Monday, December 24, 2012
cost v. curricular innovation: that infernal dilemma
So the blogo-mediasphere is rightly concerned with legal education's too-high costs. For some radicals (here used in a neutral sense), that is the signal issue around which all other considerations orbit. Other voices decry traditionalism in law school curricula, celebrating innovations, preaching the wisdom of experential learning, and urging major changes.
And herein lies the vexing dilemma: Adapting to the new normal requires major curricular innovation; innovation costs money; the current economic model relies on unsustainable tuition increases and (arguably) budgets. How ought we to think about the tradeoffs?
Some general thoughts:
(1) Innovations should be evaluated on both pedagogical and economic dimensions. Experential learning is, indeed, an expensive proposition, but the challenge for clinicians and others invested in such worthy projects is to think about how to manage budgets in order to economize on particular parts of the clinical experience. To be more concrete, some admixture of public subsidy, Biglaw firm subvention, cy pres fees and other sources of court-generated funding, will help shift some expenses from recycled tuition;
(2) Legal writing should be heavily subsidized by firms. Innovations in legal writing (advocacy + transactional) are high priorities -- as Casey Stengel says, "you can just look it up." Firms such be urged by deans & other fundraisers to support generously, and ideally with endowments, creative legal writing endeavors. We should pursue tangible partnerships with firms who can afford this investment (here not being wholly naive about the economic challenges facing firms), making the case for new modalities of legal writing and the ways in which these programs will affect positively firms' bottom line;
(3) Fee-generating clinical initiatives. There are emerging initiatives to form what are essentially in-house law firms within law schools. Such programs, perhaps focusing more on transactional than litigation work, would look simultaneously to give students direct practical experience, including managerial/organizational skill-building while also generating at least a modicum of fees to offset clinical costs. Negotiating the politics of law school v. law firm competition is tricky. But this will, I believe, emerge as a novel strategy to realize both economic and pedagogical aims;
(4) Tuition breaks for externing students. I want to be careful with this suggestion for obvious reasons, but perhaps law schools, particularly the relatively well-resourced ones, should look at some tuition arrangements (reductions or one-time grants) for students who are spending a semester's worth of time externing. The traditional model of "a credit is a credit is a credit" may need to be adjusted; to the extent that students whose principal locus of activity is temporarily elsewhere impose somewhat fewer direct financial burdens on the school, schools should think about tuition adjustments;
(5) Fight the power. That is to say, push hard against regulatory costs of key groups including state bars, ABA, AALS, etc., so as to enable curricular experimentation without extraordinary external costs. Better yet, work with the central university and with external grant-funding organizations to subsidize experimental-experiental initiatives.
Here's a thought on this last issue: LSAC is sitting on a pile of money and would seem to be well positioned to subsidize law school curricular projects, particularly for those law schools least able to support them on their own. How about a major grant initiative directed toward these aims?
Posted by Dan Rodriguez on December 24, 2012 at 01:42 PM in Life of Law Schools | Permalink | Comments (4) | TrackBack (0)
Holiday Sentiments
I've been recovering from back surgery earlier this month and am now in the home stretch of grading, so I apologize for my silence the last while. In any event, I wanted to join some others in taking a moment to wish a Merry Christmas to our friends celebrating the holiday. I hope you enjoy the holiday whether it is a bonanza or a reprieve.
For those of you planning on showing up in New Orleans for the AALS conference in a couple weeks, we will have a happy hour as usual. Details will unfold over the next week. Watch this space. Last, on a personal note, I'll be up in NYC later this week, principally as a walking tourist; for those of you up there, please message me with any special recommendations about what's going on and cool things to do at this time in the city. Thanks, and happy holidays to all.
Posted by Dan Markel on December 24, 2012 at 11:04 AM in Blogging | Permalink | Comments (0) | TrackBack (0)
Sunday, December 23, 2012
Why I Am Not a Legal Realist
I had a dialogue with a friend and colleague a couple months ago in connection with the pedagogy of first year contract law. The question revolved around students' attempts to understand the doctrine, say as capsuled in the Restatement, as something integrated and coherent. For example, is it helpful for a student to have a relatively abstract understanding of what makes something a contract, given the vagaries of the doctrines of consideration, promissory estoppel, promissory
restitution, etc.?
At the time I responded as follows:
I tend not to get so hung up on taxonomies and terminologies.
In other words, how the universe of enforceable private obligations gets classified into subsets and then “named” is less important to me than the actual rules (algorithms) into which real world stories get translated for the purpose of arguing for or against or adjudging the existence of a legal obligation that arises out of a promise.
So “enforceability” cases arise when one of the parties contends that whatever legal rule turns a gratuitous promise into a binding one either applies or doesn’t for the purpose of enforcing or avoiding an obligation. “Formation” cases arise when it’s to the advantage of one side or the other to claim a bargain was or was not formed.
The groupings of cases and doctrine into casebook categories and chapters is an academic one, and “scientific” in the Langdellian sense of trying to make all the doctrine “fit” as though there really were a physics like world in which the concepts, rules, and algorithms existed on their own.
I would tell the student not to worry so much about the definitions. Or look to R2K §1 as the definition of a contract - the delightfully tautological notion that a contract is a promise or set of promises for the breach of which the law gives a remedy or otherwise imposes a duty. Under that definition, a promise enforceable under R2K §90(1) (otherwise referred to as promissory estoppel) is a contract, but who gives a ****?
The question he raised was whether it made sense to give students some formal structure by which to organize the doctrine, as opposed to teaching something that sounded more of "legal realism."
Having thought about it, and to the extent these categories are meaningful, I can now say why I’m not a “realist” and am instead probably something like a "constructivist." For those who need a soporific, the brain-numbing explanation follows the break.
Continue reading "Why I Am Not a Legal Realist"
Posted by Jeff Lipshaw on December 23, 2012 at 03:20 PM | Permalink | Comments (10) | TrackBack (0)
An Interesting Supportive Conservative Take on the LaPierre Statement...
That title may be a bit misleading. Actually, what I find interesting is that an interesting, supportive take on the LaPierre statement has been difficult to find. As I said in my last post, I already know what my liberal/pro-gun-control friends thought about the statement, and found it mostly uninteresting (and somewhat unpersuasive). But I had hoped to get out of my own epistemic bubble to find an upside take on LaPierre's statement from my usual go-to sites for those towing a more pro-gun, anti-gun-regulation, or conservative take on these and other issues. I suppose my own views on the issue are clear, but it's nice to look for challenges to those views.
But the usual sites I go to have either been silent or strategic (or both) in their reactions. The VC is the first place I go to for such things. Eugene Volokh had a post yesterday on a press release by Senator Feinstein proposing an assault weapons ban, but that post didn't mention the LaPierre statement. David Kopel, who can generally be relied on to be vocal on such issues on the VC, oddly hasn't put anything up on that site since December 11. The Corner, the National Review blog, had one more or less substantive post on the proposal, one purely descriptive piece, and a couple of posts detailing news show appearances by LaPierre or David Keene (but without discussing Friday's proposal). But mostly, it focused on criticizing reactions to the NRA's statement. (By comparison, it's had four posts on Chuck Hagel in the last three days.) For my sins, and so you, dear readers, wouldn't have to, I visited Instapundit. I don't expect substance from that site, but was still surprised by what I found, which basically was the same "the enemy of my friend is my enemy" approach that the NRO took, criticizing reactions to the statement rather than addressing the statement itself--i.e., "Well, he had journalists seething, which is probably a good sign."
I should add two points, but also two counterpoints. 1) Although this was the only major statement or proposal since Newtown by the leading pro-gun interest group, and one might expect to find something meaningful about it on these sites, it is of course possible that substantive commentators might be more interested in serious ideas than in evaluating every picayune press release or statement that comes down the pike. On the other hand, one would think that if Eugene had time to write about a press release from Senator Feinstein's office, he might have something to say about this. 2) People have lives, of course--even bloggers. They don't have always have time to write about everything. On the other hand, Kopel has published two op-eds and one NYT Room for Debate piece, and done six media appearances, since Newtown, but has written not one word on the VC since the 11th, let alone anything on what the NRA described as an urgent and necessary proposal to address mass murders of children in schools.
I think this is fair evidence that the usual suspects either found LaPierre and the NRA's proposal beneath discussion, or thought it politic, for some reason, to simply not mention it. I'm sure there are more charitable conclusions that could be drawn, or that one could draw no conclusions at all. I still found it downright bizarre, though, and frankly disappointing. I did not search very far outside my usual sources, to be sure, and perhaps there were good defenses of the proposal out there. But I didn't see them where I would expect to see them. My own view, as I said in my earlier post, is not that the proposal was horrifying or morally monstrous as such; just that, unless the NRA actually devotes resources to getting a bill on the floor and scores that vote, then we can quite fairly treat it as cynical political theater.
On a marginally cheerier note, check out the very interesting discussions of the gun/gun-control issue from a Catholic point of view, including a couple post-LaPierre statement, at Mirror of Justice--especially, with all due respect to the other posters there, the posts from Rob Vischer and Patrick Brennan. The comments to those posts offer some slightly interesting natural law perspectives, although what is startlingly absent from those comments is even the slightest hint of the imitation of Christ or the emulation of the saints. (When a commenter there writes about the possibility of a Katrina-like disaster, "Unfortunately, in cases like this, you may have little choice but to either fire a weapon against someone...or be killed for your food," I wonder whether he even considered the option of simply giving away his food to those who hunger--which is, you know, what Christ would have done.) I particularly admired the posts by Prof. Brennan, who is what outsiders would call a conservative Catholic (although I think he would reject that term), but who offers a powerful reminder, on the eve of Christmas, that committed Christianity may call for a radical peace that demands much more than hobbyists, or lovers of the bourgeois American lifestyle, may find comfortable.
Posted by Paul Horwitz on December 23, 2012 at 02:11 PM in Paul Horwitz | Permalink | Comments (2) | TrackBack (0)
Saturday, December 22, 2012
Filling out the FAR Form: Reflections from a Newbie
I've previously blogged about (here) my experience as a first-time member of the Appointments Committee at my school and the lessons I learned. I now want to transition into a discussion of some of the common "mistakes" I observed candidates making either through the FAR form, the D.C. interview, or the callback interview. I'll begin with the FAR form.
I have also blogged about (here) the problems with the current FAR form and the need for changes. Nonetheless, it is the current form that we now have to deal with, and I would like to offer some observations about how members of an Appointments Committee might use that form -- as with any writing, understanding your audience is crucial to communicating most effectively. Obviously, I cannot speak for everyone who reviews those forms as different people and different committees focus on different things; however, what follows are some areas where I saw candidates making certain choices that I think would hurt their candidacy at almost any school.
1) "No" Scholarship -- It was quite shocking to me the number of people who left the "Publications" section of the FAR form blank when, in fact, they had publications. Candidates, when we search the FAR, we get a list of candidates who match whatever search criteria we used. Next to each candidates' name is a link to that person's FAR form and resume. Given that the FAR form is supposed to provide "one-stop-shopping" for your credentials, many of us (myself included) will only look at it to determine whether you're a yes, no or maybe. If it's a no, I'm likely not going to read the resume. And . . . if your FAR form lists no publications, then it likely is going to be a "no" and your journey is done at our school. Several times this past season, the committee would assemble to discuss who to interview in D.C. and someone else would bring up a name of a candidate. When I would respond with "Yeah, but he hasn't published anything," I was then informed (by a much more thorough member of the committee than I) that, "Well, if you read his resume, you'll see he's written 2 articles." How lucky for that candidate that someone was willing to go beyond the FAR form. Nonetheless, I think it's a fair assumption that most folks aren't going to look beyond the basic form; thus, it would behoove candidates to ensure that the form can stand alone as an adequate summary of their qualifications.
2) Teaching "experience" -- My view on teaching experience is that it's great if you have it, but not fatal if you do not so long as you seem to put some thought into what it means to be an effective teacher. However, it seems that candidates are, by and large, quite reluctant to leave the "Teaching Experience" section of the FAR form blank. Instead, they'll list anything that is arguably relevant, ranging from serving as a mentor to young associates at their law firm to such things as teaching Vacation Bible School while in the 11th grade. Not to disparage any of those experiences, but when I see them on the FAR form it just highlights for me the fact that the candidate has no law-related teaching experience. And, if the experience is too much of a stretch, I might question your understanding of what it is a law professor does--not to mention your judgment in including such irrelevant things in the first place.
3) Geographic Restrictions -- I have to admit, I really don't understand why anyone lists geographic restrictions on the FAR form. On one hand, I really appreciate a candidate letting me know up-front that she would never want to work at my school, but by the same token, even when my school satisfies the restriction, such limitations make me question the candidate's understanding of the process and also her own self-assessment. As to the process, as any candidate knows, it is extremely hard to get a law teaching job. Further, to get one in the few places you deem ideal is next to impossible. Thus, when I see restrictions, I immediately think "Well,that's not really how this works if you're serious about it." Instead, it can give the impression of "Well, a law teaching job might be nice, but only so long as it fits in with my current life." Second, it can come across as a bit arrogant, giving the impression that the candidate thinks his qualifications are so outstanding that he'll basically have his pick of jobs. Now, I fully understand that there are people who are quite passionate about law teaching who, unfortunately, are limited in where they can move. But, why not just leave off the geographic restriction and instead, turn down any interview requests from schools that aren't a fit for you? That way you don't risk sending any of the negative signals I mentioned above, and you can make decisions based on the individual schools instead of having already eliminated every single law school located in certain state(s). And, of course, the more restrictions you have, the less likely you are to get any position anywhere.
4) The "Comments" section -- Like "Teaching Experience," I think this is another section one should feel comfortable leaving blank absent some compelling nugget of information that a committee might benefit from knowing. Examples of helpful "comments," include "Please see my resume for a more complete picture of my publications"; or "Although I do not have formal teaching experience, I have served as a mentor to many associates in my firm"; "The reason I can only take a job in the Pacific Northwest is because . . ." or even "My husband and I are both on the teaching market and would like to find a job working at the same school." Such information can be extremely helpful. What is not helpful are "comments" like: "I think I'd make a good law professor"; "I am willing to publish articles"; or "Glee is my favorite TV show." These are made-up examples, but the first two appear a lot in one form or another -- and, bottom line, we have already assumed that you are willing to publish and that you believe you would do a good job -- why else would you have paid over $400 to put your name in the FAR. Thus to read that is 1) a waste of our time and 2) an indication that you don't quite understand the nature of the position you're applying for. As for the final example I gave, I guess the "comments" section can help humanize you a bit and provide us with a glimpse of your personality, but at the time we're reviewing the FAR form, we're just making initial determinations as to who to see in D.C. -- it's at the interview that I'd start worrying about letting my personality show (after all, when you have a live audience, you have a bit more control over the impression you're making).
Again, these are just my thoughts, and I share them here in an attempt to be helpful and also to encourage others to share their FAR form pet peeves.
Posted by Michael J. Higdon on December 22, 2012 at 01:58 PM | Permalink | Comments (24) | TrackBack (0)
A statement too far?
We live (thankfully) under a Brandeisian "remedy to be applied is more speech" model of the freedom of speech, which protects "verbal tumult, discord, and even offensive utterance" and accepts "verbal cacophony" as "necessary side effects of the broader enduring values which the process of open debate permits us to achieve." One underlying theory of that model is that eventually speakers will be exposed--one statement will go too far or be so totally tone-deaf, ungrounded in reality, insincere or cynical that the speaker loses all credibility.
I wonder if Wayne LaPierre (if not necessarily the NRA as a whole) hit that point yesterday. Probably not, truth be told. But we can hope.
Posted by Howard Wasserman on December 22, 2012 at 11:13 AM in Current Affairs, Howard Wasserman, Law and Politics | Permalink | Comments (1) | TrackBack (0)
Models. Behaving. Badly.
My friend Anna Ivey (former Dean of Admissions and alum of the University of Chicago Law School) passed on a recommendation for Models. Behaving. Badly., by Professor Emanual Derman of Columbia. It's a nice alternative to Taleb's The Black Swan - particularly if, like me, you think Taleb has a lot to say but is readable only in very short doses.
The subtitle is "Why Confusing Illusion with Reality Can Lead to Disaster, on Wall Street and in Life." This is a a topic - the philosophy and science of mind by which we derive subjective meaning from objective circumstance - that has fascinated me for a long time.
Plus, if you like the stimulation of taking multiple disciplines and smashing them together to see what meaning results (sort of a mental Large Hadron Collider), you have to love a book that incorporates Humbert Humbert, positrons, The Pirates of Penzance, Black-Scholes, the Standard Model of quantum physics, and the Tetragrammaton.
Posted by Jeff Lipshaw on December 22, 2012 at 10:17 AM | Permalink | Comments (0) | TrackBack (0)
The NRA Proposal Judged From an Internal Point of View
It's unsurprising that the gun control/response to Newtown debate has not remained terribly focused or productive for very long. This isn't my field, and I've been occupied with other things anyway, so I haven't written on it this week. But I did want to add two observations. Both of them are admittedly consistent with my biases on the issue, but both are also aimed at trying to say something that could and perhaps ought to be said by those who don't share those biases.
The first has to do with the NRA statement to the press yesterday. (More a statement than a "press conference," since the organization imposed a three-day waiting period before answering any questions.) Here is Wayne LaPierre's statement in full. Unsurprisingly, gun-control advocates did not care for the statement. For present purposes I won't take a position on it. But if one takes something like the NRA's point of view, a question worth asking is whether the statement was essentially political theater or whether it had any shred of sincerity to it. Admittedly, I think it was theater. But how might one evaluate it from an internal point of view?
Two factors seem relevant. First, the statement does not amount to saying, putting more armed guards in school is the best we can do, or that it is acceptable legislation, or a reasonable starting point for discussion. It says doing so is utterly, immediately necessary. "[W]e must speak ... for the safety of our nation's children," LaPierre said. "[W]when it comes to the most beloved, innocent and vulnerable members of the American family — our children — we as a society leave them utterly defenseless, and the monsters and predators of this world know it and exploit it. That must change now!" Here was his specific call for action:
I call on Congress today to act immediately, to appropriate whatever is necessary to put armed police officers in every school — and to do it now, to make sure that blanket of safety is in place when our children return to school in January.
Before Congress reconvenes, before we engage in any lengthy debate over legislation, regulation or anything else, as soon as our kids return to school after the holiday break, we need to have every single school in America immediately deploy a protection program proven to work — and by that I mean armed security.
And he concluded: "This is the time, this is the day for decisive action. We can't wait for the next unspeakable crime to happen before we act. We can't lose precious time debating legislation that won't work. We mustn't allow politics or personal prejudice to divide us. We must act now."
The second factor is this: If that's what the NRA thinks is immediately necessary to resolve a pressing issue of public safety, it has plenty of resources and influence to devote to the task. It spent some $19 million in the last election cycle. Its lobbying power is evident. It is willing to spend to defeat incumbent Republicans as well as Democrats. It devoted ample resources to the primary defeat of Senator Richard Lugar, who enjoyed a one-time A rating from the group and almost has an NRA-worthy last name. And one key aspect of its power is its determination which congressional votes to "score" in coming up with its ratings.
So, in judging the good faith of yesterday's proposal, which again was described not as a compromise or possible idea but as urgent and mandatory, look to three things. First, will it actually expend any resources on it? Yesterday's statement said that former congressman Asa Hutchinson would "lead [our] effort as National Director of the National School Shield Program, with a budget provided by the NRA of whatever scope the task requires." The NRA has the money, and can raise more. How much will it spend? Second, how long will it take for it to get a bill into the hopper? It ought not take terribly long. Third and by far the most important, will the NRA treat any vote on this issue as a scored vote, regardless of any reasons, such as fiscal conservatism, that individual members might have for voting against it? If it can't get a bill on the floor, or doesn't score that vote, then I think it would be quite fair to say it never really gave a damn about what it described as an urgent and necessary proposal.
Again, I appreciate that those who oppose the NRA in general, or found yesterday's statement insufficient or horrifying, already think the proposal was political theater. For present purposes, I'm not interested in that; I'm interested in how those who either support the NRA in general, or think the proposal was a good or at least reasonable idea, and in any event who think the NRA is sincere in its statements, should evaluate the proposal--which, obviously, they should.
It's not all that hard for those who already hate LaPierre to continue hating him. But for those who think highly of him, and/or of the organization, I think it's fair to say this: LaPierre made clear that his proposal, in his view, was urgent, important, and necessary to protect "the most beloved, innocent and vulnerable members of the American family — our children." If the organization does not actually make a concerted and resource-heavy effort to see legislation proposed, advocated, and scored, then, at that point, I think it would be more than fair for even his supporters to conclude not only that the whole thing was political theater, but that--for professional purposes!--LaPierre does not really care all that much about the safety, well-being, or death of children. His adversaries, of course, already think that, but I'm more interested in how his supporters should judge him.
Posted by Paul Horwitz on December 22, 2012 at 09:30 AM in Paul Horwitz | Permalink | Comments (0) | TrackBack (0)
Friday, December 21, 2012
Introduction to a Discussion: Koppelman on "Defending American Religious Neutrality"
Here's another piece of weekend reading. As Rick noted on this page a while back, our friend and colleague Andrew Koppelman has just published an excellent book on law and religion, Defending American Religious Neutrality. (Note that the Amazon page offers an excellent deal when you buy it with another particular book.) Here's what Steve Smith of San Diego has to say about it: "Neutrality has been the central but embattled ideal in the modern jurisprudence of religious freedom. Andrew Koppelman offers the most serious and sophisticated defense of that ideal now available. For anyone interested in these important debates, this book is not recommended reading: it is required." That seems right to me. It offers a wide-ranging and sophisticated explanation and defense of the role of neutrality in the American law of religious liberty, and even those of us who do not share all his views (and I think Andy has convinced me that he and I actually have a good deal of common ground) will find it a book to be reckoned with.
Andy has kindly offered an introduction to his book below and, God (or not God) willing and the creek don't rise, Rick and I should be posting some responses to the book in the next week or two, hopefully with some replies by Andy. We're grateful to have him. His post begins below and continues after the fold.
* * *
The American law of freedom of religion is in trouble, because growing numbers of critics, including a near-majority of the Supreme Court, are ready to cast aside the ideal of religious neutrality. My new book, Defending American Religious Neutrality (Harvard, 2013), defends the claim, which unfortunately has become an audacious one, that American religious neutrality is coherent and attractive.
Two factions dominate contemporary discussion of these issues in American law. One, whom I’ll call the radical secularists, tend to regard the law of the religion clauses as a flawed attempt to achieve neutrality across all controversial conceptions of the good – flawed because it is satisfied with something less than the complete eradication of religion from public life. The other, whom I’ll call the religious traditionalists, think that any claim of neutrality is a fraud, and that law necessarily involves some substantive commitments. They claim that there is thus nothing wrong with frank state endorsement of religious propositions: if the state is inevitably going to take sides, why not this one? One side regards religion as toxic and valueless; the other is untroubled by the state’s embrace of an official religion. Neither sees much value in the way American law actually functions.
Yet America has been unusually successful in dealing with religious diversity. The civil peace that the United States has almost effortlessly achieved has been beyond the capacities of many other generally well-functioning democracies, such as France and Germany. Even if the American law of religious liberty were entirely incoherent, it might still be an attractive approach to this perennial human problem. There is, however, a deep logic to the law that its critics have not understood.
Prominent scholars of religion have ridiculed President-elect Dwight Eisenhower’s 1952 declaration: “Our form of government has no sense unless it is founded in a deeply felt religious faith, and I don’t care what it is.” Eisenhower nonetheless revealed a deep insight into the character of American neutrality. This book aims to recover that insight.
Posted by Paul Horwitz on December 21, 2012 at 09:14 AM in Books, Paul Horwitz | Permalink | Comments (3) | TrackBack (0)
Friday Reading
Since it's the 21st of December, here's a little extracurricular reading to start your weekend.Posted by Paul Horwitz on December 21, 2012 at 08:13 AM in Paul Horwitz | Permalink | Comments (2) | TrackBack (0)
Wednesday, December 19, 2012
Not just balls and strikes, redux
I have returned to writing about the infield fly rule, a more scholarly expansion of the short defense of the rule that I wrote in October. Thinking about particular examples of infield fly situations (or non-examples) in the context of the full baseball rulebook brought me back to the judge/umpire/calling balls-and-strikes analogy. In particular, I come back to the argument (which I have made before) that one problem with the analogy is that it understates the complexity of the decisions that umpires actually have to make. And I have in mind one historic play that illustrates this complexity quite well.
(I apologize in advance for a post that may be tilted fairly heavily towards the sports and away from the law--feel free not to follow the jump).
Continue reading "Not just balls and strikes, redux"
Posted by Howard Wasserman on December 19, 2012 at 10:40 AM in Howard Wasserman, Sports | Permalink | Comments (7) | TrackBack (0)
Tuesday, December 18, 2012
Foreign Travel by Members of Congress (Part III)
As I explained previously (here and here), I’ve been writing a piece that examines Congress's involvement in international diplomacy. One half of the article documents the nature and extent of the contemporary practice, while the other analyzes that practice from a separation-of-powers angle. As the data in the last post demonstrated, legislative diplomacy in the form of CODEL travel is a major form of engagement between the United States and foreign countries. Now I want to discuss some of the reasons why the numbers from the last post are significant.
First, the findings at least partially contradict the common perception that CODEL travel is nothing more than a series of taxpayer-funded boondoggles for profligate legislators. With places such as Afghanistan, Iraq, and Pakistan among the most common destinations, and with members of congressional committees such as Foreign Affairs and Armed Services traveling more than their counterparts on other committees, it is apparent that something other than vacationing is going on. Wikileaks confirms as much—an overwhelming majority of the State Department cables show legislators using foreign travel to gather information about economic, political, and social conditions in host countries. The idea, it seems, is that legislators can educate themselves by meeting with foreign officials and personally observing foreign conditions, and in turn use their knowledge to develop more effective legislative solutions to foreign policy problems. Wikileaks shows that another rationale for CODEL travel is lobbying; legislators often use their meetings with foreign officials to press foreign governments to act in ways that promote U.S. interests or, less frequently, the interests of specific constituents. One might fairly question whether CODELs are an effective means of pursuing these goals, but it’s clear that the goals generally are not sightseeing and leisure. The intermittent public debate on CODEL expenditures needs to acknowledge that.
Continue reading "Foreign Travel by Members of Congress (Part III)"
Posted by Ryan Scoville on December 18, 2012 at 03:01 PM in Constitutional thoughts, International Law | Permalink | Comments (1) | TrackBack (0)
Thoughts on presidential succession
I had not thought about this until it was pointed out, but the death of Hawaii Sen. Daniel Inouye brings with it a change in the President pro tempore of the Senate. That office now passes to Sen. Patrick Leahy, the senior-most Senate Democrat. At Slate, Matthew Yglesias argues against having the P/P/T third in the line of presidential succession. Yglesias primarily focuses on the fact that the P/P/T is not even a chosen or recognized party leader; in fact, the only qualification to be P/P/T is to be really old and a member of the majority party.
Ironically, Yglesias points out, Leahy also chairs the Judiciary Committee, meaning he now has the power to at least begin the process of creating a better line of succession by pulling himself out of it. (It is not clear whether Yglesias wants to move to cabinet-only succession and also remove the Speaker of the House from the succession order or whether he just wants to acknowledge the realities of Senate structure and the differences between the House and Senate).
Posted by Howard Wasserman on December 18, 2012 at 02:10 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3) | TrackBack (0)
Green Bag Almanac & Reader Good Writing Honorees
Once a year, the Green Bag’s impressive board of advisers for exemplary legal writing selects 20 or so works to honor with publication in the Green Bag Almanac & Reader. It is not an easy task, because there really is a great deal of good writing produced every year by lawyers and other people who write about the law. So, there is a burdensome but unavoidable process for making choices. Here are this year’s honorees. Congratulations to all.
I. Opinions for the Court
- José A. Cabranes, Rivas v. Fischer, 687 F.3d 514 (2d Cir. 2012)
- John Gleeson, U.S. v. Dossie, 851 F.Supp.2d 478 (E.D.N.Y 2012)
- Royce C. Lamberth, In re Grand Jury Subpoena, 846 F.Supp.2d 1 (D.D.C. 2012)
- Ojetta R. Thompson, Schatz v. RSLC, 669 F.3d 50 (1st Cir. 2012)
II. Concurrences & Dissents
- Marsha Berzon & Richard Tallman, Miles v. Ryan, 697 F.3d 1090 (9th Cir. 2012)
- Neil Gorsuch, U.S. v. Rosales-Garcia, 667 F.3d 1348 (10th Cir. 2012)
- Elena Kagan, Williams v. Illinois, 132 S.Ct. 2221 (2012)
III. Books
- Dale Carpenter, Flagrant Conduct: How A Bedroom Arrest Decriminalized Gay Americans (W.W. Norton & Company 2012)
- David M. Dorsen, Henry Friendly, Greatest Judge of His Era (Harvard University Press 2012)
- J. Harvie Wilkinson III, Cosmic Constitutional Theory (Oxford University Press 2012)
IV. Long Articles
- Charles Fried, On Judgment, 15 Lewis & Clark Law Review 1025 (2012)
- Arthur R. Miller, McIntyre in Context: A Very Personal Perspective, 63 South Carolina Law Review 465 (2012)
- Carol Sanger, “The Birth of Death”: Stillborn Birth Certificates and the Problem for Law, 100 California Law Review 269 (2012)
V. News & Editorial
- Tom Goldstein, We’re getting wildly differing assessments, SCOTUSblog, www.scotusblog.com, July 7, 2012
- Jill Lepore, Benched: The Supreme Court and the struggle for judicial independence, The New Yorker, June 18, 2012
- Dahlia Lithwick, Extreme Makeover: The story behind the story of Lawrence v. Texas, The New Yorker, March 12, 2012
- Jonathan Macey, Tackling the Power of the 1%, Politico, November 29, 2011
VI. Miscellany
- Frank H. Easterbrook, Commencement Address, Swarthmore College
- Bob Kohn, Brief of Bob Kohn as Amicus Curiae, U.S. v. Apple, Inc.
- Christy Susman, Letter to Patrick Wensink, Jack Daniel's, July 12, 2012
Posted by Ross Davies on December 18, 2012 at 12:32 PM | Permalink | Comments (1) | TrackBack (0)
Student Class Evals, Transparency, & Self-Selection Bias
When catching up with one of my former students/RAs yesterday, he brought up the topic of student evaluations. More specifically, he asked what influence, if any, they have on law professors’ careers. Given that I am still on the junior side of the tenure divide and am still learning about how my university’s promotion procedures operate, I didn’t have a great answer for him. My impression is that glowing evaluations are helpful in the tenure-track professor’s quest for permanence, but that they have less institutional importance past that point. Whether student evaluations should play a larger role in the tenure-track/promotion/retention process is an interesting question, but not one that I do not feel particularly qualified to comment on. My student’s question did, however, lead me to consider a pair of related issues.
Accessibility to Students: My impression is that most law schools (like undergraduate programs) do not make class evaluation data available to students. This has always struck me as a bit peculiar—why shouldn’t students have access to information that they help create and that will help them make intelligent scheduling decisions? Making professors’ aggregate scores available online would cost nothing and require little additional administrative work. While having such information publically accessible might be uncomfortable for those who have received low scores, I am not sure whether this harm is actually a bad thing (it could incentivize those individuals to put greater effort into class prep or seek outside assistance) or unique (student bodies have institutional memories, websites exist where students can publically rate and comment on their professors). What, if anything, am I missing here?
Data Collection Methods: From talking to fellow junior profs and my lawyer friends who attended different law schools, it seems that most (if not all) schools have transitioned to online-based evaluations and that the majority of schools have not made filling out a class eval mandatory. The former makes sense to me, but the latter does not—by making evaluation optional, schools invite self-selection bias and drastically decrease the meaningfulness of the entire endeavor. One way of instituting mandatory reviews (used by my alma mater) is to make a student’s completion of a course’s online survey a prerequisite for viewing their grade. I imagine that other institutions have tackled this issue in other ways—anybody care to share their institution’s approach?
Posted by Max Helveston on December 18, 2012 at 10:45 AM | Permalink | Comments (8) | TrackBack (0)
Jeremy Telman on Legal Education
I have been remiss in not linking to a series of six blog posts by Jeremy Telman (Valparaiso) on the subject of legal education over at Contracts Prof Blog.
Jeremy tackles curricular reform, teaching materials, costs, scholarship, coordinated curricula, and preparing the academically adrift for practice.
By all rights, given procrastigrading, I should have linked this several days ago. I have no excuse.
Posted by Jeff Lipshaw on December 18, 2012 at 10:16 AM | Permalink | Comments (0) | TrackBack (0)
The Pathological Perspective, Guns, and Deinstitutionalization
I offer here an observation on some of the post-Sandy Hook debate. It doesn't have any clear policy implications one way or another, but it nonetheless struck me.
Almost 30 years ago, Vince Blasi famously argued that we should take a "pathological perspective" on the First Amendment. He argued that we should interpret the First Amendment such that it is best positioned to do maximum work in the "worst of times" -- the times "when intolerance of unorthodox ideas is most prevalent and when governments are most able and most likely to stifle dissent systematically." It seems to me that a lot (though far from all) of the advocacy of rights of gun ownership in this country takes a similar pathological perspective. Thus we hear that gun ownership is necessary to prevent tyranny, and that we have to be worried about the government disarming the populace.
Yet when we have a mass shooting, we often hear from gun rights advocates (again, far from all of them), that the problem is not lax gun laws but the deinstitutionalization of people with mental illness. David Kopel's op-ed in today's Wall Street Journal contains a few grafs making this argument. What's striking to me is this: Much (though, again, far from all) advocacy of deinstitutionalization in the 1960s particularly was itself driven by a pathological perspective. Some (though far from all) advocates of deinstitutionalization argued that the government would use its power to institutionalize as a means of detaining and torturing dissenters, outcasts, or peceived deviants. And they had then-current examples (from the Soviet Union) where governments were doing just that. (For a hint at these issues, see page 15 and note 63 of this article.)
Given the pathological perspective on these two issues, one might be tempted to ask gun rights advocates, What makes you think that a government that is so tyrranical that we will need to overthrow it by force can be trusted with the power of locking people up based on assertions of mental illness or predictions of dangerousness without the benefit of a criminal process? Okay, a bit of a cute question, and the policy issues for both gun and mental health laws are difficult and complicated ones on which reasonable people can disagree. For myself, I'm not sure that a pathological perspective on gun rights or deinstitutionalization makes a whole lot of sense. For one thing, it likely leads us to ignore the day-to-day threats to freedom that make far more of a practical difference to our lives in expected-value terms than does the exceedingly unlikely "worst of times." And if we do get to the "worst of times," I'm not sure how much value "parchment barriers" (or even pistols and rifles) will have for us in practical terms. But I thought the parallel in the arguments was striking.
Posted by Sam Bagenstos on December 18, 2012 at 09:28 AM in Constitutional thoughts, Current Affairs | Permalink | Comments (2) | TrackBack (0)
An interview with Patrick Griffin, author of "The Catcher in the Drain"
Last Friday I linked to a 1992 article in the Chicago Reader, a free weekly alternative paper. The article, called "The Catcher in the Drain," made the case why a big chunk of students were making a mistake by going to law school. He methodically went through the reasons for getting a J.D. -- higher pay, more prestige, degree flexibility -- and explained the problems with each. At the end, he compared himself to Holden Caufield, who dreamed off trying to stop others from jumping off the cliff.
The author of the article is Patrick Griffin. He is now at the MacArthur Foundation, serving as Program Officer for Juvenile Justice in U.S. Programs. Before joining the Foundation, he was a writer, researcher, legal analyst, and director of projects for the National Center for Juvenile Justice (NCJJ), where he became a national authority on comparative legal analysis of state transfer and blended sentencing laws. Griffin began his career as an attorney, and before joining NCJJ had practical experience as an editor of business-oriented legal publications and as a freelance journalist whose essays, profiles, and general-interest reporting appeared in magazines and newspapers nationwide. He graduated magna cum laude from the University of Michigan and received his law degree from Harvard Law School.
I wanted to check in with Griffin 20 years later and see what he thought of his article now, and on the state of legal education. He was kind enough to answer my questions below.
Continue reading "An interview with Patrick Griffin, author of "The Catcher in the Drain" "
Posted by Matt Bodie on December 18, 2012 at 09:08 AM in Life of Law Schools | Permalink | Comments (0) | TrackBack (0)
Monday, December 17, 2012
Big Bad Wolf on Trial
Last week, my law students travelled to my kids' school to help the fifth graders prepare for their big mock trial. The Big Bad Wolf is being prosecuted for the alleged murder of two pigs, destruction of private property, and disruption of public safety. One of my students told me her decision to go to law school can be linked to her sixth grade mock trial experience. I had a blast coaching the defense team. In the opening statement, the kids talked about bias, animus, and the problems of eye testimony in cases
involving different animal species.
Posted by Orly Lobel on December 17, 2012 at 02:23 PM | Permalink | Comments (4) | TrackBack (0)
Networks for Prosperity
Is the name of a new UN report to which I have contributed. The report looks at the importance of knowledge networks in the context of economic development, trade, innovation and growth. The first launch of the report happened a few weeks ago at the UN headquarters in Vienna. A second launch is planned in NYC early 2013 and I look forward to attending. My contribution to the report considers the ways human capital is enriched by talent mobility, professional interactions, information flow, and motivational incentives, and examines how intellectual property and competition policy can support (and conversely hinder) these effects (also see here and here). I plan to post more about the report's implications at the NYC launch.
Posted by Orly Lobel on December 17, 2012 at 02:13 PM | Permalink | Comments (0) | TrackBack (0)
