Author: Sarah Waldeck

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Farewell, Barnes and Zoning Matters, Really

In the last week I’ve come across two teaching resources that are worth sharing.  As the headline suggests, the first is about the Barnes Foundation, which closed the doors to its original home in Merion, Pennsylvania at the end of June.  For years I’ve been urging my Estates and Trusts students to visit the Barnes before it is “too late,” by which I meant “before it moves to downtown Philadelphia.”  I did this partly because I thought one needed to see the Barnes to fully understand the ongoing battle over its future, and partly because the Barnes was really, really cool.  Now that it is officially “too late,” I will point them to this 360 degree interactive tour of the Barnes that was put together by the New York Times.  Their effort really gives a flavor of the place, although many of us undoubtedly mourn that we’re left with only a computer program.    

Next up is something for Property professors: an episode of This American Life entitled “Game Changer.” You can access the episode, which is about drilling for natural gas in Pennsylvania, here.  Fast forward to minute 33:30 and soon a reporter will say, “The standoff between [the gas company] and [the town] started with one of the least gripping topics in all of government: zoning.”  While the reporter’s explanation of the difference between conditional and permitted uses isn’t any more interesting than what I say in class, the story she tells is much more engaging than anything I’ve previously used to teach zoning.  Moreover, the story of the small town that tried to write a zoning ordinance after Big Gas arrived does a better job of driving home the economic consequences of zoning than anything I’ve encountered to date.

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Introducing Marc Roark

I’m a beat late on this introduction, since Professor Marc Roark has been visiting with us since July 1.  We are very happy to have him aboard!  

Marc has been a professor at University of La Verne since July 2009. A graduate of Loyola University New Orleans (JD 2002) and Duke University (LLM 2006),  Marc teaches Property, Secured Transactions, Payment Systems, Law and Literature, and Law and Religion.  Marc has published articles in the Cincinnati Law Review, Duke Law and Tech Review, Louisiana Law Review,and Loyola Law Review, amongst others.  Marc previously taught at the University of Tulsa College of Law and the University of Missouri-Columbia College of Law.

Marc is currently working on projects involving mobile money transactions under U.S. Payments Systems policy, entitlement shifting in the UCC,  and a qualitative analysis of space allocation in legal and nonlegal settings.  He is interested in the expanding universe of technology and commerce, especially uses for his new iPad. 

Marc’s recent publications include: 

Limited Sales Warranties as an Alternative to Intellectual Property: An Empirical Analysis of the Deterrent impact on consumers of the I-Phone Warranties, Duke L & Tech. Rev. (Fall 2010). 

Groping Along Between Things Real and Things Personal: Defining Fixtures in law and Policy in the UCC, 78 U. Cincinnati L. Rev. 1437 (2010)

 The Real Property Interest in the UCC: Fixtures and Encumbrances, 42 UCC L. J. 197 (2010).   

Loneliness and the Law: Solitude Action and Power in Law and Literature, 55 Loy. L. Rev 45 (2009).

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Online CLE

Depending on whom you speak with, CLE is either: (1) a necessary means of ensuring that lawyers remain current on the practice of law or (2) an endeavor primarily designed to generate revenue for state bar associations.  Do proponents of the latter description have more ammunition because most state bars allow attorneys to earn at least some percentage of required CLE via video that streams to a personal computer?  At least one state requires lawyers to click at regular intervals, but in many others lawyers just stream and then print a certificate at the end of the video.  To quote one site that sells online CLE, the format is advantageous because it is “available 24/7,” “eliminates travel and travel-related expenses,” and can be “viewed from the couch.” 

Is it too cynical to suggest that the format also allows attorneys to cook dinner while the video is streaming to an empty room upstairs?  Of course lawyers who are sitting through a live presentation can find plenty of ways to distract themselves, but social conventions usually dictate that they cannot make themselves entirely absent, either actually or metaphorically.  Does the decision to allow online CLE demonstrate the faith that state bars have in their attorneys to do what is right, or is it an indication that providing education is secondary to the bars’ other concerns?

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Putting Circumcision on the Ballot

By now, most major media outlets have mentioned that some California municipalities will have proposed bans on male circumcision appearing on their November ballots.  The measures have gotten play on the legal blogs as well, where most of the focus is on whether they could survive a First Amendment challenge.  (The bans would prohibit circumcisions except for those with a “clear, compelling, and immediate medical need with no less-destructive alternative treatment available.”  They further state that in enforcing the measures “no account shall be taken of the effect on the person on whom the operation is to be performed of any belief on the part of that or any other person that the operation is required as a matter of custom or ritual.”)  Just last week, Dave wrote on this blog about how male circumcision reflects value-laden judgments.  What most interests me about the proposed bans is the extent to which they provide an example of the dangers of allowing passion to trump pragmatism.

Let’s start with the First Amendment issue that has attracted so much attention on the legal blogs.  Why not altogether avoid the legal issue and allow an exception for religious circumcisions? I think the primary sponsors of the ballot measures would answer that male circumcision is mutilation and torture.  You don’t partially ban mutilation and torture; instead, you entirely prohibit it.  Without a religious exception, however, the sponsors have (1) lost the votes of those who may prefer that people not circumcise but stop short of the words “mutilation” and “torture” and further believe that religion is a private matter; and (2) ensured that even if the ban is adopted, it will be tied up for years in litigation.

The mistake the sponsors made was to assume that a ban without a religious exception would be ineffectual in reducing the number of religious circumcisions.  As I’ve blogged and written about before, the male circumcision rate is declining because of incremental changes that chip away at the pro-circumcision norm.  Assume for a moment that a series of municipal bans with religious exceptions became law, caused a meaningful drop in the number of circumcisions and sparked reductions in other parts of the country as well, so that eventually no boys were circumcised unless during a religious ceremony.  My bet is that these secular bans would eventually result in fewer and fewer religious circumcisions. 

Many people who consider themselves to be “good” (fill in the blank with any religion you like) deviate from their Church’s teachings, even fundamental ones, in at least some respects.  If male circumcision was decidedly not the norm—because people believed that cutting off part of the penis was cruel or unnecessary or whatever—religious  parents might be influenced by the attitudes of their non-religious neighbors and choose not to circumcise their sons.  There is already some evidence, for example, that the non-circumcision movement is beginning to make inroads in the Jewish faith.  Already a small number of Jewish parents are opting for a brit Shalom, an alternative to the traditional bris that does not involve any cutting. 

Under this slow and steady approach, with the passage of enough time a government could even adopt a ban with no religious exception without fear of a First Amendment challenge.  Instead, the ban would be received much like the current federal law that prohibits all female circumcision, including ritual nicks that are much less altering than male circumcision.  This legislation does not spark any chatter of First Amendment challenges because everyone agrees about the compelling nature of the governmental interest.

Of course, the First Amendment issues are only relevant if the proposed bans are actually adopted by the relevant voters.  Indeed, if the measures were voted into law, there would be lots of interesting questions, such as whether people would just circumvent them by getting circumcisions done elsewhere, and whether officials would enforce the bans.  I haven’t, however, seen a single prediction that the proposed bans will be voted into law. 

With the risk of failure so high, one has to ask about the potential consequences of failure.  Will a parent who is on the fence about whether to circumcise perceive failure of a measure as evidence that circumcision is an appropriate and socially-endorsed choice?  What about the American Academy of Pediatrics (AAP), which is expected to release a new policy statement on male circumcision?  Will a resounding defeat of the proposed ban weaken the hand of people within the AAP who argue that it should at least remain neutral about the procedure?  These are all very real risks that threaten to undermine or reverse the gains that the non-circumcision movement has made.  Passion has its place, but in this instance it threatens to undermine some very hard-earned gains.

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Attention All Flatlanders, Fudgies, and Other-State Equivalents II

Now for some seasonally-appropriate scholarship:

A while back, I asked readers who were involved with family cottages (or summer homes or cabins or whatever you want to call them) to tell me their stories. I was curious about how many generations the property had been in your family; how you handled carrying costs, improvements, scheduling and use; whether your property was governed by a tenancy in common or other legal arrangement; and whether that arrangement was rocky or smooth.   Some first-rate sociology had already been done in this area, but I was curious enough to want to supplement with some casual empiricism.

I recently posted the article that grew out of these inquiries on SSRN.  Forthcoming in the Notre Dame Law Review, the article discusses how “identity property” is passed along from one generation to the next.  Identity property is that which is valued for what it represents about self and family—a sort of ratcheted-down version of Margaret Radin’s “personhood property.”  In the absence of more sophisticated estate planning, identity property is often inherited by the decedent’s children, who take as tenants in common.   Standard doctrine relies on familial bonds and the unilateral right of partition to mitigate bilateral monopoly problems and to foster cooperation in the management of the children’s common resource.  I argue that with identity property, this standard account is often wrong.  Because courts favor partition by sale, the exit of one tenant often means that the remaining co-tenants will be forced to sell the identity property.  Because the remaining tenants perceive the property as non-fungible, the threat of exit can be powerful enough to exacerbate bilateral monopoly problems and decrease the likelihood of cooperation. 

The article makes use of some of the stories that readers of Concurring Opinions told about their family cottages to elucidate how devisees modify the default rules of a tenancy in common, particularly the right of partition.  What I found most interesting about these stories was how willing some individuals were to radically restrict their right of exit from the co-tenancy and the corresponding belief that a strong right of exit would ultimately work against their collective interest.  The Article ultimately argues that when it comes to identity property, the right of exit through partition should not be as absolute as current law allows. 

For those who are interested in learning more, the abstract and article are available here.

 p.s.  And for those of you who are gearing up for another season in property that is jointly owned with other relatives, rest assured that not one single person who responded to my request reported an entirely smooth arrangement!

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Announcing the Loyola Second Annual Constitutional Law Colloquium

Just a quick note that the Loyola University Chicago School of Law has scheduled its Second Annual Constitutional Law Colloquium for October 21 & 22, 2011.  The conference is being organized by Professors John E. Nowak, Juan Perea, Alexander Tsesis and Michael Zimmer.  

 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.  To this end, the conference is aimed at bringing together constitutional law scholars at all stages of their professional development to discuss current projects, doctrinal developments in constitutional law, and future goals.  The organizers are hoping to be able to schedule presentations for all who submit and will group participants by subject matter.   

Professors who are interested in participating should submit an abstract of  150 to 200 words by May 31, 2011.  

Topics, abstracts, papers, questions, and comments should be submitted to:

 Program Administrator Carrie Bird, cbird@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.

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More Data on Classroom Laptop Use

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.

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Westlaw Next

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 More

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Laptops, Again

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.

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Panel Discussion on Female Circumcision: Ethics and Human Rights

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.