The Faculty Lounge

Why Does Fox News Even Exist?

This is the image they ran with after Clinton challenged Obama to a "Lincoln-Douglas" debate.

I'm not sure which explanation is worse:

(a)  intentional race baiting;

(b) negligent newsroom editing;

(c) an educational system that completely failed the intern likely responsible for this.

Hat tip Feminist Law Prof.

With regard to (c), I'm reminded of a student several years back who was surprised to learn that Justice Thomas opposed affirmative action given his position on the bench as the nation's first Black Supreme Court Justice.

Sigh . . .

-Kathleen Bergin

Anonymous Articles Editor Blog?!

How, how has this escaped our reading up to now?  I'm most interested in hearing the thoughts of articles editors and here's a way to hear some of them.  Now, whether we agree with them is an entirely separate matter.  Looks like they're ignoring my advice to law journals from propertyprof.  (Thanks for a pointer to this blog from first movers.)

Alfred Brophy

Pollard on Intentional Sex Torts

As the Drudge Report would say, this is a developing story.  Yesterday, my friend Deana Pollard Sacks of Texas Southern University blogged at feministlawprofs about her article "Intentional Sex Torts," which is forthcoming in the Fordham Law Review.  (Her earlier article on negligent sex torts appeared in the Minnesota Law Review.)

Deana says of the emerging trend to recognize a tort of misappropriation of sex:

Since 2005, four states have finally recognized that fraudulent inducement of sex is rape. Not just immoral, not just “boys being boys” behavior, but misappropriation of a woman’s personal right to choose who invades her body. Perhaps surprisingly, the first state to recognize fraudulent inducement of sex as a basis for rape was Alabama in 2005. California, Michigan, and Tennessee followed suit the following two years, and Peter Koutoujian of Massachusetts filed a similar bill in February, 2008, which, when passed, will make Massachusetts the fifth state to recognize the crime of “stealing” another’s sexual prerogative.

You can read the full post here, including a revealing quotation from a New York court in 1975.  That led to a post here, which is disturbing for the cavalier way it deals with this important issue, to say the least.  Abovethelaw then picked up the thread. 

I'm pretty sure I'm on safe ground in saying, we haven't heard the last of this.

Why Are Our Prisons Stuffed? Bill Stuntz Calls Out Democrats

Bill Stuntz, at Less Than the Least, has an interesting post up suggesting that disproportionate blame for the "social catastrophe" that is our mass incarcerative state falls to the Democrats.  He argues that while Republicans can simply talk these deeply problematic anti-crime policies (viz, Willie Horton), the Dems actually have to deliver on them (viz, Clinton's execution of retarded murderer Ricky Ray Rector).  I probably wouldn't let off Republicans so lightly, but I agree with the premise: Democrats have bent over backwards to establish their bona fides on crime.  This is one of the reasons many criminal law progressives dislike the Clintons.  Hillary continues the pandering tradition today by opposing retroactive application of new crack sentencing guidelines.

Interesting commentary on this piece comes from Doug Berman here, Simple Justice here, and the Cloakroom here.

If you really want to flashback to some campaign nastiness, watch GWB's Willie Horton ad here.

Saving Sergeant Hagel (VP Brackets For Politics Nerds)

NCAA brackets are always loads of fun - the perfect way to break gambling laws and feel good about it.  (Back in the day, Justice Rehnquist ran the Supreme Court tourney out of his chambers.)  Now, for political junkies, comes Congressional Quarterly's VP Madness (GOP Edition) - a bracket where voters get to pick preferred VP candidates from suggested pairs.  No gambling here, just votes, but it's still gets your juices flowing.  They start with 32 possibilities, and Round 1 offers some intriguing choices, including: 

Sergeant Hagel v. Secretary Rice (I'm picking Rice - and saving Hagel  for Obama's ticket)

Joe Lieberman v. Jeb Bush (did one of them have to drop out this early?)

JC Watts v. Charlie Crist (this mismatch really does remind me of the NCAA first round)

Photo: Sergeant Chuck Hagel, 1968.  Additional Chuck Hegel military pics here.

H/T Sarah Stevenson

The Law of People Magazine

Ok.  It's Friday in May; it's been a very, very long year.  Time for a little fun.  (Hope I don't regret this post.)

Amidst all the talk of reform of law school, here's something that I think gets lost.  Rather than working on whole-scale changes (many of which are excellent ideas but  require coordination among many people and perhaps substantial changes in personnel) why don't individual faculty members work on incremental changes? 

One place that can happen is in making our classes more interesting to students.   This is an idea I first heard about from Maurice Rosenberg lo' those many years ago when I was a law student.  He gave this (what in hindsight I now realize is brilliant advice): write a case and include cases that will interest students.  Elegant in its simplicity, though not the easiest thing to carry off.  (And I think what interests students may be rather different from what interests us as faculty.)  It's taken me a long time to fully understand the wisdom of both pieces of that simple advice.  But what really drove home this point for me was a student many years ago who read People Magazine before class.  It seemed like every week she had a couple more example of cases that involved legal issues.  So she's talk about these before class and ask us what we all thought about them.  Never ceases to surprise me how much I learn from students.

Why, then, don't we take more examples for our classes from People Magazine?!  Sure, that may be easy for people who teach criminal law, torts, family law... maybe even intellectual property.  They can talk about all sorts of things, like assault by (or against) stars, rights of publicity and privacy, defamation, custody battles between movie stars, the list goes on and on.

Now, maybe you're like me and you teach wills, property, remedies, maybe a practicum in probate and a class on will drafting ever now and then.  What's in there for us?  Well, maybe more than you'd expect.   Back when Ms. Anna Nicole Smith passed away, I used Gerry Beyer's terrific discussion of the issues in her will in my trusts and estates class.  And there's no shortage of wills of the stars--from George Washington to the Elvis.  (Thank you Court TV!)  There's no end to will contests.

So I'm going to start an occasional series (following up on Bergin's One to Watch) here at thefacultylounge on "The Law of People Magazine."  It's going to be about cases involving stars--not necessarily only from People Magazine--that might be useful for teaching purposes.  I hope other people will join in here.

Thoughts on the Free Flow of Information Act - Part II

Lets assume the Free Flow of Information Act, the proposed reporter’s shield law I blogged about on Tuesday, would lead to greater public disclosure of government wrongdoing. That alone might explain why AG Michael Mukasey opposes the law. But what about his claim that a reporter’s shield would place vital information beyond the reach of federal prosecutors and "core national security authorities." We've heard the "war on terrorism" cry before, so Mukasey’s claim deserves a closer look.

First, its important to understand what the bill does not do. It does not withhold essential information from any federal agent. In fact, I’d call it an exaggeration to say the bill guarantees confidentiality at all. It only requires investigating agents to look elsewhere for essential information before a reporter can be subpoenaed. They can in fact compel disclosure if that initial search bears no fruit. Requiring the feds to play by the rules is not the same as hiding the ball.

Blackmon on Convict Labor

If you're by a television tonight, you'll want to check out Douglas Blackmon's interview with Tavis Smiley about his new book, Slavery By Another Name.  It's about convict labor.  Here's a description from the webpage for Slavery by Another Name.

Based on a vast record of original documents and personal narratives, SLAVERY BY ANOTHER NAME unearths the lost stories of slaves and their descendants who journeyed into freedom after the Emancipation Proclamation and then back into the shadow of involuntary servitude.

It also reveals the stories of those who fought unsuccessfully against the re-emergence of human labor trafficking, the modern companies that profited most from neoslavery, and the system’s final demise in the 1940s, partly due to fears of enemy propaganda about American racial abuse at the beginning of World War II.

The Future of the Reparations Movement?

I haven't written about reparations in a while, in part because other news has been consuming everyone's attention this spring.  There have been some developments: the University of Maryland's starting a course this fall to investigate its connections to slavery.  Ira Berlin, one of country's most distinguished historians, is convening the course.  And I hear rumors that William and Mary is discussing its connections to slavery as well.  (I did write about Harvard's non-investigation recently and a little about a potential lawsuit by Sally Hemings' issue to get access to Thomas Jefferson's grave and here a few weeks ago.)

But perhaps--and I'm really tentative about this--the reparations movement is shifting dramatically.  Look; it's no secret that the movement is challenged politically--(only a small percentage of white people are in favor of "reparations" for slavery--by which they mean huge cash payments to individuals, regardless of need.  No one that I know who is a serious scholar of reparations is thinking in those terms.   I think that's just a way anti-reparations writers have of making the movement look foolish.  That's a discussion best left for another time.

There is one place, though, where the movement has had an effect.  I think talk of reparations has shifted discussion of race.  President Bush's moving speech at Goree Island in 2003, where he acknowledged that we have a long way to go to incorporate everyone in the bounties that our country has to offer, is one example of rhetoric that has been shaped by the movement.

Despite the movement's impact on discussion, I think we're seeing another shift in politics, outside of the  reparations movement.  That shift, led most recently by Senator Obama, is away from affirmative action.  (The shift has, obviously, been underway a long, long time.  But this is where Senator Obama's critical--he's signaling a shift away from race-based affirmative action.  In the Pennsylvania debate, for instance, he said his daughters do not need affirmative action, but acknowledged that some poor white children do.) 

So what happens now?  Reparations talk has, for the better part of a decade (and at other times through our post-Civil War history), reminded us of the many ways in which some Americans have been grossly mistreated--and how that legacy is having an effect today.  But that knowledge mixes in other ways with politics and morality--and perhaps, perhaps will lead to renewed calls for social-welfare programs for all people in need.

I predicted in Reparations Pro and Con that the reparations movement would be the entry point for renewed calls for social welfare programs, but that the movement might end up in non-race based programs.  (I think that's right for a series of reasons--in part political, in part moral.)  And that, indeed, seems to be where this is headed.  Though, as I say, I'm really tentative about this.  We'll see....

Drexel Law Gets A New Name: The Earle Mack School of Law

Today we officially announce the renaming of the Drexel University College of Law.  Henceforth, we will be called the Drexel University Earle Mack School of Law.  Mack, who (not surprisingly) is donating a lot of money to the law school, is a 1959 graduate of Drexel University.  In addition to having served as an ambassador to Finland, he was a senior parter of Mack Co., a real estate developer, and a founding board member of Mack-Cali Realty.  He has served on both the Yeshiva University and Cardozo Law School boards - and he is currently Chairman Emeritus of the Cardozo Law School board.   The gift, which includes both a $15 million contribution by Mack and a $15 million match, is apparently among the top six (or perhaps top ten?) largest in law school history.

Today's naming ceremony features  former New York's former Governor George Pataki and Pennsylvania Governor Ed Rendell.  Dean David Rudenstine of Cardozo will also be speaking.  (Speaking of which: isn't it amazing how far Cardozo has progressed in the mere 30+ years since it opened?)

More details are here.  Photo is of Earle Mack, naturally.

Sovern on Rankings and Law School Priorities: A One Act Play

A recent ssrn digest brings news of Jeff Sovern's latest, "Rankings: A Dramatization of the Incentives Created by Ranking Law Schools." Here's his abstract:

Sellers in a competitive market shift resources from attributes buyers don't care about to attributes buyers do care about. In markets in which buyers rely on imperfect signals for quality, sellers move resources away from improving the quality of their product to enhancing the illusion of quality. For example, before freshness dating, when consumers tested the freshness of bread by squeezing it, bakers reportedly added chemicals to bread to preserve its softness longer, thereby creating the illusion of freshness. Similarly, law school rankings encourage schools to shift resources away from improving the quality of the education they provide in favor of investing in improving their standings in the rankings. Consequently, under the guise of serving the market, rankings which are based on the wrong criteria are likely to subvert the market because they both fail to measure accurately the quality of a school's education and reduce the quality of legal education.

This piece dramatizes some of the ideas discussed in the preceding paragraph. It takes the form of a fifteen minute-play with three characters: a law school dean, a junior law professor, and a law student. The play illustrates how the incentives created by a ranking system could affect law schools and their administrators, faculty, and students. The play format is intended to make the ideas expressed more vivid.

This is similar at some points (though different in form and broader in scope) to stuff we've been hearing a lot about recently, especially from Brian Tamanaha.  I'm always glad when people talk about things like priorities and expenses at law schools.

Alfred Brophy

Summer Submissions to the Alabama Law Review

This summer, the Alabama Law Review is trying out a new program, which promises an expedited review (an answer up or down within two weeks) for articles where the author promises to publish with law review if the article is accepted.  Whew, that's a mouthful.

Chris Ezell the Acquisitions Editor for the Alabama Law Review asked me to post a note about the program:

This year, the Alabama Law Review is beginning a Summer Submission Reading Program.  Alabama Law Review will be accepting special summer submissions starting Monday, May 19.

If you submit in our special summer program, we will guarantee you either an offer or a rejection within two weeks of your submission to Alabama Law Review.  In return, if we offer publication, we ask that you withdraw your article from consideration at other law reviews.  In addition, we ask that if you receive another offer of publication and have to withdraw that you notify us as soon as possible.

To participate:
1.  Submit your article to us through expresso or
2.  Send acquisitions@law.ua.edu a separate email with “Summer Submission (Your Last Name)” in the title, and include the link to your article on the body of the email.

A Lesson In (In)credibility: LAPD Discovers It's Perfect

The Los Angeles Police Department announced, yesterday, that after looking into over 300 complaints of racial profiling, every single claim had no merit.  The news is even better: according to the LA Times story, this is the sixth straight year that the department has concluded that every single profiling claim was groundless.  Here's the problem: nobody can take these results seriously.

First off, there's the general problem that American human beings are not race blind.  Then there's the more specific problem that police officers are not race blind - perhaps for rational (albeit legally and morally unacceptable) reasons (e.g., an officer's life experience may teach him that specific racial heuristics produce better arrest results.)  And finally there's the most specific problem of all: the LAPD is a department with historical issues in the area of race.

I'm not here to do battle with the department's conclusions.  I don't believe them, and I suspect that I'm not alone in my doubts.  But there is another point worth focusing on.  The credibility of an investigation, a lawyer, a sales person, all depend on that person's awareness that the world is not perfect.  This certainly resonates in the context of auto sales.   Concede that the Camry is a good car, with a great track record, and I'm much more likely to believe you when you tell me that the Altima has its own special merits.

For trial lawyers, this is crucial wisdom.  For example, witnesses with perfect testimony begin to look unbelievable - everyone has some blemishes.  It may even benefit the party that brings a witness to intentionally surface a few problems; it makes the testimony look real.   Similarly, a lawyer's closing arguments may want to embrace and concede evidentiary flaws in the case.   Jurors don't like being oversold any more than customers at the Ford dealer.  The fact that the world is a messy place doesn't mean that one side isn't right. 

The same holds true in politics.  One thing we learned over and over again is that American's embraced Bill Clinton despite, and perhaps even because of, his flaws.

If the LAPD had found several legitmate cases of profiling, we might have believed that they'd at least tried to investigate fully.  As it is, the discovery of perfection only serves to undermine the search process itself. 

Theorizing The FLDS Case: Should Texas Terminate Parental Rights?

Harry Brighouse, a philosopher at UW Madison, has a nice post considering the question of when a state ought to terminate parental rights.  (It's based on his article, with Adam Swift, Parents' Rights and the Value of the Family.)  He proposes a two-part algorithm.  First, have the parents met the preconditions for having fundamental parental rights?  Parenting, he argues, provides the parent a particular sort of intimacy which uniquely promotes human flourishing.    But when a parent  fails to attend to the child's interests sufficiently, he or she loses her fundamental rights to parent.

This doesn't end the matter, however, because at this point the child's interest surfaces.  Once a parent has forfeited rights, the state must "ask whether terminating parental rights will, given the real institutional alternatives, be better for the kids than not doing so.  This bar, frankly, is usually pretty high, because it takes pretty serious abuse and neglect to make a child worse off than they would be in the foster care system."

Brighouse then offers three reasons why the foster care option is sketchy: first, it's disruptive to place a kid in foster care against his or her parents' wishes; second, original parents have lots of legal protections that result in kids often being shuttled back and forth between original and foster parents before any adoption can occur; and third, "some foster parents are pretty bad."

Thus, while he believes it's likely that many of the FLDS have forfeited their fundamental parenting rights, he's uncomfortable how matters play out with respect to the second prong: the childrens' best interests.  Perhaps in a different world termination might make sense, but we don't live in that world.  He concludes:

The fact that original parents have so many protections is, of course, something the State, itself, has control over (as, to some extent, is the quality of the foster care system). Maybe the state should reform the law so that children can easily and quickly be fostered-then-adopted, and original parents have little say. But for these particular children (and the courts making the decision) there is no prospect of law being reformed in that way. And there are reasons, given the history of the US into very recent times, for being very uneasy about giving State governments that sort of power given the history of the use of state power against despised groups of parents in the US.

Image of the FLDS compound courtesy of this site. 

Law School Visitors: The 2008-09 List

Updated on April 30 with data received through April 27.

I'm pleased to announce the first second iteration of this year's law school visiting professor list.  This does not include visiting assistant professors who have yet to take their first full-time tenure track position.  The entire list appears after the jump.    I'm not sure that it will read perfectly on all computers so a link to an Excel version of the document appears at the top of the list, immediately after the jump.

As always, the list is both incomplete and (almost certainly) somewhat inaccurate.  I am again making corrections immediately to the list as posted here, but will not update the downloadable version until the next update.  Please keep emailing me information at danielmfiller@gmail.com.

Thoughts on The Free Flow of Information Act - Part I

In an opinion piece in USA Today, Attorney General Michael Mukasey sounds off against the Free Flow of Information Act presently being debated in Congress. If enacted into law, the measure would protect members of the press under certain circumstances from being compelled to identify  informants or the information they traded on a promise of confidentiality. Mukasey argues that the bill would put reporters "above the law" and "impede investigations of serious crimes," including terrorism and other threats to national security. Besides, he says, the most notable news stories, think Pentagon Papers, Watergate break-in, Enron scandal, all broke with the help of confidential informants whose identity was not protected by a statutory reporter's shield. And so, the argument goes, a statutory shield will unnecessarily intrude on legitimate law enforcement objectives without delivering any countervailing benefits to members of the press or the public informed by their work.

Setting aside for a moment the details of the proposed law, consider Mukasey's threshold argument: that the press has functioned fine without a statutory shield so why enact one now?  History is certainly rich with confidential informants who've accepted the risk of of possible disclosure, but I think Mukasey overstates the case.  Whatever enticed confidential informants to come forward in the past, can we really say that the press, and through it the public at large, wouldn't benefit from added protection?

In Branzburg v. Hayes, the Supreme Court declined to grant the press an unqualified right of confidentiality under the First Amendment.  But the press still flourished, as did the use of confidential informants, in part because the decision left room for recognizing a qualified privilege on a case by case basis that takes into account the risks and benefits present in each independent circumstance. Indeed, most jurisdictions follow this approach, but the standards vary, and what is protected in one jurisdiction may not be protected in another. A federal shield statute would at least bring some consistency in the law that in turn may encourage otherwise wary informants to come forward with valuable information the public would want to know.

Moreover, its true that Pentagon, Watergate and Enron insiders were willing to talk without guaranteed protection, as were informants who leaked the Bush Administration's domestic spying, torture and rendition programs - matters Mukasey neglects to mention in his op-ed. But could we ever quantify (or qualify) how many episodes of government or corporate wrongdoing have yet to be discovered because those in the know are unwilling to talk without adequate protection?  To borrow the words of another Administration insider, there are things "we don't know we don't know."  And its likely to remain that way until a federal shield becomes law.

Mukasey's additional concern that the Free Flow of Information Act would undermine legitimate law enforcement investigations also deserves a closer look.  More on that tomorrow . . .

-Kathleen A. Bergin

Only In Berserkely: Boalt Hall Changes Name; Total Dummy Joins Faculty

Eric Muller has all the news.   

It's absolutely true.

Download the incriminating evidence

Istanbul Legal Skills Conference

Still looking for a summer conference - try this one: 

The Istanbul Legal Skills Conference sponsored by the Legal Writing Institute and hosted by Bahcesehir University's Institute for Global Understanding in Law will bring together professors from the United States and European Union to discuss legal analysis and writing skills with Turkish lawyers and law students.  Bahcesehir is a leading law school in Turkey and offers regular programs to Turkish lawyers that expose them to trends in law and legal education around the world.  The LWI is the second-largest American organization of law professors, with members in 48 countries.  It has offered programs to law professors, judges, and lawyers in the United States, London, Prague, and Nairobi.

The conference site contains the schedule of presenters and registration information for both the conference and a pre-conference excursion to Pergamon and Ephesus.  Or feel free to contact either me or Tracy McGaugh (Touro) personally.  We've both taught and lectured in Istanbul on a number of occasions, and are happy for any excuse to share our experiences there!

-Kathleen A. Bergin

Baldus Redux - Race and the Death Penalty, Again

A  new study to be published in the Houston Law Review this fall purports to provide statistical backing to what many in the criminal justice system would say is a no-brainer: race matters, especially when we're talking about who is sentenced to death.  As the New York Times reports this morning, the study surveyed cases in Harris County, Texas between 1992 and 1999 where its author, Professor Scott Phillips, found that for every 100 black and 100 white defendants, an average of 12 white defendants would be sentenced to death, compared with 17 black defendants.  Critics say the study is flawed in part because it "controls for stuff" other than race (which, um, I thought was the point?), but its findings shed new light on existing defects in a system that itself seems flawed at every pass. 

Here are a few more nuggets of information from Amnesty International about the death penalty in Harris County that give some context to the new study:

• If Harris County were a state, it would rank 26th in population but second in rates of execution (behind Texas itself).

• As of July 2007, Harris County had executed or sentenced to death the same number of defendants as had the next seven largest counties, those that include cities like Austin, Dallas, El Paso, Fort Worth, and San Antonio.

• Five million more people live in those seven counties than live in Harris County, and a hundred more murders are committed in those counties each year.  And yet, Harris County alone challenges their combined execution rate. 

Its been  more than 30 years since the SCT upheld the death penalty in McCleskey v. Kemp against overwhelming evidence that connected the likelihood of death to the victim's race.   Professor Phillips makes that same connection with the defendant's race.   Its doubtful these new findings would cause the present Court to seriously reconsider the merits of the death penalty, but its worth keeping in mind Justice Powell's admission upon retirement when asked whether in a given case he wished he could go back and change his vote.  Just one, he said, McCleskey.

-Kathleen A. Bergin

Part Time Work in the Legal Academy

Over at Crooked Timber, they're talking about academics who choose (often for family reasons) to work part time.   Lots of reasons why one might want that.  A lot has to do with having more time to spend with families.  Sometimes, also, graduate students will work part time (to put bread on the table and self-fund their research).   And they're talking about the pros and cons of this, particularly its implications for research.  As Ingrid Robeyns says:

But my biggest doubt whether part-time work is such a splendid idea for academics who are doing research has to do with the nature of research: whether one works on a full-time contract or a part-time contract, the literature that one has to follow to keep up to date with one’s area of research remains the same. There are ‘fixed costs’ (in terms of time and effort) for each line of research that one pursues. The consequence is that a part-timer spends as much time (in absolute number of hours) on keeping up to date with the literature, implying that she has fewer hours left for actually developing new research.

I suspect that use of part time academics, like increasing use of adjuncts and non-tenure track faculty, is another strategy of cost-cutting and benefit reduction that we're seeing throughout the economy.  The academy's being transformed (for good and bad) just as the rest of our economy.   As schools, understandably, look for ways to cut costs, use of part-time faculty is going to be yet another popular response.  This is a topic on which I hope to spend a lot of time talking this summer.

Alfred Brophy