The Faculty Lounge

First Takes on US News

I've been absurdly--and I do mean absurdly--busy of late.   But US News is out and the feeding frenzy's begun.  (More than 1100 comments to this post at abovethelaw.com!  Now that's a feeding frenzy.)  Here are some initial takes on the tier one schools (N= 104).  (I had some other quick takes last year over at propertyprof.)  As Brian Leiter has suggested, I focus on reputation assessments.

The peer assessment scores:
maximum    4.8
median    2.80
minimum    2.1
Mean = 3.05
SD = 0.71
N = 104

The lawyer/judge assessment scores:
maximum    4.8
median    3.20
minimum    2.4
Mean = 3.35
SD = 0.61
N = 104

The correlation between the two assessments is very high (.96), but the 0.30 mean difference between assessments is statistically significant (t = 14.55, df = 103, p < .0001). Assessments of lawyers and judges are higher than those of academic peers.

Difference between assessments
maximum     0.8
median     0.30
minimum    -0.2
Mean = 0.30
SD = 0.21
N = 104

Basically, the lawyers and judges are more generous in their assessments than are law profs! 

So let's start looking at the 2008 and 2009 peer assessment scores for the 104 schools that are in Tier 1 for 2009.

Peer assessment 2009 (minus) Peer assessment 2008
maximum     0.2
median     0.10
minimum    -0.1
Mean = 0.06
SD = 0.06
N = 104

Thus, the 2008 and 2009 Peer assessments of these schools differed by no more than 0.2.  They're famously static, though law faculty are getting a little more generous.  That is, peer assessment scores are increasing, even if ever so slightly.  I think this is positive and an indication that schools are getting better.

Now let's compare the 2008 and 2009 Lawyer/Judge assessments for the 104 schools that are in Tier 1 for 2009.

Lawyer/Judge assessment 2009 (minus) Lawyer/Judge assessment 2008
maximum     0.4
median     0.00
minimum    -0.4
Mean = -0.02
SD = 0.16
N = 104

Some links to tables listing schools that are up and down in the peer and lawyer/judge assessments are below the fold....

He Who Does Protest Too Much: Scalia and Washington Grange

Justice Scalia is fond of excoriating his more centrist colleagues for blurring the line between politics and judicial decision-making. The decision to strike down a Colorado measure that discriminated against gay, lesbian and bisexual individuals was "an act, not of judicial judgment, but of political will," he wrote in his dissent to Romer v. Evans.  Seven years later, again in dissent, he called the decision to strike down Texas’s anti-sodomy law in Lawrence v. Texas "the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda."

There are those of us who think Scalia does protest too much, that his rulings are at least as transparently right-leaning as those he rejects are, in his view, transparently left.  After all, if the majority in Lawrence took sides in the culture war over gay rights, as the accusation stands, then Scalia did too.  He just came out on the other side.

Last week the Court decided Washington Grange v. Republican Party, and once again Scalia found himself in dissent. Having read and re-read the decision nearly a dozen times, I can’t help but conclude, once again, that it is Scalia himself who stands guilty of blurring the lines between politics and law. Its not so much that I disagree with his rationale, or his conclusion. Much to my surprise, I agree with Scalia on the merits of the case. That said, I can’t find a way to reconcile his dissent in Washington Grange with what he’s written in other First Amendment cases.

Let me explain.

Seeking an Injunction to Prevent a Black Hole?

This morning's New York Times brings "Asking a Judge to Save the World, and Maybe a Whole Lot More."   A taste of the article:

[T]wo men pursuing a lawsuit in federal court in Hawaii ... think a giant particle accelerator that will begin smashing protons together outside Geneva this summer might produce a black hole or something else that will spell the end of the Earth — and maybe the universe.

But, don't fear: "Scientists say that is very unlikely — though they have done some checking just to make sure."

This will be a fun article to talk about in remedies!   Really puts to the test the sliding standard for granting an injunction: the likelihood of harm is tiny, but, wow, the harm is enormous!

Alfred Brophy

California Court of Appeal to Rehear Home Schooling Case

  The California Court of Appeal has agreed to rehear In re Rachel L. , the case in which the Court of Appeal initially decided that there is no constitutional right to home schooling.  My earlier post on this case is here.    Eugene Volokh's characteristically thoughtful evalauation of the merits is here.

  I agree that Pierce v. Society of Sisters does not stand for any constitutional right to home school, and that religiously-motivated home schooling stands on a more protected footing.  See Yoder.   But I think it's dangerous to rely on Pierce to dismiss completely the claim that non-religious home schooling is constitutionally unprotected.   The scope of unenumerated parental rights has broadened since Pierce and the cultural place of home schooling today is far different from what it might have been in 1925.   One might treat the cultural dissent that motivates home schoolers today as roughly analogous to the cultural dissent that motivated the parents in Pierce to seek out private education, while the Pierce Court regarded home-schooling then as rooted in ignorance and sloth.   All that said, I share the sentiment that some skepticism is appropriate when parents seek to establish a constitutional right to control the fate of a third party, their child.  The weight of that right ought to depend, to some degree, on the age and maturity of a the child.  It is much easier to recognize a parental home-schooling right with respect to a six-year old child than it might be with respect to a 12-year old who states that she wants to go a conventional school.   The consequences of the parental choice are just as significant to the six-year old as the 12-year old, but surely more deference to parental choice is due when the child is too young to make independent judgments about his or her welfare.

Free Books! Dan Solove Channels Radiohead

Who doesn't like a free book?  Dan Solove's two excellent volumes, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet, and The Digital Person: Technology and Privacy in the Information Age are now downoadable for free!  This will mean:

a) more smart people; b) more cites for Dan; c) great karma for Yale and NYU Presses. 

Information wants to be free and now it is!

US News 2009 Law School Rankings Leaked - Alabama Rises Again

OK, so I agree with Brian Leiter that the overall US News law school rankings don't tell you that much (although to be fair, over time they produce what they claim to describe).  And it's also true that I no longer teach at Alabama and therefore ought to just relax and enjoy the overall spectacle like any outsider to the process.  (Drexel won't be ranked until it's fully accredited, presumably.)

But damn - I still drive around with a Roll Tide license plate frame and my academic hometown will always be Tuscaloosa.  So with all the caveats about the rankings - but with a note that UA's faculty reputation numbers have jumped a relatively substantial 0.2 (from 2.7 to 2.9 in two years) - it's nonetheless no small deal for the law school, or frankly the state overall, that UA Law has now risen to #32 in the rankings.  That's no small potatoes for a school that wasn't in the top 50 a decade ago, or in the top 40 two years ago.

I've blogged a bit about the role of rankings within the state of Alabama here.  I can only imagine the Red Army Choir's response to this news!

The actual top 100 rankings are here.   You'll find an image of the top 32 here - but don't blame me for the seamy frame.

H/T to Dave Hoffman.

The Russian Army Sings A Love Song To Alabama

Call me hyperbolic, but it simply does not get much better than this.  Watch the Red Army Choir (alongside Finnish rockers The Leningrad Cowboys) express their heartfelt love for the State of Alabama.   I've always thought that folks like Jeff Sessions and Troy King have a lot more in common with Vladmir "look in my eye and sense my soul" Putin than people recognize.  It's that old horseshoe theory of politics: at some point, the right and the left converge.  And what better place to come together than in concert (sans Neil Young, to be sure...)   H/T to To The Point.

Medellin: Treaties and Domestic Law

The Supreme Court's decision today in Medellin settles some issues but leaves others in abeyance.   If there was ever much doubt that a non-self-executing treaty is not enforceable as domestic law without legislation to do so, there isn't any doubt now.   Yet, despite the conclusion that the President lacked authority to make the ICJ judgment in Avena binding on the states, one must still wonder whether there are circumstances beyond international claims settlement coupled with diplomatic recognition (Pink  and Belmont) that endow the President with authority to make international obligations binding on the states.   While Chief Justice Roberts notes that is untenable to assert that the President never has unilateral authority under Article II to displace state law pursuant to a ratified treaty, it's pretty clear that the President lacks such authority with respect to a ratified non-self-executing treaty.  That makes a lot ride on whether a treaty is self-executing and that question is largely a matter of the text of the treaty.  Unless a treaty says it is self-executing with respect to a member state's domestic law it isn't self-executing.  True, the majority's analysis isn't quite this simple, but it is a heavily textual approach. 

Questions for the future are legion.  Here's just one: Suppose that Congress enacts legislation that makes the consular access provisions of the Vienna Convention binding on the states, and suppose that in a future ICJ decision that court rules that the remedy for a violation of the consular access provisions by Texas, with respect to a Muslim citizen of a nation that recognizes Sharia in its own courts, is a new trial in Texas under Sharia.  Does Reid v. Covert  operate to bar this remedy because it is a violation of the Establishment Clause, or does Missouri v. Holland control? After all, the specific treaty that Congress acted to enforce in this hypo "does not contravene any prohibitory words . . . in the Constitution." 

......That's Elizabeth Pena, age 16, murdered by Medellin.

In Search Of Days On Market Data For Home Sales

A rational investor presumably seeks out all the available data about housing markets.  One paticularly alluring piece of information, it seems to me, is the national days-on-market average - the mean time it takes to sell a house.  Studied over time, this average might tell us as much - if not more - than average sale prices for homes. For some reason, though, it appears that this number is unavailable. 

That's not to say it's not discoverable.  The National Association of Realtors (NAR) appears to regulate almost all of the multiple listing services (MLS) that compile, analyze and share for-sale listings in each region .   We know that MLS collects days-on-market data and agents clearly know how long a particular property has been on the market.  And I'm guessing that within any local MLS, somebody can produce running averages.  Maybe - just maybe - NAR may even have this data.  If it were crucial to obtain national days-on-market data, I'm again guessing that some figures could probably be produced rather easily.  (Whether archival data would be easy to retrieve is a different question.)

So if the markets would like this information, and it's obtainable, why don't we have it?  It seems fair to infer that Realtors don't want it out there.  I'm not sure why that would be true.  In a weak  market, it might keep people from putting houses on the block - but in a strong market, the opposite would seem true.  In a weak market, buyers would bid very low (something they're already doing if their agent tells them how long the house has been on the vine) - but in a strong market they'd bid high.    Perhaps I'm wrong; maybe there is no practical way to assemble a quality dataset.  But I'm dubious, and I wonder what I'm missing in this picture.

Baby Boomer Theme Songs for the Clinton Campaign

   Dan's post earlier today about Gore being more likely than Clinton got me thinking.  Then I found this essay from the UK's Guardian on real clear politics and I started thinking some more.  (Irrelevant aside: When Al Gore's father upset Kenneth McKellar to win a seat in the US Senate he reacted to McKellar's slogan, "Thinking feller? Vote McKellar," with the witty retort, "Think some more, and vote for Gore.")  Anyway, I concluded that the Clinton campaign has two as yet unacknowledged theme songs from the 60s -- Neil Sakada's "Breaking Up is Hard to Do," and Lesley Gore's "It's My Party (and I'll Cry If I Want To)."  Here are video clips of each performance, each vintage 60s.  Sadaka:

Gore:   

Does Gore Have A Better Shot Than Hillary?

I think so.  Howard Kurtz at the Washington Post notes that many pundits have written off Hillary.  But he says that he's not ready to declare the race over yet - what if Hillary scores a big win in Pennsylvania?  Fair enough, Howard, and indeed what if  national polls show Obama slipping into free fall as well?  Both of these things could happen and might throw uncommitted superdelegates into a tizzy.  But I'm not sure they'd move to Hillary; I think it's just as likely they'd switch to the Democrats' resident Nobel Laureate. 

Here's why.  Many  Democrats worry that Hillary cannot galvanize the entire Democratic base.  Among other things, her support among  African-Americans will be weaker than normal for a Democratic presidential candidate unless she runs with Obama.   And why would Obama run as the VP with a woman he beat in the primaries?  If superdelegates abandon Obama, it will be out of hard-nosed realism: a surfeit of evidence that he cannot win.  But that realistic outlook doesn't take you to Hillary - who is highly unpopular among large segments of the American population (for reasons both good and bad).  It takes you to Al Gore - quite possibly with Obama on the ticket as part of a brokered deal.  The biggest critique of any backroom dealing among superdelegates is that this process undermines democratic choices, but that argument would be softened if Obama reaches an agreement to join a Gore/Obama ticket and he asks his delegates to vote for Gore.  (Obviously, this would only happen if it appeared that Obama simply could not muster a majority for the convention.) 

I'm not saying this will happen.  Most likely, Obama will plow through these tough times - and try to stay tough through October, waiting for a McCain implosion.  But the race has gotten more and more complicated of late.  And I'm not sure that Hillary is the beneficiary of these disruptions.

(Image from BuzzFlash.)

Must Sex Offenders Vote Absentee?

Massachusetts state legislator Demetrius Atsalis has proposed that high risk sex offenders be prohibited from voting at polling places located in libraries and schools.  As he explained, "if someone has to use a bathroom, there's an excuse to go down the hallway, and potentially, something can happen."  What's the solution for these individuals?  Vote absentee or don't vote at all.

I understand where this proposal is coming from.  Sex offenders who attack children certainly do exist (although in smaller numbers than media accounts would suggest) and we have adopted a system where we attempt to intensively regulate the physical movement of these folks.  They must register upon release, notify authorities about address changes, reside far from schools and churches, and stay out of areas popular among children.  It only makes sense, then, that these complicated procedures be applied on election day as well. 

So is there a problem with this bill?  Maybe.  In my view, many of these sex offender regulations are of minimal value.  Registration may have utility insofar as it gives authorities a ready pool of locatable suspects; the existence of community notification, a recent study shows, may deter first time offenders.   But I seriously doubt that geographical limits have much use at all.  They're difficult to enforce and ignore the most likely community of victims: an offender's family and friends.  So we need to weigh this very limited upside with the costs of this proposal.  It significantly burdens an ex-offender's right to vote (controversial as this right may be) since many polling sites are in schools or libraries. 

The benefits don't outweight the costs.  The bill purports to offer safety, but would provide only the thinnest extra margin.  A stronger argument, I suppose, might be that the provision - and the debate that surrounds it - provides a retributive payoff, allowing the community to express further outrage sexual offenders.  But this is an utterly inappropriate justification for these sorts of collateral sanctions - civil disabilities, as they're often called - at least as long as courts do not subject them to critical review as forms of punishment.  The real purpose of these laws, I've always thought, was to help legislators get re-elected.  And in this regard, I expect, the proposal will be highly efficacious.  The people who can show up to vote will presumably reward Atsalis for his hard work.