in the first place so is obviously a bit more cold-eyed than the blissful image suggests. Would my legal rule be a veiled attempt to protect women from themselves? Perhaps — though it would have the effect of protecting men in some situations, too.

Like my students, I find myself torn between legal rules that confirm gender differences and those that ignore them.

Two hotly contested issues — the role of race in political representation and the use of eminent domain for economic development — collided in the contest for the 11th Congressional District in Brooklyn yesterday. The 11th has been represented by an African American since Shirley Chisolm first won in 1968. The Congressional race began to receive national attention when David Yassky, a white city councilman, moved into the district to seek the seat vacated by Major Owens against three black challengers, Carl Andrews, Yvette Clarke, and Chris Owens (Major’s son) . The District is also home to the City’s controversial plan to use eminent domain to support the Forest City Ratner development in Atlantic Yards, which will include an arena designed [...]]]> >

Two hotly contested issues — the role of race in political representation and the use of eminent domain for economic development — collided in the contest for the 11th Congressional District in Brooklyn yesterday. The 11th has been represented by an African American since Shirley Chisolm first won in 1968. The Congressional race began to receive national attention when David Yassky, a white city councilman, moved into the district to seek the seat vacated by Major Owens against three black challengers, Carl Andrews, Yvette Clarke, and Chris Owens (Major’s son) . The District is also home to the City’s controversial plan to use eminent domain to support the Forest City Ratner development in Atlantic Yards, which will include an arena designed by Gehry and 6,800 units of housing. Yassky and Clarke both supported the Atlantic Yards development — with some criticisms of scope, while Owens vocally opposed it.

Yvette Clarke won the seat with 31% of the vote to Yassky’s 26%. Andrews won 23% and Owens trailed behind with 20%. What is the message to draw from Clarke’s victory? What role did race or gender play? How significant was her support for Atlantic Yards?

For full information, I live in the neighborhood adjoining the 11th. My coffee shop was abuzz with the race. My own observations are therefore partially informed by local discussion.

Race was obviously a significant issue in this contest. It may have been particularly fraught in light of the changing demographic of Brooklyn and the redistricting that changed the district from 75% black to 58.5% black, 21.4% white, with a significant Latino and growing Pakistani population. Yassky, a former law prof at Brooklyn Law School, had a good reputation as a City Councilman — he was active on causes ranging from lead paint to affordable housing. But he moved into the district solely to run for the open seat, which obviously opened him up for claims of illegitimacy. As the Times reported today, Major Owens referred to him as a “colonizer.” Terry Smith on Blackprof wrote a series of posts both lambasting Yassky for running in a majority minority district and the New York Times for endorsing him. From the coffee shop, I would venture the view that Yassky’s support for Atlantic Yards cost him votes from those he expected to support him — upper middle class (often white) residents of Brownstone Brooklyn.

Clarke, also a member of the City Council since 2001, was endorsed by the New York Daily News, as well as many unions, and prominent Democratic officials. She is the daughter of a former New York City councilwoman, Una Clarke. She was active against fire department closures and worked on HIV/AIDS issues. Clarke’s candidacy suffered a setback, however, over her false claim to have graduated from Oberlin College (she attended Oberlin but was shy the necessary credits to graduate).

Whether Clarke’s victory suggests popular support — and particularly support among working class and people of color — for Atlantic Yards and the use of eminent domain is hard to know. She received only 31% of the vote — though Yassky, another supporter, received the next highest vote tally at 26%.

However one views the outcome, the role of race in politics and the appropriateness of the use of eminent domain were avidly discussed in the weeks before the election — which seems a very good thing.

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These questions are related, in my view, to the particular nature of stress [...]]]> Thank you (I think) to Dan for this guest stint on Concurring Opinions and the generous introduction. My ambivalence (which might seem somewhat snarky) actually stems from stress, induced by the ambiguity of the task of guest-blogger on this particular blog if one is not a privacy or criminal law guru. What topics will be of interest? How does one generate reams of clever comments, inspire a vibrant cyberconversation? Should you keep writing even if you can’t find your copy of Thorstein Veblen or de Tocqueville to bolster your own petty musings? In other words, what are the rules for achieving some degree of success on Concurring Opinion?

These questions are related, in my view, to the particular nature of stress experienced by many already-tenured legal academics. This topic was raised in brief by a slightly tongue-in-cheek post on PrawfsBlawg last week, phrased as the guilt that, despite having “the best job in the world,” many law professors still consider themselves stressed. A few follow-up posts suggested that the only real stress in our job is achieving tenure – or perhaps those few rare occasions on which one looks like an idiot in front of 90 law students. I disagree – and in fact think that in some respects, this job becomes more stressful post-tenure. It all depends on how we define stress.

The kind of stress I am interested in is not the “I have too much to do” kind of stress – which we all know really makes us feel important and valuable. As Michael Marmot writes in The Status Syndrome, it isn’t the busy times that cause us stress, it is status insecurity and the lack of control over that which garners us status. Marmot (for those who aren’t so inordinately insecure that they read multiple books on status insecurity), is an epidemiologist who focuses on the link between status and health. So why would we be more status-focused and thus perhaps more stressed after tenure?

Because when we seek tenure, the rules of success and the particular type of status we are striving for are generally clear. At most law schools, we know that if we write the requisite number of articles, have them read and admired by the powerful members of the faculty, receive reasonable teaching evaluations, and participate adequately in faculty governance, we will very likely receive tenure. Don’t get me wrong, I had many moments of extraordinary pre-tenure stress – each time I sent an article out for publication, during outside review of my scholarship, and whenever I opened the yellow envelope containing teaching evaluations, I experienced classic stress reactions. And some law schools have ambiguous tenure guidelines or are well-known for denying tenure. Obviously, pre-tenure stress at such institutions is likely to be very high.

Post-tenure, however, the rules for increasing status are more nebulous. Legal academics often self-identify as “over-achievers.” I think what we often mean by “over-achievers” are inveterate hoop jumpers and people pleasers (or perhaps the less attractive phrases for these phenomena). Pre-tenure, it is fairly clear who we need to please: powerful faculty and the Dean. Post-tenure, once the five minutes of euphoria have passed, the potential field of people to please or impress grows exponentially: stars in your own field, academics in related fields, lateral hiring committees at higher ranked schools, academic publishers, the media. The list is endless. Most irritatingly, technology constantly creates new modes of measuring our status: SSRN download counts, google searches, and now of course, blog response rates.

So – here’s hoping that I figure out the rules of the game for guest-blogging on Concurring Opinion so that this month isn’t wildly stressful.