Category: General Law

4

The path to academia — is practical experience disqualifying?

Over at the Volokh Conspiracy, Orin Kerr writes about an interesting talk recently given by Harvard Law professor Darryl Levinson to aspiring law professors. Like Orin, I was particularly struck by the following remarks from the article: “practical legal experience is not a good predictor of scholarly ability, and, Levinson noted, ‘is pretty nearly disqualifying.’ Levinson pointed out that today’s younger professors have no significant practical experience, and that if they tried to become involved in the world, ‘the world would probably recoil in horror.'” Since today is the start of the infamous meat market, I don’t want all those aspiring law professors with practical experience to be discouraged! First, I think that many, although certainly not all, younger professors do have significant practice experience. I worked for a long time as both a defense attorney and as a prosecutor, and I know that both my teaching and my scholarship are far richer for the experience. At least in the criminal field, I can think of numerous colleagues who have experience on either the prosecution or the defense side (or both). Second, if we are indeed moving to a world where new professors do not have any practical experience, I think that would be a tremendous loss for students, for law schools, and for the profession. We are after all training most students to be lawyers, not academics. I wish that we could move away from this view that having practice experience, in other words being a good attorney, and being a great scholar are incompatible. I believe that it is eminently possible to be both.

13

Gun control and the District of Columbia

The Supreme Court should be deciding in the next couple of weeks whether to grant cert in the case challenging the District of Columbia’s law in essence banning residents from possessing handguns. (Michael O’Shea has done an admirable job over at Prawfs collecting various materials related to the cert petition). As a former assistant U.S. attorney in D.C., I’ve been following the case with interest, and I do expect that the Court will grant cert. I think it’s worth acknowledging the primary functions of the law as it’s used by prosecutors in DC: the gun ban is both a preventive detention statute and an intelligence-gathering tool. At one time when I was a prosecutor, we were prohibited from extending a plea offer in gun cases unless the defendant agreed to come into the office (with his attorney, of course) and be “debriefed” about his knowledge of criminal activity in the city. The statute was also a mechanism for locking up individuals perceived as violent, but against whom other cases could not be brought for whatever reason. It’s pretty simple to prove beyond a reasonable doubt that an individual was in possession of a gun without a license and a lot tougher to prove that he committed a violent crime. These functions may not be relevant to the question whether the statute is constitutional, but it’s worth acknowledging that invalidating the gun ban will surely have a tremendous impact on crime-fighting in the District.

7

Law Porn and Spending the Money of Others

When a public law school distributes law porn, I assume the logic goes like this. Advertising leads to a better ranking that leads to more revenue that leads to a better experience for the students that leads to a higher payoff on the public investment made by the state. Think of how tenuous the connections are. Has any school moved up by virtue of better advertising or lost ground due to its absence? Has the movement of a slot or two increased donations? Have those donations been put to good use in order to increase the return to the public investment in legal education – whatever that is? I challenge any public school dean to prove that he or she has made an effort to track through this in even a semi rigorous way. Of course, in a rational and non shirking world, he or she would have before pissing away the money. The problem is that public law school deans and their faculties get to spend the money of others. Thus, it is doubtful they go through the calculations that they would go through with their own money. And it often means spending the money of others to preserve their own positions and status whether or not the stakeholders in the law school are better off. Of course, the spending the money of others problem extends way beyond the law porn. I wonder how many of these free spenders when it comes to the money of others then turn around and buy a car only after consulting Consumer Reports, make sure no frequent flier mile goes unused, select their credits cards on the basis of the best rebate, and check several places before buying anything that costs over $100.

1

Second Life and Cyber-Activism

burma_second_life.jpgI have always been more than a bit skeptical about cyber-protests and virtual demonstrations. Among other things, it does not seem to me that virtual contention is very, well, contentious. Nor does it seem that participants will gain the same sort of emotional and other solidarity benefits sometimes associated with physical activism. Further, insofar as intended audiences are concerned, cyber-protests seem even easier to ignore than most “meatspace” protests. Who is the intended target of the contention? Where is the disruption? The volume? The effect of waves of people massing in one space to vent frustrations and demand change? As ineffective as the “meatspace” protest can often be, these and other physical elements seem at least to increase the chances that participants and audiences will be affected by the experience.

Perhaps, though, I have been undervaluing protests that occur in spaces like Second Life. The image is from a recent Free Burma event, which featured a “human chain” in which 500 people from 20 countries joined, as well as vigils and meditations in support of this cause. (Thanks to my colleague Chris Borgen for bringing this to my attention.) Admittedly, this was not an enormous protest. But I am more interested in the possibilities generally than in this one example. The avatars seem to add a form of physicality and personality to such events. The contention looks similar to physical activism — at least insofar as there are “people” assembled in “places” waving placards and listening to speakers. A participant can tell who she is standing next to and with. The organizer can assemble mulltitudes quickly — as the human chain shows, even across continents. The audience problems remain, of course — how do protesters ensure that intended listeners and viewers experience them? Can they interfere in some way with everyday Second Life functions? Can they invade spaces in which others do not wish them to be?

Rather than replace real-space activism, perhaps this sort of cyber-activism will lead to greater social and political activism in existing “meatspace.” As one commenter to the Free Burma event reflected:

So what is it with virtual worlds, that made me join now? Was it the fact someone on my friend-list made me aware of the demonstration and asked me to join? So did the social network [do] what it was supposed to? Was it the fact that [the] request might have been triggered by the media attention regarding Burma? Could it be just the ease of access that made me join? So did it just provided me a way to compensate for being lazy not going out and make an effort in real life? And if that is true, is that a good or bad thing? I think the fact I joined by itself was good. The confrontation with my non-participation in real life made me think, and I guess that is good too since it might even change my social behavior in real life for the better.

I would be interested to hear from any Second Life inhabitants who have been involved in this sort of activism. What motivated your participation? What were your own impressions of the experience? Will it likely have any effect on how or whether you participate in such events in “meatspace”? I would be interested to hear from those who are skeptics as well — of cyber-activism of this form, or without regard to the type of space.

1

The New Do Not Mail List

About once a month either my wife or I call the retailers who stuff our mailbox with catalogues and say “Stop.” For some period we do not get the catalogues. It’s not that we will not buy from them. We might, but when we do we will look the same thing up online. Far more offensive than the latest LL Bean, Bullock & Jones or Chiasso, is the decanal glossy or law porn as it is also called. You know, that oversized postcard in the mail from another law school announcing that this year the Benjamin Robinson speaker will be Horst S. Butt from Harvard or Yale. Or the glossy announcing who is visiting that year. You can bet that I was just wondering about that. Or the big juicy glossy listing faculty publications right down to every op-ed piece, one-page introduction, tape-recorded commentary and speech to the Elks Club that every law faculty member insisted was scholarship and worthy of publicity and that every dean could not have been happier to add to list. Most of these come off a negative advertising both for the schools and for many of the faculty — and I do not mean just those with very short lists.

Each day it comes and, like other matter, is shoveled from the mailbox to the trashcan. Yet, no matter how much you throw away, it comes again. It’s like the scene in Sleeper when Woody Allen is still pretending to be a robot and does something in the kitchen – I’ve forgotten what — and it keeps expanding and expanding – and he is left to try to beat it to death with a broom. I do not recall if of prevails because at about this point in the film he discovers the orgasmatron.

Where does this stuff come from? No, I know who mails it: Panic-stricken law school administrators afraid their schools will drop a slot in USN&WR and the faculty, students for alums will be up in arms. I mean the paper, the ink, the labor, the money to pay the salaries of those assigned to prepare and mail it. Also,where does it all end up once it is carried away, largely unread, by the trash person? Could I pleeeeeeeeze get on a do not mail list? Why not do something more useful like, for example, digging holes in the sand and then filling them back up and then using the money to put back together some 19 year old that Bush and Cheney sent to Iraq to be blasted apart.

2

Campus Speech in the “Post-Virginia Tech World”

campus_gate_jpg.jpgThe April 16 massacre at Virginia Tech, along with other recent gun-related violence on campus, will produce some thorny free speech problems for college and university officials. As someone who works on a campus where the threat of gun violence recently manifested itself, I am well aware of the extraordinary safety considerations facing today’s campus administrators. Tragedies like this can also, as I think the example of September 11 shows, sometimes lead to over-reactions and consequent civil liberties violations. Colleges and universities have a decidedly mixed track record when it comes to reacting to new and perceived threats to order, safety, and pedagogy. Many policies enacted after the unrest that swept campuses in the 1960s severely restrained campus expression. Campus speech codes, which flamed out in the courts (but in many cases survive in campus codes of conduct), sought to restrict expression that was racist, or sexist, or otherwise offended sensibilities.

As Justice Frankfurter said in Sweezy v. New Hampshire: “It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment, and creation.” In the “post-Virginia Tech world,” the First Amendment challenge will be to maintain the sort of openness that ought to characterize places of higher learning, while keeping learning communities as safe as possible. Places of higher learning have responded to Virginia Tech and other incidents of gun violence by altering certain policies and practices. Some of these reactions have been salutary. Colleges and universities have networked campuses such that university communities can more rapidly and effectively communicate with regard to possible threats and safety protocols. While tragic, these incidents have also sparked a debate about important matters like gun control, university duties, campus community, and students’ mental health. The primary threat to expression will likely come from policies aimed at expression that administrators believe falls within two rather amorphous First Amendment categorical prohibitions — speech that incites others to unlawful action or conveys a “true threat.” The First Amendment protects mere advocacy of violence, so long as it is not directed at producing imminent lawless action and is not likely to do so. The true threats category encompasses statements by which the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. As the Supreme Court stated in Virginia v. Black, the speaker need not actually intend to carry out the threat. Rather, as the Court explained in Black, a prohibition on true threats “protects individuals from the fear of violence and the disruption that fear engenders, as well as from the possibility that the threatened violence will occur.”

In the immediate aftermath of the Virginia Tech shootings, schools were understandably quite sensitive to what they perceived to be threatening student expression. There were several reported incidents of discipline for expression that, in the pre-Virginia Tech era, might not have raised the same level of concern. The Virginia Tech massacre has occasionally affected pedagogical matters as well. For example, a San Jose State University lecturer opted to stop teaching a creative writing course when he received a disturbing student paper (written prior to the Virginia Tech shootings) in which a character modeled on the lecturer was killed by a vampire. According to the lecturer, in the post-Virginia Tech world this story created “an atmosphere of conflict” in the classroom. Colleges and universities across the country continue to grapple with the delicate balance between safety and students’ freedom of expression. Some schools, like the University of Colorado, have enacted policies requiring mental health screening for students and others who make violent threats. Colorado’s policy states that campus officials “may refer individuals accused of making threats of violence for an assessment of the likelihood that they will act on a threat of violence.” Hamline University has apparently suspended a graduate student for sending two sharply worded (as well as racist and sexist) emails to school administrators in which he supported gun rights — including the right to carry a concealed weapon on campus. Pursuant to university policy, the student must undergo a mental health evaluation. There may be more to the Hamline story than has been publicly reported (privacy laws preclude dissemination of some of the underlying facts). But if the substance of the emails are indeed as reported, the student’s expression does not constitute unprotected incitement or threats. The emails convey (somewhat inartfully) positions on campus security and the right to bear arms.

I intend neither to minimize the danger associated with truly threatening expression, nor to overstate the danger to civil liberties in the “post-Virginia Tech world.” As is the case in the “post-September 11 world,” both dangers are clearly present. The challenge will be to maintain, both inside and outside the classroom, an “atmosphere which is most conducive to speculation, experiment, and creation” even when presented with speech that addresses guns, violence, or both.

4

Be It Resolved . . .

resolution_jpg.gifIn prior postings (here and here), I have objected to Senate and House resolutions that condemned political expression by MoveOn.org and Rush Limbaugh. I did not claim that Congress lacks the authority to issue such resolutions. Rather, my claim was that such pronouncements skew the marketplace in political ideas and may chill expression by some with strongly held political viewpoints — perhaps especially those who have business before Congress.

The issue of congressional resolutions has surfaced once again, although this time in a very different context. On Wednesday, the House Foreign Affairs Committee approved H.Res. 106 — the “Affirmation of the United States Record on the Armenian Genocide Resolution.” The resolution, which includes findings concerning the Ottoman Empire’s execution and displacement of Armenians from 1915-23, “call[s] upon the President to ensure that the foreign policy of the United States reflects appropriate understanding and sensitivity concerning issues related to human rights, ethnic cleansing, and genocide documented in the United States record relating to the Armenian Genocide, and for other purposes.” House Speaker Nancy Pelosi has vowed to bring the measure to the floor for a vote. President Bush, who has made annual statements condeming the atrocities against Armenians, lobbied to block the resolution in committee. He has expressed disappointment that it was voted out of committee, and has vowed to help defeat its passage. The President’s interest in the resolution is obvious: Turkey is a valuable ally in the Iraq War. The country serves as a critical staging ground for the shipment of supplies into Iraq. Turkish officials, particularly legislators, have reacted strongly to the resolution. They have threatened to cease providing logistical support to the United States, have stepped up military operations on the Iraq border, and have recalled their ambassador to Washington.

From the earliest days of the republic, congressional resolutions (joint, concurrent, and simple) have been issued to express the opinion or will of one or both chambers of Congress. Most “symbolically expressive” resolutions are not at all controversial. For example, resolutions have been proposed or enacted which celebrate children as “the hopes and dreams of the people of the United States,” recognize Ramadan and express “the deepest respect to Muslims in the United States and throughout the world,” acknowledge military gallantry, and designate March as “Women’s History Month.” Such “feel good” expression does no harm, and indeed can inform the public of important national policies and priorities.

As the fallout from the Armenian genocide resolution demonstrates, the calculus may be substantially different, and the stakes much higher, when Congress expresses itself on matters of foreign affairs.

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2

My Ballot and US Magazine

I think it was Doug Berman who wrote recently asking if it was illegal or unethical to sell his USN&WR ballot ranking the top 15 IP programs. Today my ballot arrived, delayed I suppose, by Columbus Day. My qualifications to rank IP programs are right up there with my qualifications to dunk a basketball. But then I thought, “Maybe I am exactly the right person.” Think about it, as I understand it, when ranking various law school programs, USN&WR uses a methodology that is also known as gossip. The last time I checked, even for LLMs the research did not involve an examination of admission rates, student qualifications, or the scholarship of the professors. Yes, it makes the research by US magazine look like it is conducted by Nobel Prize winners.

It also allows for some mischief as hinted by Professor Berman’s facetious offer to sell. Suppose you have a fairly large specialty program and several members of it get ballots on which they rate themselves. And suppose those professors have some friends. The ballots request that you fill out up to 15. The best strategy? Fill in one name – your own. Think law professors are above such things? If so, I have a great Summer Program In Italy I’d like to discuss with you.

8

What’s In A Name?

baby_names.jpgApparently, much more than most people probably assume. In An Anthropology of Names and Naming (Cambridge Univ. Press 2006), the various contributors examine, through methods of comparative ethnography, the politics, power, symbolism, and expression of naming and being named (or in some cases de-named). As the authors observe, names serve a variety of purposes. States, of course, use them for a variety of regulatory functions (birth certificates, licenses, permits, tax forms). Name-givers choose names that are descriptive of persons, relations, geography, or religion. Contra J.S. Mill, names are hardly “meaningless markers.”

In the United States, names are chosen for various reasons — often for their religious or kinship significance, to express emotions like “Joy” or “Hope,” to make a cultural statement, or simply because they are trendy. Things are quite different in other places and cultures. As reported here, in Zimbabwe names are often chosen to convey specific meaning. Thus, one will find names such as Trymore, Lovemore, Learnmore, Justice, Honour, Trust, Knowledge, Oblivious, Wind, Wedding, Funeral, Rain, and even Hatred. Have-a-Look Dube is apparently a famous footballer in Zimbabwe. In one family, the last of 13 children was named “Never Trust A Woman” — apparently to express doubts about paternity. As recently reported here, states sometimes take more than a bureaucratic interest in the names bestowed upon citizens. A recent bill proposed in the Venezuala National Assembly would have effectively limited parents of newborns to a list of 100 names chosen by the government (the proposal failed to advance). The purpose? According to sponsors, the list was intended to “preserve the equilibrium and integral development of the child” by preventing parents from bestowing names that open the child to ridicule, are difficult to pronounce in Spanish, or generate doubts as to the child’s gender. Examples of purportedly offending names include Haynhect, Olmelibey, Yan Karll, and Udemixon. Meanwhile, among the members of the National Assembly are Jennifer Bravo Quevedo, Earle José Herrera Silva, and Grace Nagarith Lucena Rosendy (the bill would not have been retroactive). Some Venezuelan names — e.g., Kennedy, John Wayne, Pavel, Ilich — reflect historical and cultural ties . In the voter registry, one can find as many as 60 Hitlers; eight Hochiminhs, among them Hochiminh Jesús Delgado Sierra; and six Eisenhowers, including Dwight Eisenhower Rojas Barboza.

The Venezuela bill raises the question whether the state might have some legitimate interest in the process of naming. In the United States, of course, conceptions of fundamental parental and other constitutional rights would preclude such governmental limitations on naming (which does not, in any event, appear to present any social or other problem in need of correction). But surely, many of the names above are likely to cause confusion, taunting, and perhaps other harms to the child. One editorialist likened some of the Zimbabwean names to “a form of child abuse.” That seems a touch overblown. The right of naming belongs ultimately to the family or other kinship structure, and ought not to be dictated by the state in any respect. Still, it is important to exercise special care with regard to an act as significant to personhood and identity as naming. As ethnographers have shown, that act reflects on parent as well as child. We can only hope that namers in all cultures choose well and wisely the “proper” name for their children.

12

Women Not Attending Law School

businesswoman2.JPG Mike Madison has a post about advice for a new law dean that suggests law schools should emulate business schools and require that a prospective student have a few years of work experience before being admitted. [UPDATE/CLARIFICATION: Prof. Madison's post speaks of "a minimum of two years’ of experience in the world before enrolling in school." I speak of work experience which for me absolutely includes a broad range of activities, not just Wall Street or similar jobs.] Oddly enough it appears that women are not heading straight to law school but not because of any such policy. The National Law Journal reports that the number of women in law school has dropped since 2002. The article indicates that the reason behind this shift is unclear: some point to women being able to earn more than men right out of college in several major metropolitan areas; some note that a few newer schools have greater disparity in enrollment and they may skew the figures; and some note that the press has covered how law firms may not be the most friendly places for women given the lack of female partners and trouble in retaining women in general at firms (“In 2006, just 17.9 percent of partners in law firms were women, according to NALP, a nonprofit organization that tracks legal careers. Meanwhile, 44.3 percent of associates were women.”) Last the article suggests that even with flexible hours, day-care, and paid maternity leaves, the bottom line at most firms creates a world where one is on-call all the time and the hours are not what women want. Maybe, but that seems inaccurate.

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