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This week we learned that Oscar winning best actress, Marion Cotillard, thinks that the World Trade Center may have been taken down by Americans seeking to avoid the high costs of building renovation. Oh, and that maybe people never actually landed on the moon. It's hard being famous, no doubt about it, but this nice YouTube video shows that Marion wasn't the first person to seriously question this whole "man on the moon" story.
I'm surprised that there isn't greater coverage of the revelation in Thursday's USA Today that:
U.S. postal authorities have approved more than 10,000 law enforcement requests to record names, addresses and other information from the outside of letters and packages of suspected criminals every year since 1998....In 2004, 2005 and 2006, the most recent year provided, officials granted at least 99.5% of requests, according to partial responses to inquiries filed by USA TODAY under the Freedom of Information Act.
The numbers are fresh, but I suppose the issue itself is old news. On one hand, I find it very disconcerting that the recording of such information requires no warrant - and that George Bush takes the position that no warrant is required even to open mail. (I'm also always a bit taken aback when I find Bob Barr in my foxhole.) On the other hand, this seems to be one more piece of evidence that we are quickly morphing into a surveillance society. Perhaps it's inevitable given modern technology's remarkable data recording, retrieval, and mangement capacity. You can't give the FBI new toys expect it to leave them in their boxes!
In any case, it does appear that there might be a market for "social activist" communication services: package delivery companies and telecom providers which, for a small additional charge, demand a warrant before releasing information. A new niche for Working Assets?
The California Court of Appeal has ruled that the portions of the California Education Code that require children to be educated in either a public or private school, or instructed by a tutor possessing state-certified teaching credentials do not violate the constitutional liberty interest of parents to rear their children. A 1950s California Supreme Court decision had upheld the validity of the statutory requirement in a different context, and that opinion was cited approvingly and extensively by the Court of Appeal. Pierce v. Society of Sisters does not apply, said the court, because Pierce, in dicta, expressed the view that a state had valid authority to compel children to be educated in some school. But do states have that authority?
Yoder struck down Wisconsin's compulsory education statute as applied to the Amish, and it would seem that many home schoolers have deeply rooted religious objections to the secular indoctrination that characterizes public schools, and may not be able to afford private schools. At least after Employment Division v. Smith such parents might well have a "hybrid" claim -- one that joins the liberty interest in rearing one's child to a free exercise claim. Smith, of course, left Yoder untouched.
Even if a parent lacks religious conviction, the question of the proper level of scrutiny remains. The Pierce dicta may only suggest that Court's view that a compulsory school requirement would survive strict scrutiny. But would it? Does any state have a compelling interest in requiring that home schoolers hire a tutor with teaching credentials? Given the poor quality of a lot of instruction inflicted by people with those credentials, one is entitled to wonder. And even if this constitutes a compelling interest of the state, surely there are less restictive alternatives available to ensure that the cognitive development of home schooled children is on a par with that of children in the public or private system. Standardized testing, anyone? Given the appalling levels of achievement and knowledge of the products of the conventional system this should not be difficult. (The first link in the preceding sentence illustrates the abysmal performance of the Califorina educational system; the second reveals the appalling lack of basic knowledge possessed by 17 year old kids. Examples: less than 50% knew the Civil War occurred between 1850 and 1890; only 50% had any idea what the Federalist Papers were, a third had no idea that free speech was a Bill of Rights guarantee.)
A spokesman for the teachers' union says he's happy with the ruling. No doubt. Does he know when the Civil War occurred?
Sex offender community notification laws - sometimes known as Megan's Laws - have been a popular way for legislators to establish their anti-crime bona fides. We've known that these laws have a disparate impact on people of color. To date, though, there has been little data on their efficacy. Legislators and activists argued that these laws would help prevent recividism - both because it would scare offenders and empower potential victims and families to protect themselves.
Prescott and Rockoff have a new paper up on SSRN which presents an interesting take on this issue of effectiveness. This, from their conclusion:
We also find evidence that notification laws reduce crime, but do so by deterring potential criminals, not necessarily recidivists. In fact, our results suggest that registered offenders might be more likely to commit crime in a state that imposes a set of notification requirements, perhaps because of heavy social and financial costs associated with the public release of their information.
In many ways, these results make sense. To the degree that individual offenders have control over their actions, notification functions as a deterring punishment (notwithstanding the fact that the Supreme Court has happily embraced the fiction that Megan's Law isn't punishment at all). To the degree that the an individual's conduct really is beyond rational control, offenders will reoffend notwithstanding the existence of registration and notification laws. (It remains possible that notification empowers potential victims - that is a separate and complicated issue.)
We do need more research on the effectiveness of these laws. To be candid, though, I doubt such data will have much effect on the politics of community notification. These laws are first and foremost politicals tools for particular politicians and interest groups; secondarily, they are tools of retributive punishment against convicted offenders. Even if they are utterly ineffective, and increase crime overall, Megan's Laws will maintain powerful support in our legislatures.
Hat tip: Doug Berman.
Unlike the rest of the academic world, legal scholarship is
largely published by students. Those 2Ls and 3Ls we teach in our classes are
the editors of our articles, the basis of our promotions, and the gatekeepers
of placement. Students, as are
laypersons, can be very impressed by name recognition, and so are faculty. Prolific writers at the top of their field
publish in well-regarded journals and consistently place their articles in top
law reviews. A similar pattern happens for faculty, of whatever rank, at highly
regarded law schools. Professors at Top
20 law schools publish in Top 20 journals.
Comments, testimonies, and discussion are encouraged.
Where's the Carter Center when you need them?
For anyone interested in a follow up to my last post anticipating Tuesday's Texas caucus, here's a thumbnail sketch of how it went down:
1. No-one knew the rules. We were first told by someone who seemed to have authority (we weren't sure who they were exactly) that doors would shut once caucusing began, and no-one could leave until the night was over. Of course dozens of voters immediately bolted for the door until a woman from the Clinton campaign told us that was incorrect, we could leave and come back. Caucus organizers asked us to "be patient while [they] figure out the rule." The problem: No-one had a copy of the caucus rules, save for one savvy lawyer who showed up as a citizen, not as a caucus organizer. She had the printed rules.
2. Towing cars. About 2 hours in, a police officer went on stage to announce they were about to start towing cars. Dozens more bolted for the door - voters who showed up at 7:15 ready to caucus, not knowing that the streets were unavailable for parking. Some came back, but then were told by one presumptive organizer that they couldn't vote because they left the room, but by another that they could because they "signed-in" at 7:15. But no-one "signed-in" at 7:15. You just showed up. We're we supposed to sign in? See problem #1.
3. Caucus Rosters: There were not enough voting rosters to sign. I saw one, on a clip board being passed around to voters in the auditorium seating areas. It had an official control number, bolded in red, which I assume was used to keep track of the number of rosters distributed. That is, if 10 rosters are distributed, I assume you want 10 rosters back. You can't tally the vote if you've only got 8 because that means 2 are still floating around. Yes, I said floating around. We ran out of rosters, so an Obama organizer pulled out a yellow legal pad, drew a series of improvised columns and rows, and told us to vote on that. "Yellow legal pad", I asked. No control number? How many of these are being distributed? How many would they get back? Are the Obama people supposed to be collecting signatures? The Clinton people were collecting votes in the precinct seated next to us. Doesn't seem right . . but . . . ok . . . I guess. Is that right?
3. Proof of Primary Participation. We were first told we needed to present our voter registration card to caucus. Then we were told to present our receipt from voting in the primary. Then we were told that if we didn't have either of those we couldn't vote. But wait, the Clinton woman told us we could vote. That they'd asterisk our name and check it against the primary voter list. Is that right? More people left. Did they even have a primary voter list?
4. Allocating delegates. Fifteen delegates were allocated to precinct 189, my precinct in Oak Forest. Delegates are allocated proportionally according to the "votes" that are "tallied" for each candidate. But there was a problem with the allocation because the precinct chair kept coming up with 1 delegate for Clinton and 1 for Obama, after apparently dividing the number of "voters" by the number of "votes," and doing that for each candidate. I'm no math whiz, but X divided by X is 1 no matter how many candidates are running. Someone apparently stepped in to explain the concept of proportional delegation because at the end of the night we were told that Clinton received 9 and Obama received 6 delegates. Who knows.
I asked my Con Law students on Wednesday to report their experiences and they all had similar tales to tell. One of my students was even elected a delegate chair because, as he put it, "I guess everyone thought I was qualified because I'm in law school." They didn't have enough voting rosters either, so he pulled out his draft legal research and writing brief, and created a roster on the back of the pages. Good effort, friend. Its not your fault.
Sometimes we laugh instead of cry in the midst of chaos and uncertainty, and there were moments of spontaneous laughter at the chaos that was the caucus on Tuesday night. And I suppose on one level the absurdity would still be funny, that is, if we weren't TRYING TO ELECT A PRESIDENT!!
-Kathleen A. Bergin
Apparently there is a national movement supporting the rights of students to pack heat on college campuses. (It's called SCCC - Students for Concealed Carry on Campus.) Villanova law students are at the vanguard of this trend, according to news accounts. I fancy myself a Second Amendment moderate - I believe in a well-regulated right to bear arms - but I'm not at all excited about having armed students in class. For one thing, it changes the dynamic of a classroom when any odd turn during Property immediately creates the risk of armed conflict. And the possibility that students might be packing also puts a crimp in certain interesting classroom techniques - such as the famous surprise interloper who makes a dramatic entry (and departure) at the beginning of a criminal procedure class on eyewitness identification. (I've avoided these techniques ever since I discovered several years ago that, notwithstanding campus rules, some students already do carry in class.)
Frankly, I'm not convinced that a well armed student body will make us safe from incidents like Virginia Tech or Northern Illinois. It's not like those shooters are rational actors open to deterrence. And I'm doubtful that having a flock of fellow students returning fire would be a net benefit. It's one thing to arm commercial pilots. Many of those folks have serious military training and pilots are uniquely exposed to risk. If we take seriously the right of students to bear arms in school, I know I'll worry that my classes are filled with weapons - but not necessarily people with the skills and judgment to use them appropriately.
Update: The 2009 US News law school rankings have been leaked prematurely. For more information, visit here.
Whatever you think of the actual rankings - and people have certainly opined on this issue - U.S. News has created a property that has a signficant impact on law school admissions - on both the school and candidate sides. To a large degree, the effects are related to the ordinal ranking of schools which both obscures important distinctions between law schools and overinvests particular features with significance. It's also true, though, that the format of the rankings makes it simple to compare law school raw data - like bar pass rates, LSAT's, and job placement - that rational applicants might consider in making matriculation decisions. Rather than being directed to schools by region, readers are directed to schools by ranking cluster. And web users of the U.S. News rankings can reorganize the data however they please.
Whatever.
According to an email I received today, the new U.S. News survey will be released on the web on March 28. We've already seen lists that purport to be early snapshots of the 2009 rankings, and it's possible that the hard copy of the report will hit the stores early. One thing is for sure: Drexel will enjoy another year of flying below the radar (albeit this time with provisional accreditation.) Now that's freedom!
Image from SatireWire.
During the past year, the hottest topic concerning the ABA accreditation of law schools has been the debate over the bar passage rule, Interpretation 301-6. The final version of the rule was adopted at the February 2008 mid-winter ABA meeting. The impetus for the new rule is at least two-fold:
Continue reading "ABA Accreditation & the Bar Passage Rule Debate" »
Today’s the day we in Texas go to the polls - for the second time - to elect our Presidential nominee. Most of you by now have heard of our peculiar nominating process where we vote first by ballot, then by caucus. I cast my ballot last Tuesday, and tonight I thought I’d be ready and charged for my first caucus event.
But instead I feel like Garfield. Not the former President Garfield. The cat Garfield, in a comic strip from years ago. If I recall it right, Jon was pondering the intricacies of the cat walk and asked his furry feline friend exactly how he did it. Paraphrasing, Jon asked, "Garfield, do you move both of your front paws forward, followed by your two back paws? Or do you move your front right paw and back left paw at the same time? Or maybe you move your front right, back right, back left and front left in sequence?" Jon waited patiently, but the answer never came, in part because Garfield is, after all, a cat. But also because thinking and doing are two separate things, and not only can cats not talk, now this one couldn’t walk.
So today, as I ready for the big event, I’m trying not to over-think what comes naturally, or as close to natural as things become with practice. In theory nothing could be easier, particularly for someone like me, than helping elect a President. I vote wherever and whenever I can. I’ve voted in person on election day. I’ve voted absentee. I’ve voted using push-pins, and hand levers, and electronic voting machines (hate them, by the way). And having lived in Texas for four years, I’ve now grown accustomed to early voting, having done so at least three times. Rain or shine, big election or small (and the small one’s sometimes matter most), expect me there. I was voter #15 in the last City Council race, and that was about an hour before the polls closed. It was rainy. It was cold. Clearly no-one wanted to be there. But I was. Because history is made by the people who show up. And so I did.
And tonight, at 7:15, I will show up again. To caucus.
There’s only one problem. No-one here is quite sure exactly how to caucus . . .
Continue reading "Anyone Know How to Do The "Texas Two-Step"?" »
More evidence, if anyone needed it, that language is a disconcertingly flexible thing. The New York Times presents: The Innocence Project. Most assuredly not what Barry Scheck and Peter Neufeld had in mind.
This morning I noticed that the Yale Law Journal is using their Concurring Opinions page to highlight a Jill Pryor note from 1988 addressing the buzzing question of what the Natural Born Citizen clause means. Calvin and I have blogged on previously on this issue, and Calvin highlighted the Pryor note.
I was a regular at Concurring Opinions when we invited journals to join the blog as part of the Law Review Forum Project. We expected the law reviews would highlight new material and generate fresh online dialogue. I don't think we ever contemplated that they would also use the blog (or the Pocket Part) as a place to feature old but relevant archival material. It strikes me that this is an excellent use of their platform. So much research gets lost over time, under the avalanche of scholarship prepared and published year after year in the law reviews. I think it would be great if law reviews dedicated an editor to similar archival work, resurfacing other pieces relevant to current legal conversations.
Last week David Lat broke the "news" that Cass Sunstein's move to Harvard may be motivated in part by a friendship with Kennedy School Professor Samantha Power. I tend to agree with those who wrote in the comments (in essence), who cares. However, for those of you who missed Charlie Rose's interview with Professor Power, here's 02138 Magazine's interview with her. She's someone we're all going to be hearing a lot about in the coming months, I suspect.
Alfred Brophy
The Real ID Act, passed in 2005, but the effectiveness of which has been postponed, bars access to airplanes and federal facilities to people who cannot present an ID that complies with its requirements. Here's a summary of the act's provisions. Because most folks use their state driver's licenses as ID to board aircraft, the Real ID Act mandates a host of onerous requirements with which states must comply in issuing those driver's licenses in order for the license to be adequate ID. Not surprisingly, a lot of states object to this on the grounds of the expense and administrative burden it imposes, and other groups object on privacy grounds. See here and here. And here. The act is surely constitutionally valid as an exercise of authority over interstate commerce and federal property, and it does not order the states to comply; they just suffer hugely adverse political consequences when their residents can't get on a plane. So, for most states, it's just gritted teeth and take another hit to the budget mandated by the feds. It amazes me that states haven't resisted more by simply telling their residents: "If you want to fly, you need to get a US Passport. Here's the application, fill it out and send it in. If you don't your driver's license isn't good enough anymore because Congress has said it isn't." States could even provide passport photos and distribute online or via paper the US passport applications. Then watch the feds squirm when they get 20 million, or 50 million, or 100 million passport applications all more or less at once. If the feds want Real ID, they can provide it at their expense. Show some spine, here, all you rebellious states. Let's start here in California -- a good 20 million passport applications out of California alone ought to wake up the federal bureaucracy. Look how badly they have managed the Canadian and Mexican border passport issue. See here.
Calvin Massey, Eugene Volokh, and Jim Lindgren among others, have been blogging about whether McCain is a natural born citizen for the purposes of Presidential eligibility under Article II, Section 1 of the Constitution. The general view seems pretty consistent: he is good to go. But between 1971 and 2001, over 265,000 children were adopted from abroad - and that number continues to rise. What about these kids, born to non-citizens and adopted by citizens. Can they become President? The general view seems to be that naturalized citizens like Arnold Schwarzenegger, naturalized as adults, are ineligible. And the LA Times thinks that rule extends to children adopted from abroad. I know that there isn't a definitive answer, but is there a good case to be made for allowing these citizens to serve? It seems to me that the policy concerns - if any exist - don't apply to children who have grown up from a tender age as children of citizens. We know that children born abroad to US citizens are typically treated as citizens at birth. 8 USC 1401 And I'm not convinced that the answer is as simple as for the typical adult, or even teen, who becomes a naturalized citizen.
In some respects, this is precisely the type of Constitutional interpretation best left to voters. Let the other Presidential candidate(s) run on the "she's not Constitutionally competent" platform and see how the electorate interprets the document.
Apropos of the Times Magazine article yesterday, Teaching Boys and Girls Separately, my colleague David Cohen has a paper up on SSRN entitled No Boy Left Behind? Single Sex Education and the Essentialist Myth of Masculinity. This from his abstract:
The public narrative about the need for single-sex education focused, in substantial part, on what I call the essentialist myth of masculinity. This article catalogs the important components of this myth: heteronormativity, aggression, activity, sports-obsession, competitiveness, stoicism, and not being girls. The article then shows, using education and gender theory, that this conception of masculinity is harmful to both girls and boys. Instead of pushing this form of masculinity, the law and schools should make room for multiple and varied masculinities for boys (and girls).
The article argues that the Title IX regulatory change that allows for the expansion of single-sex schooling can actually work to further empower and entrench the essentialist myth of masculinity, thus violating its own prohibition on sex stereotyping. By adopting strong interpretations of already-existing jurisprudence about gender stereotyping from both constitutional law and Title IX, the article shows how de-essentializing masculinity is possible and preferable in the law. The article concludes that schools that implement single-sex education must do so for reasons other than promoting an essentialized notion of masculinity and that the law must be vigilant in ensuring that schools' implementation not further reify dominant conceptions of what it means to be a boy.
The New York Times quotes Craig Robinson, Brown's basketball coach, being softly critical of certain tactics Harvard may have used in order to net a Top 25 basketball recruiting class. And Craig Robinson, of course, is Michelle Obama's brother.
Just a tidbit to ponder as the weekend comes to an end.
(Brother and sister pictured at left.)
The New York Times reports on the ongoing challenge to enforce the voting rights of Alabamians who have been convicted of crimes. In the article, an Alabama Republican is quoted (from 2005) as opposing looser felon disenfranchisement laws on the grounds that those convicted of felonies are less likely to vote Republican. Christopher Uggen, a sociologist at Minnesota, and Jeff Manza, a sociologist at Northwestern, published one of the most dramatic studies of the political impact of felon disenfranchisement back in 2002. Projecting likely voting patterns among convicted felons, they suggest that up to seven recent Senate races and one Presidential race - Bush v. Gore - would have come out differently if we did not disenfranchise felons.
Felon disenfranchisement has an intuitive appeal - we deny the right to vote to those who breach the fundamental social contract and violate the law. But these laws have deeply racist roots and a dramatically disparate racial impact today. There is also a deep democratic problem with the policy; as we criminalize and prosecute more and more conduct, we passively strip more and more citizens of voting rights. When we adopt draconian criminal justice policies, we don't notice or debate the impact of these policies on democracy and citizenship. But activists supporting these policies surely know where their bread is buttered; if Alabama's top Republican gets it, I can't imagine that many other political experts don't see and project the impact of expanded criminal laws.
Many people have a deep discomfort with acknowledging that our criminal justice system is now doing the heavy lifting of Jim Crow laws. With 1 in 15 black adults in prison, and millions of black adults disenfranchised, it simply will not do to argue that this broad social phenomenon is simply the aggregation of millions of bad free-will choices.
