Author Archive for sarah-waldeck
More Data on Classroom Laptop Use
posted by Sarah Waldeck
Jeff Sovern of St. John’s University School of Law recently conducted a research study that observed student laptop use in 60 sessions of various law school courses. Although the study contains some methodological limitations (which Professor Sovern fully acknowledges), it is another window into how laptops affect classroom dynamics. The full article can be found here and Professor Sovern’s abstract is reproduced below:
This article reports on how law students use laptops, based on observations of 1072 laptop users (though there was considerable overlap among those users from one class to another) during 60 sessions of six law school courses. Some findings:
•More than half the upper-year students seen using laptops employed them for non-class purposes more than half the time, raising serious questions about how much they learned from class. By contrast, first-semester Civil Procedure students used laptops for non-class purposes far less: only 4% used laptops for non-class purposes more than half the time while 44% were never distracted by laptops.
•Students in exam courses were more likely to tune out when classmates asked and professors responded to questions and less likely to tune out when a rule was discussed or textual material read in class.
•For first-semester students, policy discussions generated the highest level of distraction while displaying a PowerPoint slide which was not later posted on the web elicited the lowest level.
•With some exceptions, what was happening in the class did not affect whether upper-year students tuned out or paid attention.
• The format used to convey information – lecture, calling on students, or class discussion – seemed to make little difference to the level of attention.
•Student attentiveness to the facts of cases is comparable to their overall attention levels.
The article speculates that student decisions on whether to pay attention are responses to the tension between incentives and temptation. While the temptation to tune out probably remains constant, ebbs and flows in incentives may cause students to resist or yield to that temptation. Because first-semester grades have more of an impact on job prospects, first-semester students have a greater incentive than upper-year students to attend to classes. Similarly, because students probably anticipate that rules are more likely to be tested on exams, students perceive that they have more of an incentive to pay attention when rules are discussed. Conversely, students may suspect that matters asked about by classmates are less likely to be tested on and so their grades are unlikely to be affected if they miss the question and answer, reducing the incentive to pay attention.
Because of methodological limits to the study, the article notes that its conclusions cannot be considered definitive, and so it urges others to conduct similar studies.
April 18, 2011 at 12:02 pm
Posted in: Law School (Teaching)
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Westlaw Next
posted by Sarah Waldeck
Lately I’ve found myself thinking more than I have for a long time about the process of legal research. This is because of an intriguing article by Ronald E. Wheeler, Jr., the director of the library at the University of San Francisco Law School. Wheeler’s article (which can be found here) discusses Westlaw Next, the new search engine rolled out by Westlaw in 2010. Several features distinguish Westlaw Next from Classic Westlaw; most notably, that Westlaw Next is a sort of “Google for lawyers” because it uses a crowd sourcing algorithm that relies on the actions of other Westlaw users to rank the relevance of documents retrieved in a search. Wheeler’s article is a must-read for anyone who teaches legal research to law students and a should-read for any scholar who uses or has research assistants using Westlaw Next. Read the rest of this post »
March 22, 2011 at 5:51 pm
Posted in: Law School (Scholarship), Law School (Teaching)
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Laptops, Again
posted by Sarah Waldeck
Over at PrawfsBlawg, Rick Garnett has drawn attention to Kristin Murray’s forthcoming article Let Them Use Laptops: Debunking the Assumptions Underlying the Debate Over Laptops in the Classroom. Since my own laptop ban was cited in the article, I read it with particular interest. I’m still thinking about the piece, which for me means that it was worth reading.
One of Murray’s central points is something that I suspect most professors who decide to ban laptops have considered: students have different learning styles and some of them will be genuinely aided by having a laptop in class. Because of this, I tried or considered several of the alternatives to laptop bans that Murray endorses—incentives for participation, a personal request that laptops only be used for classroom purposes, and so forth—and ultimately found these alternatives wanting. For me, particularly in the large core courses that I teach, the relevant question is always: what policy decision is going to benefit the most students?
To argue that I and others of my ilk have gone too far with an all-out ban, Murray relies primarily on a survey of laptop practices that was taken by Temple and Georgetown law students. In fairness, Murray notes her own reservation s about the merits of self-reporting. But I found many of the survey comments unpersuasive, primarily because they so remind me of what my own students said prior to participating in my laptop-free classroom. Many—although by no means all—students had very different comments about the value and effects of their laptops by the end of the semester.
Murry’s paper arguably predicts this result. One of the assumptions (presumably made by laptop advocates) that Murray seeks to debunk is that “[b]ecause they are digital natives, law school students make informed choices about laptops and learning.” Murray finds that students bring “laptops to class with only some of them thinking critically about their own note-taking, study and learning habits.” This raises a question about these same students’ abilities to report critically on their own laptop practices. What should we make, for example, of the more than 55% of students using their laptops for non-classroom related activities who say they “never miss anything” or only “occasionally miss something minor”?
Murray’s article also has me thinking about how the professor side of the equation fits into the whole laptop debate. I would not be the first to comment on how scary it is to walk into a laptop-free classroom and realize that you are the only entertainment in the room. I will also confess that during a visit to a school where I didn’t ban laptops, teaching sometimes felt easier because I knew that if the students didn’t find the material engaging they had something else to do. I don’t know how we would measure the effects that laptops have on professor performance, but it’s an interesting question.
March 10, 2011 at 1:31 pm
Posted in: Law School (Teaching)
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Panel Discussion on Female Circumcision: Ethics and Human Rights
posted by Sarah Waldeck
I’ve written previously about the firestorm surrounding the now-retracted American Academy of Pediatrics policy statement suggesting that doctors might make a ritual nick on girls to prevent them from being sent back to their home countries for more drastic forms of genital cutting. Readers in the Boston area might be interested in attending a panel discussion at Harvard Law School that asks where those working to prevent female genital cutting should go from here. Below is a description of the event, which takes place tomorrow (March 3) at 4:00 in Room 200, Pound Hall.
The practice of FGM has been at the center of health and human rights debates for decades. Public health, women’s rights and child rights advocates, governments and health professional associations–in Africa, Asia, Europe and the US– have taken positions running the gamut from abolition to harm reduction. In April 2010, the American Association of Pediatrics issued a Policy Statement on female genital cutting that was quickly retracted in the face of significant opposition. The controversy surrounding the report presents an excellent point of departure for examining the issues that still complicate our thinking about the issue.
In this panel we hope to explore the ethical, legal, and human rights dimensions of female genital circumcision. These include dimensions of toleration, prohibition, harm-reduction, and cultural competency.
March 2, 2011 at 3:18 pm
Posted in: Constitutional Law, Uncategorized
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Introducing Jonathan Hafetz
posted by Sarah Waldeck
I’m pleased to introduce Jonathan Hafetz, who will guest blog this month. Jonathan is an Associate Professor of Law at Seton Hall University School of Law, where he focuses his research on national security, human rights, immigration, and constitutional law. He is the author of a new book Habeas Corpus after 9/11: Confronting America’s New Global Detention System (NYU Press 2011). He also is the co-editor (with Mark Denbeaux) of The Guantanamo Lawyers: Inside a Prison Outside the Law (NYU Press 2009). Jonathan’s scholarship has appeared in numerous publications, including the Yale Law Journal, Fordham Int’l Law Journal, and American University Int’l Law Review. Here is Jonathan’s SSRN link.
Prior to joining Seton Hall, Jonathan was an attorney at the ACLU’s National Security Project, a litigation director at NYU’s Brennan Center for Justice, and a John J. Gibbons Fellow in Public Interest and Constitutional Law at Gibbons, P.C. Jonathan has litigated leading national security habeas corpus cases, including Al-Marri v. Spagone, which involved the military detention of a legal U.S. resident. He was a member of the legal teams in Boumediene v. Bush and Rasul v. Rumsfeld in which the Supreme Court recognized the right of Guantánamo detainees to habeas corpus. Jonathan also has authored or co-authored numerous amicus curiae briefs for the U.S. Supreme Court and federal courts of appeals on a range of constitutional and legal issues.
Welcome Jonathan!
March 1, 2011 at 3:11 pm
Posted in: Administrative Announcements
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Circumcision: Rewind to 2010
posted by Sarah Waldeck
Any day now the American Academy of Pediatrics is expected to release its new policy statement on male circumcision. As I’ve already written, because of data suggesting that circumcision reduces the risk of males acquiring HIV through heterosexual intercourse, the AAP is expected to move from a neutral position to a more encouraging one. I can predict how the news coverage will read: a paragraph or two explaining the new position and its rationale, a few choice quotes from intactivists, comments from physicians and maybe a mohel. All pretty standard stuff.
This will be a walk in the park for the AAP, particularly compared to last spring. That was when the AAP released its policy statement on female circumcision, which repeatedly decried all forms of female genital cutting. Wisely, however, the AAP also recognized that female genital cutting is a cultural and religious practice and hence won’t disappear just because it is made illegal or because medical organizations reject it. The AAP therefore left open the possibility that doctors, in a hospital and with anesthetic, might make a ritual nick on girls whose parents request it. The goal was twofold: (1) give parents an alternative so that they would not send their daughters back to their native countries for far more drastic forms of genital cutting; and (2) begin to change cultural norms within certain immigrant communities. As for how this all played out, suffice to say that the AAP retracted the policy statement a few weeks later to make certain, as the AAP’s president explained, that “the world health community understands the AAP is totally opposed to all forms of female genital cutting, both here in the U.S. and anywhere else in the world.”
The contrast between that brouhaha and the yawn that is likely to herald the new statement on male circumcision should prompt a re-examination of American attitudes toward male genital cutting. Because there are so many degrees of female circumcision—each increasingly horrific and terrifying to Western observers—it’s easy to put male and female circumcision into separate mental compartments. In the “mildest” form of female circumcision, however, the clitoris is left intact and the clitoral prepuce (which is homologous with the male foreskin) is removed. Consistency would demand that anyone who supports the parental choice to cut off a son’s foreskin also support the parental choice to cut off a daughter’s clitoral prepuce. But very few Americans hold consistent views about male and female circumcision.
Those of us with inconsistent views cannot satisfactorily justify them by pointing to the health benefits of male circumcision. Even if all the medical authorities agreed that male circumcision had no health benefits, it is inconceivable that cutting off the male prepuce (also known as the foreskin) would be criminalized in the same way that federal law criminalizes cutting off the clitoral prepuce. Put differently, even if cutting off the clitoral prepuce reduced the risk of urinary tract infection and of contracting HIV, the AAP wouldn’t recommend it and American parents wouldn’t do it. This is because circumcision is a cultural practice and not a medical one.
Lest I be misunderstood, I am not suggesting that we resolve these inconsistent views by endorsing or in any way supporting female circumcision. I do think, however, that last Spring’s firestorm and the anticipated quiet reception of the AAP’s new policy statement on male circumcision reveal more than a little hypocrisy about our own cultural practices.
February 9, 2011 at 3:26 pm
Posted in: Culture
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Male Circumcision in 2011
posted by Sarah Waldeck
The first few months of 2011 will be interesting for those who care about male circumcision rates in the United States. The American Academy of Pediatrics (AAP), which is currently neutral on the question of whether to circumcise, is expected to issue a new policy statement that will be more encouraging about the medical benefits of the procedure. Reports have also been circulating for some time that the Centers for Disease Control and Prevention (CDC) will issue recommendations promoting routine infant male circumcision as a means of reducing the spread of HIV.
On the medical front, new data about HIV is the big development since the AAP last affirmed its neutral stance in 2005. Studies from Africa have found that circumcision reduces the risk of a man becoming infected from an HIV-positive female partner and the evidence on this front is strong enough that the World Health Organization has deemed circumcision “an important intervention to reduce the risk of heterosexually acquired HIV.” It is not clear, however, what impact circumcision has on HIV rates in the United States, because the health systems are vastly different and the disease spreads through different routes here than in Africa. Most significantly, there is little to no evidence that circumcision protects men who have sex with HIV-infected men and it is unclear whether a circumcised HIV-infected male is less likely to infect his healthy female partner.
But let’s assume that the CDC issues its long-anticipated recommendations and that the AAP’s policy says that the medical benefits of male circumcision outweigh its risks. What I wonder is whether these official statements will make much of a practical difference, particularly in the short term. Read the rest of this post »
January 7, 2011 at 11:52 am
Posted in: Culture
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Compstat and Police Subculture
posted by Sarah Waldeck
Last Friday the New York Times reported that a New York City police commander and four officers are facing internal charges stemming from their alleged failure to record criminal complaints. These charges are just one piece of a larger story about the reliability of information fed into NYC’s Compstat program. In a study released earlier this year, more than 100 retired high-ranking officers reported that they were aware of “ethically inappropriate” changes to crime complaints that fell into the seven major felony categories tracked by Compstat. A patrol officer in Brooklyn’s 81st precinct has also reported widespread manipulation of crime statistics in 2008 and 2009. (You can hear a This American Life episode about that officer here, along with excerpts from surreptitious recordings the officer made on the job.)
These recent revelations raise questions about the extent to which crime has actually fallen in New York City. But the focus on crime reduction obscures another important issue about the occupational subculture. For decades, police reformers have written about the importance of bringing down the “blue curtain,” that is, an occupational subculture in which a code of loyalty and secretiveness reign. This subculture is widely believed to contribute to an “us and them” mentality which, among other harms, encourages police officers to do whatever is necessary to protect themselves and their fellow officers from criticism and administrative and legal penalties. This mentality ultimately poses risks to those caught up in the criminal justice system and undermines public confidence in police work.
When success is measured according to statistics, the temptation to manipulate is near irresistible. Couple this with the dominant occupational subculture and almost anyone could have predicted that the data being fed into Compstat was unreliable. The more important question is whether Compstat and its progeny are counterproductive to police reform over the long-term because they have the effect of reinforcing the dominant occupational subculture instead of remaking it.
October 21, 2010 at 12:55 pm
Posted in: Corruption
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Symposium on National Security Policy and the Role of Lawyering
posted by Sarah Waldeck
On Thursday, October 28, the Seton Hall Law Review is hosting a day-long symposium in Newark, New Jersey entitled National Security Policy and the Role of Lawyering: Guantanamo and Beyond. Here’s the description:
The broad focus of the Symposium will be to discuss preventive detention and the future of United States national security policy. As the United States prepares for the closing of Guantánamo Bay detention center, the country still faces the challenge of balancing national security and individual rights. Controversy continues to plague U.S.-run prisons abroad, such as Bagram in Afghanistan; at the same time, the country has yet to resolve critical questions surrounding the scope of executive detention authority in the “war on terrorism,” leaving the future of U.S. detention policy uncertain. We hope to discuss the mark Guantánamo has left on the United States and explore the future of preventive detention from the standpoint of lawyers, scholars, policymakers, the media, and former detainees.
Panelists will include Peter Finn of the Washington Post, Dafna Linzer from ProPublica, Steve Vladeck from American University and Joe Margulies from Northwestern. You can find the full symposium schedule and a list of panelists here.
October 16, 2010 at 1:58 pm
Posted in: Conferences
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Wisconsin’s Diploma Privilege: Here to Stay (At Least for a Little Longer)
posted by Sarah Waldeck
I’ve written about the continuing challenges to Wisconsin’s diploma privilege here and here. Now it appears that the privilege has successfully dodged two bullets. First, today the Wisconsin Supreme Court voted 7-0 to deny a petition filed by 70 Wisconsin lawyers asking that the Court either extend the privilege to graduates of any ABA-accredited law school for a 10-year trial period or, in the alternative, require Marquette and University of Wisconsin graduates to take the bar. Second, the federal class action challenging the privilege has ended. As I described in my prior posts, the Seventh Circuit twice sent the case back to the district court that had dismissed it. But over the summer the district court decertified the class. This left only a single plaintiff, who settled with the state for $7,500. She plans to take the bar exam in July.
October 4, 2010 at 11:07 pm
Posted in: Law School
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Harmless Error (The Estates and Trusts Kind)
posted by Sarah Waldeck
As I’ve previously discussed on this site, Uniform Probate Code 2-503 allows courts to probate documents that were improperly executed upon clear and convincing evidence that the decedent intended the document to be a will. New Jersey, which codified this harmless error rule several years ago, finally has a published appellate decision interpreting it. The case, In re Will of Macool (2010 WL 3608686 (N.J. Super. A.D.)) is notable because it may provide a counterweight to In Re Kuralt, in which a Montana court arguably extended 2-503 to probate a document that indicated how the decedent wanted to dispose of his property but was not intended to be a will.
In Macool, Louise wrote a will in 1995 and codicil in 2007. Her husband, Elmer, was the primary beneficiary of these documents and his children (Louise’s stepchildren) were the contingent beneficiaries. In 2008, Elmer died and Louise went to her lawyer to revise her estate plan. The crux of her new plan was to reduce what her stepchildren were taking and to make gifts to her niece and godchild. Louise gave her lawyer handwritten notes that summarized her new plan; these notes were a bit cryptic and it’s hard to imagine that the lawyer would have known what to do with them in the absence of oral clarification from Louise. The lawyer dictated a complete document while Louise was in his office and a secretary typed up the dictation that same afternoon or the next morning. Louise was supposed to come back at a later date to review the document, but she died about an hour after leaving the lawyer’s office.
The trial court found, and the appellate court agreed, that Louise intended to alter her testamentary plan to include her niece and godchild. In refusing to probate the document, however, the court distinguished between evidence “showing decedent’s general disposition to alter her testamentary plans” and evidence establishing that the decedent “intended the draft will prepared by [the attorney] to constitute her binding and final will.” The court held that for the harmless error rule to apply, the proponent of a writing must prove by clear and convincing evidence that “(1) the decedent actually reviewed the document in question; and (2) thereafter gave his final assent to it.” Read the rest of this post »
October 1, 2010 at 1:52 pm
Posted in: Estates and Trusts
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Online Employment Discrimination and Sexual Harrassment Training
posted by Sarah Waldeck
I recently received an email from my employer warning that I might be ineligible for coverage under its legal defense and indemnification policy unless I went online and completed two tutorials: one on sexual harassment and the other on employment discrimination. I duly complied with this directive and then passed the online “mastery test” at the end of each tutorial. This achievement is nothing to crow about, however, because my 10-year-old daughter passed the test without even taking the tutorial.
I could use this directive from my employer as a leaping off point for several discussions, including (1) whether my institution should be shielded from vicarious liability because it took reasonable care to prevent harassing or discriminatory behavior, and (2) whether the tutorial I completed may have sought to “overcorrect” by describing as illegal behavior that is merely questionable. But I will leave these weighty questions to colleagues who actually teach and write about employment discrimination. Instead, I want to ask a more general question about whether we can reasonably expect much good to come from these online tutorials. My own experience suggests no, primarily because the online format allowed me to dramatically disengage from the material.
CURSORY is the word that summarizes my approach to the tutorials. The sexual harassment tutorial was supposed to take 30 minutes; I completed it in less than 10. The employment discrimination tutorial was supposed to take 60 – 90 minutes, but in less than 25 I flew through web pages that summarized (hang onto your hats): Title VII, the Equal Pay Act, The Age Discrimination in Employment Act, the Americans With Disability Act, the Fair Labor Standards Acts, the Family Medical Leave Act, Executive Order 11246, the Genetic Information Non-Discrimination Act, the Uniformed Services Employment & Re-employment Rights Act of 1994, the Jobs for Veterans Act, the New Jersey Division on Civil Rights, plus more. I skimmed each individual page only long enough to insure that I wasn’t going to make an error that would send me back to the beginning. Read the rest of this post »
September 22, 2010 at 5:34 pm
Posted in: Employment Law
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No For Sale Signs Allowed IV
posted by Sarah Waldeck
With summer at an end, I have a final post about the ban on for sale signs in a Chicago suburb. (You can read the others here, here and here.) In this last post, I offer some observations about how community norms and identity play a role in perpetuating the ban.
In prior posts, I’ve written that many in the Village are unaware of how problematic the ordinance is under the First Amendment. But some residents undoubtedly know, either because of their own familiarity with constitutional law or because the issue is occasionally raised in the opinion section of the local paper or on local blogs. Political will to change the ordinance, however, seems close to non-existent.
This lack of will may partly reflect the political reality within the Village. The same political organization has been in control for more than thirty years and its candidates almost invariably support the Village’s integration policies, which include the ban. Some residents probably also appreciate the aesthetic effects of the ordinance, because the lack of signage makes the Village prettier than it otherwise would be. Other residents may feel that the issue doesn’t warrant action, either because they are already inclined to use a realtor to sell their house or because the inability to use a sign does not deter them from entering the for-sale-by-owner market. I also suspect, however, that some residents who are aware of the constitutional issue would describe themselves as trading freedom of speech for integration. Read the rest of this post »
August 27, 2010 at 9:25 am
Posted in: First Amendment, Property Law
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New Hires
posted by Sarah Waldeck
As the end of August approaches, I’ve been thinking about what schools should do to support those who are about to begin their first years as law professors.
I’m hoping readers will share any useful measures their schools take to help ensure success. I’m not soliciting ideas about large scale institutional measures such as pre-tenure leave or yearly performance reviews, valuable as these might be. Instead I’m interested in more discrete steps that schools can take during the first and second years of an academic career to help promote quality scholarship, improve performance in the classroom, and inculcate norms about institutional service.
July 28, 2010 at 1:23 pm
Posted in: Law School (Teaching)
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No For Sale Signs Allowed III
posted by Sarah Waldeck
This third post about why a municipality’s ban on for sale signs persists more than 30 years after Linmark focuses on the role of real estate agents and the local realtor’s association. (You can read the prior posts here and here.) These are the players best-positioned to legally challenge an ordinance that affects the sale of property. Moreover, the use of signs by one agency would likely create pressure for others to use them, which might make the practice in the Village tip in favor of signs.
When I first began examining the Village’s ordinance, I hypothesized that real estate agents have a financial incentive to comply with the ordinance because the perceived inability to use a for sale sign makes selling by owner extraordinarily difficult. I’ll begin with the economics of the ban, even though my research hasn’t been terribly revealing. Then I’ll turn to the norms of the local real estate industry, to which my initial hypothesis did not attribute enough significance. Read the rest of this post »
July 16, 2010 at 1:23 pm
Posted in: First Amendment, Property Law
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No For Sale Signs Allowed II
posted by Sarah Waldeck
In a recent post I marveled that a particular Chicago suburb has no for sale signs, even though we are in the midst of the worst housing market in recent history. The suburb has an ordinance banning for sale signs (you can read its text in the earlier post) and I wondered why the ban continued to have force even though the Supreme Court ruled that such ordinances were unconstitutional in the 1977 case Linmark Associates v. Willingboro. Here’s what I speculated:
Most residents assume that ordinances in the local statutory code are good law; that is, they perceive themselves as being legally prohibited from using a For Sale sign. Those residents who are familiar with First Amendment law are nonetheless deterred from using a sign because (1) there is a residual risk that the Village will try to enforce the ordinance; and (2) there is reason to worry about sending a market signal of “desperation” if you are the sole seller using a sign. As for real estate agents, most know that the ordinance is unconstitutional but they have incentives to comply with it nonetheless. The perceived inability to put a For Sale sign in one’s yard makes it extraordinarily difficult to sell by owner . . . . Furthermore, as repeat players in the Village, real estate agents may be reluctant to do anything that the Village will view with displeasure.
I’ve spent the last month researching whether this hypothesis is correct. In this post, I want to focus on the effect of the ordinance remaining on the books and on the actions of the Village, both with respect to its own citizens and with real agents. The bottom line is that if a municipality carries on as though it is acting constitutionally, a lot of people will believe that it is.
June 24, 2010 at 12:32 pm
Posted in: First Amendment, Property Law
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Ritual Nicks and the American Academy of Pediatrics
posted by Sarah Waldeck
For the second time, a sensible effort to prevent female circumcision has been stymied. Last week, the American Academy of Pediatrics (AAP) bowed to intense pressure and rescinded a policy statement that suggested doctors in certain communities could perform a ritual pricking or nicking of the clitoral tissue.
Perhaps this outcome could have been predicted by doctors who work at a Seattle-area medical center which serves a large Somali population. As I’ve previously described on this site:
Many Somali mothers requested that the medical center circumcise their daughters; they were mystified that the hospital would circumcise boys but not girls. The mothers were clear about what they wanted: a symbolic cut on the hood of the clitoris, one that would draw blood but not excise any tissue. The mothers believed that as a cultural and religious matter, some form of genital cutting was necessary. If the hospital did not do it, the mothers would take their daughters to Somali “midwives” in the Seattle area or send them back home. In either event, their daughters would experience far more genital cutting than the mothers were proposing, possibly even complete removal of all external genitalia. The medical center convened a special panel to consider the matter. Eventually the hospital agreed to perform the cut suggested by the Somali mothers, with the use of a local anesthetic, and only on girls old enough to understand the procedure. The hospital was hopeful that this would serve as a transitional measure and that second-generation Somalis would abandon the rite. (This tale is recounted more fully by Doriane Lambelet Coleman in The Seattle Compromise: Multicultural Sensitivity and Americanization, 47 Duke L.J. 717 (1998)).
When the media got wind of the hospital’s intentions, it was besieged by critics. Under immense public pressure and the threat of litigation, the hospital abandoned its plan. Professor Coleman hypothesizes that most of the interests that lobbied against the hospital did not even understand what it was proposing; once they heard “female circumcision,” they stopped listening.
The AAP announced that it “retracted the policy because it is important that the world health community understands the AAP is totally opposed to all forms of female genital cutting, both here in the U.S. and anywhere else in the world.” Could anyone seriously have argued otherwise? The now-rescinded policy was aimed at preventing female circumcision. It reflected the reality that parents who want their daughters circumcised will find a way to have the procedure done. Because a ritual nick would save some girls from far more drastic procedures, the AAP should have been congratulated for its pragmatism instead of pilloried for seeming to condone violence and discrimination against women.
The other point is that anyone who opposes the now-rescinded policy but endorses neonatal male circumcision lives in a glass house. Like female circumcision, male circumcision is a cultural phenomenon. (You can read other posts on this point here, here and here, and an article here). Unlike the sort of ritual nick proposed by the AAP, however, male circumcision involves tissue removal and permanently changes the penis. Most of us are comfortable with this result because we are socially and culturally accustomed to it. A ritual nick of the clitoris, on the other hand, is entirely foreign to most people in the United States. But we should not hold the cultural choices of others to more exacting standards than we hold our own.
June 2, 2010 at 4:27 pm
Posted in: Culture
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No For Sale Signs Allowed
posted by Sarah Waldeck
In the midst of the worst housing market in modern memory and more than thirty years after the Supreme Court’s ruling in Linmark, there is suburb of Chicago in which For Sale signs are nowhere to be found. This is the first of several posts exploring why. The story, which I am still unpacking, reveals much about what happens when government fails to formally repeal unconstitutional laws and about how community norms can trump Supreme Court precedent.
The single most important (although not the most interesting) element in the story is the following ordinance, which bans most for sale and for rent signs and was adopted in an effort to prevent white flight:
REAL ESTATE FOR RENT AND FOR SALE SIGNS PROHIBITED:
The President and Board of Trustees find as follows:
A. That a prohibition of “For Sale” and “Sold” signs has been recommended by the Commission on Community Relations on the basis that said signs tend to encourage unfair housing practices and tend to defeat the purposes of the Village’s Human Rights Program.
B. That a prohibition of “For Rent” signs has been recommended by the Commission on Community Relations for the following reasons:
1. “For Rent” signs presently are used more frequently in areas that have a greater percentage of occupancy of minority residents. “For Rent” signs are seldom used in connection with buildings that have no minority occupants. The use of these signs therefore tends to “signal” that minorities may be more welcome in some areas of the Village than others and this tends to segregate areas contrary to the policy of the Village to maintain an integrated community.
2. A proliferation of “For Rent” signs encourages panic peddling and block busting.
3. “For Rent” signs may give an appearance of community instability when concentrated in a limited geographic area.
4. A proliferation of “For Rent” signs may infer that an area is less desirable than other areas.
5. A system of apartment management that refers tenants to the source of rentals will encourage greater professionalism in apartment management.
It shall, therefore, be unlawful for any person to construct, place, maintain or install a “For Sale”, “Sold” or “For Rent” sign on any property developed for residential use in the Village. The term “For Sale” sign shall include signs carrying the following or similar words: “Open House” or “Open for Inspection” and shall include any other devices placed on the property to indicate that the property is for sale.
In the case of new construction of residential property or conversion of an existing structure to condominium use where a condominium declaration is recorded, a “For Sale” sign shall be permitted on the property until the property or condominium units are sold, but not to exceed one and a half (1 1/2) years after issuance of a certificate of occupancy for a new building or from the date the “For Sale” sign is posted in the case of a conversion.
In part of the ordinance not reproduced here, the Village allows Open House signs to be displayed for a period of time on Sundays.
In Linmark Associates, Inc. v. Willingboro, 431 U.S. 85 (1977), the Court struck down a similar ordinance. Like the ordinance reproduced above, Willingboro’s law was aimed at maintaining stable, integrated neighborhoods by prohibiting homeowners from placing For Sale or Sold signs on the lawns. While the Court acknowledged the importance of Willingboro’s goal, it nonetheless held that the ordinance unconstitutionally interfered with freedom of speech. Nothing distinguishes the Village’s ordinance from the one in Linmark and all academic and legal commentary I’ve found on the Village’s ordinance agree that it is plainly unconstitutional.
This is what I had always assumed was the explanation why, despite Linmark, the Village has no For Sale signs: Most residents assume that ordinances in the local statutory code are good law; that is, they perceive themselves as being legally prohibited from using a For Sale sign. Those residents who are familiar with First Amendment law are nonetheless deterred from using a sign because (1) there is a residual risk that the Village will try to enforce the ordinance; and (2) there is reason to worry about sending a market signal of “desperation” if you are the sole seller using a sign. As for real estate agents, most know that the ordinance is unconstitutional but they have incentives to comply with it nonetheless. The perceived inability to put a For Sale sign in one’s yard makes it extraordinarily difficult to sell by owner; without the ability to put up a sign, sellers need access to the multiple listing service to make large number of buyers aware that a house is available. Furthermore, as repeat players in the Village, real estate agents may be reluctant to do anything that the Village will view with displeasure. All of these factors worked together, I thought, to chill For Sale commercial speech within the Village.
As I have begun to ask more questions, I am learning that while my initial assumptions were not exactly wrong, they are far less nuanced than what is necessary to fully describe why a de facto ban on for sale signs persists. More on this in later posts.
May 13, 2010 at 1:44 pm
Posted in: First Amendment, Property Law
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Land Transactions Meet the Kentucky Derby
posted by Sarah Waldeck
If you don’t know him already, meet Conveyance, with odds of 18/1 according to online sports book SBGGLOBAL.
I can’t be the only Property professor who is finding the urge to place a wager almost irresistible.
p.s. The picture is from horsephotos.com.
April 29, 2010 at 11:21 am
Posted in: Property Law
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Book Review: Dead Hands: A Social History of Wills, Trusts, and Inheritance Law
posted by Sarah Waldeck
Lawrence M. Friedman, Dead Hands: A Social History of Wills, Trusts, and Inheritance Law (Stanford University Press, 2009) 230 pp.
I opened Lawrence Friedman’s Dead Hands: A Social History of Wills, Trusts and Inheritance Law already sold on his central premise: “[b]ig changes in the law of succession necessarily reflect big changes in society” and “smaller, more technical changes” can be just as interesting to those who care about “social meaning and the impact of the law.” My predisposition to agree with Friedman may explain why I was both admiring and disappointed as I read the book.
Let’s begin with the admiration. Friedman deftly weaves explanation of technical legal doctrines, case summaries, and description of the historical and sociological changes that have prompted reform of estates and trusts law. His chapter on the rule against perpetuities illustrates the point. Readers get a two-page comprehensible summary of the rule’s operation and idiosyncrasies, a brief explanation of various reforms, and the observation that reforms accept the rule’s underlying premise that dead hand control must eventually end. Then Friedman discusses the move to outright abolition of the rule, notes how banks anxious to attract trust monies lobbied for abolition, and seizes the opportunity to mention asset protection trusts. Friedman next writes that abolition and asset protection trusts would not be possible “without a bigger, broader change in the culture,” namely (quoting Joel Dobris) “we like rich folks these days.” Friedman then discusses how culture has changed in ways that make ordinary people feel as though they can relate to the rich. (One might wonder whether this affection for the wealthy will survive the Great Recession.) Last, Friedman speculates about whether abolition of the rule or asset protection trusts pose any real danger to the polity and concludes that neither should keep us up at night. I’m breathless just thinking about all that Friedman manages to cover in this 14-page chapter. Indeed, the same can be said about the entire book. Friedman traverses a tremendous amount of ground in 230 pages: intestacy, wills, will contests, will substitutes, dynastic and caretaker trusts, charitable giving, taxes, and of course the rule against perpetuities. Friedman touches on everything that is likely to be covered in an introductory Estates and Trusts course, plus more.
So there is the primary source of the admiration. What about the disappointment? Friedman focuses on the adoption of various reforms and shows how the reform is reflective of broader change. For example, we would not have seen the decline of dower and the fall of the doctrine of coverture without profound changes in societal conceptions of what it means to be a “wife” or “husband.” Similarly, Friedman sees “a trend, or at least the beginning of a trend” as states “respond to changing times” by extending intestacy rights to domestic partners. But the law of estates and trusts does not always follow a linear path forward; sometimes it sputters and stalls. This kind of gear grinding can be just as revealing about the connection between law and society as when reform is achieved. For instance, there was once widespread anticipation that many states would adopt a community property system. Today just nine states have done so. The 1990 Uniform Probate Code (UPC) has an elective share mechanism designed to reflect the principle that all property earned during the marriage belongs equally to both spouses. But some states that otherwise embraced all or part of the UPC have declined to adopt its elective share provisions. The lukewarm reception for community property principles says quite a lot about definitions of “earn” and “own” and societal conceptions of marriage. Friedman spends very little time on the stalls and sputters, even though they too reflect broader societal trends.
The second reason for my disappointment is probably unfair, as I suspect that I am not Friedman’s target audience. Dead Hands is almost entirely descriptive, albeit sometimes brilliantly so. It provides a lens through which to view the law of succession, but is largely agnostic with respect to the content of the law or its future direction. Those who are well-versed in the law of succession will likely already be familiar with much of what Friedman writes, even if they have not yet seen it so nicely explicated. In other words, estates and trusts experts are unlikely to find much in Dead Hands that is truly new to them.
Dead Hands, however, will be useful to at least two audiences. The first is the contingent of property and family law professors who are “drafted” each year to teach Estates and Trusts and who have not yet had a chance to discover why it is one of the most interesting courses in the curriculum. Dead Hands provides a framework for organizing an introductory course and for helping the students conceptualize the material. The second audience who will benefit from this book is law students, both those who want a clearer sense of the big picture in estates and trusts law and those who are interested more generally in law and society. I may add the book as recommended reading in my introductory Estates course; my Fall students can stay tuned.
April 29, 2010 at 10:52 am
Posted in: Book Reviews, Wills, Trusts, and Estates
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