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LIFE IS GRAND IN SAVANNAH!

Thanks to Sarah and the rest of the Concurring Opinion Crew for inviting me back. It’s been two years since my last run here and lot’s have changed here in Savannah.  This past month in Savannah we have seen the grand opening of our building — re-purposed from an early 19th Century hospital to a stunning Law Library.  To help us open the books on the new space, we invited several thoughtful and wonderful people to join us in thinking about how you reintegrate spaces, with a heavy emphasis on how race, space and place emerge in new environments.  Our key note Al Brophy,and other wonderful contributors, Anthony Baker, Steve Clowney, Lia Epperson, Liz Glazer, Jamilla Jefferson-Jones, Adam Kirk, Kali Murray, Connie Pikerston, Marc Poirier, Amanda Reid, Jeff Schmidt, and others.  It was a great time and a great environment.  (I plan to blog separately about the great panels that were presented and their dialogue that ensued).

On the heels of the colloquium, the New York Times this week published an article looking at what it calls Savannah’s other side — the Black side that is rarely acknowledged or confronted in a city that is “stuck in its on gauzy antebellum bubble.”

A visitor could easily spend a week sauntering along the city’s haunting boulevards and leave without a clue about the essential role Georgia’s oldest African-American community has played here….Blame the Low Country blackout, at least partly, on the fact that in the pageant of cities primping with New South sheen and aura, Savannah has perhaps made a less than eager contestant. The city is so proud of its Southern charms and traditions — Gothic Revival homes, high-on-the-hog soul food, Spanish moss canopies shading picturesque squares — that the mere suggestion of cultural evolution is enough to make an old-timer drop his mint julep. Perhaps Savannah’s legendary singer/songwriter Johnny Mercer said it best when he crooned: “I know I’m old fashioned/But I don’t mind it/That’s how I want to be/As long as you agree/To stay old fashioned with me.”

Boy is that true.  Living in the south again, (and starting a law school in the south) has been a reminder that race and poverty are quintessentially (though not uniquely) southern, along side college football, seersucker suits, and sweet tea.  Where some see spanish moss in charming trees, others see ghosts of past racial conflict..  A law school in the south (particularly a new law school) has a chance to tell a bit of the other side — to be a progressive space of thought and engagement. That’s why I came back to the South and why I call Savannah home.   Like most homes, we still have lots of work to do.

I’m looking forward to sharing more about Savannah, Property, Poverty, Law and Literature, Tenure, the Academy, and maybe a little College Football depending on how season goes (so far not so well — at least last week anyway).

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Upcoming Talk in DC

I’ll be giving a talk on John Bingham to The Lincoln Group of the District of Columbia on Tuesday, December 16th.  If you are interested in attending, here is the information.

Announcing the We Robot 2015 Call for Papers

CommonsRobotHere is the We Robot call for papers, via Ryan Calo:

We Robot invites submissions for the fourth annual robotics law and policy conference—We Robot 2015—to be held in Seattle, Washington on April 10-11, 2015 at the University of Washington School of Law. We Robot has been hosted twice at the University of Miami School of Law and once at Stanford Law School. The conference web site is at http://werobot2015.org.

We Robot 2015 seeks contributions by academics, practitioners, and others in the form of scholarly papers or demonstrations of technology or other projects. We Robot fosters conversations between the people designing, building, and deploying robots, and the people who design or influence the legal and social structures in which robots will operate. We particularly encourage contributions resulting from interdisciplinary collaborations, such as those between legal, ethical, or policy scholars and roboticists.

This conference will build on existing scholarship that explores how the increasing sophistication and autonomous decision-making capabilities of robots and their widespread deployment everywhere from the home, to hospitals, to public spaces, to the battlefield disrupts existing legal regimes or requires rethinking of various policy issues. We are particularly interested this year in “solutions,” i.e., projects with a normative or practical thesis aimed at helping to resolve issues around contemporary and anticipated robotic applications.
Read More

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California’s College Rape Rule is Probably a Bad Idea (but not for the Reasons the Critics Say)

Jonathan Chait has joined the chorus of critics of the new affirmative consent rule in California for college campuses. Like others, he contends that the new rule effectively criminalizes ordinary sexual activity among college students. For three reasons, I think the claim is not well supported.

First, consent standards probably do not matter. Dan Kahan did the best study on this issue and the results are pretty clear. No matter what you tell people examining a rape case, they end up applying their own notions of consent. To the degree that any instruction of the law matters the effect size is small. I think this finding will hold true in adjudications under the California affirmative consent rule.

Second, stories of the alleged rapist and victim almost never match rendering legal standards as side issues and putting credibility as the central problem of rape cases. There are normally significant discrepancies between the accounts of alleged rapes. For the people willing to intentionally lie (either way), the new rule just indicates the content of their lie must change. For example, instead of saying, “she never objected,” a defendant would say “she said ‘yes.'” Even for those cases where the discrepancies are based upon cognitive biases or other unconscious factors, it is likely, if history is a guide, that the differences will align around the legal rule in place.

Third, the drunken sex cases that the critics are focused on are almost never resolved based upon the consent standard. The cases instead rely on incapacity. Whether a negative or affirmative consent standard applies is simply irrelevant in a case where the victim was too intoxicated to consent. The affirmative consent standard is a red herring in the primary scenario identified for overpunishment on campuses.

Even with all of those reasons to doubt its effectiveness in changing case outcomes, the California rule might simply be innocuous. However, there is a real danger that rule changes like this feed into a very dangerous cultural myth about rape law. Stephen Schulhofer probably said it best in his book Unwanted Sex: “Opponents of rape reform have managed to convince a wide audience that standards of permissible conduct are now dictated by ‘hypersensitive’ young women and by ‘radical’ feminists committed to a highly restrictive, Victorian conception of sexual propriety…. The reality is far different. The claim that legal rules, campus behavior codes, and company policies enshrine radically overprotective, puritanical rules of conduct is a myth.” In roughly half the states in America, having sex with someone who is highly intoxicated, but still conscious, is not rape. Many jurisdictions still apply a resistance or corroboration requirement in charging decisions despite such rules having long since been removed from statutes.  The list of problems with the application of modern rape law is extensive. Unfortunately, the backlash against the California affirmative consent rule has already helped spread the myth of radical change. And because the gains of the rule are likely to be minimal, the net effect for rape victims and justice will likely be negative. I hope I’m wrong.

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34.4 (First Amendment News) Freedom of Expression Scholars Conference — Call for Papers

abrams-logoThe Abrams Institute for Freedom of Expression and the Information Society Project at Yale Law School invite applications for the third annual Freedom of Expression Scholars Conference.  The conference will be held on May 2-3, 2015, at Yale Law School.

 The conference brings scholars together to discuss their works-in-progress concerning freedom of speech, expression, press, association, petition, assembly, and related issues of knowledge and information policy.  The past two conferences were great successes, with many interesting conversations, dozens of papers presented, and upwards of 50 scholars attending. Diversity of views welcome.

The conference offers participants an opportunity to receive substantive feedback through group discussion. Unlike a traditional conference, authors do not give formal presentations of their work.   Rather, each accepted paper will be assigned a discussant, who will briefly introduce the paper, provide feedback to the author, and lead a discussion among participants.  This format permits substantive and lively discussion of ideas and writings that may be inchoate or not yet fully developed.

Because of the format of the conference, participants will be expected to read and be prepared to discuss at least one paper per session, and to attend the entire conference.  In the past, there have typically been eight sessions, running from Saturday morning through Sunday afternoon, with a welcome dinner on Friday evening for those already arrived in New Haven.

 Participation in the conference is by invitation only, but we welcome paper submissions–and applications to participate as a discussant–from a wide range of scholars.  Please feel free to share this call for submissions with any colleagues that may be interested.

Titles and abstracts of papers should be submitted electronically to jonathan.manes@yale.edu no later than February 20, 2015.

→ Those interested in participating as discussants or participants without submitting a paper should also contact jonathan.manes@yale.edu by February 20, 2015.

 Workshop versions of accepted papers will be due on April 3, 2014 so that they can be circulated to discussants and conference participants in advance.

The conference announcement is online here.  Information about prior conferences, including attendees and the titles of workshopped papers, is available here and here.  As before, we are expecting that scholars will ask their home institutions to cover travel expenses.

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Introducing Professor Marc Roark

Marc Roark

Marc Roark teaches Property, Commercial Law,  Law and Literature, Law and Society, and Law and Religion at Savannah Law School.   Before joining the faculty at Savannah Law School, Professor Roark held appointments at the University of Missouri, the University of Tulsa, and the University of La Verne.

Marc is a well-known Property scholar, and has appeared nationally in interviews by NPR and MSNBC News.   His articles include Homelessness at the Cathedral (Missouri Law Review) and Payment Systems, Consumer Tragedy, and Ineffective Remedies (St. John’s Law Review). You can sample more of Marc’s articles at his SSRN page.

Marc is currently working on a book project titled unPopular Property, describing the intersection of property and identity in outlier cultures.  He is also working on an article articulating the need for human impact statements as a part of public and private land development.

Welcome Marc!

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Should More Land Use Professors Be Libertarians?: Part III (Final Post)

This is (hopefully) the last in a series of three posts. In the first, I asked why more land use professors are not libertarians, considering the strong leftist critique of local government. In the second, I suggested that one reason for the leftist commitment to local government (and specifically to local government land use control, albeit often in the guise of “regionalism”) is that the relevant libertarian alternatives – namely, the marketplace and the common law of nuisance – are far worse. Nevertheless, I conceded that this answer was unsatisfactory, considering that many leftists – myself included – betray a Tocquevillian optimism about local government that is difficult to square with the position that local governments are merely the least bad of all the alternatives. So I am left here, in this third post, with the hardest question: How can left-leaning local government scholars have any optimism about local government in light of the abusive local government practices we have witnessed (and documented)?

State Structuring of Local Governments

Alright, here goes… While there is no denying the manifold abuses of which local governments are guilty (see my initial post), the blame for these abuses really falls upon state governments, not local governments. The reason local governments act in the parochial fashion they do is because states have empowered and constrained local governments in such a way that effectively forces local governments to be parochial. In a variety of ways, states have facilitated and encouraged the proliferation of small local governments within metropolitan regions, each of which is thus coerced into a zero-sum competition with the others for scarce revenues. States have, at the same time, dumped all kinds of unfunded and underfunded mandates on local governments, which they must meet with whatever revenue they raise locally. Yet, there is one saving grace for local governments: states have given them an awesome power — the land use power. Is it any surprise that local governments use the biggest power states have given them to solve the biggest problem states have saddled them with –an ongoing obligation to provide costly services with limited funds? The local government abuses I mentioned in my initial post, including the “fiscalization” of land use, exclusion of undesirable land uses (and users), strategic annexation and incorporation efforts, and sprawl are thus not things local governments do because they are inherently corrupt; they do so because the state has structured local government law so as to make these abuses inevitable.   Read More

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34.3 (First Amendment News) Roberts Court 2014-2015 First Amendment docket — How it’s shaping up

Supreme-Court-Justices-2-570x349Earlier today the Court denied review in the following three First Amendment cases:

Review Pending

Review Granted

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The Same-Sex Marriage Cases

Just a quick thought about the Court’s certiorari denials today.  All eyes now turn to the Sixth Circuit, where a case is pending that could produce an opinion upholding same-sex marriage prohibitions.  Depending on when that opinion comes down, the Supreme Court could resolve the constitutional issue this Term.  Or perhaps next Term.

Or not. The Sixth Circuit rarely misses an opportunity to go en banc.  If the panel opinion is taken en banc, then who knows when that opinion would reach the Justices.  Perhaps the losers in the Sixth Circuit will not request en banc review (I don’t know if the Sixth ever goes en banc sua sponte), but that is far from clear.

Bottom line–don’t expect a Supreme Court decision on this until 2016 at the earliest.  That might be bad news the Republican presidential nominee, who may have to take an unpopular stand saying no to same-sex marriage into the general election.