Letter A:

As I drove around my neighborhood recently, I was happy to see signs for both political candidates. I thought how lucky we are to live in a free country where we can have different beliefs but still get along.

Imagine my shock, then, when I got up recently to find the McCain signs gone from our yard and our neighbors’ yards. The Obama signs were not [...]]]> The acrimony of the current election season has created rifts between family members, friends, and strangers alike. Finger pointing between Obama and McCain supporters has become knee-jerk habit; neither side has qualms about assuming the worst with respect to the other. Yesterday, my local rag featured a small-scale example of this in its Letters to the Editor (here):

Letter A:

As I drove around my neighborhood recently, I was happy to see signs for both political candidates. I thought how lucky we are to live in a free country where we can have different beliefs but still get along.

Imagine my shock, then, when I got up recently to find the McCain signs gone from our yard and our neighbors’ yards. The Obama signs were not taken. But then I thought that this is a typical thing for liberals to do. They do not really want to have us all living in harmony (like they’re always saying), but have always and still do want to force us to believe the way they believe.

I guess they don’t realize that if we are not allowed to keep signs up in our yard that are different from theirs, then this is no longer a free country.

Letter B:

To the folks who are going around town stealing Obama campaign signs from yards: Friends, you are doing the right thing. Desperate times demand desperate measures, and you are clearly desperate. Of course, your childish vandalism will have no effect on the outcome of the election, which your candidate is on the way to losing.

In fact, having a campaign sign in your yard probably won’t have much effect on the outcome, but folks have a right to free expression, of which our yard signs are a form.

So what your thefts say about you is that you cannot stand free expression and that you apparently believe you have a right to interfere with others’ political speech. Why am I not surprised?

***

I’ve heard it said that the bond of shared experiences can help folks on opposite sides of an issue find common ground. Maybe that’s where we should be putting our campaign signs.

Fall is in the air.

Law school mailings everywhere.

Rankings on the rise?

It’s fall, the season for tailgating, bonfires, and trick-or-treating. It’s also the time of the year when the U.S. News and World Report Magazine begins collecting data for the purpose of ranking U.S. law schools. When I check my work mailbox, I can almost always count on receiving postcards, pamphlets, magazines, and other mailings from law schools extolling the virtues of their programs and recent faculty hires. One of my colleagues – my most recently tenured colleague – even received law school swag.

Do these mailings actually positively impact the rankings of the schools that send them? Last year, the ranking methodology for law schools included a quality [...]]]> A haiku to celebrate the season:

Fall is in the air.

Law school mailings everywhere.

Rankings on the rise?

It’s fall, the season for tailgating, bonfires, and trick-or-treating. It’s also the time of the year when the U.S. News and World Report Magazine begins collecting data for the purpose of ranking U.S. law schools. When I check my work mailbox, I can almost always count on receiving postcards, pamphlets, magazines, and other mailings from law schools extolling the virtues of their programs and recent faculty hires. One of my colleagues – my most recently tenured colleague – even received law school swag.

Do these mailings actually positively impact the rankings of the schools that send them? Last year, the ranking methodology for law schools included a quality assessment based on two scores – a peer assessment score and an assessment score by lawyers and judges. Do these mailings lead to higher peer assessments and assessments by lawyers and judges?

Student: Prof. Turtle, why do we spend so much time in law school discussing what arguments we could make and so little time discussing what arguments we should make as a matter of justice, ethical leadership, and sound decision-making?

Prof. Turtle: I’ve never even made it all the way through [...]]]> The other day, one of my students wandered into my office with a sticky question. I took the liberty of putting his question to some of my colleagues. The depiction below sets forth the question and reasonably represents the conversations that ensued. I’ve changed the names to protect the innocent and the guilty. Professors Turtle and Owl represent a composite of several of my colleagues at my law school and beyond.

Student: Prof. Turtle, why do we spend so much time in law school discussing what arguments we could make and so little time discussing what arguments we should make as a matter of justice, ethical leadership, and sound decision-making?

Prof. Turtle: I’ve never even made it all the way through my syllabus in a semester. I don’t have time to address such issues. Ask Prof. Owl.

Student: Prof. Owl, why do we spend so much time in law school discussing what arguments we could make and so little time discussing what arguments we should make as a matter of justice, ethical leadership, and sound decision-making?

Prof. Owl: Let’s find out… What do you mean by justice? Whose idea of ethics counts? Do you mean to say that the students are just now noticing this? (accompanied by laughter). Wait a minute – why are you asking me? Are my students complaining? (accompanied by slight paranoia).

Why do we spend so much time in law school discussing what arguments we could make and so little time discussing what arguments we should make as a matter of justice, ethical leadership, and sound decision-making?

The world may never know.

In an earlier post, I mused about the possibility of criminal responsibility for inflammatory campaign rhetoric, raising the issue as a thought experiment in much the same way that I would raise an issue in class. Predictably, the Thought Police quickly emerged to chastise me for committing crimethink – the unspeakable act of failing to address an issue in a manner pleasing to those speaking from the vantage point of an electronic soapbox. In particular, Thinkpol seems to champion the idea that the mere existence of the First Amendment invalidates the notion of criminal liability for political speech and to think otherwise is, well, “bizarre.”

I beg to differ.

Sure, courts in the United States have proven reluctant to [...]]]> [Note: See important update/P.S. at end].

In an earlier post, I mused about the possibility of criminal responsibility for inflammatory campaign rhetoric, raising the issue as a thought experiment in much the same way that I would raise an issue in class. Predictably, the Thought Police quickly emerged to chastise me for committing crimethink – the unspeakable act of failing to address an issue in a manner pleasing to those speaking from the vantage point of an electronic soapbox. In particular, Thinkpol seems to champion the idea that the mere existence of the First Amendment invalidates the notion of criminal liability for political speech and to think otherwise is, well, “bizarre.”

I beg to differ.

Sure, courts in the United States have proven reluctant to impose liability for speech. But our courts have not said that liability may never be imposed. Could a court ever construe political speech as “advocacy … directed to inciting or producing imminent lawless action”? Could political rhetoric ever amount to “speech … brigaded with action”?

First Amendment rights are not absolute. Yet. And so, like Jell-o, there’s always room for argument. Mental manna keeps our brains sharp. In this case, hypothetical or otherwise, it might also keep our hands clean.

Fight the urge to crimestop. We don’t need no thought control.

Important P.S.: The tone of this post was intended to be defiantly tongue-in-cheek. In hindsight, however, I realize that someone as dedicated as Walter Olson to preserving our civil liberties might be affronted by my post. I have since spoken with Mr. Olson and assured him that I intended no harm. Hats off to Mr. Olson for his gracious response!

Do I like it? You betcha!

How much do I like it? Let me count the ways.

I like it to the depth and breadth and height

Of my classroom, when marveling at the sight

Of 1Ls engaged in class discussion.

I like it to the level of my students’ gaze,

With which I now have a direct eye connection.

I like it freely, as the students set discourse ablaze;

I like it purely, as they turn from malaise.

I [...]]]> As luck would have it, I stumbled into a laptop-free section this semester. What started as a decision of one of my section colleagues to stamp out the scourge of laptops in his class had a domino effect. A second colleague signed up and, suddenly, we all were members of the Laptopless Society.

Do I like it? You betcha!

How much do I like it? Let me count the ways.

I like it to the depth and breadth and height

Of my classroom, when marveling at the sight

Of 1Ls engaged in class discussion.

I like it to the level of my students’ gaze,

With which I now have a direct eye connection.

I like it freely, as the students set discourse ablaze;

I like it purely, as they turn from malaise.

I like it with a teaching passion once deflected

By the tops of student heads bent over their PCs.

I like it with a like that I formerly rejected

When looking out over a laptop sea, — I like my shiny

Happy, laptopless students! – and, unless otherwise directed,

I shall but like it better even after course evaluations skewer me.

How is it that so many of us (maybe I should just [...]]]> I’ve been thinking a lot about teaching lately. Specifically, I’ve been wondering about my effectiveness in the classroom. After my 9:00 AM class, my 1L students line up at the podium to ask me questions – obviously a consequence of my uncanny ability to convey information in an unclear and unconcise manner. My upper-level students, however, make a beeline for the door as soon as I quit my yammering. So, either I morph into a paragon of teaching clarity in the hour that I have between these classes or my upper-level students prioritize lunch over knowledge. Or maybe they know that a trip to the podium would be futile.

How is it that so many of us (maybe I should just speak for myself) become teachers without any training on how to teach? Is teaching truly so unimportant that we’ll let most anyone (e.g., me) in the classroom? If it is unimportant, then why do we pass out teaching evaluations to our students? And why is it a factor in the promotion and tenure process?

Maybe the better question is “how can I improve?” I know that there are annual teaching conferences and panels on teaching methods at the January AALS. But do law schools offer training and mentoring on teaching to their faculty members? I’m curious to know what folks are doing at their schools. Continuing to exhort my class to “Love the One You’re With” when they grumble about my (or anyone else’s) teaching may be entertaining, but it doesn’t address their concerns.

The MSM talking heads have been chattering a great deal this week about the McCain Campaign’s go-for-broke strategy of depicting Senator Obama as the BFF of terrorists and anti-American extremists. GOP rally goers have been receptive to these tactics, responding with cries of “terrorist!” and “treason!” and “kill him!” at this week’s McCain-Palin pep rallies.

The stated endgame seems on the up-and-up: Senator McCain says that he is skeptical of Obama’s ability to tell the truth and that Obama is not being forthright about [...]]]> Many thanks to Dave Hoffman for inviting me to guest blog, and please accept my apologies, folks, for being so slow with my first post. As one of my colleagues would say, I’ve had squirrel brain for the past week.

The MSM talking heads have been chattering a great deal this week about the McCain Campaign’s go-for-broke strategy of depicting Senator Obama as the BFF of terrorists and anti-American extremists. GOP rally goers have been receptive to these tactics, responding with cries of “terrorist!” and “treason!” and “kill him!” at this week’s McCain-Palin pep rallies.

The stated endgame seems on the up-and-up: Senator McCain says that he is skeptical of Obama’s ability to tell the truth and that Obama is not being forthright about his affiliations with slithy toves like William Ayers and Jeremiah Wright. Governor Palin says that she questions his judgment because of these relationships. A candidate’s propensity for truthfulness and judgment ought to be fair game in a political war.

But that’s not what has the media (and me) atwitter.

I’m more interested in the unstated goals of this strategy. In particular, I’m curious about the campaign’s desire to paint Obama not only as a tractor beam of evil, but also as the embodiment of evil. A couple of McCain’s surrogates have even invoked Obama’s middle name in what can only be an attempt to portray Obama as a terrorist himself. Sure, negative portrayals of the other party’s candidates are standard fare when it comes to election season hijinks, but this particular round of character assassination has a discordant sound to it – like the soundtrack for “There Will Be Blood.” The McCain camp seems to be peddling fear, hate, and outrage to an audience that appears highly susceptible to this message.

What if, after drinking the Kool-Aid of campaign rhetoric, a rabid supporter sought to perpetrate harm on another candidate? Should the fear-mongering candidate (or a campaign strategist or surrogate) bear any responsibility for the bad acts of a fanatical groupie?

Under the Model Penal Code, one can be liable as an accomplice for another’s bad acts if the prohibited result was her conscious object. This standard might be hard to satisfy in my imagined scenario, but some criminal statutes are broader and could allow liability to attach based on one’s knowledge that, to a practical certainty, one’s conduct will assist in bringing about the prohibited result. Because knowledge is a less culpable mental state than purpose, however, courts might require something in addition to the knowledge – something like a stake in the venture. Would an election victory suffice as a stake? On the other hand, if the accused knows that, as a result of her conduct, the prohibited result is practically certain to occur, the serious nature of the intended crime should, arguably, be enough. No extra something should be required.

Hopefully, no persons or other animals will be harmed in the making of the next President. But, by creating an atmosphere that fosters violent and dangerous sentiments, the McCain campaign has increased the risk of injury to its opponents. For this reason, might McCain and Palin have more than an ethical responsibility to address and defuse these attitudes? Could they have a legal duty to engage in some straight talk with their supporters – to dial back the inflammatory rhetoric and to denounce publically these sentiments?