The Faculty Lounge

Happy Anniversary....

of Brown v. Board of Education.  It was decided May 17, 1954.

Alfred Brophy

Surfing the Net in Class

  Saul Levmore, Dean of the University of Chicago Law School, has announced that the school will ban internet access in the classroom to eliminate internet surfing.  Ian Ayres (Yale)  agrees with this policy, as  does Brian Leiter (Chicago).   Kevin Yamamoto (South Texas) argues that laptop surfing in class is a significant cognitive impediment.  I remain skeptical.  Students who do not wish to engage the material will find some method to check out, whether or not they have a laptop handy.  Moreover, if you can't make your class more interesting than solitaire or the Drudge Report or the Daily Kos, maybe you should retool your approach to teaching. 

Jack Rose In A Sidecar? Making Law School More Practical

We all know the ongoing debate in law schools: theory versus practice.  But perhaps even our view of practice is a little skewed.  Maybe clinics don't teach students all the necessary useful arts.  Many successful lawyers share a common practical trait utterly missed in the clinical pedgagogy: they are stellar schmoozers.  The curriculum committee might be clueless on this count but some of our students get it.  Gentleman Lawyer offers one student's thoughts on the matter of cocktails.  This gentleman favors the Manhattan, but I'm particularly intrigued by the Jack Rose.  I didn't even know what applejack was - other than the cereal my mother wouldn't let me eat. 

It's not just what you imbibe, however.  It helps to be a natty dresser.  Another student blogger suggests that that dapper gents might want to avoid one popular haberdasher lest they find themselves swimming in ill-fitting suits.

I know I'll never be a proper mentor on these matters.  I typically stick to the familiar uniform of button downs and khakis.  And I rarely drill deeply into the bartender's manual.  Still, I do respect the impulse.  Why else would I cotton to the radio station, The Martini Lounge. 

Spiritualism and Will(s) in the Age of Contract

Christopher J. Buccafusco of the University of Chicago Law School has posted "Spiritualism and Will(s) in the Age of Contract" on ssrn.   This is a really terrific piece.  It's not everyday that you see a wills piece that is interesting and fun at the same time.  Here's Chris' abstract:

Spiritualism was one of the most salient cultural phenomena of late-nineteenth-century American life. The belief of considerable numbers of respectable citizens that they could communicate with the dead via an entranced medium called into question both popular and scientific conceptions of rationality, volition, and freedom. In turn, these changing ideas about the mind challenged American law's commitment to its belief in free and reasonable legal actors. This Article, the first to consider Spiritualism's implications for American law, examines the legal reaction to the anxieties Spiritualism generated for the age of contract. Principally, it looks at the judicial response to cases of Spiritualists' wills that were challenged on the grounds of insanity and undue influence. In dealing with such cases, I argue, American judges adopted a realist, pragmatic strategy of promoting polyphonic discussion and preserving democratic decision making. Approaching the subject from the perspective of cultural legal history, I suggest that popular culture, science, and the law were mutually constitutive discourses in which nineteenth-century Americans enacted their anxieties about the mind, the will, and the family. Finally, I argue that a contextualized understanding of these nineteenth-century debates can suggest much about current legal debates about rationality, responsibility, and volition engendered by recent discoveries in behavioral economics, the psychology of emotions, and cognitive neuroscience.

Alfred Brophy

Scanners On The Streets Of London; Suspicion Not Required

A couple of weeks back, I blogged about the Canadian Supreme Court's decision to prohibit suspicionless dog sniffs in schools and bus depots.  I was impressed with the Court's protection for individual liberty.  England, it seems, is going in precisely the opposite direction - and for reasons familiar to Americans.

There has been a perceived surge in knife violence in London of the past year.  In response to public concern, and much to the pleasure of London's new Conservative mayor, the city's Metropolitan police has begun to set up airport style scanners  on the streets of London.  Pursuant to Section 60 of the Public Order Act, police can compel individuals to pass through these metal detectors even with absolutely no quantum of suspicion.

One To Watch . . .

Ok, so it might not be from the deep recesses of an unknown county courthouse, but its still one to watch . . .

In a strange twist of timing, as the California Supreme Court readied its decision against discriminatory heterosexual marriage privileges, The Christian Post was reporting on action taken by the University of Toledo in defense of gay rights.  But the University's effort might cost them, depending on the outcome of an all but inevitable First Amendment lawsuit.

According to the report, the University of Toledo fired Associate VP of Human Resources Crystal Dixon after she expressed opposition to equal marriage rights in a column published in the Toledo Free Press.  UT President Dr. Lloyd Jacobs defended the decision, saying that Dixon's statements "do not accord with the values" of the University. 

I'm tickled pink about the California decision, and that the University apparently recognizes the inherent worth and dignity of all human beings as a matter of official policy.  But I do think that Dixon's discharge raises a tricky First Amendment question that, so far as I can tell, hasn't been squarely addressed in the case law.

At first blush, Dixon has a strong case against the University.  Garcetti v. Ceballos narrowed the scope of First Amendment protection afforded public employees, but distinguished the employee whose speech is part of an official job function from the employee who speaks "as a citizen" on a matter of public concern.  Garcetti upheld the discharge of a deputy district attorney who complained to supervisors about a flawed warrant.  Because he directed his concerns through the internal chain of command, he was not "speaking as a citizen," the Court said, and therefore was not protected by the First Amendment.  Not the case with Dixon.  Having written to the outside press on an issue of undebatable contemporary cultural significance, Dixon's comments fall into the latter, constitutionally protected, category.  . . .

Who Appointed California's Supreme Court Justices?

Here's the skinny, in case you were wondering who appointed the judges deciding today's In re Marriage Cases case. Three of the four justices in the majority were appointed by Republican governors.  Justice Ronald George, the author, was appointed by Pete Wilson.  Ditto Justice Kathryn Mickle Werdergar .  Justice Joyce Kennard was appointed by George Deukmajian and is the longest sitting Justice on the California Supreme Court.  And Justice Carlos Moreno was appointed by Democrat Gray Davis.   The three dissenters were all appointed by Republicans.  Justices Ming Chin and Marvin Baxter were appointed by Pete Wilson; Justice Carol Corrigan was named by Arnold Schwarzenegger.

A case like this must be very frustrating to conservatives who wonder whether there's something in courthouse water.  California is admittedly a progressive state, but who'd expect a court with 85% of its members appointed by Republicans to produce this result?

California Supreme Court finds that limitation of “marriage” to opposite sex couples is unconstitutional under California constitution

Kudos to the California Supreme Court, which today ruled that the law’s limitation of “marriage” to opposite sex couples is unconstitutional under the CA constitution. The Court found the limitation to be unconstitutional, even though California law permits same-sex couples to form “domestic partnerships” that include all of the rights and privileges of marriage under a separate designation. The Court describes the legal issue as whether the “failure to designate the official relationship of same sex couples as marriage violates the California Constitution.” The Court held that it did.

 There’s some amazing language in the decision, including: "retaining the designation of marriage exclusively for opposite sex couples and providing only a separate and distinct designation for same-sex couples may well have the effect of perpetuating a more general premise — now emphatically rejected by this state — that gay individuals and same-sex couples are in some respects “second-class citizens” who may, under the law, be treated differently from, and less favorably than, heterosexual individuals or opposite-sex couples.”

 Looks like all those happy (gay!) marriages in San Francisco are valid. Let’s not forget that this is the result of some well-timed and courageous civil disobedience.  There’s a lesson in here somewhere.

Bush Administration still refuses to address the harm of greenhouse gases

After months of delay, under pressure from environmental groups, and under federal court order to decide, the Bush administration finally listed the polar bear as “threatened” under the Endangered Species Act. “Threatened” is a step down from “endangered” under the Act. Interior Secretary Dirk Kempthorne acknowledged that diminished sea ice threatened the  future of the bears, but employed a seldom used provision of the ESA to add stipulations to the declaration. Those stipulations would allow oil and gas exploration to proceed in areas where the bears live despite the “threatened” listing. Kempthorne also said that it would be “wholly inappropriate” to use the “threatened” listing as a tool to reduce greenhouse gases, as environmental activists have hoped to do. Prior to becoming Secretary of the Interior, Kempthorne was a strong political opponent of the ESA.

 

The good news is that all the current candidates for president acknowledge the harm of greenhouse gases to the environment. Recently, John McCain criticized the Bush administration for its stance on climate change.

 

Overall, though, most environmental groups find that McCain falls far short on environmental issues as compared with Obama and Clinton. For an in-depth look at the environmental policies and records of the three candidates, check out the League of Conservation Voters website. The LCV scores candidates based on their lifetime voting records on key environmental issues. You can also see a more substantive comparison chart on the website. The lifetime scores of the three candidates are: Obama 96 (out of 100), Clinton 90, and McCain 26.

CFP: Pedagogical Encounters in Law, Culture and the Humanities

Academics in law, culture and the humanities find the “law” in a wide
array of cultural sites – from Victorian diaries, to Hollywood
blockbusters, to children’s literature, to memorial architecture.  This
richness poses incredible opportunities but also daunting challenges
for us in the classroom.  How do we teach an entire novel to law
students? How might a literature class approach the legal issues raised
by a poem? How do we take account of the vision- and sound-scapes in
film? How does one study a museum? These kinds of pedagogical
encounters are the focus of a unique and innovative three-day institute to be held at Carleton University in Ottawa, from October 3rd to 5th 2008, hosted by the Canadian Initiative in Law, Culture and Humanities.

Scott Skiles Meet Jim Chen: A Dean Who Doesn't Mince Words

You can't accuse Louisville's Dean Jim Chen of setting standards too low.  It's hard not to respect the quality of his work, his work ethic, and perhaps most importantly, his deep unwavering commitment to scholarly productivity.   Consider this quote from Jim's post yesterday:

Scholarship is a core responsibility held, even cherished, by most members of the academy. Indeed, the best among us do not view it as a duty, but as a privilege. If higher education were to identify its gravest sins, the complete failure to produce scholarship surely would rank among the top seven.

When Jim became dean at Louisville, I knew that this could only be good news for the future of scholarship at that school.  But I also suspected there were going to be some folks there who'd find his attitude a bit disconcerting.  I suspsected then, but now I'm close to certain.

A couple of days ago, Geoffrey Rapp put up a post at Prawfs suggesting four possible reasons law professors don't produce scholarship: (1) they have nothing to say that would reinvent the field; (2) nobody reads scholarship anyway; (3) they object to student edited law reviews; and (4) they'd prefer to teach and do service.  In yesterday's post, Jim Chen responded with his own take on those who don't write:

Never attribute to active sin that which can be adequately explained by inertia.  Inertia, of course, bears a striking resemblance to sloth. And sloth — alongside pride, envy, greed, gluttony, lust, and wrath — has numbered among Christianity's seven deadly sins since the Middle Ages....The easiest of the deadly sins to commit, in law and in academia as in the rest of life, is sloth. It often consists solely of doing what comes naturally — which is to say, nothing. Among sins, sloth reigns supreme...

Several years ago, (then) Bulls coach Scott Skiles was asked how the team's center, Eddy Curry, could improve his rebounding.  His answer?  "Jump."  Strong language from a coach.  But language that Jim Chen would no doubt appreciate.

No More Mister Softee: Sex Offenders Banned From Ice Cream Trucks

Nobody ever lost an election by adopting new punishment regulations for sex offenders.  Yesterday, San Bernadino County (California) passed new legislation prohibiting those convicted of sex offenses from obtaining "roaming solicitor's licenses" - that is, they're banned from operating ice cream trucks.  I don't know the scope of this law, but I'm guessing that the group of people called "sex offenders" probably includes many people with no history of sexual offenses against young children.  As a result, the ban is almost certainly wildly overinclusive.  If the law is limited to individuals who present a genuine risk to young children, however, this one  isn't entirely crazy.  For that rare person, this job is probably too provocative and could offer access to children that might lead to further unsupervised contact.  If the law is not limited in this fashion, though, it's just bad policy.  And when it comes to sex offenders, isn't that a ho-hum.

The Book Of Lists: Law School Faculty In Motion

There's a lot of law faculty movement that we've managed to document in the blogosphere.  Sometimes we want to find it for practical purposes; other times, we're just curious.  For everyone's convenience, here is a list of lists of law faculty being hired, swiped, and borrowed.   My lists, and Larry Solum's, cut across disciplines.  They provide good bird's eye views of law faculty ebbs and tides.  Paul Caron and Paul Secunda have maintained lists tethered to their specialties - thus providing more detailed information about a subset of the folks in the other lists.  (And Paul and Paul were tracking visitors before I started that process more generally this year.)  Finally, I've included Brian Leiter's list of Top 25 law school lateral moves (1995-2004).  Caution: following these links may be hazardous to your efficient use of time.

Solum's 2008 Entry Level List          Filler's 2008 Lateral List         

Solum's 2007 Entry Level List          Filler's 2007 Lateral List      

The Ronald Reagan McDonalds! (Tuscaloosa, Alabama)

While reading this review of Princeton University historian Sean Wilentz' The Age of Reagan over at Slate this morning, I saw a picture of President Reagan eating a big mac at ... the McDonalds on route 82 in Northport!  You know what?  I eat there, too, sometimes.  (The building Reagan ate in was knocked down a few years ago and then rebuilt.)  Rather unrepresentative photo, though; as I understand the story, it was the only McDonalds he ever ate at.  Never can tell when Tuscaloosa will appear in the national news!

I enjoyed Wilentz' article on "1967" in Rolling Stone a while back, although as I said at propertyprof last summer:

Wilentz locates 1967 as the start of the culture wars: free love & drugs vs. stability.  Locating major trends in American culture in a single year is always hard--though there have been some really successful books built around years (Kenneth Stampp's 1857; Louis Mazur's 1819 immediately come to mind.)  And while I would have emphasized more of the counter-culture and less of the conservative response were I fortunate enough to be writing for Rolling Stone, the essay's well worth a read.

And, hey, writing for Rolling Stone's  a big deal for an academic (or anyone else, I'd imagine).

The review's worth a read.  The conclusion is:

[H]e's still, in some sense, with us. By Wilentz's reckoning, the Reagan era has lasted longer than "the ages of Jefferson and Jackson; longer than the 'gilded' age or the Progressive era; and virtually as long as the combined era of the New Deal, Fair Deal, New Frontier, and Great Society." Which means that the GOP's happiest warrior can now be spoken of in the same breath as Jefferson and Jackson, as Lincoln and the Roosevelts.

Alfred Brophy

Update: Minnesota School To Amend Pledge Policy, Erase Suspension

Calvin beat me to the punch with his insightful post on Monday regarding the pledge controversy that's been brewing in Minnesota.  Below is an update on developments, adding my take on Barnette (which I apparently read a bit more broadly than Calvin), and some context history buffs might find interesting.

Cross-posted from First Amendment Law Prof Blog:      

Four Minnesota students who were disciplined for exercising their First Amendment rights will  have their records cleared, a school administrator told a local paper on Saturday.  Three students were suspended last Thursday for violating a district wide policy that requires them to stand during the daily Pledge of Allegiance.  Though Minnesota state law reportedly gives students the option of whether or not to say the pledge, the school district policy requires students to stand while it is being recited by others.  A fourth student was suspended on Friday after he remained seated to protest the school's policy and the suspension his classmates received for breaking it.  He also said he sometimes chooses to remain seated during the pledge as a sign of protest of the Iraq war.  The ACLU of Minnesota sent a letter to the Superintendent of Schools urging that the policy be revised to protect the students' right to remain silent and seated, if they so choose, in a non-disruptive manner during the pledge.   

In West Virginia State Board of Education v. Barnette (1943), the Supreme Court recognized that students have a First Amendment right to refuse to recite the pledge.  The Court accepted the claim raised by a group of Jehovah's Witnesses that the state's mandatory pledge policy infringed upon their religious beliefs, but spoke about a broader right to be free from compelled speech, stating: 

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.

But that wasn't the only pledge problem in 1940s West Virginia.  The stationary hand-over-heart stance we know of today had not yet been adopted.  The common practice instead was to begin the pledge hand-over-heart, moving the arm into an outstretched elevated position as the pledge was recited.  When civic organizations and parents complained that the salute was "too much like Hitler's," the state adopted a "stiff arm salute" which required that "the saluter keep the right hand raised with palm turned up."  Trying to distinguish the Nazi-fascist salute, here's how the National Headquarters of the United States Flag Association at the time described the difference:      

In the Pledge to the Flag the right arm is extended and raised, palm Upward, whereas the Nazis extend the arm practically straight to the front (the finger tips being about even with the eyes), palm Downward, and the Fascists do the same except they raise the arm slightly higher.  James A. Moss, The Flag of the United States: Its History and Symbolism 108 (1914). 

The images above can be accessed here and here.  The top left shows Native American children pledging the flag (whole different issue) in a palm down stance more akin to the Nazi salute.  The bottom right shows contemporary children making the "stiff arm salute," palm up, in a roll playing exercise at a pioneer school in Nebraska. 

-Kathleen A. Bergin

"Down And Out In Borough Park": The Kosher Soup Kitchen

The NY Times has a touching story about a rare kosher soup kitchen in Brooklyn.  The issue of finding acceptable food for religious poor folks isn't new or limited to Jews; New York Muslims face the same challenges.  It's certainly a lot more heart-warming than the xenophobic pig-soup kitchen the Times reported on a couple years ago.

Secret Student Code Busts Socratic Method?

 Well, this is my first post ever on a blog. Thank you to those at the Faculty Lounge for giving me a (temporary) platform. I hope you don’t regret it. As my first post, I thought I’d share something interesting that I heard on the running track at Temple – not exactly the faculty lounge, but close enough...

Apparently laptops are making the Socratic classroom more collaborative. One of my colleagues told me recently that when students are called on in class and don’t know the answer or haven’t read the case, they say “Let me check my notes” and this is code for other students to help them by emailing information via their laptops (apparently the medium of choice is GChat, a service of Google mail). I don’t teach by the Socratic method, certainly not by the old-fashioned “one person on the hot seat” method, and I wonder how those who do teach that way feel about this. Although I can see how this facilitates people not doing the work of the course, and it certainly is deceitful, on some level I am happy to see students helping each other as opposed to competing – collaboration is a useful lawyering skill.

 Also, I confess, I had a few professors back in the day who taught by the strict, old-fashioned Socratic method – “teaching” by humiliation – and this soured me on the whole technique. I didn’t learn effectively this way and I never saw the point, even -- especially -- after I began teaching. Yes, we professors know more than the students (no kidding, we’re lawyers! As one of my friends put it: it is like going all out to prove that you can beat a 2 year old at soccer). So, to the extent that this laptop loophole is making an end-run around the more draconian version of the Socratic method, I confess that part of me is saying ‘viva la revolucion.’

The Law VAP List: Visiting Professors 2008-09

Right now, our data is far more limited than for lateral visitors, but I'm pleased to present the first iteration of our list of law school visiting assistant professors for 2008-09.  Keep in mind that this list includes people who have never held a permanent law school teaching position.  At least one - Sasha Volokh - has already accepted such a position.  Please email additional information to danielmfiller@gmail.com.  I'd appreciate it if you could include not only candidate names, and host schools, but candidate JD and graduate degree information as well.

Perry	Behcky	Connecticut (08-09)
Asif	Efrat	Cornell (08-10)
H. Brian	Holland	Penn State/Dickinson
Andrew	Jurs	Wake Forest (08-09)
Ben	Leff	Harvard (08-10)
Amanda	Peters	South Texas (08-09)
Marc	Roark	Missouri-Columbia (08-09)
Colette	Routel	Michigan (08-09)
David	Rubenstein	Hofstra
Sasha	Volokh	Houston (08-09)
		(has accepted permanent appt at Emory)

Welcome Guest Blogger Kathy Stanchi

We're very pleased to welcome our newest guest blogger, Professor Kathy Stanchi from Temple University's Beasley School of Law.  Kathy has particular interests in law and feminism as well as issues in pedagogy, advocacy, and law school hierarchy.  Best of all, she finds everything in the world interesting.  (That is, except for all the boring stuff.  But nobody likes that, do they?)  Kathy graduated from the University of Pennsylvania and the Boston University School of Law, clerked for Judge Stewart Pollock on the New Jersey Supreme Court, and practiced with the white shoe firm, Debevoise & Plimpton, in Nueva York.   In 1993, she and I both fled the firm.  Her extensive list of publications is here.  Her favorite album is allegedly Beck's 1994 EP, Beercan. 

Instapundit, Amazon, And The Morality of Lesbians

OK, I'll admit it.  I was just visiting Amazon to look at their 50% off sale on cookware - after seeing a link at Instapundit.  And like any shopper, once I'd decided against the Calphalon wok, I wandered down some other aisles.  I looked at the Gold Box specials.  There I found, to my surprise, the Gold Box Forum.  Featured near the top of this discussion board was a string of posts titled "Is Being A Lesbian Morally Wrong?"  I know where I come out on this one.  NO.  Of course, many of the 300-odd replies don't share my view.

I don't have a problem with people arguing about sexual orientation (or basketball or hair color) in the privacy of their own prestigious discussion board.   But why is Amazon in the business of hosting this particular conversation?  Does Jeff Bezos think that this pleasant chat is going to put me in a shopping mood?   

Progress and Property: Landscape Art in Antebellum America

My time in Tuscaloosa is rapidly drawing to a close.  Yesterday I had the pleasure of attending graduation and on Thursday I'm going to give a lecture on the relationship between landscape art and property law in the years leading into Civil War at one of my favorite--and one of our country's finest--art museums, the Westervelt Warner Museum.  (The Westervelt Warner owns one of Hiram Powers' statute's The Greek Slave, which is under discussion over at Althouse's shop. The statue served for antebellum Americans as a reminder that Greek Christians could be put into slavery and that we should treat others as we would want to be treated.  In essence, it tried to put Americans into a mindset that would cause them to oppose slavery.  That trope has a distinguished lineage in antislavery advocacy.)

The talk centers around my favorite work of American art, Asher B. Durand's Progress (1853), which just so happens to be owned by the museum.  This will be a huge treat for me, to have the chance to talk about that most magical of paintings at its home.  And, in fact, this talk is part of welcoming it home from travels to the Brooklyn Museum of Art and then out to San Diego for a major exhibit on Durand.  (Alice Walton's  Kindred Spirits , which is a centerpiece of her art museum Crystal Bridges, was also a centerpiece of the show.)

I try to join two themes here--first, the centrality of property and particularly humans' footprints on the land, in antebellum landscape art; second, the ways that antebellum property law reflected and amplified those values.  I don't think either of those themes is controversial; however, I have not seen them put together.  The correlation between them is not perfect--a substantial part of landscape art reveals concern over increasing human intrusions on nature.  Just not Durand's Progress.  It’s a great canvass for seeing all sorts of images of what "progress" meant-–the shift from the native Americans over on the left (the state of nature), then moving across the canvass to the right, the telegraph wires, the steam boats, the canal, the peddler, the boy bringing the cattle to market, the church, the railroad roundhouse....

I've written about pieces of this talk in a bunch of places--years ago back at co-op, then at propertyprof (focusing on Hawaiian landscape art) and ratio juris, and earlier this year at legalhistoryblog.  So major chunks of this have already been "workshopped" on blogs already.  I'll be posting a paper about this by the end of the summer.  In the meantime...

Legal Services Outsourced To India

The Washington Post reports today about the outsourcing of legal services to attorneys in India.   This can't be unexpected news; costs are much lower in India.  And since much of the work product can be delivered instantly, via email, the industry seems reasonably well-suited to international outsourcing.

According to Russell Smith, whose legal outsourcing firm SDD Global Solutions apparently does some amount of Hollywood legal work, "my people in India can do everything from here, except sign the opinion letter and appear in an American court." Apparently the most fertile site of outsourcing - no shock - is the vast world of discovery and document review.  Why have fifty contract attorneys in a some high priced New York (or even Newark) office tower look for hot docs when attorneys in Hyderabad can do the same thing for less than half the price?

Attorneys are creatures of the guild, and many will probably respond: what about unauthorized practice issues?  I am certain that some state bars will make efforts to prohibit this outsourcing.  Still, it may be hard.  In many law offices, paralegals do these sorts of tasks - everything from discovery to basic drafting.  That's kosher because a lawyer supervises, and signs off on, the projects - as he or she does with outsourced work.  Any bar regulation clamping down on international outsourcing might therefore have signficant collateral effects on existing practice structures.  While large firm lawyers are the most likely victims of international outsourcing, the state bar rank and file - lawyers in small and midsize firms - may have less of a stake in this battle and might be more protective of their own cost-control schemes.  (In small firms, an experienced secretary often "practices" law.)

Will anything stop this practice?  I suspect that if there is a brake, it will be the market.  I imagine that first-rate quality control will require having supervising lawyers physically present at these international sites.  That is a cost - and not necessarily a simple problem if you're Cravath and want a Cravath-quality lawyer on site.  Then there is the reputational risk.  Big firm billing rates can only be supported by a guarantee of exceptional quality.  When I was clerking, I always had the sense that top firms were billing thousands of dollars to insure perfect footnotes (that virtually never changed the outcome of a case.)  The only reason for a client to pay this money is to create a near perfect assurance that it has obtained the best possible outcome in a matter.  But it's very hard to figure out if you've actually received this level of service.  Consequently, firms need to find signals to convince clients of their quality.   These signals range from office location to the hiring of Harvard Law graduates.   The mere act of international outsourcing may undermine client confidence.

At the end of the day, however, it seems clear that there is a market for these services.  In-house counsel will identify those matters that justify fully-domestic work and demand outsourcing of other projects.  In some cases, in-house counsel may retain firms in places like India to research and write to the her strategic preferences, and ultimately sign the papers herself.  If SDD Global Solutions can deliver high quality technical services, there are bound to be some clients who'd rather keep their money than deliver it to BigLaw.

Photo: the High Court of Hyderabad.

Bob Barr For President? Dems Cross Fingers

For months he's been tinkering with the idea, and now he may be ready to take the plunge.  Bob Barr, a former Congressman from Georgia, could end up as this year's Libertarian presidential candidate.  Wouldn't it be interesting if he brought back the 1988  Libertarian presidential nominee - Ron Paul, of course - as his running mate?

Barr has been a curious enough figure in politics over the years - beyond his cameo role in Borat.  He led the charge in the impeachment of Bill Clinton.  For years he was an ultra-conservative.  More recently he has become more clearly libertarian, going so far as to join both the Libertarian Party and the ACLU.  He has been particularly exercised about the extension of government power through the Patriot Act.

Obviously, Barr isn't going to win anything.  What makes Barr's candidacy interesting is the possibility that, if McCain will tacks too far to the center, some conservatives might abandon the Republicans.  It won't necessarily take a lot of votes to make a difference.

My view of the 2008 race is that one simply cannot reach conclusions about anything this early in the game.  But from the point of view of Democrats, a Barr candidacy only seems destined to help.

In Defense of Law School Publicity

It's common practice around the legal blogosphere to make fun of literature that law schools send around to promote their students, faculty, and alumni.   I actually enjoy reading the literature--it gives me a sense of what other people are doing; every once in a while I get some ideas from it.  And I think these publications can be helpful for getting the law schools' communities excited about what's happening as well.

But it's the University of Akron's most recent, impressive list of faculty publications that's warming my heart right now.  It cites my study in the University of Colorado Law Review last year on law review citations' emerging importance for law school rankings.  How's that for combining two things that legal academics care about?!  I highlighted the schools whose law reviews have been improving a bunch of late--including the University of Akron Law Review.  My hypothesis in the piece was that law reviews are an indicator of what's happening at a school and so good reviews are reflective of an intellectual ferment.   And law reviews that are improving maybe give us a particular idea of the schools on the move.

As long as I'm talking about Akron, I want to mention their fabulous conference on the new women's legal history.  Might even help us address the gender imbalance in legal history.

Now, this is the kind of promotional material I really like!   And I'm not just saying this because they cited me (though I'm certainly highlighting Akron because they cited me!)--I've been defending the promotional literature for a long time.

Alfred Brophy

In re Phyllis Schafly

Amidst all the discussion about Washington University in St. Louis awarding an honorary degree to Phyllis Schlafly, I think it's time to dust off a post from back in 2005 at co-op.  I wrote about a visit of Ms. Schlafly to the University of Alabama back in the spring of 2005:

It was the most entertaining evening I’ve spent in years, much better even than the O’Reilly Factor .  And I left with an "I Love Capitali$m" poster, which is one of my prized possessions.

Ms. Schlafly did what I take to be her usual stump speech-–opposing judicial activism and, of course, feminism. She was plugging her new book, The Supremacists (about left-wing judges). She had some amusing lines. Something along the lines of, “Feminists are pushing their way into the military. Forty-five percent of women can't throw a hand grenade far enough to keep from killing themselves. So I guess you can say that feminism leads to death. Ha, ha, ha.” I took the laughter to be a realization that her arguments in this case were laughable–a wonderful self-insight. I have a warm spot in my heart for people who don’t take themselves too seriously. It’s an appealing character trait, to be able to be not too serious. Wish I had more of it.

The highlight of the evening was the question and answer period. It was the usual free-for-all: questions from a women’s studies graduate student on one side and from someone who thought Ms. Schlafly was too soft on liberals (yes, that’s right!). Her face looked like she sort of couldn't believe what he was saying. Most of the rest of us couldn't, either. And then towards the end, there was a most illuminating interchange. A young woman in the audience said something along the lines of:

Ms. Schlafly, I think you’re an antique. You’re turning off a significant part of your conservative base. I am a young conservative woman. And I am in law school to be a good role model for my child and to provide for my family. Telling women not to work is alienating people who agree with a lot of conservative values.

Reminds me how successful the feminist agenda of the 1950s and 1960s has been. Now virtually all young women (or at least many young conservative women) aspire to professional careers.

But here’s the punch line that really cinches this story. I later learned that the law student was, a few years ago, Miss Mississippi. What a great debate, between two conservative women, one an icon of the 1950s and the other an icon of the 2000s. Fifty years from now, some American Studies scholar will be wishing that she had a tape recording of that evening–and particularly that exchange.

Alfred Brophy

Is Starbucks Seattle's Best Coffee?

I may be the last person to the party on this one, but until this very morning, I thought that Seattle's Best Coffee was a competitor of Starbucks.  It kinda made sense.  Starbucks has the Barnes and Noble Cafe account.  Borders has the Seattle's Best account.  Some airports have Starbucks.  Others have Seattle's Best.  And a few - like Hartsfield Jackson Airport in Atlanta - have both.  And at the supermarket, both brands appear to battle for shelf space - just as Duncan Hines and Betty Crocker go misto-a-misto with each other in the cake aisle.  It all looked like pretty normal competition to me, though Starbucks seemed to clearly have the lead.  Then this morning, as I was surfing the web in search of...well, I don't know what...I discovered this remarkable piece of news: Starbucks owns Seattle's Best Coffee.   

It's hardly the only company that owns major competitors: laundry titans Tide and Cheer are both produced by that Satan-lovin' brand, Proctor and Gamble, for example.  And I suppose that the two coffee titans do occupy different market spaces; the two bookstore chains may have similar cultural cache, but I'm guessing Starbucks was happy that Seattle's Best scored the Steak n Shake account.  Still, this not-so-news only heightens my affection for two wonderful small-time roasters that I've come to love over the years: California's amazing Graffeo and Philly's own La Colombe.

Truly Useful Law School Courses

As a faculty advisor, one of my jobs is to approve the courses my first-years plan to take next fall. Law students are fairly conservative and risk-averse in their choices, so usually I see the standard set of courses:  Evidence, Bus. Org., Crim Pro, Admin, and the like.  But the fabulous E. Noakes of McSweeney's has provided a list of *truly* useful courses that law schools should offer:

Classes My Top-Tier Law School Should Have Offered As Warnings About The Profession

Cutting and Pasting Legal Lingo

Explaining Business Associations to the People Who Are Running Them

4 A.M. Word Processing and the Law

Ethics of Conspicuous Consumption

Forwarding E-mails: Theory and Practice: Seminar

Arbitrary-Deadline Negotiation Strategies

Crying Quietly: Clinic

Jeans-Friday Advocacy Workshop

Cutting and Pasting II: Plural to Singular

************

I'd like to add a few of my own:

Document Production:  Theory and Practice

Windowless Document Warehouses--Practicum

and for the public-interest minded:

Finance and the Law:  When Salary Doesn't Even Cover Loan Repayment

Cross-posted at Prawfsblawg.

Coerced Symbolic Speech: Students Suspended for Failure to Stand During the Pledge of Allegiance

  A Minnesota public school has suspended several junior high school students for their failure to stand during a voluntary recitation of the Pledge of Allegiance.  Here is a news account.  Note that the students were not suspended for failing to recite the Pledge.  Forced speech is, of course, presumptively invalid and Barnette v. West Virginia Board of Education struck down a forced flag salute by public school students.  Here, the students were disciplined for their failure to stand while other students voluntarily recited the Pledge.  An ACLU spokesman, quoted in the linked article, asserts flatly that the suspension is unconstitutional.  But is it?  Is it a form of coerced symbolic expression?  Does standing silently while others recite the Pledge carry an intention of endorsing the Pledge, and would onlookers perceive it as such?  Alternatively, does the requirement that the student stand mutely prevent the student from whatever symbolic expression is inherent in sitting during the Pledge?  Again, what was intended and what would be perceived?  The mother of a suspended student quoted in the article says he did not mean to convey any message of unpatriotism.  So, does this raise any heightened level of scrutiny under free speech doctrine?  The issue is reminiscent of Lee v. Weisman, but Lee involved the establishment clause, not free speech, and psychological coercion was at the heart of the Court's Lee rationale.  Should the same principle apply here, in a purely free speech context?  So far, the Court has limited its forced speech rulings to cases of explicitly coerced speech.  Rumsfeld v. FAIR rejected the contention that equal treatment for military recruiters on law school campuses was a form of coerced expression.  There, the Court stated that if words are necessary to explain the symbolic expression, the conduct in question is not symbolic speech.  This case appears to be on the line.  Finally, given the fact that this occurs in a school context, are there legitimate pedagogical reasons to require everyone to stand for the Pledge, even if one doesn't say the words?  Perhaps toleration of sitters contributes to a climate of sullen disrespect that hinders school business.  It's impossible to know these important facts from the news account.  Thus, I don't agree with the ACLU spokesman that the suspension is so clearly unconstitutional, but I do think that it raises some serious issues of possible symbolic expression.

Must A Librarian Be...A Librarian?

Mike Madison has a very interesting post up about Harvard Law School's recent decision to hire Berkman Center for Internet and Society Executive Director John Palfrey as the director of the law library.  Palfrey, who has deep experience in information policy, lacks that one fundamental credential of (I suspect) every other law library director: a library degree. 

Perhaps this is no big deal.  There is no question that law libraries have changed over time.  They collect material, and serve patrons, differently than they did even a decade ago.  Maybe Harvard's director should be first and foremost a big picture guy.  And maybe Palfrey is fully equipped to deal with the traditional concerns of a library director - everything from understanding how professors consume information to a facility with deep technical decisions.  But I have to imagine that formal training in library science  has some signficant benefits that Palfrey might have missed as he noodled over the big information issues at the Berkman Center.  If Harvard is right that being a librarian isn't a core skill for a director, what are the broader implications?   Other law schools may soon contend that at core, running a library isn't about information - it's about managing people. By this metric, the ideal library director might be an MBA who loves computers and reads a lot.  At some point, I imagine the ABA may choose to weigh in. 

I feel darn sure of one thing: both Palfrey and that erudite MBA will be depending heavily on some folks in the library who do have a library degree.   Because while a library director may not need to be a librarian, my sense is that a librarian still needs to be...a librarian.

Wilkes University Names Prescott Dean of Planning Effort

Wilkes University has appointed Widener University Law Professor Loren D. Prescott Jr. dean for the Wilkes University Law School Planning Initiative.  Prescott will submit a final plans for the law school for the trustees to consider in April 2009.

Thanks to Ben Barros for this news. 

Alfred Brophy

Pollard Sacks on Intentional Sex Torts: Continuing the Discussion

I told you last week that we haven't heard this last of this.  Here's the latest roundup of the responses to Deana Pollard Sacks' article on "Intentional Sex Torts." 

First, the background.  The whole discussion began with Deana's post at flp last week.  (And remember what Deana's talking about is tort recovery not criminal liability--hence the name sex torts.  That distinction gets lost in a lot of the comments.)  That was picked up by Professor Marc J.  Randazza of Barry University's Law School at The Legal Satyricon, which led in turn to abovethelaw's discussion.  Lots and lots of comments at abovethelaw.

Then there's geeklawyer.  Yikes.  And two posts over at Simple Justice and here.  Bookworm takes it up here  and womensspace takes it up here.  Am I missing anything?  I want to talk a lot more about the substance of this shortly.

Update: A discussion board has now picked this up, too, and there's a brief note about it here.

Another update: Womensspace has extensive coverage and excerpts from the article  here.

Alfred Brophy

101 Classroom Uses for a Cell Phone

For the lover of useful lists, Tracy McGaugh's building a great one over at Millennial Law Prof:  101 Classroom Uses for a Cell Phone.  Link to MLP above or below to join the discussion.

Here's what Tracy has to say: 

Steve Demby gets us started with ten that he thought of off the top of his head, but I'm determined that we can come up with 92 more. There are both students and professors who read this blog, so what can you think of (that's constructive and serves some educational purpose) that you can do with a cellphone in a classroom?

Here are Steve Demby's 10:

1) Check the spelling/definition of a word
2) Research a topic
3) Look up reference images
4) Pull up maps (even with satellite imagery)
5) Document a science lab with built in digital camera/video
6) Fact check on the fly
7) Mail questions to the teacher that they might be embarrassed to ask
8) Classroom response system
9) Take quizzes
10) Record and/or listen to podcasts

So post away! If you're reading this post, add a comment with at least one (yet unnamed) way to use cell phones in the classroom. Let's assume that the phone has standard phone capabilities as well as text-messaging, pictures, mp3 sound, video, and Internet. If your idea requires some kind of add-on beyond that (like a stand-alone keyboard) be sure to note that. If you're reading this post on a blog other than Millennial Law Prof, be sure to click over to MLP to leave your idea.

My contribution: Phone the tech department to tell them your tech isn't working. Beats running up and down 5 flights of stairs. 

-Kathleen A. Bergin

Turkey: For the Greener Good

Its no secret that I love most things Turkish.  And that I'm a pretty committed environmentalist.  So a report this week from The Eurasia Daily Monitor caught my eye.  It talks about a series of free speech setbacks that are overshadowing some much needed reforms.  But its the last couple of paragraphs tucked in at the end that got me thinking. 

Judges in Turkey apparently have a great deal of discretion when determining sentences for minor crimes, and one judge is using that authority for the greener good.  According to the report, Tamer Demirsoy, a judge in the capital city of Ankara, has sentenced over 150 convicted defendants to plant a total of 20,000 trees.   "Global warming poses a serious threat to Turkey," he told the local periodical Radikal.  "The most serious effect is drought.  I am trying to use the authority granted me by law to contribute to expanding green areas."

Maybe the discretion given to Turkish judges is akin to our system of community service sentencing.  But from the article it sounds like the judge can actually order the defendant to a particular placement, unlike the US where defendants can choose among a list of pre-approved charitable organizations.  If the Turkish system works how I described, I'd like to know whether there are any controls on the judge's discretion.  Environmentalism may be sufficiently non-partisan in Turkey, but how about a drug rehab program?  An art museum that features contemporary nudes?  Such placements might not raise as many an eyebrow here as they would there, where they'd in fact be quite controversial.  But if the choice is between prison time, a fine or community service, for some defendants its really not a choice at all.  Another concern would arise if forced placements were made in exchange for the Turkish equivalent of a nolo contendre plea where there is no finding of guilt.

What are the chances we have a loyal reader who can offer insight into the Turkish sentencing system . . .

-Kathleen A. Bergin