The Faculty Lounge

Coffee Or Nude Celebrity Photos: A Tale Of Two Evergreen Posts

  As Paul Secunda noted, the other day, some blogs benefit mightily from evergreen posts - blog entries that Google searchers visit again and again.  At my old blog, Concurring Opinions, it was an open secret that significant amounts of traffic arrived in the form of web surfers seeking out pitcures of Jennifer Aniston buck naked (or is it butt naked?)   But I was always pleased that my own personal obsession - Starbucks Coffee - drew repeated guests as well.  Looking at today's Site Meter for Co-Op, I discovered to my great surprise that, in the last day or so, my Starbucks Secret Menu post attracted 45 visitors, while Dan Solove's Jennifer Aniston Nude Photos and the Anti-Paparazzi Act entry drew a mere 40.  It sounds to me like the star of Friends is out of vogue, while Starbucks only grows in popularity!  Does this mean that Jenny's fan base is aging or the new Starbucks market repositioning is working?  I don't suppose we'll ever know...

Osama Obama: Invidious Racism?

Very recently, I heard someone refer to Barack Obama as "Osama Obama."  My response was that the comment was clearly racist, but another person disagreed, arguing that it was a legitimate way to express a founded anxiety over the political views of the Democratic front-runner.  At worst, in their view, it was a veiled critique of his ties to Islam. I'm not very sympathetic.  In my view, this comment is expressly designed to target Obama's difference.

The most salient part of his difference, within the perceptions of most non-African-Americans, is his race: he is seen to be non-white.  Of course, that is a highly contestable claim in its own right, resting on many problematic ideas which include: the notion that whiteness is a recognizable and agreed upon state; the presumption that whiteness is the pure, natural state of personhood which is sullied when a person has "non-white" ancestors (thus, for example, few white people contest whether he falls into the category of "non-white" or "black" - only whether he can be termed "white"); the idea that one's race is legitimately assessed by anyone other than the person himself;  and a failure to account for the empirical fact that many members of the group to which he has been assigned - African-Americans - do not see him as black in some essential way.

He is also identified as different because of his middle name - Hussein - which some see as a proxy for the fact that his father was Muslim and, in the minds of some, he remains essentially Muslim.  This essentialness depends on the idea that he either: a) is still a Muslim, but denies it; b) has deep sympathy for Muslims, or Muslim-related issues, because of familial ties; and/or  c) he is religiously different, which means either he is non-Christian or, in the new patois of the Bush era, he is a non-Judeo-Christian.  Perhaps the Osama title is designed to suggest that, based on his heritage, he cannot be counted on to support the political and social positions dominant among this newly discovered Judeo-Christian community.  Or, to be far more generous than I'm inclined to be, perhaps this is just a convenient rhyme with Obama that highlights what some Jews and evangelican Christians see as his sympathy for the plight of Palestinians.

My own feeling is that some staunch supporters of Israel believe that, because Obama is (seen as) black, he is presumptively likely to view Palestinians as oppressed.  I think that, deep down, these folks recognize that Palestinians are in fact oppressed - by the actions of multiple countries, for sure, but central among them Israel - and they assume a person with strong ties to another community that has has a long history of oppression will be be open to such such claimsmaking.  This does not mean that all black candidates are disqualified, but they must be extra- extra- rigorous in sending substantive and symbolic messages that they are Israel Right or Wrong types.

The question is, does it matter?  Is this title ever anything other than an appeal to Americans' basest insticts to fear and hate the other?  I cannot see any way in which this name-calling can ever advance good political judgment.  George Bush has been a staunch ally of almost all Israeli policy in the last eight years; would it be useful or appropriate to call him Bushstein?  Do we consider it OK to call our conservative black Supreme Court justice Uncle Thomas? 

Perhaps some folks would call Obama "Osama" even if he were a white Christian with liberal views - but I doubt it.  In my view, the name isn't cute or funny.  It's just political hate speech.

Podgor on Blogs and the Promotion and Tenure Letter

One of the things I enjoy doing (and hope to do some more of in the faculty lounge) is talking about scholarship.  Ellen Podgor's just posted a short essay, "Blogs and the Promotion and Tenure Letter," which appeared in the Washington University Law Review back in 2006.  It is about how much blogs should count in the tenure and promotion process.  (Like everyone else, I have some thoughts on this--which I talk about in an essay on the future of legal scholarship, "Mrs. Lincoln's Lawyer's Cat"--gotta read the essay to understand the title.  I liken bogging to lunch conversations.)

Here is Ellen's abstract:  " Should blogs count as legal scholarship for purposes of tenure? This essay looks at the line between legal scholarship and service. It considers the value of blogging and the role it should play in a person's tenure review." 

Alfred Brophy

Saving the Constitution from Lawyers: Part II

As all of you know, the publishing venue for the legal academy, law reviews, has two key traits: first, it is incomparably vast (over 600 publications are attached to the roughly 220 law schools in America; in all, there are over 1100 legal publications); second, virtually all law reviews are run by students. No other discipline has as many publication outlets, nor does any discipline allow students such control over its professional/scholarly publications. A century ago, when law journal writing was primarily case analysis and doctrinal writing, a large student role made some sense (although the system had its critic even then, such as Justice Oliver Wendell Holmes, who dismissed law reviews as the “work of boys”). In the modern era, however, it makes no sense.

            As I argue in Saving the Constitution from Lawyers, the vastness of the legal publishing realm means that virtually any sort of writing can eventually find a publication venue; student control means that the work submitted is not, and cannot be evaluated on its academic merits. Student editors, though hard-working, diligent, and intelligent, do not possess, and cannot be expected to possess, the knowledge to evaluate submitted work on its merits. Yes, they can find missing punctuation and erroneous citations, but these minor technical errors pale in the light of the fact that they are unqualified to judge whether a submission makes a legitimate argument, reflects proper knowledge of the field, does or does not duplicate existing writing, or even presents arguments and facts fairly and correctly.

            Contrast this with the gold standard evaluative system of every other academic discipline, peer review. The reason for peer review is fairly obvious: it is the best system yet devised to judge the merit of academic writing. Is peer review perfect or fool-proof? Of course not. But it has two unassailable advantages not found in student-run law reviews: first, publication decisions are made by professionals with subject matter expertise, which means that the submitted work can be evaluated on its merits; and second, the review process is normally blind, meaning that the reviewers’ names are not known to the author, so that the reviewers (under professional editorial control) can offer full and frank evaluations. The primary check against possible abuse by vengeful or unfair reviewers is knowledgeable editors who can weigh the relative merits of multiple reviewer comments, or solicit additional reviews if needed.

            Student editorship has its advantages, most notably that it is an excellent learning experience for top law students. But that hardly justifies the system: second year medical students would learn a great deal by being allowed to perform open heart surgery – but who in their right minds would agree to an improved medical school education by sacrificing hapless heart patients? Yes, it’s also true that law reviews publish many excellent articles. But this cannot be attributed to student editorship. Given the vast pool of submissions, law reviews would continue to publish many excellent articles if the publication decision were made by random drawing. 

            If law journal writing really didn’t matter, then student control wouldn’t matter, either. But law reviews do matter. In addition to serving the core goal of journals in every profession -- to advance scholarly knowledge -- they shape national legal debate and thinking, influence judges, legislatures, and executives, including the presidency, and public policy. In the final installment, I will discuss two examples of wayward constitutional theorizing cultivated in the pages of law reviews: the Unitary executive power theory of presidential commander-in-chief powers, and a new interpretation of the Second Amendment’s right to bear arms.

Diagnosing Disparity: Iowa Studies Racial Impact Of Criminal Laws

I suppose that one thing that distinguishes progressives coming of age during the Rehnquist court from those coming out of the Warren (and to a lesser degree Burger) eras is that the Rehnquist Left - if such a thing exists - sees legislatures as at least as likely a site for progressive legal change as the courts.  I suppose process-oriented conservatives can claim a victory here; people, like me, who worry about race and criminal law, now see democratic change as the most effective and durable path for change.  In that sense, the Obama candidacy is a real litmus test.  Although one can never be sure of his ultimate policy preferences, it appears that Obama may be the first criminal justice progressive heading up a major party ticket in over a generation. 

There is already definite good news, however, because there is evidence of some fresh activity at the state level.  Doug Berman reports today that Iowa has just adopted a new law requiring the state to examine the racial and ethnic impact of all new sentencing laws before passage.  Governor Chet Culver's website has more info here.  This follows release of a report last July by the Sentencing Project showing that Iowa incarcerates African-American offenders at a rate 13 times higher than whites (and twice the national average.)  Their research is consistent with my own findings in the discrete area of Megan's Law.  In Silence and the Racial Dimension of Megan's Law, I showed that Iowa and several other similar midwestern states had significant overrepresentation of African-Americans among those subject to both registration and community notification.  (This overrepresentation was substantially more noticeable in the midwest than, say, the deep south - evidence that race is every bit as much of an issue in the north as in the south.) 

For those of us who fear that courts are neither a likely, or a durable, source of policy improvement, this new development in Iowa is great news.  It sounds like sorts of proposals for change that many of us have begun to embed in our law review articles: a way to make democracy work better.

Lapel Pins, and Other Nonsense

     Much was made in last night's Democratic debate about the absence of an American flag lapel pin from Barack Obama's suits.  Nothing was made of the absence of an American flag lapel pin from Hillary Clinton's suits.  Can you say "double standard"?  Anybody wish to talk about the massive transfer of wealth from the United States to 12th century sheiks produced by our oil addiction?  Or the rise of a multi-polar world, that leaves America in steady global decline? 

Watch Chelsea Clinton Live From Drexel Law This Afternoon

Chelsea Clinton will be visiting Drexel Law this afternoon to chat with our law students in her typical Q&A format.  We will be webcasting this conversation (which is expected to last a bit over an hour) starting a little after 4pm EDT.  Those interested in hearing a potential future president take on a flock of feisty law students can watch here.

Update: the above link only served for the live feed.  A recording of her visit can be found here.

Saving the Constitution from Lawyers: Part I

Despite the apparent gauntlet toss reflected in this title, I revere the law and deeply respect lawyers and the legal profession. Even though I’m a political scientist, I’ve spent many years studying the Constitution and aspects of American law, and I’ve read many, many hundreds of law journal articles. I’m no charter member of any lawyer-bashing club.

            But I do have a beef, and it’s a big one: when lawyers enter the realm of constitutional theorizing, they are prone to produce wayward – I’d say even “wacky,” if the stakes weren’t so high – constitutional theorizing. These false theories are uniquely prolific in the legal profession for two reasons:  the nature of legal training, and the law’s professional publishing venue, law reviews. In this first of three installments, I’ll talk about legal training. In the second, I’ll discuss the pernicious consequences of student-run law reviews. In the third, I’ll briefly discuss two examples:  the current Bush administration’s false, pernicious, and dangerous unitary theory of executive authority as applied to its view of the commander-in-chief power; and a new theory purporting to explain the meaning of the Second Amendment’s “right to bear arms” that has led to the case now before the Supreme Court, U.S. v. Heller. My posts summarize the arguments I make, in much expanded form, in my recently published book, Saving the Constitution from Lawyers: How Legal Training and Law Reviews Distort Constitutional Meaning (Cambridge University Press): http://www.cambridge.org/us/catalogue/catalogue.asp?isbn=9780521721721

            I come down on the side of those who believe that America’s adversarial legal system is 1) well suited to American law and tradition, and 2) an effective means to produce a just outcome in a legal setting. But while the adversary system, client loyalty, lawyer-client privilege, and zealous advocacy are well suited to the courtroom, they are poorly suited to academic and scholarly inquiry. The lawyer’s foremost obligation is to the client, not the truth. Truth-telling is not the primary goal. That doesn’t mean it’s OK to lie, but lawyers may, for example, encourage a fact-finder to reach a wrong conclusion to effectively defend the client. And the lawyer’s emphasis is persuasion on behalf of the client, not a neutral presentation of facts. A century ago, Roscoe Pound likened a strenuous legal defense to a sporting event where the primary goal is to win the contest. That analogy to the legal profession is, if anything, even more apt today.

            In the scholarly world, the client isn’t an accused criminal, but an idea or an argument. Yet legal academic writing is rife with Perry-Mason-like defenses of ideas that stretch arguments, disfigure or ignore facts, cherry-pick evidence, use overheated inflammatory rhetoric found in no other academic discipline – in short, all of the lawyer’s tricks. Fine in the courtroom, but deceptive, even dangerous, in the academic world. For example, lawyers are under no obligation to introduce evidence that undercuts their case – yet academics have an obligation to not only introduce contrary evidence, but to treat it with equal, even greater respect and care than their own cherished ideas. This is, in fact, a bedrock principle of all academic inquiry, including not only the natural sciences, but the social sciences and even the humanities. Historians have railed against legal writers’ treatment of history at least since the 1960s; they call it, derisively, “law office history.” Legal writers have responded to defend what they have labeled, “advocacy scholarship.” But the problem is that this phrase is an oxymoron. If it’s advocacy, in the legal sense, it can’t be scholarship.

            Why does this matter? Because it results in entire bodies of constitutional theorizing that are astonishingly, jaw-droppingly, patently false; because these theories are given credence precisely because the legal profession is granted great deference when it comes to matters of constitutional interpretation; and because these theories sometimes make their way into government policymaking.

NEXT:  the law journal breeding ground.

Dept. Of Archives: Photos From Japanese Internment Camps

Eric Muller points us to a small but compelling collection of high resolution photos from the camps where Japanese Americans were incarcerated during World War II.  You can find them directly here.

Photo of Corporal Jimmie Shohara by Ansel Adams.

Robert Spitzer Guest Blogging

I'm pleased that Robert J. Spitzer of SUNY--Cortland's political science department will be guest blogging with us for a bit.   He is the author, among many other books, of Saving the Constitution from the Lawyers: How Legal Training and Law Reviews Distort Constitutional Meaning, which is appearing this month from Cambridge University Press.   I hope he'll be talking some about that book--and I suspect the rest of us will be talking a lot about it, too.  The Cambridge website describes Saving the Constitution from the Lawyers this way:

This book is a sweeping indictment of the legal profession in the realm of constitutional interpretation. The adversarial, advocacy-based American legal system is well suited to American justice, in which one-sided arguments collide to produce a just outcome. But when applied to constitutional theorizing, the result is selective analysis, overheated rhetoric, distorted facts, and overstated conclusions. Such wayward theorizing finds its way into print in the nation’s over 600 law journals – professional publications run by law students, not faculty or other professionals – and peer review is almost never used to evaluate worthiness. The consequences of this system are examined through three timely cases: the presidential veto, the “unitary theory” of the president’s commander-in-chief power, and the Second Amendment’s “right to bear arms.” In each case, law reviews were the breeding ground for defective theories that won false legitimacy and political currency. This book concludes with recommendations for reform.

Some of his other books are The Politics of Gun Control from the Congressional Quarterly Press and The Essentials of American Politics, now in its second edition from W.W. Norton.

Welcome!

Alfred Brophy

Megan's Law And The National Consensus For Death

I've been reading over the briefs in Kennedy v. Louisiana, today's Supreme Court case considering the constitutionality of capital punishment for child rapists.  Yesterday I noted that the amicus brief of several states appropriated the overblown rhetoric of the child abduction panic movement.  But there's more interesting stuff there and it again sounds in shady conflation - in this case, arguing that the existence of Megan's Laws prove that America supports death in child rape cases.

In Louisiana's brief, the petitioners argue that  "objective indicia" reflect a growing national consensus that  death is not a disproportionate sanction for child rape.  The state points to three proofs: first, they argue there is a trend towards states adopting such laws; second, they contend that prosecutors and juries think this sanction is OK; and third, according to the state, "the widespread enactment of “Megan’s Laws” has also been posited as an indicator demonstrating 'a society more comfortable with the severe punishment and deterrence of child rapists and child molesters.'

Whoa Nellie!  First, how does widespread enactment of sexual offender registration and notification speak in any way to the appropriateness of the death penalty?  Even if notification was a punishment, it's mighty weak, comparatively.  And this argument seems particularly odd given that most jurisdictions have concluded that Megan's Laws aren't even punishment at all - and therefore don't implicate the ex post facto clause.  Perhaps even more strange, and dare I say disingenuous, in prior litigation the State of Louisiana expressly argued that Megan's Law isn't punishment at all...and the Louisiana courts agreed.  See Olivieri v. State, 779 So. 2d 735.   

Indeed, the fervor with which both Louisiana and amici argue for the moral culpability of child rapists makes me wonder why states "treat" these offenders in therapeutic preventive detention - i.e., civil commitment for "sexually violent predators".  Here's the problem.  When states seek to incarcerate people in anticipation of future crimes, something that is constitutionally prohibited if it's called punishment, they argue sexual offenders have a condition equivalent to mental illness.  They are detained for treatment.  When, on the other hand, such an individual actually offends, the offender acts out of pure free will. 

I'd suggest that states can't have it both ways when it comes to offender culpability, just as they can't argue that Megan's Law is both non-punishment and brutal punishment.  But perhaps they can.  We've lived through a generation of "death is different" jurisprudence.  We may now be entering the  "child abusers are different" era.  The ex post facto law and cruel and unusual punishment prohibitions may no longer apply. 

Update: Corey Yung over at Sex Crimes has further comments on these issues here, with an incredibly good collection of links here.  Dan Markel considers whether death is ever retributive here.  And Doug Berman has been offering a host of thoughts here.

One to Watch: A New Feature in the Faculty Lounge

             Ever wonder what’s the buzz in Franklin County, Florida? How about Nemaha County, Nebraska?  Wetzel County, West Virginia? Believe it or not, these places have courts, fully functioning legal systems in fact, and its where some pretty interesting cases play out. But they seldom make headlines beyond the local scene. Until now, that is.

Tonight let me introduce a new feature in the Faculty Lounge: the "One to Watch" series. Every now and again I’ll bring you cases from places you always wanted to know about, but were too afraid to ask. I can’t promise they’ll be granted cert or even create a circuit split. But hopefully they’ll spark some conversation among colleagues and friends, and beyond that, maybe provide some fodder now and again for a decent exam hypo.

Our first stop, Baldwin County,  Alabama.                                                           

Last week a Baldwin County court convicted 55 year old Ronald Jay McFadden of possessing and producing child pornography.  According to this article, the defendant created some sort of visual collage by pasting together photos of nude adults with separate pictures of children. The defense attorney plans to appeal, offering up the First Amendment as a basis for reversal. If the facts asserted in the article are true, none of the children themselves were engaged in sexual acts, there was no sexual assault, and no camera admitted into evidence. The pictures of the children, taken alone, were "innocent" to use her words, and cut from magazines and medical books before being arranged on a piece of cardboard interspersed with images of adult porn.

The case appears to fall somewhere between New York v. Ferber and Ashcroft v. Free Speech Coalition. Ferber allows a state to prosecute "mere possession" of child pornography because its production involves physical and emotional abuse of children, and because the psychological trauma is reinforced in the distribution of images that record the event. What states can’t prohibit is "virtual child pornography," that is, computer generated sexualized images that do not involve real children. No actual children, no actual harm, said the Ashcroft Court. The statute in that case also prohibited "computer morphing" described as altering innocent pictures of real children so they "appear to be engaged in sexual activity." But that wasn’t an issue in the case, and the Court said nothing about it other than to acknowledge the possible relevance of Ferber in an actual challenge.

So where would this leave Mr. McFadden? Ashcroft doesn’t quite fit because the children depicted in his collage were real children. No pixels. No computer code. But Ferber doesn’t quite fit either. None of the children were photographed in a sexualized manner so none could have been harmed in the original production.

But is it accurate to say there was no real injury? Or at least risk of injury?  No psychological harm if those real kids happen upon the images later in life? Does it matter how old they are when photographed? When the images are discovered? How crude or unbelievable the images appear?

On that last point, the Court’s reference to Ferber on the issue of "computer morphing" in Ashcroft is surely relevant. "Morphing" images of real children via computer would no doubt produce a much more life-like simulation than a glue stick and tape. The process used to sexualize the images of real children might not be relevant in some circumstances but it might matter if the resulting visuals are so artificial that no reasonable person would mistake them for children in fact engaged in sexual activity.

If these considerations don’t work for Mr. McFadden on appeal (and I’m not saying they should), perhaps they’ll at least give lawmakers something to think about when drafting future anti-child pornography legislation.

Until next time . . .

-Kathleen A. Bergin

Death Penalty For Child Rape: Rhetorical Games In Supreme Court Briefs

One ongoing issue in the debates over child sexual abuse is the tendency of certain advocates to play games with statistics.  In  Making the Case for Megan's Law: A Study in Legislative Rhetoric, I noted that advocates for sex offender notification often used data about widespread levels of child abuse and neglect to prove the existence of a child abduction crisis.  The actual number of stranger abductions - the sorts of cases Megan's Law is designed to combat - is quite small and advocates apparently felt they needed to puff up the problem to promote new laws.

Now it seems that the state amici in Kennedy v. Louisiana, the Supreme Court's upcoming child-rape death penalty case, are playing the same game.  In their brief, Attorneys General from Texas, Alabama, Colorado, Idaho, Mississippi, Missouri, Oklahoma, South Carolina, and Washington argue that child rape has a devastating effect on society.  The crime is devastating for kids - no doubt.  But the following paragraph, which follows directly under this claim, looks an awful lot like the bolstering we saw in legislative debates over Megan's Law.  It conflates child rape with child neglect, emotinal abuse, physical abuse, prostitution, pornography, and other things, thereby producing very large numbers and a sense that a crisis is afoot:

Delta And Northwest Merge. What Is The Future Of The Minneapolis Hub?

One of the less talked-about aspects of airline mergers and consolidation is their impact on hub cities.  While some airline hubs are located in towns that generate substantial traffic on their own, many are not - and these cities stand to lose a lot when an airline reduces its presence.  Some examples?  Pittsburgh had been a hub since the days when US Airways called itself Allegheny.  As a result, the airport opened the first serious airport mall.  More importantly, the busy airport offered loads of flight choices for the locals.  When US Airways pulled back, the airport suffered serious contraction.  The same happened in St. Louis when American swallowed TWA.    Sometimes we even forget old hubs. When I clerked in Durham, I once rushed a friend to the RDU airport for her non-stop to Paris.  RDU to Paris, non-stop?  Incroyable! 

Now that it appears that Northwest and Delta are merging (with corporate offices in Atlanta), what is the future of a Minneapolis hub?  In the short term, the airline will clearly maintain a strong presence.  It would only be politic.  Over time, however, Delta/Northwest will have to determine whether it needs both an Atlanta and a Minneapolis mega-presence.  And if Minneapolis does lose it's hub status, that might have a significant economic impact on the city and state. One real cost is that it becomes harder for cities to attract and hold onto major corporations.  It is almost a given among those in the Southeast that Atlanta's rise as the center of the South is largely attributable to its airport. 

Will Minneapolis be the next victim of air consolidation?  Are these significant political-geographical effects important enough for the federal government to put brakes on the deal?  I'm betting that Al Franken and Norm Coleman will have something to say about it in this year's Senate race.  It won't be a laughing matter.

He Wrote 200,000 Books (but Computers Did Some of the Work)

Now, that's something!  We really need to think about how the technology harnessed here could be put to use in the legal biz.

Alfred Brophy

When Will We Ban Cigarettes? Reading The Tea Leaves

When I teach criminal law, I try to use at least one class to address the question of what acts we call crimes - and why.  Many students have not previously questioned whether our current menu of crimes is natural or is, in substantial part, a cultural artifact.  Setting aside crimes that are malum in se - offenses like murder, larceny, and arson that many (though not all) cultures understand to be immoral - most American criminal codes are larded with offenses that aren't universally understood to be wrong.  And the American prison system is filled with people who commited these malum prohibitum crimes: according to a 2007 Department of Justice report on prisoners in the U.S., 53% of all Federal inmates and 20% of all state prisoners are there for drug offenses. 

It hasn't always been this way, of course.  For most of this nation's history, heroin, marijuana and cocaine use was legal.    And this all leads me to ask students whether we ought to, or will, ban cigarettes.  The trends certainly point that way.  A half century ago, smoking was widespread - and well tolerated in public places.  Today, smoking bans are ubiquitous. Children are taught to hate smoking (as any parent has experienced when his young child walks past a smoker and exclaims "yuck, that's disgusting!")  I've wondered whether we'll soon treat parental smoking as child abuse.  It seems entirely logical, as a next step, to ban the product.

Yet if my students are any indicator, we're not ready for this next step.  And I wonder why.  Is it because we have a commitment to personal freedom - albeit one that does not include cocaine, heroin, marijuana, and the like?  Is it because we anticipate low compliance rates for such a ban - chastened, in part, by the failure of prohibition?  Is it because we think that domestic tobacco companies will block efforts to impose this sort of drug ban?  Or is it that we want our tobacco companies to continue to make money selling cigarettes in developing nations - and we'd face an international outcry if we tolerated the promotion and export of a product so dangerous, we don't allow it here in the U.S.

I'm not sure where we'll be in twenty years.  Perhaps there will be a resurgence of smoking that provides political support for Philip Morris et al.  Perhaps the political forces that have successfully pushed for heavy smoking regulation will stall.  Perhaps we'll tax cigarettes into a leisure product only available to rich folks - and thieves.  Or perhaps we'll have a new unit to cover in our Criminal Regulation of Vice courses.

O'Connor on Affirmative Action - what's religion got to do with it?

A colleague of mine often quips about teaching reconstruction, the most difficult part of his legal history seminar. "So much promise, so little follow through" is his take on it. I’ve come to feel the same about affirmative action. Not because the end of affirmative action would compare to failed reconstruction, but because its impossible to adequately teach it in the first year Con Law curriculum. We get through the standard of review, and spend a few minutes debating the merits of "skepticism, consistency and congruence," but its impossible to distill three hundred years of relevant history and half a century of precedent into one or two 80 minute class sessions. And so I’m left to bounce the big theory questions off of my colleagues in the faculty lounge.

Don’t go yet - I promise not to debate the merits of affirmative action or the wrong turns taken in Croson and Adarand. And I’ll spare you one of my favorite discussions - how the rhetoric of affirmative action cases seek to rehabilitate whiteness in the face of rampant societal discrimination against people of color. (On the latter point see Cecil J. Hunt, II, The Color of Perspective: Affirmative Action and the Rhetoric of White Innocence, 11 Mich. J. Race & L. 477 (2006)). Instead, I’ll ask just one pointed question about one particular Justice: why is Justice O’Connor so skeptical of legislative motives in affirmative action cases when she is so deferential in other individual rights cases?

Consider one example.

Unique Bequests to Universities

What happens when a decedent leaves a chunk of change to a university with bizarre strings attached? For example, at Dartmouth, a donor left $1,000 in his will to fund the constant supply of firewood in the president's office. That was in 1945, so half a century later, that endowment is now worth much, much more.  Today, the fund is used for general maintenance in the president's office--which no longer has a working fireplace.   Also at Dartmouth, an alum from the class of 1879 left $10,000 for trumpeters to play at every graduation.  Worth over $250,000 today, the money still supplies sweet tunes in May, while also paying for other expenses in the music department.  For other examples of quirky gifts to universities, click here.

Thanks to SUCOL student Mr. Rennie for bringing this article to my attention.

Reforming Legal Education: Debating The Future Of Law Schools

For those of you who missed some or all of the great conversation around the question "What Kind of Institution Do We Want A Law School To Be?", here is a summary of links to the Madisonian mobblog on the topic.  Deven Desai deserves particular kudos for his efforts organizing this discussion.

Mobblog: What Kind of Institution Do We Want A Law School To Be? (Deven Desai)

A Law School for the 21st Century (Erwin Chemerinsky)

Law Schools and Law Firms (Mike Madison)

“Doing What We Do Best” or “Why Law Professors Should Feel Less Guilt” (Nate Oman)

A Mini University? (Al Brophy)

What Kind of Institution Do We Want a Law School to Be? (Nancy Rapoport)

Two Cheers for Indentured Servitude (Nate Oman)

Changing the Rules on Endowment (or Endowment Income) Spending

There's been a lot of talk about Congress' increasing interest in college endowments--and the growing calls for requiring greater spending from the endowment (or at least income from the endowment) (for example here).  We haven't spoken about this yet, but it sure needs to be flagged--and addressed when we have more time.

Alfred Brophy