The Faculty Lounge

Looking For Uncle Leo: The Film

My great-uncle Leo was deported to his death in Poland from Würzburg, Germany, on April 25, 1942.  

It turns out that the Nazis commissioned a film of the deportation.  The movie vanished after the war.  I am desperate to find it (if it still exists).  Crowd-sourcing and social media present a new and exciting way to try to locate historical materials like this.

I've created this little video asking for help.  It's in German, but if you hit the "cc" button you'll see captions in English.  If you know anyone in Germany -- or know anyone who knows anyone in Germany -- would you send this along and ask them to pass it along via Facebook or Twitter or whatever crazy medium the German kids are using these days? 

Thank you for helping.

History Office History

 

 

            Fellow UCLA History PhD and current JD student at Yale Law School, Twitter enthusiast Josh Stein, has recently posted a note over at the Legal History Blog, and the piece definitely merits attention here. Josh welcomed me to the department at UCLA when I got started as a student of Ruth Bloch and later Michael Meranze, so he will always have my personal gratitude and professional admiration, and that is despite the fact that we would spend the next few years arguing from very different intellectual backgrounds and concerns.

 

            In his article, Historians Before the Bench: Friends of the Court, Foes of Originalism, Josh critiques a tendency of historians writing amicus briefs in recent US Supreme Court Cases to accept the originalist and conservative premise of the normative weight of the past. As an alternative to the understandable desire to offer historical critique in the face of what many historians take to be dangerously reactionary judicial philosophy and politics, Josh outlines three interrelated approaches legal historians might take: destabilization, fidelity (something very close to constitutional redemption as outlined by Jack Balkin), and what historian Peter Hoffer calls a “special master approach,” or narrowly focused expert testimony on specific historical questions as opposed to broad, ideological advocacy.

 

            Josh takes the historical profession to speak with one voice and to share a consensus that its special expertise, or “mastery,” is in the art of historicizing, or destabilizing the only-apparently authoritative narratives in which scholars of other disciplines and the public continue to constitute themselves as jurists, philosophers, theorists, or citizens. If this is true, I think it is unfortunate. It seems to me that if Josh is right that we are in an “opportune” moment to rethink how historians interact with the court, it is equally an opportune moment to think what it means to be doing history in the first place. This project, it seems to me, would fruitfully start by extending the historical awareness of context, complexity, and plurality to the conditions of our own intellectual practice. Historians take it for granted that destabilization is an unmitigated good and that the authority of the discipline rests on precisely their special mastery and license to render the past complex and therefore only understandable and relatable with the help of professional historians.

 

            This mode of practice has come under tough (and indeed, historical) criticism recently from Christopher Tomlins and Kunal Parker. Despite these criticisms, I continue to identify with (among other things) a contextualist approach to legal and political thought, and I take the work of Pocock on Gibbon and history, of Tully and Brett on empire, and of Geuss on politics and philosophy to be evidence of the continued efficacy of that kind of work. But the promises of contextualism, broadly defined, rest on the willingness of historians to extend such awareness to themselves, and to accept the fact that there are multiple roads to the past and a plurality of ways of responding to the presence of the past in the present. The failure to attend to the conditions of intellectual practice on the part of historians is ironic, perhaps, but it is also deeply problematic. Historical practice that is defined by its practitioners as the sole domain of constituted professional expertise is one that is by definition and with increasing intensity not even remotely civic.

 

            Against the bureaucratic faith in the special knowledge-production of the expert and their office, I want to rescue a Jeffersonian and radical common-law awareness of use and transformation. A substantively democratic constitutionalism would require a faith not in the ultimate redemption of the text of the US Constitution itself so much as an appreciation for the potentially redemptive work of people and peoples working on the material of their civic inheritance. To participate in history is to make transformative use of the stuff of historical representation, and from this perspective, the task of the historian might be less to destabilize authoritative narratives than to render their constituent components open to thought and action, to consideration and to use. I take this to be roughly in the spirit of S. Levinson’s work and to be looking for a protestant reformation in jurisprudence and history both- one particularly oriented around recovering the priesthood of all believers, or the responsibility for legal and political judgment of all citizens. This is also basically, even if softly, Marxist- it is to insist that we attend to the at once subjective and objective quality of the sensuous, material, and revolutionary domain of practice.

 

“Facts are but the Play-things of lawyers,- Tops and Hoops, forever a-spin… Alas, the Historian may indulge no such idle Rotating, History is not Chronology, for that is left to lawyers- nor is it Remembrance, for Remembrance belongs to the People. History can as little pretend to the Veracity of the one, as claim the Power of the other, - her Practitioners, to survive, must soon learn the arts of the quidnunc, spy, and Taproom Wit,- that there may ever continue more than one life-line back into a Past we risk, each Day, losing our forebears in forever,- not a Chain of single Links, for one broken Link could lose us All,- rather, a great disorderly Tangle of Lines, long and short, weak and strong, vanishing into a the Mnemonick Deep, with only their Destination in common.”

 

- Thomas Pynchon, Mason and Dixon, p. 349

 

 

 

 

 

 

 

Kudos to This American Life

A few weeks ago I blogged here about a recent episode of This American Life, "Dr. Gilmer and Mr. Hyde," about the quest of one Dr. Gilmer (Benjamin) to understand why another, beloved Dr. Gilmer (Vince), had brutally murdered his own father after hearing voices that compelled him to do so. The episode ends (spoiler alert) with the revelation that Vince suffers from Huntington's, a rare, neurodegenerative disease that causes progressive physicial, cognitive, and psychological deterioration.

Listeners, it seemed to me, could naturally conclude from the episode that it was Vince's Huntington's that had caused him to murder his father. That might or might not be true in this particular case. Huntington's can cause behavioral and mood changes, including irritability, aggression and belligerence. It can also cause (less often) psychosis. But even if Huntington's caused Vince to murder his father, or somehow contributed to the murder, the extreme violence that Vince displayed — strangling his father, then sawing off his father's fingertips to preclude identification — is in no way typical of the Huntington's population as a whole. And so what most troubled me about the episode was its failure to note just how rare this kind of extreme violence is among those with Huntington's, just as it is very rare among human beings generally. And so I wrote to TAL, requesting a clarification.

I'm happy to report that the TAL producer for the episode, Sarah Koenig — who had not intended to suggest any causal link between Vince's murder of his father and his Huntington's, much less between murder and Huntington's more generally — has issued a clarification on the show's blog, and promises to make a similar clarification in the episode itself, should they ever re-air it. Kudos to TAL, and many thanks to Sarah for being incredibly gracious in our exchanges.

One clarification deserves another. In my earlier blog post, I also worried that some listeners might  conclude that Vince's father was similarly driven to commit horrific acts of sexual abuse on Vince and his sister because he, too, was (presumably) suffering from Huntington's (an autosomal dominant genetic disease). Although I think that a listener who didn't know better could reasonably conclude that Huntington's causes people to become sexual predators almost as easily as they could conclude from the episode that Huntington's causes people to become murderers, nothing in the episode suggests that Sarah, Benjamin Gilmer, or anyone else at TAL believe that Huntington's causes sexual abuse, or that they intended for listeners to reach that conclusion. I regret anything in my earlier post that suggested otherwise.

Again, I'm very grateful to Sarah and everyone else at TAL for hearing me (and other listeners) out and for agreeing to make the clarification — and just in time for HD Awareness Month!

Cost of a Legal Education — Accreditation Overhead

    There has been a lot of discussion recently, both in the Lounge and other less important places ☺, about the costs of legal education. Obviously, both market forces and the pursuit of a higher U.S. News ranking contribute significantly to raising the cost of providing a legal education. Likewise, qualifying for either ABA or AALS accreditation have significant costs whether in the form of needing significantly investments in faculty size and type, in the operation of multiple clinics, in expecting more from each faculty member than just teaching, or in the other expenses directly associated with delivering a legal education of the type mandated by the ABA and AALS. To date, however, a smaller, but still significant cost imposed on law schools has not been considered — the cost of complying with the ABA’s demands for data about each law school’s program. In other words, the cost of establishing to the satisfaction of the ABA that the school satisfies the ABA’s Standards is expensive.

    This is a picture of the statistical data we have provided to the ABA for our initial application and our limited site visit:




In case you cannot see the ruler clearly, this is 9½ inches of data. To a certain extent, if you measure the quantity of data in the inches of paper necessary to report it, you know that it is massive.

    Effectively, to generate this data, one full-time, mid-level administrative employee-equivalent has been needed in each of the last two years (and will be needed for the foreseeable future). In fact, this probably underestimates the amount of time needed to generate the data as the rest of us, from the Dean on down, have had to spend weeks worth of time on the project. You have to look up from the Dean’s Office, too, to capture the efforts of the various university-level administrators who were involved. If you put all of this time together, this has been the functional equivalent of dropping our enrollment by three or four students each year. Please understand that this is not a cost to run an accredited institution, it is merely the cost of trying to establish that you are running one.

    To focus on just one statistic, consider the way the ABA measures the bar passage rate of each law school. The goal is to determine exactly how many students both took and past the bar. Consequently, each school has to spend a lot of time and effort to track down how each student did. Of course, this is not a local matter as students take bar examinations throughout the country. Some jurisdictions make obtaining this data an easy process, but many do not. The school must follow up with the other jurisdictions or, worse, with the individual students. Of course a failure to track sufficient students has draconian effects as it becomes impossible to establish compliance with the standards.

    It does not have to be this way. For those of us who do empirical research about the law, we commonly build statistical models for what we are studying. My current research effort, for example, involves patent quality. For the vast majority of patents, there is no direct measurement of quality. Consequently, I will be looking at a variety of other factors that I hope to establish can successfully predicts quality. Bar passage can be handled the same way.

    While it might be nice to have a precise measurement of every student’s performance on the bar examination, we may be able to do as well by just measuring the domestic bar exam. You would think that if a school’s students do well on its home-state’s bar, they would do well elsewhere, too. If, for example, law schools that have an acceptable overall bar passage rate (however the ABA wishes to define this) consistently show a passage rate of X or more on the domestic bar, why not dramatically lower the cost of accreditation compliance by only requiring X to be reported?

    To be fair, I do not know that there is such a relationship, but this is, at a minimum, an easily testable hypothesis. If confirmed, it could dramatically lower the cost of establishing compliance as could other similar statistical measurements.

Boilerplate Symposium at ContractsProf Blog

ContractsProf Blog is hosting an online symposium on Peggy Radin’s new book, Boilerplate: The Fine Print, Vanishing Rights and the Rule of Law over the next two weeks.  You can read Jeremy Telman’s introduction of the first five reviewers here. 

I had a chance to read and comment on a draft chapter when Peggy came out here for a workshop some time back.  I am also participating in the symposium and will post a link here when my post(s) appear.  In the meantime, though, you should head over to the ContractsProf Blog to see the posts so far.

Female Institute Trivia

I wish I had the resources to do more with womens colleges in University, Court, and Slave.  I talk some about proslavery thought at womens colleges (and academies) -- through a moral philosophy treatise written by the president of the Tuscaloosa Female Seminary, a proslavery tract written by the head of a female seminary in Greensboro, Alabama, and the short stories written by a teacher in several female seminaries.  University, Court, and Slave relies heavily upon literary and graduation addresses and I use a few given at female institutes, though they're often more on topics like the utility of beauty than on more immediately political topics.  It won't be in this book, but I hope to deal more down the road with ideas and also demography of southern female institutes.  

This is a long way around to saying that I have a trivia question related to a female institute from the pre-War era.  Where is it?  This is a wind-up to a real doozie of a trivia question (or maybe it'll be a series of questions).

Caleb Smith's The Oracle and The Curse

I recently had the pleasure of reading Yale English Professor Caleb Smith's The Oracle and the Curse: A Poetics of Justice from the Revolution to the Civil War.  It's about the conflict between oracles (judges) and cursers (people on the outside of "the system" -- like antislavery advocates, especially people like Nat Turner and John Brown).  Thus this is an interpretation of American literature as it relates to the clash of visions of law and justice in the years leading into Civil War.  Cribbing now from Harvard University Press' website:

Condemned to hang after his raid on Harper’s Ferry, John Brown prophesied that the crimes of a slave-holding land would be purged away only with blood. A study of omens, maledictions, and inspired invocations, The Oracle and the Curse examines how utterances such as Brown’s shaped American literature between the Revolution and the Civil War.

In nineteenth-century criminal trials, judges played the role of law’s living oracles, but offenders were also given an opportunity to address the public. When the accused began to turn the tables on their judges, they did so not through rational arguments but by calling down a divine retribution. Widely circulated in newspapers and pamphlets, these curses appeared to channel an otherworldly power, condemning an unjust legal system and summoning readers to the side of righteousness.

Exploring the modes of address that communicated the authority of law and the dictates of conscience in antebellum America’s court of public opinion, Caleb Smith offers a new poetics of justice which assesses the nonrational influence that these printed confessions, trial reports, and martyr narratives exerted on their first audiences. Smith shows how writers portrayed struggles for justice as clashes between human law and higher authority, giving voice to a moral protest that transformed American literature.

I have some more thoughts on The Oracle and the Curse in the spring 2013 issue of the Civil War Book Review.  I note that Caleb Smith’s The Oracle and The Law speaks to huge issues, such how pre-Civil War American law gained and maintained legitimacy? How authority shifted from legal and religious elites to popular sovereignty from Revolution through Civil War? And how our country reconciled the higher law arguments of abolitionists with the principles of law and constitutionalism that so widely supported property rights in enslaved humans? It speaks to timeless questions of obedience to law, even as the law is unjust. And our nation continues to struggle with them, as our citizens turn sometimes to the streets and occasionally even to violence, as they challenge everything from environmental development to our wars abroad.  The rest of my review is available here.

Final Call for Nominations for Cromwell Article Prize

The deadline (May 31) for the William Nelson Cromwell Foundation's prize for an outstanding article published by an early career scholar is rapidly approaching.  By way of background, the William Nelson Cromwell Foundation has generously funded a prize of $2,500 for an excellent article in American legal history published by an early career scholar in 2012.  Articles published in 2012 in the field of American legal history, broadly conceived, will be considered.  There is a preference for articles in the colonial and early National periods.  Articles published in the Law and History Review are eligible for the Surrency Prize and will not be considered for the Cromwell Article Prize.

The Cromwell Foundation makes the final award, in consultation with a subcommittee from the American Society for Legal History.  This subcommittee invites nominations for the article prize; authors are invited to nominate themselves or others may nominate works meeting the criteria that they have read and enjoyed. Please send a brief letter of nomination, no longer than a page, along with an electronic or hard copy of the article, by May 31, 2013, to the subcommittee's chair, Alfred Brophy, University of North Carolina School of Law, Campus Box #3380, Chapel Hill, NC 27599-3380 or via email at abrophy@email.unc.edu. Other members of the Articles Subcomittee of the Cromwell Prizes Advisory Committee are Mary Sarah Bilder of Boston College, Dean Daniel W. Hamilton of the UNLV, and Kristin A. Olbertson of Alma College.

Last year's prize, awarded at the annual meeting of the American Society for Legal History in St. Louis, went to David Engstom's “The Lost Origins of American Fair Employment Law: Regulatory Choice and the Making of Modern Civil Rights, 1943-1972,” which appeared in volume 63 of the Stanford Law Review in 2011.  Cribbing now from the Cromwell Foundation's citation:

During deliberations Committee members praised Engstrom’s deep look at the strategies employed by various civil rights groups to craft fair employment law, along with his intensive archival work across a wide range of sources, to tell a new story about how civil rights emerged not just from statutes and from judicial interpretation, but from the administrative state as well. Recent monographs have begun to open up the story of civil rights in the post-War period by showing that civil rights action activism emerged in many places, not just on southern streets in the wake of Brown v. Board of Education, and not just in education and in public accommodations.  Engstrom, an assistant professor at Stanford Law School, extends that analysis to the employment setting.  In telling this new story, he extensively mined the federal archives. This is an important and neglected story that stretches across decades as our nation moved from the Second World War through the Civil Rights movement and then its ending. It is also an extraordinary work of research, which invites us to see how administrative law functions and is central to our legal history.

Further information on this and other awards and fellowships in legal history is available at the American Society for Legal History's webpage.

Online Symposium on the Law, Ethics & Science of Re-identification Demonstrations

Over the course of the last fifteen or so years, the belief that “de-identification” of personally identifiable information preserves the anonymity of those individuals has been repeatedly called up short by scholars and journalists. It would be difficult to overstate the importance, for privacy law and policy, of the early work of “re-identification scholars,” as I’ll call them. In the mid-1990s, the Massachusetts Group Insurance Commission (GIC) released data on individual hospital visits by state employees in order to aid important research. As Massachusetts Governor Bill Weld assured employees, their data had been “anonymized,” with all obvious identifiers, such as name, address, and Social Security number, removed. But Latanya Sweeney, then an MIT graduate student, wasn’t buying it. When, in 1996, Weld collapsed at a local event and was admitted to the hospital, she set out to show that she could re-identify his GIC entry. For twenty dollars, she purchased the full roll of Cambridge voter-registration records, and by linking the two data sets, which individually were innocuous enough, she was able to re-identify his GIC entry. As privacy law scholar Paul Ohm put it, “In a theatrical flourish, Dr. Sweeney sent the Governor’s health records (which included diagnoses and prescriptions) to his office.”

Sweeney's demonstration led to important changes in privacy law, especially under HIPAA. But that demonstration was just the beginning. In 2006, the New York Times was able to re-identify one individual (and only one individual)  in a publicly available research dataset of the three-month AOL search history of over 600,000 users. The Times demonstration led to a class-action lawsuit (which settled out of court), an FTC complaint, and soul-searching in Congress. That same year, Netflix began a three-year contest, offering a $1 million prize to whomever could most improve the algorithm by which the company predicts how much a particular user will enjoy a particular movie. To enable the contest, Netflix made publicly available a dataset of the movie ratings of 500,000 of its customers, whose names it replaced with numerical identifiers. In a 2008 paper, Arvind Narayanan, then a graduate student at UT-Austin, along with his advisor, showed that by linking the “anonymized” Netflix prize dataset to the Internet Movie Database (IMDb), in which viewers review movies, often under their own names, many Netflix users could be re-identified, revealing information that was suggestive of their political preferences and other potentially sensitive information. (Remarkably, notwithstanding the re-identification demonstration, after awarding the prize in 2009 to a team from AT&T, in 2010, Netflix announced plans for a second contest, which it cancelled only after tussling with a class-action lawsuit (again, settled out of court) and the FTC.) Earlier this year, Yaniv Erlich and colleagues, using a novel technique involving surnames and the Y chromosome, re-identified five men who had participated in the 1000 Genomes Project — an international consortium to place, in an open online database, the sequenced genomes of (as it turns out, 2500) “unidentified” people — who had also participated in a study of Mormon families in Utah.

Most recently, Sweeney and colleagues re-identified participants in Harvard’s Personal Genome Project (PGP), who are warned of this risk, using the same technique she used to re-identify Weld in 1997. As a scholar of research ethics and regulation — and also a PGP participant — this latest demonstration piqued my interest. Although much has been said about the appropriate legal and policy responses to these demonstrations (my own thoughts are here), there has been very little discussion about the legal and ethical aspects of the demonstrations themselves. As a modest step in filling that gap, I’m pleased to announce an online symposium, to take place the week of May 20^th, that will address both the scientific and policy value of these demonstrations and the legal and ethical issues they raise. I’ll cross-post my own contribution here, but the full symposium will be hosted over at Bill of Health. Participants fill diverse stakeholder roles (data holder, data provider — i.e., research participant, re-identification researcher, privacy scholar, research ethicist) and will, I expect, have a range of perspectives on these questions:

Misha Angrist

Madeleine Ball

Daniel Barth-Jones

Yaniv Erlich

Beau Gunderson

Stephen Wilson

Michelle Meyer

Arvind Narayanan

Paul Ohm

Latanya Sweeney

Jennifer Wagner

I hope readers will join us on May 20.

Richard Coulson (1942-2013)

I want to pass along the sad news that one of my mentors, Richard Coulson, passed away last week.  Richard, whose scholarship was centered around international law and legal history, was an emeritus faculty member at Oklahoma City University, where he had taught for decades.  Richard was a beloved figure among the students and faculty and taught me a great deal about law and teaching when I was on the OCU faculty in the 1990s.  

We also had a lot of fun together.  I remember in particular a trip we took back in 1996 to the American Society for Legal History, when it was meeting in Richmond.   We flew into the Baltimore airport (mostly we could get really cheap flights because of Southwest).  But we thought I'd make a virtue out of this, so we stopped in Fredericksburg and I think did a little driving around the Richmond battlefields.  Fun times for two people who were deeply interested in history and its relation to law and how history is presented to the public.

I have a lot more I want to say about Richard's role building the OCU law school and as an educator and colleague, but I wanted to pass this news along now.  And on a personal note, I know Richard was very, very proud of his son Doug's work on law, history, and rhetoric, which includes a terrific article in the Yale Journal of Law and Humanities in 2010, "Distorted Records in "Benito Cereno" and the Slave Rebellion Tradition."  Doug is starting this fall as an assistant professor at Carnegie Mellon Univeristy, which I know Richard was delighted about.   Here is Richard's obituary from the Edmund Sun.

ATL Law School Rankings, Criticism & Methodology

As most people know by now, Above the Law created its own Top 50 rankings here.  It engaged in self-reflection here and here.  And now its methodologist-in-chief has been interviewed at Prawfs.  Next thing you know, Bob Morse will be all over the Sunday morning shows.

John Trasviña Named Dean Of USF Law

The University of San Francisco School of Law named John Trasviña its new dean last week.   Trasviña, who holds a JD from Stanford, is currently the Assistant Secretary for Fair Housing and Opportunity in the U.S. Department of Housing and Urban Development.  He was previously President and General Counsel of MALDEF.  

Antebellum Courthouse Trivia

Very soon I'm going to have some trivia related to the Nat Turner rebellion (broadly construed).  But I thought that I'd start the summer off with a trivia question about an antebellum courthouse.

Good luck, this isn't the easiest in the world -- but it's a heck of lot easier than the next one I have lined up.

Rawls! The Musical!

The O'Reilly Theater at Keble College, Oxford recently played host to a new show: John Rawls's A Theory of Justice: The Musical!  It was billed as "an all-singing, all-dancing romp through 2,500 years of political philosophy."

Here's a trailer from the show:

A Theory of Justice: The Musical - trailer from Tom Edkins Films on Vimeo.

 

Here's the official description from Vimeo:

In order to draw inspiration for his magnum opus, John Rawls travels back through time to converse (in song) with a colourful cast of political philosophers, including Plato, Locke, Rousseau and Mill. But the journey is not as smooth as he hoped: for as he pursues his love interest, the beautiful student Fairness, through history, he must escape the evil designs of his libertarian arch-nemesis, Robert Nozick, and the objectivist seductress, Ayn Rand. Will Rawls achieve his goal of defining Justice as Fairness?

The world’s first feature-length musical about political philosophy showcases a script steeped in drama, humour and romance - with a musical score that covers everything from rap battles to power ballads.

Based on the ground-breaking philosophical book "A Theory of Justice" (1971), this exciting new musical was met with critical acclaim when it opened in Oxford in 2013. Philosopher Nigel Warburton called it "brilliant: hilarious witty and profound... I cried with laughter for most of two hours!"

A crisp student review of the show is here in Philosophy Now.  There are apparently plans to bring the show to the U.S., but those who don't want to wait can download the full production for $9.99 here.

Anyone working on Habermas: The Musical? Sunstein: The Musical?

Good Guys, Bad Guys, and Guns

After Newtown there was a lot of talk about how important it is for the "good guys" to have guns because the "bad guys" have guns.

Charles Ramsey, this intriguing and appealing fellow who rescued the three captive women in Cleveland, seems like the perfect illustration of the foolishness of that line of argument.

He strikes us as a "good guy" if there ever was one -- and just think how much more prepared he would have been to rescue the women from the "bad guy" captors if he'd had a gun! -- but now it turns out that in another facet of his life he's not unambiguously a "good guy," and in fact has been a violent "not-good-guy" in situations where guns often prove tragically lethal. 

Enough of the good guy/bad guy trope in the gun rights debate. It's just dumb. Good guys are bad guys and bad guys are good guys. All of us.

Great Gatsby and the 1920s version of Product Placement?

I mentioned yesterday the inept reference that Tom Buchanan made in The Great Gatsby to Lothrop Stoddard's The Rising Tide of Color -- which is really a scary book.  

Right now I want to focus on something else -- the publisher of Stoddard's book.  I've been wondering why Charles Scribner's published eugenics literature (in addition to Stoddard, they published Madison Grant's The Passing of the Great Race).  Perhaps they were publishing whatever they thought would sell?  Maybe there's something deeper here.  

But then I realized that Gatsby was also published by Scribner's!  So now I'm wondering if the reference to Stoddard's book (which Tom incorrectly referred to as written by Goddard, who was another of the writers on eugenics -- though his work was published by MacMillan) was really a product placement in the novel?  That is, was Fitzgerald writing an advertisement for his press' book into the novel?  I was talking with one of my students, Thomas Thurman, about this -- and he said, quite astutely, if Fiztgerald was serious about a product placement he would have given the author's correct name and the full title of the book.  Thomas might have added that he wouldn't have made Tom look like such a fool, too.  Though maybe this was Fitzgerald's effort to subtly influence readers?

Update:  I see that the Financial Times has the rundown on how the movie's pushing clothes and jewelry.  No word yet on whether The Rising Tide of Color appears in the movie.

Update 2: Holy Cow!  Later on in the novel, it turns out that Gatsby has the Stoddard Lectures, a series of books on travel by Lothrop Stoddard's father, John Stoddard.  (Never read, of course, because the pages were never cut.)  And guess what?  John Stoddard taught at Boston Latin School and you know what Lothrop's profession was?  Legal historian.  This deserves some more commentary down the road.

Property Law and American Empire

Michael Burger and Paul Frymer have a new paper up on ssrn, "Property Law and American Empire," which is about to appear in the University of Hawaii Law Review.  Cribbing now from their abstract:

Current scholarship by legal commentators and political scientists recognizes that the weapons of American empire have involved non-militaristic activities as much as militaristic ones. Such non-militaristic activities include the hegemonic influence of trade agreements, the imposition of legal and procedural norms, and the dissemination of ideological and cultural predispositions through corporations and diverse medias. In this paper, we examine an under-explored area on the “soft” belly of the American leviathan, focusing specifically on how property and intellectual property law have operated on physical and ideological frontiers to comprehend, participate in, and legitimate the expansion of American empire. We offer new accounts of two historical instances of empire-building: the acquisition and seizure of property from Native Americans in the early- and mid-19th century, and the expropriation of intellectual property rights to plant genetic resources from indigenous communities in the global South in the late 20th century. These two stories, taken together, offer unique insights into both the process and the substance of law’s operation on the frontier of empire. They illuminate how the authority of law has fused with private power and legal legitimacy to enable the nation to expand swiftly, energetically, and powerfully. These insights, in turn, lead toward the more general conclusion that the rhetoric of property has functioned to subjugate peoples and places, cultures and natures, to an imperial regime.

This is an exciting and obviously wide-ranging article, which a lot of property professors will enjoy reading -- it fits well with Jed Purdy's article from a while back that focused on Johnson v. M'Intosh and the law of imperialism.  

And because it's going to be in the Hawaii Law Review, this reminds me that when missionaries went to Hawaii in the 1820s they brought with them the market and property rights.  The missionaries were bringing western property law to Hawaii in the era when the Supreme Court was issuing Johnson v. M'Intosh (and the parallel opinion in The Antelope). Property law served as a tool of empire in Hawaii, just as did law generally.  Law, like the transatlantic ship, the printing press, and the gun, worked as a technology to expand the power and reach of the empire.

The image is of a sugar factory in Hawaii in the pre-Civil War period, which I think relates well how western technology appeared on the land in Hawaii.  And of course I always love talk of the use of landscape art to understand property law.

Reconsidering the Conventional Wisdom on the Legal Job Market - Part III

This is the third of three posts on the current state of the legal job market.  In the first post, I discussed the preliminary results of a study I did of employment of recent graduates from my law school and explained why nine-month job data does not tell the whole story on employment.  In the second post, I explained why I am skeptical of the idea that the current state of the legal job market is the result of structural change.  In this post, I discuss Bureau of Labor Statistics projections about the future of the legal job market.

The Bureau of Labor Statistics Projections. 

Recent projections by the Bureau of Labor Statistics have received a lot of attention in discussions of the legal job market.  For example, Eric Posner recently wrote on Slate that “the Bureau of Labor Statistics estimated that 218,800 new legal jobs would be created between 2010 and 2020.”  There is a significant mismatch between this number and the projected number of law graduates over the same period, and it is understandable why many people have raised concerns about them when talking about the future of law schools.

I think we need to be careful, however, in reading too much into these projections.  I have two specific concerns about the numbers.  Before I get to them, I want to note that the BLS is a remarkably user-friendly government agency.  Fearing a huge, impenetrable bureaucracy, I asked a research assistant to try to find me someone to talk with about the projections.  She came back ten minutes later saying that I could just call and they would connect me to the right department.  When I did call, a human being picked up the phone, and connected me to Michael Wolf, the Branch Chief of the National Employment Matrix, who was happy to talk to me about the statistics.  It was incredibly nice to not have to find my way through an automated phone maze to find someone to talk to.

Mr. Wolf explained to me that the job statistics are based on two surveys.  The first is the Occupational Employment Statistics survey.  This survey goes to employers throughout the economy (including government employers).  The responses are typically filled out by Human Resources people at each employer.  The second is the Current Population Survey, which is designed to help catch people who are self-employed.  For our purposes, the Current Population Survey should capture solo practitioners.  The data from these surveys are combined to form the base year data on employment – that is, a picture of employment in the current year.  Projections of future employment are then based on macroeconomic factors, tailored to each specific industry.  Estimates of job openings factor in both expected new jobs and expected retirements.

Hiring Announcement: Wake Forest Seeks Civ Pro VAP Apps

From our friends at Wake Forest comes this announcement:

Wake Forest University School of Law welcomes applications for a Visiting Assistant Professor (VAP) to teach Civil Procedure in the 2013-2014 academic year, and perhaps beyond.  Additional information is here.

The Great Gatsby and Anti-Feudalism in American Property Law

No sooner have I written about jurisprudence and Django than I see that everyone's talking about The Great Gatsby.  Perhaps it's time to revisit a property question from the book, which I posed in a short article on teaching servitudes in the St. Louis University Law Review back in 2002 :

The man who built Gatsby's house was rumored to have offered to pay the taxes of the surrounding houses for five years if they would thatch their roofs.  That would have made their property look like peasant cottages and his house, by comparison, like a manor house. The neighbors did not take him up on the offer, for “Americans, while willing, even eager, to be serfs, have always been obstinate about being peasantry.” And so, while we are deprived of an example of such a servitude, because of the independence of the neighbors, I wonder whether such a servitude would run with the land? There are affirmative promises going both ways: the neighbors agree to thatch their roofs and the owner of the “manor house” agrees to pay the taxes.

Now let's try a somewhat more outrageous example. Suppose Gatsby's predecessor did not want the continuing burden of paying taxes, so he offers to sell the property at a reduced rate up front and in return extracts a promise (an affirmative covenant) that whenever people appear on the property outside of the house they will wear peasant clothes. Does that affirmative covenant touch and concern the land? To make it look even more like a feudal incident, suppose they must appear on the first day of June and pay homage to the owner of the manor house? Such servitudes certainly affect people in their use of the property, but perhaps they provide an insufficient current benefit to landholders for us to say that the servitude touches and concerns the land.

Funny how references to servitudes keep coming up in motion pictures, isn't it?  The image is of Oheka Castle, which wikipedia informs me was a partial inspiration for Gatsby's house.  I can't quite make out any thatched roofs around the estate, so I'm not sure where that inspiration came from!  

Never can tell where you're going to hear talk about the anti-feudal impulse in American property law, can you?  And on that Stacey Gahagan and I hope to say something more soon.  And when I have some more time I want to talk about another feature of Gatsby -- Tom's inept reference to Lothrop Stoddard's The Rising Tide of Color, which is a book I've been reading of late for a paper that Elizabeth Troutman and I are writing on the eugenics movement in North Carolina.  Pretty scary stuff in that book.  

Meanwhile, I guess Gatsby is just further evidence that if you wait long enough scholarship will come into fashion.  I'm just waiting for a movie about the Tulsa race riot of 1921, which I'm sure is coming one of these years.  

Public Constitutionalism in the Antebellum Era and Gun Regulation

Robert Leider has a very exciting paper up on ssrn, "Our Non-Originalist Right to Bear Arms: How Public Opinion Has Shaped the Second Amendment."  Cribbing now from his abstract:

District of Columbia v. Heller was a landmark, if controversial, opinion. Discussion has centered on the merits of its self-described originalist approach. Supporters praise its efforts to return to a more originalist and textualist approach to constitutional questions, whereas critics challenge the accuracy of Heller’s historical claims and criticize its departure from precedent.

This paper challenges much of the conventional wisdom about Heller, its use of originalism, and its relationship to nineteenth and twentieth century case law. This article argues that, despite much of its rhetoric, Heller actually exemplified popular constitutionalism — not originalism — in the way it approached the most important practical question at issue in the case: determining the content of the right to bear arms. On that question, Heller — and not Miller — is largely consistent with the way, throughout most of American history, that both state and federal courts have adjudicated cases involving the right to bear arms. In particular, this article argues that the dominant approach followed by nineteenth-century courts was neither “originalist” nor “textualist” about the right to bear arms. These courts did not look to how James Madison viewed the right in 1789 or how Americans in 1791 commonly understood the Second Amendment. Instead, they attempted to find compromise positions on the scope of the right to bear arms to accommodate a population divided between those believing in the right and those seeking stronger restrictions on weapons. To do this, the nineteenth-century courts shifted their understanding of the purpose of the right to bear arms over time, which, in turn, enabled them to reach conclusions about the content of the right that reflected the contemporary popular understanding of the right — and of the right’s limits. In this revisionist account, Miller is the case that represented a break with the courts’ historical approach because it arguably allowed access to common military weapons — an approach that did not readily allow courts to adjust the Second Amendment right to new circumstances as these military weapons became increasingly destructive. These difficulties prompted subsequent courts to adopt the “collective rights” interpretation of Miller — an interpretation that was too rigidly restrictive, and therefore, also difficult to adjust to reflect popular understandings. The paper concludes that Heller reflects a new compromise: expanding the individual self-defense rationale while diminishing the Second Amendment’s military objectives. This new compromise recognizes an individual right to have self-defense weapons, while allowing greater control over military-style weapons — which aligns with how mainstream Americans today view the right. Although Heller radically reshaped the Second Amendment right to fit the twenty-first century popular understanding of the right, its methodological approach is quite consistent with how most courts have approached Second Amendment questions — an approach that sounds more in popular constitutionalism than originalism.

Law & No

It has been an extraordinary year here at Saint Louis University.  As has been widely reported by now, SLU’s president, Father Lawrence Biondi, announced his intention to resign Saturday evening, in a surprise announcement at a gala celebrating his 25^th anniversary as president of SLU.  In a park across from the arena where this gala was taking place, an ‘Alternative Gala’ was organized by critics of the university president.  Spirits were high at this Alternative Gala, but nobody there knew the results of a university Board of Trustees meeting that had taken place earlier that day, where Father Biondi’s fate was a central topic of discussion after nearly a year of numerous votes of ‘no confidence’—by both faculty and student governance bodies—against Father Biondi.  The body count had already been high this year at SLU—one law school dean, the university’s (chief) vice-president, the chair of this Jesuit university’s theology department, another law school dean, the chair of the university’s Board of Trustees—and everyone was waiting to see if the president himself would join the ranks of the university’s disappeared.  Everyone would soon find out that, indeed, Biondi himself would soon be gone.

In this last post of mine before I sign off from my guest stint at the Faculty Lounge, I want to discuss what we might beneficially take from this past year at SLU.  I have observed the events of this past year both as a member of SLU (I’m in my fifth year here, and I just earned tenure) and as a comparative legal scholar.  For a number of reasons, Saint Louis has always reminded me of another place where I have spent much time, namely Islamabad (Pakistan).  And SLU’s governance structure, as well as its upheaval this weekend, has reminded me of General Pervez Musharraf’s regime—and its demise—in Pakistan.

At both SLU and Pakistan, I have seen democratically-inclined individuals view their situation as hopeless.  At SLU, the word on the street (and in faculty meetings around the university) was that Biondi had long-since ‘captured’ the university’s Board of Trustees with his supporters and business partners; resistance was futile and professional and financial ruin would be visited upon anyone disagreeing with Biondi.  Famously as well, Biondi had taken on the Pope—successfully—in 1997, in an intra-Catholic dispute over the sale of SLU’s hospital to the Tenet group of hospitals.  In Pakistan, a common thought during the Musharraf regime was that Musharraf had deftly courted (and cornered) the United States, which was showering Pakistan with billions and billions of dollars in exchange for cooperating with the U.S.’s agenda in Afghanistan; again, the thought was that challenging the regime was futile and suicidal.

Reconsidering the Conventional Wisdom on the Legal Job Market - Part II

This is the second of three posts on the current state of the legal job market.  The first discussed the preliminary results of a study I did of employment of recent graduates from my law school and explained why nine-month job data does not tell the whole story on employment.  This post discusses the idea that the market for legal services is undergoing a profound structural change.  The next post will discuss the Bureau of Labor Statistics projections for lawyer employment.  [Update - the third post is here.]  The whole series is collected in this document.

The Structural Change Issue. 

Another piece of the current conventional wisdom is the argument, generally associated (at least in US law circles) with Bill Henderson, that the legal job market is undergoing profound structural change.  My reaction to this argument has taken an interesting trajectory.  I was initially deeply skeptical of the argument.  The more I thought about it, the more I started to think that there was something to the structural change idea.  My current thinking is that some structural change is occurring in the legal job market, but that this change has been gradually occurring for many years.  I therefore think that this structural change is something that legal educators should think deeply about, and I agree with some of what Professor Henderson has to say about the subject.  I am skeptical, however, that the structural change has much, if anything, to do with the current state of the legal job market.  I am also a bit skeptical of how deeply the structural change will penetrate into law practice.  Professor Henderson has written a lot on this subject that deserves a more thorough analysis than I can give it in this post.  For now, I want to focus on these last two points – whether structural change is responsible for the current state of the job market, and how deeply structural change will impact law practice.

The structural change argument has a few components to it, but for me the most interesting part of it is the claim that technology, specialization, and process engineering are making legal work increasingly standardized and systematized.  Professor Henderson, discussing the work of Richard Susskind, writes that “Susskind asserts that legal work is gradually migrating from bespoke (e.g., court room practice), to standardized (e.g., form documents for a merger), to systematized (e.g., a document-assembly system for estate planning), to packaged (e.g., a turn-key regulatory compliance program), to commoditized (e.g., any IT based legal product that is undifferentiated in a market with many competitors).”  (Blueprint for Change, at 479).  As legal practice becomes more routine and commoditized, compensation for lawyers will come under pressure.  The structure of legal services will change as well, with lawyers (or, more broadly, legal service providers) working for specialized firms that look more like service providers in other industries than contemporary law firms.

Although I think it has limits, I think it is true that at least some change of this kind is occurring in the legal industry.  I do not think, however, that it is particularly new.  One example of this kind of change discussed by Professor Henderson is the rise of firms that provide contract attorneys for discovery work.  My first big assignment as a law firm associate in 1997 was to supervise a major document review and coding projects (ah, the glories of Biglaw!).  At one point, I had 60 contract attorneys working for me. We were using technology to make the review process more efficient.  This technology has improved over time, but technological change has also created a dramatic increase in document review work.  Even in 1997, the increased use of e-mail was creating many more documents for review than had been created in the past when written communication was exclusively on paper.  In the document review world, technological change has probably created more work in the last 20 years (by exponentially increasing the number of documents to be reviewed) than it has eliminated (by automating parts of the process).  It is also worth noting that while certain aspects of document review can be performed by trained monkeys (and thus can be automated), other parts require the work of human beings exercising judgment.   More importantly to the subject of this particular post, I don’t see change in the document review world in the last few years that is different in kind than change that had occurred in the prior 15, making it unlikely that any changes in this area are the cause of the present relatively poor job market.

David Herring Named Dean Of New Mexico Law

Professor David Herring, from the University of Pittsburgh, has been named the new dean of the University of New Mexico law school.  Herring, who served as dean of Pitt from 1998 to 2005, holds a JD from Michigan.  As an interesting side note, Herring was a Bigelow Fellow was back in 1986-7.  I wonder how many other former fellows have become deans.