Harvard Law Professor Daniel Meltzer passed away from cancer this weekend. He was 63. Meltzer joined the Harvard faculty in 1982, playing several roles in the faculty and administration, and also served in the Obama administration. He had been scheduled to take over from Lance Liebman as the Director of the American Law Institute in 2014, but never was able to fully take on the job due his illness.
My review of Alice Goffman’s On The Run: Fugitive Life in an American City was posted today on The New Rambler Review (an online journal edited by Eric Posner, Adrian Vermeule, and Blakey Vermeule). As you will see, I am extremely critical of the book – especially on ethics issues – despite the raves from luminaries in the world of social science.
I have copied a few key paragraphs below, which will allow you to get an idea of the whole thing:
Alice Goffman’s widely acclaimed On the Run: Fugitive Life in an American City has drawn more positive attention than almost any sociology book in recent years. The success of the book led to a lecture tour of at least twenty sociology departments and conferences. Her TED talk, which was often interrupted by applause, has had nearly 700,000 views. A careful reading of On the Run, however, leaves me with vexing questions about the author’s accuracy and reliability. There are just too many incidents that strike me as unlikely to have occurred as she describes them. One must try to keep an open mind about such things – especially regarding someone as obviously brilliant and dedicated as Goffman – so readers may disagree with me about the extent of her embellishments. In any event, there is a bigger problem. As I will explain below, Goffman appears to have participated in a serious felony in the course of her field work – a circumstance that seems to have escaped the notice of her teachers, her mentors, her publishers, her admirers, and even her critics.
It's my great pleasure to announce that my friend and fellow property professor Ben Barros has just been named dean of the University of Toledo's law school. Ben is currently associate dean at Widener's Harrisburg campus, where he has taught for nearly a dozen years. Ben brings a host of experience in a lot of different settings to this position -- in addition to a clerkship with Judge Milton Pollack of the Southern District of New York and then seven years practice in New York with Debevoise & Plimpton and then Latham & Watkins, Ben has taught at Fordham and Catholic and he has been on the AALS' executive committee. His writing on property includes an edited volume on Hernando De Soto and Property in a Market Economy. (On a personal note I'd mention that volume has a couple of penetrating essays critiquing De Soto's legal history. The better of the two is by Greg Alexander.) Ben also has a new property casebook.
Congratulations, Ben, and to the University of Toledo!
You know what I haven't posted in a very long time? An entry on the early scholarship of the now-famous. Usually I'm in search of theses about socialism (or conservatism) by a politician or jurist. Sometimes, though, I'm looking for the early work of a television star (like Megyn Kelley or Zahi Hawass). But this time it's going to be about an author of a popular press book whom it now seems everyone is talking about: Wednesday Martin. Her book Primates of Fifth Avenue seems to be everyone. Check out this write-up, for instance, at the New York Post. That set me to wondering about her Ph.D. dissertation, written in Comparative Literature at Yale when she was going by "Wendy Martin." It is "Transference Occasions, 1880-1930: From Freud to the cultural field."
Cribbing now from her abstract:
This dissertation reexamines Freud's concept of "transference"--the dynamic of displacement, projection, and investment between analyst and patient--in relation to concurrent literary works and cultural developments. It suggests that in the historical period under consideration, a wide ranges of texts and discourses articulate a model of subjectivity which, like the one presumed by the early psychoanalytic concept of transference, is deeply relational. This "transferential self" is a self utterly contingent on--even indistinguishable from--others. It is also, I argue, a key and under-explored aspect of modernity, fueling the transition from literary realism to modernist style, and underpinning and linking arenas of early twentieth-century endeavor as various as cultural anthropology, psychoanalysis, and Hollywood stardom.
First considering transference in the clinical setting through a reading of Freud's Fragment of an Analysis of a Case of Hysteria, I then turn to the roughly contemporaneous articulation of precisely those intersubjective dynamics and models of identity which menaced Freud in novellas by James and Conrad. A chapter on The Aspern Papers and Daisy Miller uncovers the centrality of relational configurations of subjectivity and the type of power which collocate around and emerge from them. Such a phenomenon may account for the pervasive "ambiguity" of James's plots and, in rendering literary realism untenable, contribute to his modernist prose style as well. Turning to Conrad, I emphasize the transferential dynamics which underlie and are constructed by narrative transmission strategies and intercultural encounter in Heart of Darkness. Such preoccupations with intercultural relational identity, as well as explicit allusions to Conrad, I argue, structure anthropologist Bronislaw Malinowski's Diary, and the emerging discipline of anthropology more generally. Finally, I consider the relational identities of star and fan in the rise of Marlene Dietrich to international superstardom. In considering transference as a concept authored within the modernist cultural field rather than merely an event in the clinical setting, this dissertation seeks to show how cultural shifts and literary texts inform one another, and to suggest a new perspective on modernist "ambiguity," "indeterminacy," and subjectivity.
Reading that abstract makes me think that Yale's Comparative Literature Department is a long, long way from Park Avenue, intellectually and culturally. But then again ....
In a little noticed decision issued a couple of months ago, the First Circuit reinstated a bisexual plaintiff’s employment discrimination claims under the Maine Human Rights Act, reversing the district court’s dismissal on summary judgment. The decision is remarkable because, as I and Dr. Karen Yescavage discuss in our recent law review article, despite the fact that bisexuals experience significant levels of discrimination, they rarely sue. Even more concerning is the fact that, when they do sue, they almost never succeed. Indeed, the only employment discrimination case Dr. Yescavage and I found in which a bisexual plaintiff had ultimately succeeded on the merits was decided by a British court. To be sure, the First Circuit decision in Flood v. Bank of America Corp., 780 F.3d 1 (1st Cir. 2015), is not a final victory for Shelly Flood. Instead, it only means that she may present her evidence to a jury, but, given the dearth of case law involving bisexual plaintiffs, it is highly significant.
The evidence supporting Shelly Flood’s termination and harassment claims (both rooted in allegations of sexual orientation discrimination) appears fairly strong. Ms. Flood presented evidence to the effect that one of her supervisors (who was also her assigned mentor) began to treat her drastically differently upon learning that Ms. Flood was having a romantic relationship with a woman and that this supervisor enlisted other bank administrators to engage in similar treatment. The negative treatment Ms. Flood describes includes suddenly receiving poor performance evaluations, being subjected to retroactive changes in evaluations, and receiving “cold stares . . . and disparaging comments about [her] eating habits, dress, and hair style.” 780 F.3d at 13. According to Ms. Flood, this negative treatment eventually reached such an egregious level that she could no longer bring herself to go into work.
The First Circuit held that the district court had wrongly dismissed the discharge claim because it erroneously interpreted the claim as one of constructive discharge (rather than actual discharge) and that it had wrongly dismissed the harassment claim based on its mistaken conclusion that the harassment was not severe or pervasive. In response to the Bank’s argument that Ms. Flood’s claim failed as a matter of law because she was “not exposed to explicitly homophobic statements or derogatory remarks,” the First Circuit noted that many employers now “know better than to spew explicitly . . . homophobic remarks . . .” and that “the absence of such blatant vitriol does not doom a claim of discrimination.” Id. at 10-11.
All in all, the First Circuit’s analysis is well-reasoned and the result, especially with respect to the harassment claim, may seem unsurprising. But, as a precedent for bisexual plaintiffs bringing sexual orientation employment discrimination claims under state laws (which tend to be similar in structure to federal law), this case is huge news. To be sure, the case involved a fairly straightforward type of discrimination—homophobia. As Dr. Yescavage and I discuss, bisexuals appear to be subject to two primary forms of discrimination: homophobia and biphobia, the latter of which involves fear and discomfort specifically related to bisexuality. Biphobia may be particularly hard for courts to understand, as the limited case law suggests. See, e.g., Apilado v. North Am. Gay Ameteur Athletic Alliance, 2011 WL 5563206, at *1–3 (W.D. Wash. Nov. 10, 2011). However, the significance of Flood should not be underestimated. For now, it stands as the strongest precedent available for bisexual victims of employment discrimination in the United States.
Union Soldiers Cemetery, "Martyrs of the Race Course", Charleston, S.C.
Despite the “sales events” and “blow outs”, Memorial Day still holds a special place as an American holiday. My sense is that it remains a day when many people take time to remember and reflect on the sacrifices of the more than one million soldiers who have died in wars for the United States. For those who have lost loved ones recently, it is especially strong and emotional. But for everyone it is a day of collective memory, and its solemn nature facilitates reflection in a way that is harder on other holidays like the Fourth of July.
The juxtaposition of grief and celebration, of graves and picnics, may seem hard to comprehend. I find it helps balance these to think about what the historian David Blight has identified as the first Memorial Day. On May 1, 1865, amid the ruins of Charleston, South Carolina, several thousand blacks–most formerly enslaved—held a memorial for the Union dead. Here is Blight’s description from his New York Times op-ed published a few years ago:
This announcement is possible as the result of a continued and additional cost-cutting initiative and the dedicated support of members of the Charleston school community. The school’s landlords are cooperating with the school in efforts to consolidate facilities. Also the school’s year-long effort to reduce the size of the faculty and staff to a level consistent with the reduced enrollment will continue and begin to have a budgetary impact in September.
I'm not surprised that Charleston's owners have decided to reduce costs and continue operation.
One of the advantages of the ongoing law school crisis is that student body sizes have decreased at many if not most U.S. law schools. This is advantageous for students’ job prospects (as difficult as they continue to be) and, in some respects, for their legal education as well. When I first started teaching back in 2008, it was not entirely unusual (or usual) for my colleagues at SLU and elsewhere to be teaching lecture classes of 100+ students. There are cost efficiencies to such classes, but I don’t imagine there are many people who would enthusiastically return to those days.
Yet, I wonder if we are starting to see the problems of ‘too smallness’ at U.S. law schools. I’m not talking about seminars and other writing intensive courses, where smallness is almost always a virtue for everyone involved (putting aside bean-counting administrators), but other aspects of the law school experience—including the faculty experience. As I see it, the following three pedagogical and cultural issues can arise in a law school that is ‘too small’—both with respects to student body numbers and law faculty numbers.
1) Diversity in the curriculum. There are many ways to approach a body of law, and students benefit from diverse perspectives. As a student, you wouldn’t want to learn all of your international law from one perspective, or all of your employment law or intellectual property either. Yet, with law schools cutting back on faculty size, it’s entirely possible that a previously robust curriculum in an area of law not only starts to get whittled away, but also that there are fewer faculty to teach whatever remains.
2) Diversity in the student body. When I went to law school, my school had—at that time—a small student body (about 180 students/class). I was one of a few LGBTQ folk in the school. At that time, gay marriage wasn’t really discussed, and I can only imagine how difficult it can be these days to be ‘the only gay in the village’ when same-sex marriage comes up in constitutional law, and then family law, and then tax law, etc., etc. Is one expected to speak up for the clan in every class? Similar issues arise for students who belong to racial, religious, and other minorities, as well as students with visible disabilities.
3) Faculty governance. There are many signs that the law school crisis is creating governance problems in U.S. law schools. The Charleston School of Law implosion is rich in this respect, but so is the rise of the Quasi-Permanent Interim Dean, or the number of dean searches which result in an internal dean candidate being ‘selected.’ With faculty sizes decreasing, one can only wonder whether existing fault lines in faculties will get exacerbated as law schools become ‘less institutional’ and ‘more personal.’ In short, when votes on law school policy routinely become tests of friendship (or clan loyalty), something in the governance experience has changed.
With law school graduation season winding down and bar review about to start up, it seemed an appropriate time to think a bit about the making of lawyers.
Recently I was sent an unpublished autobiography of Volney Howard, who practiced law out of Virginia beginning in 1878 until near his death in the 1930s. His path to the bar was sufficiently typical of his times – yet sufficiently different from today’s model – that I thought it was worth sharing.
Howard was born in rural southside Virginia in the years before the Civil War.
His early education was, at best, scattered and scanty.
“When the war ended with Gen Rob’t E. Lee’s surrender on April 5, 1865, I was 11 years old. I had never been to school of any sort.
From an email message that I received earlier today:
The Executive Committee of the AALS Labor Relations and Employment Law Section is seeking abstracts for papers to be presented at the 2016 Annual Meeting in New York, NY. The section program is entitled: Local Laboratories of Workplace Regulation.
This program will focus on local governments as sources of labor and employment regulation. In recent years, local governments across the United States have enacted labor protections, including mandatory paid leave, a higher minimum wage, and wage theft protections. In response, several state legislatures have passed laws designed to preempt such local regulation. May a local government, “if its citizens choose, serve as a laboratory” to try experiments in workplace regulation “without risk to the rest of the country?” For example, local “right-to-work” laws have been adopted in a dozen Kentucky counties, with similar efforts underway in Illinois. Are these local laws permitted by the National Labor Relations Act? Are they good policy in any event? This program will cover these and other issues raised by the rise of local workplace regulation.
A panel of leading scholars already committed to present will provide a multidisciplinary perspective on these questions. We are seeking one additional speaker who will present on a relevant topic, and we particularly encourage new voices to submit a paper abstract.
The Labor Relations and Employment Law Section program will take place on Friday, January 8, 2016 from 10:30am to 12:15pm. This program is co-sponsored by the Section on State and Local Government.
Please submit an abstract of no more than 400 words and a resume to Section Chair Jason Bent at firstname.lastname@example.org, by August 15, 2015.
From an email message that I received earlier today:
The 2016 AALS Panel of the Section on Sexual Orientation and Gender Identity Issues (SOGII) will be "What's Next For the LGBT Movement after the Marriage Cases: Defects in Anti-Discrimination Laws and Religious Freedom Challenges." One speaker on this panel will be selected by a subcommittee of the SOGII Executive Committee. If you are interested in presenting on this panel, please submit a one page abstract describing your presentation to Jason Palmer at email@example.com . The deadline for submission is June 5, 2015. I will respond that I have received your abstract within three days of receipt. If you do not receive an email confirmation from me within three days of submitting an abstract, please contact me.
Jason Palmer (Chair, Section on Sexual Orientation and Gender Identity Issues)
Your colleagues at Houston and SMU invite you to join us for the first annual Texas Legal Scholars Workshop, to be held on August 28-29, 2015, at the University of Houston Law Center. The idea is to provide an intimate setting for early-career scholars (those with less than 10 years in a full-time faculty position) to receive feedback on an idea, work-in-progress, or a polished draft. We welcome legal scholars from all disciplines.
Each author will present a 5-10 minute synopsis of his or her paper, followed by 15-20 minutes of comments by a primary commenter, followed by a less structured discussion with other attendees.
This workshop will give participants the chance to meet other early-career scholars in Texas, share feedback on research, and enjoy a few social events. There is no registration fee. Attendees are responsible for their own hotel and travel expenses, but breakfast and lunches will be paid for by the University of Houston Law Center.
Who: Scholars with less than 10 years in a full-time law faculty position (including tenure-track, non-tenure-track, clinical, and legal writing positions) at a Texas law school.
When: The workshop will be on Friday August 28th & Saturday August 29th, 2015. The Friday session will run from approximately 1:00 pm – 6:00 pm, and the Saturday session will run from approximately 9:00 am – 5:00 pm. (These times may be adjusted slightly depending upon the number of attendees.)
The deadline for registering is Monday, June 1st. Please register at http://law.uh.edu/texaslegalscholarsworkshop/. When registering, please submit your written idea, abstract, work-in-progress, or polished draft. Updated drafts may be posted at the same web address as your paper progresses.
Each attendee is also expected to serve as the primary commenter on at least one paper. A sign-up form will be distributed once we have a list of attendees.
Format: The author will present a 5-10 minute synopsis of his or her paper, identifying specific areas for feedback. Then, a primary commenter will speak for another 15-20 minutes. After that, other attendees may take turns commenting. Each session will last no more than 60 minutes.
Larry Cunningham of George Washington Law School is preparing the second edition of Contracts in the Real World.The book is outstanding and a great idea -- and I imagine it should be replicated for a bunch of the courses in the curriculum. I'm thinking wills and trusts in the real world would be a big hit!
This article builds on, but goes well beyond, my prior work on the Facebook experiment in Wired (mostly a wonky regulatory explainer of the Common Rule and OHRP engagement guidance as applied to the Facebook-Cornell experiment, albeit with hints of things to come in later work) and Nature (a brief mostly-defense of the ethics of the experiment co-authored with 5 ethicists and signed by an additional 28, which was necessarily limited in breadth and depth by both space constraints and the need to achieve overlapping consensus).
Although I once again turn to the Facebook experiment as a case study (and also to new discussions of the OkCupid matching algorithm experiment and of 401(k) experiments), the new article aims at answering a much broader question than whether any particular experiment was legal or ethical. Here is how the abstract begins:
“Practitioners”—whether business managers, lawmakers, clinicians, or other actors—are constantly innovating, in the broad sense of introducing new products, services, policies, or practices. In some cases (e.g., new drugs and medical devices), we’ve decided that the risks of such innovations require that they be carefully introduced into small populations, and their safety and efficacy measured, before they’re introduced into the general population. But for the vast majority of innovations, ex ante regulation requiring evidence of safety and efficacy neither does—nor feasibly could—exist. In these cases, how should practitioners responsibly innovate?
My short answer to this question is that responsible innovators should inculcate a culture of continuous testing of their products, services, policies, and practices, and that it is a kind of moral-cognitive mistake (which I dub the "A/B illusion") for the rest of us to respond to these laudable (and sometimes morally obligatory) experimental efforts by viewing it as more morally suspicious for innovators to randomize users to one of two (or more) conditions than to simply roll out one of those conditions, untested, for everybody. The long answer, of course, is in the article. (The full abstract, incidentally, explains the relevance of the image that accompanies this post.)
Thanks to Paul Ohm and conference co-sponsor Ryan Calo for inviting me to participate, to the editors of the Colorado Technology Law Journal, and to James Grimmelmann for being a worthy interlocutor over the past almost-year and for generously unfailingly tweeting my work on Facebook despite our sometimes divergent perspectives. James's contribution to the symposium issue is here; I don't know how many other conference participants chose to write, but issue 13.2 will appear fully online here at some point.
If you would rather hear, than read, me drone on about the Facebook and OkCupid experiments (and some other recent digital research, including Apple's ResearchKit and the University of Michigan's Facebook app-based GWAS, "Genes for Good," as well as learning healthcare systems and the future of human subjects research) you may do so by listening to episode 9 of Nic Terry's and Frank Pasquale terrific new weekly podcast, This Week in Health Law.