Category: Law Talk

10

Depictions of Legal or Historical Figures in Fiction

I have not seen Lincoln yet–it feels too much like work– but I may reconsider after reading something yesterday.  An excellent paper about James Wilson by Nicholas Pedersen (published in 2010) points out that one reason his modern reputation is poor is that he was depicted (inaccurately) as a loser in the musical 1776.  I must admit that it’s been a long time since I’ve seen that movie, so it’s not something that I remembered.  Still, it’s worth thinking about.

I’m kind of wondering who else might fall into this category of “popular culture has treated them badly.”  Richard III might be a good example, though I don’t know enough about the War of the Roses to say.  When it comes to Americans, William Jennings Bryan comes to mind.  Most people who watch Inherit the Wind know that it is a thinly veiled portrayal of Bryan and the Scopes Trial, though they don’t typically know that its not an accurate version. Any other nominees?

2

More Apprenticeship Attorneys

One idea for legal education reform that I’ve talked about before and want to repeat is that more states should allow people to take the bar exam without earning a JD. Until the early twentieth century, it was common for lawyers to get their training by serving as an apprentice to a licensed attorney for a period of years.  This cannot, of course, fully substitute for law schools.  Some people want more academic training or the opportunities available at a school with a broad curriculum.  And there are only so many attorneys with the time or inclination to mentor apprentices.  Still, why should state law block this path?  Everyone has to pass the same bar exam. If a course that would allow students to earn money rather than rack up debt to become lawyers would work for some, then it should be an option.

14

The Annoying “Riiiiiight” in Faculty Workshops

Imagine law professor Felix Cohen giving a law faculty workshop of his famous 1935 paper, Transcendental Nonsense and the Functional Approach (here), addressing the topic of personal jurisdiction over corporations.  But pretend he is presenting the paper to a faculty today, in 2012, and tune your hear to the sound of the words he might utter when explaining his argument to those assembled.  If he followed the common gluey talk of fancy law professors today, it might be transcribed as follows:

The question of where a corporation is, right, when it incorporates in one state and has agents transacting corporate business in another state, right, cannot be answered by empirical observation, right. Nor is it a question that demands for its solution any analysis of political considerations or social ideals, right.

It is a question identical in metaphysical status, right, with the question scholastic theologians are supposed to have argued at great length, “How many angels can stand on the point of a needle?”, right.  Now it is extremely doubtful whether the scholastics actually discussed this question, right. Yet the question has become, for us, a symbol of an age in which thought without roots in reality, right, was an object of high esteem.

Will future historians, right, deal more charitably with such legal questions as “Where is a corporation?” Nobody has ever seen a corporation, right. Some of us have seen corporate funds, corporate transactions, etc., right. But this does not justify assuming that the corporation travels about from State to State as mortal men travel, right.

Yet it is exactly in these terms of transcendental nonsense, right, that the Court of Appeals approached the question of whether the Susquehanna Coal Company could be sued in New York State. “The essential thing,” said Judge Cardozo, writing for a unanimous court, right, “is that the corporation shall have come into the State.” Why this journey is essential, right, or how it is possible, we are not informed.

The opinion notes that the corporation has an office in the state, right, with eight salesmen and eleven desks, and concludes that the corporation is really “in,” right, New York State. From this inference it easily follows, right, that since a person who is in New York can be sued here, right, and since a corporation is a person, right, the Susquehanna Coal Company is subject to suit in a New York court, right.

The much-maligned “you know” would be as productive as “right” in this transcript. You rarely hear law professors insert that phrase in their speech. Too polished for that. Yet they pepper their sentences with the annoying right, usually pronounced riiiiiight, with the lilt of a rhetorical question. A lamentable institutional habit.

UPDATE IN REPLY TO THE KIND COMMENT OF EDWARD CANTU: We  had a post and conversation about So here at Co-Op, which can be viewed here.

 

5

Incorrect Citations

Wonderful as it is to be cited, being cited incorrectly poses a dilemma.  If your article is referenced for a proposition it does not support, what should you do?  Should you alert the author of the piece or the editor of the journal?   Should you ignore it?  Should you correct the reference the next time you publish on the topic?

Perhaps the ideal response varies with the degree of error.   Scholars delight to participate in the discourse, after all, and sometimes a citation that seems incorrect to an author is really  a way to advance the conversation.  A reference in ensuing scholarship explaining that contribution would be apt.   Sometimes a piece is cited for a general point that an author rather than a reader would recognize as a bit afield. No response at all is okay.

But what about a statement that is clearly wrong? Suppose someone makes an assertion that European accounting law is principles based and cites my Vanderbilt Law Review article challenging the whole notion of principles based accounting.   It infuriates me.  I want to write to the author and editor to object.  But should I? Should  I care?

The problem is even worse than appears, because while I am particularly sensitive to incorrect citations to my own work, I also see incorrect citations to the work of others with which I’m familiar.  It appears that many writers and editors today cite things without really reading them.  It seems as though someone should say something.  But who?  And to whom?

2

Huey Long and Chief Justice Taft

I’m starting to work on my next book, which will be about the New Deal.  A leading character in that story will be Huey Long, and I thought I’d throw out one nugget about him that I haven’t posted before.

Long was 29 when he argued (and won) his only case before the Supreme Court in 1922.  Years later, a quote surfaced from Chief Justice William Howard Taft stating that Long had one of the best legal minds to ever appear before the Court.  Naturally, I was curious about the source of this impressive statement.  Turns out that it’s a fabrication. There is nothing in Taft’s papers to confirm the quote, and nobody who uses it cites a primary source. Robert Post, the Dean at Yale who is writing the Holmes Devise about the Taft Court, once told me that the only mention of Long in the Justices’ papers came because he sent them (inappropriate) gifts after the decision.

Where did this quote come from then?  It looks like it started appearing in newspapers in the early 1930s while Long’s political career was on the rise and after Taft was, conveniently, dead.  My suspicion is the Long or one of his supporters simply made up the quote and fed it to a journalist.  Can I prove this?  Probably not, but we’ll see.

This gives me an excuse to tell one of the best Long stories (true or not). When asked in his oral bar exam how he would handle an admiralty case given that he knew nothing about admiralty law, Long allegedly replied “First I’d call the judge and then we’d split the fee.”  He passed.

0

Law Review Data

To move away from health care . . .

As the Associate Dean for Research at my school, I would like to gather statistics on law review submissions.  Specifically, I would like to see if at least some law reviews will give me the following:

1.  The number of submissions that they received last year (for articles and essays separately)

2.  The number of offers that they made.  (The number of offers accepted I can, of course, figure out myself.)

In other words, I want to learn about the acceptance rates and yields of law reviews.  I have no idea if they have this information or are willing to share.  (This is for internal use at my school, so the data will be kept confidential if you so desire.)  Any law reviews that would like to help me out can email me at gmaglioc@iupui.edu.

1

Akhil Amar’s New Book

I just pre-ordered Akhil Amar’s forthcoming book on America’s Unwritten Constitution:  The Precedents and Principles We Live By.  I’m sure it will be excellent, just like most of his work.

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

7

Santorum: Please Don’t Google

If you Google “Santorum,” you’ll find that two of the top three search results take an unusual angle on the Republican candidate, thanks to sex columnist Dan Savage. (I very nearly used “Santorum” as a Google example in class last semester, and only just thought better of it.) Santorum’s supporters want Google to push the, er, less conventional site further down the rankings, and allege that Google’s failure to do so is political biased. That claim is obviously a load of Santorum, but the situation has drawn more thoughtful responses. Danny Sullivan argues that Google should implement a disclaimer, because kids may search on “Santorum” and be disturbed by what they find, or because they may think Google has a political agenda. (The site has one for “jew,” for example. For a long time, the first result for that search term was to the odious and anti-Semitic JewWatch site.)

This suggestion is well-intentioned but flatly wrong. I’m not an absolutist: I like how Google handled the problem of having a bunch of skinheads show up as a top result for “jew.” But I don’t want Google as the Web police, though many disagree. Should the site implement a disclaimer if you search for “Tommy Lee Pamela Anderson”? (Warning: sex tape.) If you search for “flat earth theory,” should Google tell you that you are potentially a moron? I don’t think so. Disclaimers should be the nuclear option for Google – partly so they continue to attract attention, and partly because they move Google from a primarily passive role as filter to a more active one as commentator. I generally like my Web results without knowing what Google thinks about them.

Evgeny Morozov has made a similar suggestion, though along different lines: he wants Google to put up a banner or signal when someone searches for links between vaccines and autism, or proof that the Pentagon / Israelis / Santa Claus was behind the 9/11 attacks. I’m more sympathetic to Evgeny’s idea, but I would limit banners or disclaimers to situations that meet two criteria. First, the facts of the issue must be clear-cut: pi is not equal to three (and no one really thinks so), and the planet is indisputably getting warmer. And second, the issue must be one that is both currently relevant and with significant consequences. The flat earthers don’t count; the anti-vaccine nuts do. (People who fail to immunize their children not only put them at risk; they put their classmates and friends at risk, too.) Lastly, I think there’s importance to having both a sense of humor and a respect for discordant, even false speech. The Santorum thing is darn funny. And, in the political realm, we have a laudable history of tolerating false or inflammatory speech, because we know the perils of censorship. So, keeping spreading Santorum!

Danielle, Frank, and the other CoOp folks have kindly let me hang around their blog like a slovenly houseguest, and I’d like to thank them for it. See you soon!

Cross-posted at Info/Law.

2

Supporting the Stop Online Piracy Act Protest Day

As my co-blogger Gerard notes, today is SOPA protest day.  Sites like Google or WordPress have censored their logo or offered up a away to contact your congressperson, though remain live.  Other sites like Wikipedia, Reddit, and Craigslist have shutdown, and more are set to shut down at some point today.  There’s lots of terrific commentary on SOPA, which is designed to tackle the problem of foreign-based websites that sell pirated movies, music, and other products–but with a heavy hand that threatens free expression and due process. The Wall Street Journal’s Amy Schatz has this story and Politico has another helpful piece; The Hill’s Brendan Sasso’s Twitter feed has lots of terrific updates.  Mark Lemley, David Levine, and David Post carefully explain why we ought to reject SOPA and the PROTECT IP Act in “Don’t Break the Internet” published by Stanford Law Review Online.  In the face of the protest, House Judiciary Committee Chairman Lamar Smith (R-TX) vowed to bring SOPA to a vote in his committee next month. “I am committed to continuing to work with my colleagues in the House and Senate to send a bipartisan bill to the White House that saves American jobs and protects intellectual property,” he said.  So, too, Senator Patrick Leahy (D-VT) pushed back against websites planning to shut down today in protest of his bill.  “Much of what has been claimed about the Senate’s PROTECT IP Act is flatly wrong and seems intended more to stoke fear and concern than to shed light or foster workable solutions. The PROTECT IP Act will not affect Wikipedia, will not affect reddit, and will not affect any website that has any legitimate use,” Chairman Leahy said. Everyone’s abuzz on the issue, and rightly so.  I spoke at a panel on intermediary liability at the Congressional Internet Caucus’ State of the Net conference and everyone wanted to talk about SOPA.  I’m hoping that the black out and other shows of disapproval will convince our representatives in the House and Senate to back off the most troubling parts of the bill.  As fabulous guest blogger Derek Bambauer argues, we need to bring greater care and thought to the issue of Internet censorship.  Cybersecurity is at issue too, and we need to pay attention.  Derek may be right that both bills may go nowhere, especially given Silicon Valley’s concerted lobbying efforts against the bills.  But we will have to watch to see if Representative Smith lives up to his promise to bring SOPA back to committee and if Senator Leahy remains as committed to PROTECT IP Act in a few weeks as he is today.