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What is the Largest University in the United States?

You are probably surprised to learn that, if you look at crime data gathered by the Department of Education under the Clery Act, the largest 4-year higher education institution is Liberty University. For those not familiar with Liberty, it was founded in 1971 in Lynchburg, Virginia by Jerry Falwell. According to the school’s 2012 submission to the Department of Education, it had 74,372 students. It seems that Liberty has a booming business in online education and counts students enrolled through that program in its student body. A slightly lower number of students, 12,600, are actually in residence. According to the school’s website, there are now 90,000 online students making it the only 4-year college or university with over 100,000 students. I have to say that I am troubled by the nice, round numbers of students in both categories on the website. Are those just estimates and Liberty does not know its precise enrollment? Or is it really committed to all student totals being evenly divisible by 100?

Liberty’s inclusion of online students as part of Clery Act crime reporting obligations has the effect of substantially decreasing reported crime rates on campus. That seems to frustrate the intention of the law as crimes by online students are not tracked. It also makes it difficult for researchers to properly assess the real rates of reported on-campus crime. One might think that Liberty would be a little more careful in its submissions after running into problems during a Clery Act audit. In 2013, the Department of Education stated its intention to fine Liberty for $165,000 because of numerous violations in prior reporting activity. Of course, in reviewing the past Clery Act audits, I did not see one school penalized for failing to accurately count its student body. But there is always a first.


Coming Soon: Law School Tuition $11,000

coquillette While today’s Harvard Law students are about to pay the hoary institution as much as $54,580 in annual tuition, a new law school designed on the original Harvard Law model plans to charge $11,000.  I have just received an offer to join its faculty and find the model intriguing.

Designed by the renowned legal historian, Dan Coquillette, once Dean of Boston College and former colleague of mine, the new school will have no administrators but rather an automated system, no books but a digital library, and two faculty members who will teach three courses per semester to a class of thirty-five students.  There will be no ABA accreditation and the school will have to compete on the apprenticeship model.

Dan’s idea arises from his research for his magisterial history of Harvard Law School, where Dan has long been the Charles Warren Visiting Professor of American Legal History.  Called “On the Battlefield of Merit,” Harvard University Press will publish this multi-volume history, volume one telling of how apprenticeship competition nearly  destroyed the infant law school.

In Harvard Law’s golden age, there were just two faculty members, Joseph Story and Simon Greenleaf, who taught all the courses. With a faculty-student ratio of 17.5:1, Story also published a treatise a year.

As Dan explained in his appointment offer to me:

The students of the Story-Greenleaf School read like a Who’s Who of the New Republic, and they uniformly praised their Law School experience, particularly the close mentoring and inspiration they got from their two teachers.  Of course, Story and Greenleaf knew every student in the School. The physical plant was terrible; the Library, open to Harvard Square, often lost more books a year then it gained; and the only nonacdemic employee was a janitor who spoke Latin.  The students did not care, as long as there was Story at one end of a log, and a student at the other.

If we replicated that School exactly, setting faculty salaries at today’s levels and including all overhead, student tuition would be 20% of what they pay now. I am ready when you are.

I believe that this offer is non-transferable but, hey, you never know.

BC Book Club

Annual Book Author Party, BCLS Faculty (2004): Zyg Plater, Frank Garcia, Dan Coquillette, Jim Repetti, Paul McDaniel, Larry Cunningham, Bob Bloom, David Wirth, John Garvey.


F.F. — Make of him what you will, but . . .

Felix Frankfurter

Felix Frankfurter

I want to recommend a relatively new article in the Journal of Supreme Court History. It is impressively researched, commendably thoughtful, and refreshingly balanced. Before doing so, however, permit me to say a few prefatory words.

It is hard to be fair when writing of those with whom we disagree, and harder still when we dislike their personal manner. Arrogant, argumentative, and devious – these are not the words that fair-minded scholars like to use unless the fit is fair. All of which takes us back in time to this man: Felix Frankfurter (1882-1965).

What to make of him?

As a Supreme Court Justice he was, in Mel Urofsky’s words, “a divisive figure whose jurisprudential philosophy is all but ignored today.” Others have been even less kind in their assessment of the temperament and jurisprudence of the Justice from Vienna. While Cass Sunstein has recently labored to revive respect for Justice Frankfurter and his judicial opinions, that effort may prove Sisyphean (save, perhaps, in a few discrete areas involving federal jurisdiction).

Still, there was more to Felix Frankfurter than the life he led on the Court between 1939 and 1962. The trajectory of his career (fueled by hard work, ambition, and brilliance) is an immigrant-come-to-America success story at its best. His work – first with Louis Brandeis and then on his own – to advance the cause of fair and humane labor practices exemplifies the Progressive movement in its glory. Then there was the role he played early on in helping to launch the ACLU. With a mix of courage and insight, he later called for a retrial for Nicola Sacco and Bartolomeo Vanzetti by way of an impressive lawyer-like article he published in the Atlantic in 1927; the article was thereafter expanded into a small book. And, of course, there is more, much more, which brings me back to that article I alluded to earlier.

Sujit Raman

Sujit Raman

Sujit Raman (the chief appellate lawyer in Maryland’s U.S. Attorney’s office) has just published an engaging and highly informative article. Its title: “Felix Frankfurter and His Protégés: Re-examining the ‘Happy Hot Dogs.’” It captures Felix in all his complexity and does so with objective nuance. With skilled brevity Raman also sketches the story of the Jewish immigrant’s struggle to assimilate, the Harvard Law student’s meritocratic success, the progressive’s desire to improve government when he went to work for Henry Stimson (first in New York and then in Washington, D.C), and then the Harvard professor’s cultivation of the best and brightest, whom he invited to his Sunday teas.

Above all, Sujit Raman’s real story is about Felix Frankfurter’s “greatest legacy,” namely, the “legions of students he trained and nurtured at the Harvard Law School, . . . who, in their own right, shaped the age in which they lived.” Consistent with that objective, Frankfurter’s “avowed intent as a professor was to instill in his students an interest in public service, and from his earliest days, he began collecting recruits for his crusade.” In time, they would come to be known as Frankfurter’s “Happy Hot Dogs” as Hugh Samuel Johnson tagged them.MTE5NTU2MzE2MjE5NDc1NDY3

Could he be snobbish? Yes. Could he be petty? Yes. Spiteful? Yes. Did he delight in manipulating matters from unseen sidelines? Yes again.

Clearly, F.F. had his psychological warts. Yet, when one steps back and beholds the man and this patch of his life work at a detached distance, he stands rather tall. Why?

Now, to cut to the chase: “Frankfurter was one of the New Deal’s intellectual architects as well as one of its most accomplished draftsmen of policy – yet he had no legislative portfolio or any official position in the Roosevelt Administration.” Moreover, adds Raman, “Frankfurter was the New Deal’s principal recruiting agent. He placed his protégés in all levels of government, and consequently his vision was carried forth, albeit indirectly, by his able lieutenants.” In sum, “the New Deal was in many ways the embodiment and culmination of Frankfurter’s life work.”

James Landis

James Landis

In the span of 28 pages (buttressed by 127 scholarly endnotes), Sujit Raman fills in many of the blanks in the Professor-and-the-New-Deal story. While he is cautious not to exaggerate Frankfurter’s role and influence, Raman’s account makes it difficult to deny the remarkable magnitude of Frankfurter’s unique impact on public law and its operation at a crucial stage in our legal history.

True, the “Happy Hot Dogs” story has been told before and from a variety of perspectives (see, e.g.,  here and here). Even so, Mr. Raman does what others before him have not quite done: he tells the story in a concise yet authoritative way and with enough panache to draw the reader back in history for glimpses into the exciting world of F.F. and his adept protégés – the likes of Thomas G. Corcoran (video here), Benjamin V. CohenJames M. Landis, David Lilienthal, and Charles Wyzanski, among others. They were all part of Frankfurter’s network, all “elite lawyers” hand picked because of their ties to F.F. and their “reformist inclinations.”

Whatever your opinion of Felix Frankfurter, his star may yet brighten anew, though probably not in the universe of Supreme Court history and jurisprudence. His true galaxy was elsewhere – in that realm where the “minds of men” move the gears of government to places only once imagined in classrooms in Cambridge.

Ask your librarian for, or go online or order a copy of, Sujit Raman’s illuminating article in volume 39 (March 2014, #1, pp. 79-106)) of the Journal of Supreme Court History. Better still, join the Supreme Court Historical Society. Either way, it will serve you well.


Tony Stewart, Kevin Ward, Jr., and Murder

As many of you have probably read by now, NASCAR driver Tony Stewart is reported to have killed Kevin Ward, Jr. during a dirt track race in New York. If you are curious to see what happened, Deadspin has the video posted here. In the lap previous to Ward’s death, it appeared that Stewart’s car made contact with Ward’s causing Ward’s car to collide with the track wall. Ward exited his vehicle and and walked toward the inside of the track making angry gestures (presumably at Stewart). The racers were under a caution flag after the collision between Stewart and Ward. As Stewart’s car approached Ward, Ward appeared to shout and wave his arms in an angry manner. Stewart’s vehicle appeared to fishtail and strike Ward. Ward was caught in a rear tire of Stewart’s car and was flung a significant distance. Ward’s body laid still on the track and he was later pronounced dead.

Not surprisingly, such an event has triggered strong emotional responses on Twitter and throughout the Web. Many have declared this case an obvious murder. Others have said that Stewart committed vehicular manslaughter. Others have put the blame squarely on Ward for walking into dangerous traffic on a dirt track. I thought it was worth shedding a little light on the topic based upon what the actual law is and the common mistakes observers are making about that law.

Unless Stewart states that he meant to kill Ward (which there is no indication he will do), the likely only viable theory of murder under New York law is murder in the 2nd degree which is defined as:

“Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person…”

Some who witnessed the event and/or the video have stated that Stewart appeared to accelerate in an effort to either bump Ward or spray dirt at him. It is possible that such conduct could rise to the level of “depraved indifference” or at least get to the jury on that question. Other videos or statements might contradict that theory.

Unless I am misreading NY law, I don’t think vehicular manslaughter is an option for the state (unless Stewart was intoxicated). I’m happy to hear from NY criminal law experts in the comments if I am mistaken. That would mean that the general manslaughter provisions would have to be used. First degree would require:

“1. With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; or 2. With intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance, as defined in paragraph (a) of subdivision one of section 125.25. The fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subdivision.”

If the state could prove that Stewart meant to physically hit but not kill Stewart, “1.” could apply. If Stewart actually meant to kill Ward, but was under an extreme emotional disturbance (e.g. rage due to race and prior accident), then “2.” could be a viable outcome.

Second degree manslaughter is fairly straight-forward in New York:

“He recklessly causes the death of another person…”

Although “recklessly” appears as the mens rea requirement for both 2nd degree murder and 2nd degree manslaughter, the type of recklessness required to prove murder (“depraved indifference”) is tougher for the prosecutor to show.

There is also a possible negligent homicide charge which is defined as:

“A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person.”

Commentators who believe Ward’s “recklessness” or “negligence” make Stewart innocent of wrongdoing will likely disappointed in how criminal law works in this area. The thought processes of the Ward are irrelevant to whether Stewart would be guilty of murder or manslaughter. The conduct and thoughts of Ward are only meaningful under criminal law insofar as Stewart understood them and took action as a result. So, if Ward made it impossible for Stewart to avoid him (which there is no indication of), then the causation element of murder or manslaughter wouldn’t be met. Similarly, if Ward provoked Stewart in a way that was legally sufficient to trigger an extreme emotional disturbance (again, there is no evidence of this that I have seen), then Stewart should not be convicted of murder. It is a common mistake for 1L’s to focus on the victim’s actions and thoughts in analyzing negligence/reckless fact patterns in Criminal Law and so it is not at all surprising to see such confusion in public discourse. In such cases, it is even theoretically possible for a defendant to be guilty of murder or manslaughter, but not the tort of wrongful death (despite the difference in burden of proof) because tort law more directly includes the conduct of the victim in determining wrongdoing. Criminal law, on the other hand, puts the focus squarely on the acts and thoughts of the defendant.


On Jefferson’s Proposed Solution to the “Dead Hand” Problem (and the Futility Thereof)

Thomas Jefferson once opined to his friend James Madison that “the earth belongs in usufruct to the living” and “the dead have neither powers nor rights over it.”  These observations underlie the so-called “dead hand” problem of constitutional theory.  The problem is this:  Why should we the living generation of the present be governed by the constitutional dictates of dead people from the past? What gives those people the authority to rule us from the grave?

To Jefferson, these questions were unanswerable: The dead, on his view, had no right to rule from the grave, which in turn meant that “no society can make a perpetual constitution, or even a perpetual law.” But that conclusion raised a further question of its own: namely, how should we the people of the present design a constitutional system that defuses the threat of dead-hand rule down the road.  Jefferson’s answer was simple: Require that “every constitution . . . , and every law, expire after 19 years,” at which point the new generation of the living would acquire the prerogative to choose a new constitutional system for itself.  (I should note, by the way, that Thomas Paine had a few years earlier endorsed a similar solution, tethered to a 30-year, rather than 19-year, sunset term.  I apologize to the Paine estate for not featuring Tom P. more heavily in this blog post.)

Madison responded to Jefferson by suggesting that he had prescribed a cure way worse than the disease. Even if “in [t]heory” Jefferson’s solution would suffice to disempower the dead hand of the past, the repeated rebooting of our constitutional system would “in practice” give rise to some significant problems of its own. Specifically:

Would not a Government so often revised become too mutable to retain those prejudices in its favor which antiquity inspires, and which are perhaps a salutary aid to the most rational Government in the most enlightened age? Would not such a periodical revision engender pernicious factions that might not otherwise come into existence? Would not, in fine, a Government depending for its existence beyond a fixed date, on some positive and authentic intervention of the Society itself, be too subject to the casualty and consequences of an actual interregnum?

All good points, for sure.  But there is, I think, a further problem with Jefferson’s 19-year sunset proposal: it wouldn’t actually eliminate the problem of dead-hand control. Here’s why:

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Article Submission Season

This is a very insiderish post, so feel free to skip if you want.

The law reviews are opening their submission window (I’m starting to send out), and I’m wondering if people find that getting papers accepted in the Fall is more difficult now than in the past.  More journals seem to fill up in the Spring, and I just have the sense that Fall is no longer a good time to send.  Law review editors–feel free to chime in.

How We’ll Know the Wikimedia Foundation is Serious About a Right to Remember

The “right to be forgotten” ruling in Europe has provoked a firestorm of protest from internet behemoths and some civil libertarians.* Few seem very familiar with classic privacy laws that govern automated data systems. Characteristic rhetoric comes from the Wikimedia Foundation:

The foundation which operates Wikipedia has issued new criticism of the “right to be forgotten” ruling, calling it “unforgivable censorship.” Speaking at the announcement of the Wikimedia Foundation’s first-ever transparency report in London, Wikipedia founder Jimmy Wales said the public had the “right to remember”.

I’m skeptical of this line of reasoning. But let’s take it at face value for now. How far should the right to remember extend? Consider the importance of automated ranking and rating systems in daily life: in contexts ranging from credit scores to terrorism risk assessments to Google search rankings. Do we have a “right to remember” all of these-—to, say, fully review the record of automated processing years (or even decades) after it happens?

If the Wikimedia Foundation is serious about advocating a right to remember, it will apply the right to the key internet companies organizing online life for us. I’m not saying “open up all the algorithms now”—-I respect the commercial rationale for trade secrecy. But years or decades after the key decisions are made, the value of the algorithms fades. Data involved could be anonymized. And just as Asssange’s and Snowden’s revelations have been filtered through trusted intermediaries to protect vital interests, so too could an archive of Google or Facebook or Amazon ranking and rating decisions be limited to qualified researchers or journalists. Surely public knowledge about how exactly Google ranked and annotated Holocaust denial sites is at least as important as the right of a search engine to, say, distribute hacked medical records or credit card numbers.

So here’s my invitation to Lila Tretikov, Jimmy Wales, and Geoff Brigham: join me in calling for Google to commit to releasing a record of its decisions and data processing to an archive run by a third party, so future historians can understand how one of the most important companies in the world made decisions about how it ordered information. This is simply a bid to assure the preservation of (and access to) critical parts of our cultural, political, and economic history. Indeed, one of the first items I’d like to explore is exactly how Wikipedia itself was ranked so highly by Google at critical points in its history. Historians of Wikipedia deserve to know details about that part of its story. Don’t they have a right to remember?

*For more background, please note: we’ve recently hosted several excellent posts on the European Court of Justice’s interpretation of relevant directives. Though often called a “right to be forgotten,” the ruling in the Google Spain case might better be characterized as the application of due process, privacy, and anti-discrimination norms to automated data processing.


Citizens United and Freedom of the Press

If you want to read a great article, then go look at Michael McConnell’s paper on Citizens United.  He offers a very convincing explanation of why the result is correct on a narrower constitutional ground than what the Court used. Here is the Abstract:

The central flaw in the analysis of Citizens United by both the majority and the dissent was to treat it as a free speech case rather than a free press case. The right of a group to write and disseminate a documentary film criticizing a candidate for public office falls within the core of the freedom of the press. It is not constitutional for the government to punish the dissemination of such a documentary by a media corporation, and it therefore follows that it cannot be constitutional to punish its dissemination by a non-media corporation like Citizens United unless the freedom of the press is confined to the institutional media. Precedent, history, and pragmatics all refute the idea that freedom of the press is so confined.

The result in Citizens United was therefore almost uncontrovertibly correct. No one disputes that corporations, such as the New York Times Company, can editorialize during an election, and other groups performing the press function have the same right, even if they are not part of the traditional news media industry. A holding based on the Press Clause, though, would not have implied any change in constitutional doctrine about campaign contributions, which are not an exercise of the freedom of the press.



The Location of the Bill of Rights

I thought I was done with this theme for the time being, but my research yesterday pointed to something else I thought was worth mentioning.  When you look at state constitutions, there is one important difference between their bills of rights and the Federal version.  Many states put their bill of rights FIRST (or right after a brief Preamble).  This may explain why people were unwilling or unable to see the 1791 amendments as a bill of rights for a long time.  (States also treat their constitutions like statutes–amendments are just inserted into the document and the original language is altered.  The Federal Constitution, of course, is not like that.)

It’s also worth noting that state bills of rights were modeled (I think) on the Virginia Declaration of Rights of 1776.  They tend to be long, contain general statements about liberty and democracy, and only occasionally ape the language of the federal bill.  Maybe I’ll explore that in greater detail.