Author: Sarah Waldeck

0

Introducing David L. Schwartz

I am happy to welcome David L. Schwartz, who will be a guest blogger during the month of May.

Dave joined the faculty of Chicago-Kent College of Law in 2009, where he is presently an Associate Professor of Law and Co-Director of the Center for Empirical Studies of Intellectual Property.  From 2006 until 2009, Dave was an Assistant Professor of Law at the John Marshall Law School in Chicago. Prior to entering academics, he spent over a decade as an intellectual property law practitioner, including being a partner at two intellectual property boutique firms in Chicago.

Dave’s main area is empirical studies of patent litigation. He is also interested in judicial decision-making and the use of legal scholarship in judicial opinions.  Some of his works include Analyzing the Role of Non-Practicing Entities in the Patent System99 Cornell L. Rev. (forthcoming 2014) (with Jay Kesan), Standards of Proof in Civil Litigation:An Experiment from Patent Law, Harv. J. L. & Tech.(forthcoming 2013) (with Christopher Seaman), and  An Empirical Assessment of the Supreme Court’s Use of Legal Scholarship, 106 Nw. U. L. Rev. 995 (2012) (with Lee Petherbridge).

Welcome Dave!

0

Constitutional Law Colloquium

Loyola University Chicago School of Law is organizing the fourth annual Constitutional Law Colloquium at the Philip H. Corboy Law Center, 25 East Pearson Street, Chicago, IL 60611. The event will begin on Friday morning, November 1 and end midday on Saturday, November 2, 2013.    The conference aims to bring together constitutional law scholars at all stages of their professional development to discuss current projects, doctrinal developments in constitutional law, and future goals. Presentations will be grouped by subject matter.

The conference is organized by Professor John E. Nowak, Raymond and Mary Simon Chair in Constitutional Law; Professor Juan Perea; Professor Alexander Tsesis; and Professor Michael J. Zimmer

The Law Center is located on Loyola’s Water Tower campus, near Michigan Avenue’s Magnificent Mile, Lake Michigan, Millennium Park, the Chicago Art Institute, and Chicago Symphony Center.

This announcement invites abstract submissions of 150 to 200 words from Constitutional Law professors interested in contributing to the current debates concerning constitutional theory and Supreme Court rulings. We also welcome attendees who wish to participate in audience discussions without presenting a paper. The goal of the conference is to allow professors to develop new ideas with the help of supportive colleagues on a wide range of constitutional law topics.

Eligibility: The Loyola Constitutional Law Colloquium is aimed at Constitutional Law, Legal History, Political Science, and Philosophy scholars teaching full-time and part-time at the university, law school, and graduate levels on all matters of constitutional law.

Application Procedure: The registration and abstract submission deadline is June 15, 2013. Conference organizers will select abstracts on a rolling basis.

Registration at: http://www.luc.edu/law/conlawcolloquium/register.html

Information at: http://www.luc.edu/law/conlawcolloquium/index.html

Topics, abstracts, papers, questions, and comments should be submitted to: constitutionlaw@luc.edu

Participants are expected to pay their own travel expenses. Loyola will provide facilities, support, and continental breakfasts on Friday and Saturday, lunch on Friday and Saturday, and a dinner on Friday night.

3

Data Streams and E-Textbooks

Today “smart” e-books are in the news.  These books give professors access to a stream of data about how individual students are using their e-books—whether they are skipping pages, highlighting specific passages, or taking notes in the book. The software that makes such monitoring possible even provides an “engagement index” for each student.  The news stories I’ve encountered have mostly focused on how the data enables professors to identify and then reach out to students with poor study habits.

I don’t know how to spell the sound I made when I first heard this particular news angle, but it was something close to the classic UGH.  The company that created the software says its surveys indicate that few students or colleges have privacy concerns.  But I know I would feel like I was spying on the adults I teach.

Which is not to say that I couldn’t put the data stream to some use, at least in an aggregate form.  If a meaningful portion of my class does not appear to be reading the textbook but is nonetheless performing well in class and on exams, then my course is too easy or the textbook is a dud, or some combination of the two.

The data stream may also be of interest to the institutions that employ professors.  Every university, college, or graduate school has at least a couple gut courses—classes in which students can do very little work and still get good grades.   One concern in law schools is that GPA-conscious students will flock to a gut course instead of one that would better prepare them for the bar and eventual practice.   A dean who is trying to convince a professor that her class needs to be harder could put the data from smart e-books to very effective use.   In fact, some professors will be disinclined to embrace smart e-books once they realize that students aren’t the only ones who can be watched.

Last, I am struck by the connection between the emergence of smart e-books and a post Larry wrote a few weeks ago.  Larry’s post laments that as e-books become increasingly dominant, he will no longer be able to peruse the bookshelves of colleagues or friends as a means of sparking a connection or sizing them up.   E-books do not serve the same (often inadvertent) signaling function as a print book.  E-books mean that no-one can get a window into my interests by scanning my shelves or seeing what’s open on my coffee table.  They also mean that I can no longer pick out law students on the subway by looking for a telltale red binding.  But with smart e-books, a select group will know more about these students’ reading habits than most of us would have imagined just a few years ago.

0

Reconciling Ehrlich and Macool (Or, What’s In a Signature Anyway?)

Recently I wrote about In re Ehrlich, 47 A.3d 12 (2012), a trusts and estates case pending before the New Jersey Supreme Court that will serve as a bellwether of what can be probated in harmless error jurisdictions.  Under the Uniform Probate Code’s harmless error rule, a defective document can be probated if there is clear and convincing evidence that the decedent intended it to be a will.

As I previously explained, the proponent in Ehrlich wants to probate an unsigned and unattested document that otherwise reads like the usual formal will.  The decedent had noted in one corner of the document that he mailed “the original” to his executor.  I suggested that the dissenting appellate division judge, who wanted to deny probate, was applying a substantial compliance standard instead of the harmless error rule, which New Jersey adopted in 2004.

But another possibility is that the dissent and majority have different understandings of testamentary intent.  This would help reconcile Ehrlich with In re Macool, 3 A.3d 1258 (2010), another important harmless error case.

In Macool, the dissenting judge in Ehrlich voted with the majority to hold that probate under the harmless error rule requires proof that the decedent (1) actually reviewed the document and (2) gave final assent to it.  The Macool court refused to probate a document that a lawyer had dictated while Macool was in his office; although the lawyer’s secretary had typed up the document, Macool never saw it because she died just an hour after leaving the lawyer’s office.   The court explained that in the absence of review and final assent, it could not be certain the document reflected Macool’s final testamentary wishes.

Similarly, the dissenting judge in Ehrlich may not see adequate evidence of testamentary intent.  Perhaps from the dissent’s perspective, all we have is an unsigned and unwitnessed document.  The other evidence—the handwritten notation; the fact that the decedent drew up the document just before he had life-threatening surgery; and that he executed health care directives on the same day that the document is dated—all of this is simply not enough to convince the judge that Ehrlich gave final assent to the document.  In other words, the dissenting judge may not be sufficiently certain about Ehrlich’s testamentary intent.

The dissent in Ehrlich writes that he now believes Macool “gives too expansive an interpretation” to the harmless error rule.  Perhaps the dissent fears that Macool opened the barnyard door to the probate of documents that will fall short of what the dissent believes is necessary to establish testamentary intent.  In particular, the dissent appears reluctant to find testamentary intent without a decedent signature.

I, for one, have never been concerned about Macool throwing open the barnyard door.  In fact, I have argued that Macool partially closed it.  I’ve written more about that here.

0

The Relationship Between Substantial Compliance and Harmless Error

Estates and trusts junkies are watching what the New Jersey Supreme Court will do with the harmless error doctrine in In re Ehrlich, 47 A.3d 12 (2012), a case it has recently agreed to review.  The New Jersey appellate court and most legal reporters framed Ehrlich as determining the scope of In re Macool, 3 A.3d 1258 (2010), which held the harmless error rule can only be applied when the decedent actually reviewed the document in question and gave final assent to it.  But really the central question in Ehrlich is about the relationship between harmless error and substantial compliance.  Because New Jersey is generally a progressive jurisdiction on estates and trusts issues, Ehrlich may reveal much about how intent-oriented courts are inclined to be.

After Ehrlich’s death, a fourteen-page document labeled “Last Will and Testament” was found in his home.  Ehrlich was an attorney and the document was typed on legal paper with Ehrlich’s name and law office address printed in the margin of each page.  The document was not signed or witnessed, but Ehrlich handwrote on the cover page, “Original mailed to H.W. Van Sciver,” whom Ehrlich had named executor. Ehrlich prepared the document just before he had life-threatening surgery and on the same day he executed a power of attorney and living will.  The document left the bulk of Ehrlich’s estate to his nephew, Jonathan.  Under intestacy, the estate would be split between Jonathan and another nephew and niece.  Ehrlich had not talked to the other nephew and niece for more than 20 years.

You all know where this story is heading.  Sciver died in 2005 and the original will could not be located.  Nothing suggests that the original was ever returned to Ehrlich.  This means the usual rules governing lost wills, which contemplate the will last being in the possession of the testator, cannot neatly resolve the case.  To get the bulk of Ehrlich’s estate, Jonathan must convince the New Jersey Supreme Court to allow probate of the document found in Ehrlich’s home.  Because the document is neither signed nor witnessed, everything turns on how the Court interprets the harmless error rule, which the New Jersey legislature adopted a few years ago.

Read More

7

The AAP’s New Circumcision Policy

I sighed heavily at last week’s news that the American Association of Pediatrics (AAP) had changed its policy on routine neonatal circumcision.  Nearly everyone expected the AAP to move away from its neutral stance and state that the health benefits of the procedure outweigh its medical risks.   So it wasn’t the substance of the policy that made me sigh, although I wish that the AAP had at least remained neutral.  Rather, it was the extent to which, although details change, the central arguments remain the same.

I have written a lot on this blog about how non-religious circumcision is no longer a medically-motivated phenomenon.  Instead, it is a practice driven largely by social norms and a desire to make boys look like their fathers and peers.  (If you want to read old posts, start with this one, which also explains some of the medical research behind the new policy.)

Because routine neonatal circumcision is mostly about conformity, I’ve previously questioned to what extent a new policy will actually change parental behavior.  Circumcision rates in the United States have been declining for more than a decade; at present they hover just under 55 percent nationwide.  But in some areas of the country, like the Pacific Northwest, less than 20 percent of male newborns are routinely circumcised.  If conformity is what parents care about, I’m not sure that a new policy from the AAP will make much of a difference—at least in parts of the country where non-circumcision is the norm.

What should most worry non-circumcision advocates is the language in the new policy stating that third-party coverage of circumcision is warranted.  Many experts partly attribute the low circumcision rates in the Pacific Northwest to decisions to remove the procedure from Medicaid funding in the 1980s and 1990s. If lack of insurance coverage helped launch the trend toward non-circumcision, a change in coverage may lead to a slow reversal in favor of circumcision.

Or maybe not.  Once non-circumcision is the norm, will the AAP’s new policy—which states the health benefits of the procedure outweigh its risks, but also that the decision whether to circumcise should be left to parents—meaningfully change behavior?  I doubt it, but I will be closely watching what happens in the Pacific Northwest to find out.

0

School Rankings and the Diversity Penalty II

A couple of weeks ago I wrote about how my colleague Tim Glynn and I recently examined elementary and high school rankings in Illinois, New Jersey, and Ohio, and sampled school report cards from 18 states. Our analysis, available here, demonstrates how rankings penalize socioeconomic and racial diversity and are biased toward wealthier and Whiter schools.

My prior post explained that because most ranking metrics fail to account for the achievement gap, wealthier and Whiter schools will almost always outrank diverse schools.  The post also hypothesized about how the choices parents make based on these ratings help fuel neighborhood and school segregation.  Now I want to discuss how alternative rankings could dampen the diversity penalty’s damaging effects.

People are drawn to the bottom-line assessment of quality that rankings provide, which means that rankings are not going to just disappear.  But there is plenty of room to improve how school rankings and ratings are calculated.  And herein lies a powerful opportunity to counteract the diversity penalty.  As research by Michael Saunder and Wendy Nelson Espeland demonstrates, one way to mitigate the harm caused by influential ranking systems is to offer competing rankings.  When a marketplace is crowded with multiple ratings, it is too loud for any single rating system to carry the day.  No single ranking system will appear authoritative because each just offers information that conflicts with that offered by others.

Right now readers are probably thinking that they can’t swing a dead cat without hitting a school ranking.  There are national ranking entities like SchoolDigger and GreatSchools, local magazines with “Best Schools” issues, and even some state department of education websites that provide ordinal ranks or allow users to compare one school to another.  The problem, however, is that almost all of these ranking systems use metrics that ignore the achievement gap. The marketplace thus becomes an echo chamber in which wealthier and Whiter schools are rewarded and diverse schools are penalized.

The key, then, is for states to develop truly alternative rankings—ones that are sensitive to the socioeconomic and racial composition of schools.  These rankings would neither penalize nor reward demographic diversity.  Instead, they would measure a school’s overall quality by comparing the performance of each of its students against the average performance of the student’s demographic peers across the state.  Indeed, New Mexico has already started down this road by including a variant of this methodology in its school assessments.

You can read more about this sort of methodology in our article.  To be clear, however, these alternative rankings would not freeze expectations for any subgroup of a school’s population.  On the contrary, a school’s ranking would benefit from better outcomes for students on both sides of the achievement gap, as well as from outperforming other schools in narrowing the gap.   These competing rankings would encourage parents to dig deeper to determine whether a school is right for their children.  That analysis would benefit students, schools, and communities alike.

6

School Rankings and the Diversity Penalty

Those in legal education are familiar with the deleterious effects of the U.S. News rankings, but have not paid much attention to similar popular rankings of elementary, middle, and high schools.  Because perceptions of public school quality often dictate where parents of school-aged children choose to live, these rankings are tremendously important.

My colleague Tim Glynn and I have recently examined rankings by private entities of schools in Illinois, New Jersey, and Ohio, and sampled school report cards from 18 states.  Our analysis, available here, demonstrates that school rankings are neither accurate nor neutral measures of quality.  Instead, rankings penalize socioeconomic and racial diversity and are biased toward wealthier and Whiter schools.

Most rankings use a student body’s overall performance on standardized proficiency tests to gauge school quality.  This ignores the achievement gap—the well-documented phenomenon that, on average, wealthier students outperform poorer students on these tests and Asian and White students outperform Black and Hispanic students. The achievement gap is not inevitable, and educators are working hard to close it.   But while the gap persists, wealthy and White schools will almost always have higher aggregate proficiency scores and thus outrank schools with a diverse mix of students.  And that’s true even if a particular school serves each subgroup of its student population better than the higher ranked schools do.

This diversity penalty exists across popular school ranking systems in all areas of the country. Consider the website SchoolDigger and its rankings of New Jersey and Illinois high schools.  Millburn High School—located in an affluent northern New Jersey town and often described in the media as one of the best high schools in the state—ranked 22 for tested year 2010.  (The top spots were held by magnet schools that pre-select their students based on academic achievement.)  The high school in neighboring South Orange-Maplewood—a far more socioeconomically and racially diverse community—ranked 179.  But isolating performance at these two schools by demographic subgroup creates a very different impression of relative school quality. For example, when the two schools are re-ranked based just on the test scores of White students, they are in a virtual dead heat.  The high school in Montclair, another nearby diverse community, performs comparably.  Similarly, in Illinois, New Trier Township High School—which draws students from several affluent Chicago suburbs—ranked fifth for tested year 2010.  Nearby Evanston High School—located in a far more diverse community—ranked 126.  But when the two schools are re-ranked in ways that account for the achievement gap, they are essentially tied.  Oak Park & River Forest High School, another diverse Chicago suburban school, is competitive as well.  This pattern repeats itself in different years and different states and for elementary schools as well as high schools.

Parents should care about more than just the performance of their child’s demographic peers.  But rankings that rely on aggregated scores are a misleading indicator for all demographic subgroups, including low-income students and historically-disadvantaged minorities.  The problem is not that disadvantaged subgroups drag down aggregated test scores.  Rather, by lumping all students together without regard for socioeconomic and racial differences, rankings reveal little about how a school actually serves its student population.

Because of the achievement gap, diverse schools in which both disadvantaged and advantaged students outperform their demographic peers will often still have lower aggregated proficiency scores—and hence lower rankings—than schools with mostly wealthy and White students. The rankings therefore penalize diversity and reward wealth and White racial homogeneity.  Parents who rely on rankings will conclude that wealthy and White schools are better, even when the statistics show their children would do just as well or better in a diverse school.

Many parents see the value of diversity and would happily opt for schools that are both diverse and academically strong.  And integrated learning environments benefit all students.  But popular school-ranking systems suggest, contrary to reality, that academic strength and diversity seldom co-exist.  When parents choose school districts based on rank, those with means will select away from diverse schools and the neighborhoods in which they are located.  This distortion of local housing markets contributes to school and neighborhood segregation and may help explain why highly diverse communities are so rare.

School report cards contain data about demographic subgroup performance, and some private ranking systems also make this information available.  But because the disaggregated data is usually buried beneath the headlines, many parents do not focus on it. Moreover, disaggregated data does not provide what many parents want—a bottom-line assessment of overall school quality.

Given their popularity, rankings are not going to disappear anytime soon.  The question, then, is how to dampen their damaging effects.  More on that in a later post.

 

 

26

Should Law Faculties Speak Up?

This fall Minnesota voters will decide whether to amend their state constitution by adding a ban on same-sex marriage.  The William Mitchell faculty recently adopted a resolution against the amendment and then released the resolution along with details of the faculty vote (24 – 7) to the press.  The resolution first notes that the proposed amendment conflicts with William Mitchell’s anti-discrimination policy and “could substantially impair William Mitchell’s ability to recruit and retain the best qualified students, staff and faculty.”  The resolution then goes on to list legal and moral objections to the amendment and states, “As a Faculty of Law, we believe that limitations on civil rights should not be enshrined in our state constitution.”  Finally, the resolution encourages Minnesota’s three other law schools to adopt similar resolutions of their own.

William Mitchell’s action has left me thinking about several broad questions.  First, when—if ever—do law faculties have a responsibility to take public positions on matters facing the electorate?  Of course individual faculty members routinely comment on such issues, either in their own writings or when responding to press inquiries. But when an issue involves fundamental rights or constitutional amendments, are law professors obligated to weigh in “as a faculty?”  For example, did law professors in the South have the responsibility to speak collectively about segregation?  Or should law faculties on the West Coast have passed resolutions against Japanese internment?  On one hand, law faculties reasonably can be expected to have opinions on such matters.  If faculties do nothing, their silence could be construed as tacit approval or at least as evidence that the issue is not important enough to warrant public comment.  On the other hand, public resolutions do not mean that all faculty members agree.  At William Mitchell, for example, about one-fifth of voting professors are now publicly affiliated with a resolution that they were against.

This leads to my next question.  If a faculty can’t speak with unanimity or at least near-unanimity, is there value in the faculty speaking at all?  William Mitchell’s resolution specifically states, “Many people of good faith support [the proposed amendment], including some co-workers, students, and alumni, and they have every right to do so.”  One can easily imagine the kinds of concerns and compromises that would lead to the inclusion of this language, as well as the decision to make public the 24 – 7 vote.  But is the public likely to see that vote tally and just conclude that the William Mitchell faculty—like the state of Minnesota—is split on the merits of the proposed amendment?  Assuming that law faculties are generally perceived as left-leaning, could the vote tally even have the unintended consequence of suggesting that there is something meritorious about the proposed amendment because 7 out of 31 law professors did not want the faculty to speak out against it?

Finally, if you conclude that law faculties are sometimes obligated to speak collectively and that doing so is effective, is the obligation limited to the faculties located in the areas where the problematic behavior is occurring?  For example, did law faculties on the East Coast as well as the West Coast have a responsibility to weigh in on Japanese internment?  Law faculties have a special interest in what happens in their own communities, so perhaps we would expect that if any faculty spoke against internment, it would be one on the West Coast.   But if the relevant issue involves fundamental rights, are law faculties obligated to speak up about more than just what is happening in their backyards?

I’ve raised questions here without offering answers, but I’m hoping readers will take a stab at that in the comments.

Hat Tip: Mark Edwards

0

Loyola Annual Constitutional Law Colloquium

Some of our readers may be interested in the following conference announcement:

Loyola University Chicago School of Law is organizing the Third Annual Constitutional Law Colloquium at the Philip H. Corboy Law Center, 25 East Pearson Street, Chicago, IL 60611. The event will begin on Friday morning, November 2 and end midday on Saturday, November 3, 2012.

This is the third annual Loyola conference bringing together constitutional law scholars at all stages of their professional development to discuss current projects, doctrinal developments in constitutional law, and future goals. Unless we are overwhelmed, we hope to be able to schedule presentations for all who submit.  In this way, we will provide a forum for the vetting of ideas, invaluable opportunities for informed critiques, and networking opportunities. Presentations will be grouped by subject matter.

The Loyola Constitutional Law Colloquium is aimed at Constitutional Law, Legal History, Political Science, and Philosophy scholars teaching at the university, law school, and graduate levels on matters of constitutional law. We welcome applications from full-time, part-time, and adjunct faculty members, as well as post-doctoral fellows from academic discipline related to the study of constitutional issues (anthropology, history, law, literary criticism, philosophy political science, sociology, etc.).

Application Procedure: The registration and abstract submission deadline is May 31, 2012. Conference organizers will select abstracts on a rolling basis.

You can register for the conference here.