Second, I haven't followed the controversy over Joseph Massad of Columbia University until the last week or so. I see that he's up for tenure and that's generating a lot of press. One of the points of controversy is his recent book, Desiring Arabs, published by the University of Chicago Press. Here is a description from the press' website:
Sexual desire has long played a key role in Western judgments about the value of Arab civilization. In the past, Westerners viewed the Arab world as licentious, and Western intolerance of sex led them to brand Arabs as decadent; but as Western society became more sexually open, the supposedly prudish Arabs soon became viewed as backward. Rather than focusing exclusively on how these views developed in the West, in Desiring Arabs Joseph A. Massad reveals the history of how Arabs represented their own sexual desires. To this aim, he assembles a massive and diverse compendium of Arabic writing from the nineteenth century to the present in order to chart the changes in Arab sexual attitudes and their links to Arab notions of cultural heritage and civilization.
The New York Daily News, in an article critical of Massad, says of the book:
In a central thesis, Massad targets a movement he calls the "Gay International," made up of "white male European or American gay scholars" and advocates. He accuses this Gay International of, in effect, creating homosexuality in the Arab world.
He writes: "It is the very discourse of the Gay International, which both produces homosexuals, as well as gays and lesbians, where they do not exist, and represses same-sex desires that refuse to be assimilated into its sexual epistemology."
Echoing Iranian President Mahmoud Ahmadinejad's infamous claim on a visit to Columbia that Iran has no homosexuals, Massad attacks the Gay International for assuming that "homosexuals, gays and lesbians are a universal category that exists everywhere in the world."
Massad also asserts that the "white Western women's movement" had similarly tried to force gender equality onto "non-Western countries."
As I said, I'm not familiar with the book, so I am unable to evalute the merits of the News' charges. But I'm intrigued by the controversy, for once again we see the ideas in a book at the center of a political dispute. Just as Open Veins in Latin America fades from the news cycle, here's more fodder for the history of the book crowd.
When Senator Arlen Specter decided yesterday to abandon the Republican Party to join the Democratic Party, he stated that “I now find my political philosophy more in line with Democrats than Republicans.” In light of the legislative agenda he articulated in the current issue of the New York Review of Books, he is certainly right as a general matter, but whether he is right with regard to specifics and political will, only time will tell.
The main objective of his legislative agenda outlined in the NYRB is to reassert congressional power to contest what he identifies as “presidential power grabs.” The separation of powers is unbalanced. The Bush Administration greatly expanded the exercise and assertion of unilateral executive power. Democrats decried the perceived abuse. Now the Democrates control the executive branch and possess expanded powers inherited from the prior administration. Do the Democrats in Congress have the political will and Presidential cooperation to limit some of the most far-reaching assertions of executive power? Senator Specter might be counting on it. He certainly has not been able to count on Republican support for many of his legislative proposals, especially since Republican political philosophy believes in the prerogative of inherent, and unenumerated, executive power. What are his legislative proposals, and are they likely to succeed?
This is a kerfuffle really worth watching. At a conference recently, Justice Scalia made comments suggesting that he has limited passion for the notion of privacy protection in an Internet world.
"Every single datum about my life is private? That's silly," Scalia [said]. . . .
Scalia said he was largely untroubled by such Internet tracking. "I don't find that particularly offensive," he said. "I don't find it a secret what I buy, unless it's shameful."
He added there's some information that's private, "but it doesn't include what groceries I buy." . . . .
Considering every fact about someone's life private is "extraordinary," he said, noting that data such as addresses have long been discernible, even if technology has made them easier to find.
In response, Fordham Professor Joel Reidenberg asked students in his privacy course to compile a complete dossier on Scalia based on information readily available on the Web. Students compiled a 15 page packet - which Reidenberg generously keeps behind a password. The dossier apparently includes Scalia's home address and phone number, his wife's email address, his food and movie preferences, and pictures of the grandkids. When word of this homework assignment leaked via Above the Law, Scalia struck back - again, via ATL:
I stand by my remark at the Institute of American and Talmudic Law conference that it is silly to think that every single datum about my life is private. I was referring, of course, to whether every single datum about my life deserves privacy protection in law.
It is not a rare phenomenon that what is legal may also be quite irresponsible. That appears in the First Amendment context all the time. What can be said often should not be said. Prof. Reidenberg's exercise is an example of perfectly legal, abominably poor judgment. Since he was not teaching a course in judgment, I presume he felt no responsibility to display any.
I'm surprised by Justice Scalia's characterization of the project. The scope of protection for privacy in our society is at the forefront of the public policy debate. I assign this research project annually and last year used myself as itssubject. The exercise never fails to provide a keen demonstration for my students of the privacy issues associated with aggregating discrete bits of otherwise innocuous personal information.
When there are so few privacy protections for secondary use of personal information, that information can be used in many troubling ways. A class assignment that illustrates this point is not one of them. Indeed, the very fact that Justice Scalia found it objectionable and felt compelled to comment underscores the value and legitimacy of the exercise.
I'm not at all convinced that this was an illegitimate classroom project. Professor Reidenberg's students learned a lot about privacy protection and maybe Justice Scalia learned a bit about how the power of technology really might have serious implications for individual privacy and freedom.
Or maybe he just thinks the liberals are out to get him again. He may be right, of course - but everyone has enemies. And when it comes to privacy intrusion, the power of data aggregation is quite agnostic.
Despite the hiring freezes this past year, many law schools, including my own, will be welcoming new tenure track faculty and perhaps some new visitors as well over coming months. So now might be a good time to think about that old mentoring question (at least it's a break from thinking about exam grading).
In particular, it might be nice to think about what senior faculty can do to ease the transition of new junior faculty over the summer months and to help engage them with the local and broader law school communities.
Of course, there's the question of whether or not they should be encouraged to go to the AALS new law teachers' conference. I generally think this is a good idea, even if just for the opportunity to meet new teachers from other schools and to begin to form a support network. New teachers can also be encouraged to sign up to the new law teachers' list-serve to keep in touch with their group of incoming peers.
Whether or not the school has a formal faculty mentoring program, at least one or two senior faculty (maybe associate deans for research and development) should take it upon themselves to sit down with new faculty and help plan the beginnings of a scholarship and conference attendance program for the next few years, including discussion of whether the AALS Annual Meeting is a good venue for that particular teachers'/scholars' development and/or whether there are other good external venues.
Internal development venues should also be identified ie if your school or university has a teaching support group or particular research support initiatives that are available to junior faculty. The pros and cons of providing works in progress to home faculties should also be discussed with incoming faculty. Bloggers have recently shared some useful perspectives on the extent to which half-baked scholarship should be shared with home faculty (although the exact answer to this conundrum in any given instance is likely to depend on faculty culture at a given school).
Over at TaxProf Blog, Paul Caron has taken the two components of US News that most folks think have some merit - the peer assessment survey number (reputation among academics) and the lawyer/judge assessment number. He notes that the overall US News scoring incorporates peer assessment as 25% of the total and lawyer/judge assessment as 15%. Extrapolating, Paul creates what he titles the 2010 US News Quality Assessment Ratings. These rankings are based exclusively on survey scores, weighting peer numbers 62.5% and lawyer/judge numbers as 37.5%. The overall rankings are a tad different than the overall US News numbers. Some interesting stuff:
Northwestern tumbles from #10 to #15 North Carolina rockets from #30 to #20 GW soars from #28 to #21 Wisconsin rises from #35 to #26 BU sinks from #20 to #29 Bama drops from #30 to #43
And there's plenty more. The biggest benefit of this particular re-ranking is that it exposes the role of all of the other non-reputational factors in determining a law school's overall US News position.
Who knew? Apparently Portland, Oregon's Concordia University had been planning on opening a new law school in Boise next year, and now it's putting that plan off to a later date. According to this story:
Andrea Bruno, vice president for advancement at Concordia University in Portland, Ore., says school officials want more time to develop the law degree program, secure a location and raise money.
In December, the university had brought in about $1.5 million of the $7 million it needs for the project.
Bruno says the university has since made progress, but she declined to give a specific amount.
I wasn't previously aware of this, but Boise is the site of some competitive law school builiding. Last year, Concordia brought former Idaho Supreme Court Justice Cathy Silak aboard to create the new law school. At the same time, the University of Idaho School of Law is looking to expand into the Boise market. While the U ultimately hopes to site a full three year program in the city, the short term goal - still in need of funding - is to create a third year program in Boise.
The Court found that the policy was neither 'arbitrary or capricious' within the meaning of the Administrative Procedures Act. It punted on the First Amendment question though, remanding to the Second Circuit for a determination on that issue.
And who knew Scalia was such a shrinking violet. Not once in his 30 page majority opinion does he write the word 'fuck' in a case that's, well, about the word 'fuck.' But then again, neither do any of the other Justices.
The WSJ Law Blog tells us that there are new previews coming to the local Regal Cinema (at least the local cinema in D.C.) and they're not going to be all laughs and explosions. Instead, they'll be litigation reform promos produced by FacesOfLawsuitAbuse.org. This organization is all about helping us understand the real-life repercussions of what they consider frivolous lawsuits. They've put together several movie trailers and you can watch them here. Whether they're stupid tort suits blaming pool store owners for the misbehavior of Canada geese ("the goose was not our employee or agent", the owner explains) or stupid Americans with Disabilities Act lawsuits attempting to insure that wheelchair users get access to the second floor of a commercial party and activity facility, the producers want you to understand that the scamming lawyers are hurting real people. (The latter case, in which a facility called Basketball Town closed its doors in the context of an ADA suit, is open to multiple interpretations. A more plaintiff-friendly view is here.)
This seems like a savvy political gambit. But they'd better just make sure they're telling stories fairly, because with this sort of public face...they're pretty darn vulnerable to being burned. I can already imagine the Saturday Night Live spoofs...
Our friends over at HUP blog are talking about Judge Posner's forthcoming book A Failure of Capitalism
on the crash of 08. It's due out in May and it's a non-technical
explanation of the crash. Publishing in real time, so to speak.
reminds me of a theme that bloggers often crow about: blogs can respond
much more quickly than can traditional scholarly writing--like law
reviews and book publishers. Yet ... there are some examples that
suggest when time is really of the essence, traditional law publishers
can respond. Judge Posner's book is one example. But my favorite
example is from an earlier crisis: Watergate. Charles Black wrote an essay on impeachment, which (as I now understand) the Yale University Press
rushed into "print." They got him page proofs to distribute to
Congress, as I recall. Back in those days, I guess it was called as "fastback."
Here's a brief description of this from Publisher's Weekly (as posted on the Yale University Press' website for Impeachment):
'fastback' written by Yale law school professor Black (run through the
press in a matter of days) is the most authoritative, clear and
incisive analysis of the process and significance of impeachment that
has yet appeared. An example of a cool legal intelligence applied to a
complex and thorny issue, it may also become a hot seller. Professor
Black does not approach impeachment wholly in hard legalistic terms;
when he does not specifically name President Nixon and his present
possible impeachment, his inference is clear (e.g., the possibility of
a bribe in the milk fund case clearly refers to Nixon). Black is
notably moderate (having supported 'executive privilege' at first, he
now feels Nixon has compromised his claim to it by surrendering
important confidential material). Here are congressional procedures in
impeachment, finely balanced views pro and con, contrary
interpretations of the Constitution, and altogether an invaluable
clarification of impeachment for the citizens whom polls only recently
showed were greatly confused on the subject. Appendices.
For some reason I had thought it was the Yale Law Journal, rather than Yale University Press--but that just goes to show how my memory's working these days.
US News rankings week always leads
to a major use of Internet band width.And
The Faculty Lounge is no exception. As
Dan Filler has already noted, some of the most thoughtful comments in this
cycle come from Judge Pollak who offers an alternative method for assessing law
school quality. And there is
the usual kerfuffle about possible US News mistakes and the potential for
gaming the system.This year’s
controversies are well summarized by Paul Caron. (Update: Paul has information about more possible errors here.) The securities regulation lawyer in me got to
thinking about whether there is a way to respond to Judge Pollak while
increasing reporting reliability and satisfying the commercial interests of US
One partial answer to Judge Pollak’s
call for a better focused ranking system could be a more extensive disclosure
of data by US News.Under the current
system, each law school provides US News the data it requests.This component data is not made broadly
available by either US News or the law schools.US News then notifies each school about how its own data is converted
into points which result in its overall score.Disclosure by US News of every school’s component points and the
underlying data used to create component points would enable users to better
evaluate factors that are important to them individually.For example I am imagining that ranking point
differences that are derived from library volumes and expenditures per student could
become less significant while bar passage rating points, a currently low point
value item, would become more relevant to users. And US News could charge for this
data dump as part of their premium online service.
More disclosure should also lead
to better reliability.Anomalies would
be more obvious and ex ante ought to be driven from the information marketplace.Because US News has become such a high stakes
game there is also a role for regulation of information disclosure.It’s time to be more systematic about the way
the data is collected.A relatively low cost solution comes to
mind.Key data is derived from bar
examiners and information provided to the ABA and LSAC by law schools. Law schools should agree to allow these organizations
to provide the data to US News directly. At a minimum, this should create more
data consistency.Moreover, the legal
education community ought to take taking very seriously its obligation of
providing accurate data to US News.Such
an obligation already exists in the ABA accreditation standards (specifically
Interpretation 509-4). US News requires deans to sign their
school’s submission.Maybe the ABA
should pile on and require a Sarbanes Oxley like certification to it that the
law school is playing fair with US News.
Ben Franklin once remarked, “Fish and visitors stink after three days.” My stint as a guest blogger started with my first post back on February 23, so I’m waaaaaaay past my expiration date. Today is our last day of class for the semester, so I’ll use that benchmark as a reason to bring my visit to a close. Many thanks to Al, Dan, Kathy, Laura, Calvin, and Kevin for allowing me to play in their sandbox (and contribute nearly sixty posts on various topics). This has been fun indeed, and I hope I’ll be invited back in the fall.
The San Francisco Chronicle reports that Contra Costa County, located outside of San Francisco, is going to severly cut back on prosecution of smaller criminal offenses:
Misdemeanors such as assaults, thefts and burglaries will no longer be prosecuted in Contra Costa County because of budget cuts, the county's top prosecutor said Tuesday. District Attorney Robert Kochly also said that beginning May 4, his office will no longer prosecute felony drug cases involving smaller amounts of narcotics. That means anyone caught with less than a gram of methamphetamine or cocaine, less than 0.5 grams of heroin and fewer than five pills of ecstasy, OxyContin or Vicodin won't be charged. People who are suspected of misdemeanor drug crimes, break minor traffic laws, shoplift, trespass or commit misdemeanor vandalism will also be in the clear. Those crimes won't be prosecuted, either.
I get the point of this announcement - making some political hay - but I don't buy it. Local voters will never an official policy of crime toleration within the county. And the total elimination of prosecution of offenses like shoplifting might lead to a serious rise in certain crimes crime - or, I suppose, soaring rates of vigilante justice. Still, it is probably true that when prosecutors lose large chunks of their budgets, they'll have to use their discretion a bit more critically. And I'm not sure that's a bad thing. We've become a bit too comfortable churning offenders through the criminal justice system.
Supposing that some of us are actually going to attempt to read some books for fun over the summer [not, of course, implying that reading law review articles and recent judgments isn't fun], I thought it might be worth getting a thread going about what people recommend. So I'll put myself on the line with "What I'm Reading" and see if I can generate any other suggestions from anyone else.
Here's some books I've been reading while eagerly awaiting my student exams to grade:
1. I did read Christopher Moore's "Fool" which I mentioned in a previous post. I wasn't so keen on it as it read to me like an Americanized attempt to do Monty Python and it didn't really work for me. However, I did read Moore's "You Suck" and "A Dirty Job" which are worth reading together as the stories are independent, but they intertwine, and both are certainly chucklesome. And I enjoyed Moore's "Lamb" which creates a new gospel according to Biff, Christ's childhood friend. Warm and cute and not at all offensive to Judaism or Christianity, at least in my humble opinion.
2. I really enjoyed Erik Larson's "The Devil in the White City" - historical fiction combining a story about the Chicago Worlds' Fair and one of America's early serial killers who committed many of his crimes in Chicago at the time of the fair.
3. Jeannette Wall's "The Glass Castle" - an amazing memoir. An easy read, and very touching.
4. Nancy Horan's "Loving Frank" about Frank Lloyd-Wright's ongoing affair with one of his client's wives. The story is a little overblown, but an engaging first work of historical fiction by the author and offers interesting insights into Lloyd-Wright's life. Makes me want to read "The Women" by T.C. Boyle which is another historical fictional look at Wright's life, but this one includes all his key relationships with women.
5. And I finally read David Brin's "The Postman" which I really enjoyed, but can't say it has inspired me to go and see the movie. I don't really want an image of Kevin Costner to ruin the image I currently have of the character in the book. And I'm told that the movie is needlessly long and misses a lot of the intricacies of the book.
I'd welcome any other recommendations - have a few long flights coming up in June and find these good opportunites to at least try to catch up on some summer reading.
Last fall I blogged a little bit about Geoffrey Stone's "The World of the Framers: A Christian Nation?", which appeared in the UCLA Law Review (thanks to a pointer from our friends at co-op). At that point I wrote that
Stone makes the important--and I would have thought obvious, except that it hasn't been much discussed of late--point that our country's founders were often liberal Protestants. They took a very broad approach to their belief in God--many were deists. They were children of the Enlightenment. As I say, I don't think that's news to people who work in early American religion; but disciplinary barriers are mighty high and so I suspect this is an important insight for us in the law businesses. And Stone's synthesis of the learning of the last generation of historical scholarship helps lawyers understand the religious context of our Constitution.
I might add one other point to this, which I rarely see discussed in legal literature: that the context of religious war in Europe framed our founders' approach to religion. They had seen the violence that grew out of religious strife and wanted to contain it, to the extent that they could.
Now I learn that Seth Barrett Tillman has a new paper up on ssrn that responds to Stone, called Blushing Our Way Past Historical Fact And Fiction: A Response to Professor Geoffrey R. Stone's Melville B. Nimmer Memorial Lecture and Essay. Tillman has a couple of key points--first, that Stone made some factual errors on the nature of the Constitution's references to God and second, that Edward Gibbons' Decline and Fall of the Roman Empire was not banned at Harvard at the end of the eighteenth century. (I also fell for a different version of the story that Gibbons was banned at Harvard, in an essay on the history of the book back in 2003, I must confess--though I was using that vignette for an entirely different purpose from Stone.) American Creation has a lengthy discussion of those points.
But Tillman has a larger point: that we need to know more about the nature of the founding generation's attitudes regarding the relationship between religious belief and government practice--whereas Stone focuses more on their religious beliefs. On this bigger issue, I'm on the side of Stone: I think that the liberal Protestant views of the founding generation have implications for how we think about the nature of our country's original commitment to Christianity (or to certain types of it). That's what I liked about Stone initially and I think that's the contribution he makes in bringing the insights of historians of the founding era to a law audience.
I'm sure that Tillman's passionate essay will invite further discussion of the role of historical context in constitutional theory. Heck, I'm tempted to join the fray with some talk of the nature of beliefs about Christianity in the antebellum era and at the time of the framing of the Confederate Constitution.
Well, the alternatives to US News keep proliferating. Yesterday we had Dan Filler's post on Judge Pollak's most recent rankings in the Drexel Law Review. Some years ago J. Gordon Hylton assembled the "US News without the Clutter" rankings (and more here). The Hylton rankings looked at two key issues: LSAT scores of entering students and peer assessment rankings. This year, Nathan Gimpel has assembled a similar set, though he casts his net a little more broadly. They are styled the "Helmholtz Rankings" . These are similar, but have a few more factors: they take into consideration peer and lawyer/judge assessment scores from 2009, as well as 2010, as well (a very little bit) student numbers from last year, too.
These are similar to the rankings Brian Leiter linked to yesterday at Light and Liberty (also know as the "53% Ranking"). One major difference, though between the Helmholtz rankings and the Light and Liberty ranking is that the later did not take account of gpa. At this point I should say something about the unfair singling out of the University of Alabama (which was ranked 30 by US News) by Light and Liberty. Among Light and Liberty's charges are that Alabama is admitting high-ranking students from the UA Honors College without requiring them to take the LSAT. I've known a lot of people who graduated from the Alabama Honors' College over many years and to a person they're outstanding. As I said in a post earlier this week, whatever the impetus behind the admissions of people with astronomical gpas without requiring the LSAT is, it's unlikely to be designed to "hide" poor LSAT performances.
Here is the formula used for the Helmholtz Rankings:
34% - 2010 Peer Assessment Scores
17% - 2010 Lawyer/Judge Assessment Scores
10.625% - 2010 25th Percentile LSAT
10.625% - 2010 75th Percentile LSAT
6.375% - 2010 25th Percentile GPA
6.375% - 2010 75th Percentile GPA
6% - 2009 Peer Assessment Scores
3% - 2009 Lawyer/Judge Assessment Scores
1.875% - 2009 25th Percentile LSAT
1.875% - 2009 75th Percentile LSAT
1.125% - 2009 25th Percentile GPA
1.125% - 2009 75th Percentile GPA
One question that these different rankings pose is: will this begin to break down the power of US News? There are now enough alternative rankings--some of which draw on some of US News' underlying data, of course--that we may see some real competition. For a while I thought the Hylton Rankings were making some traction; perhaps Helmholtz will be the new Hylton Rankings (or maybe the 53% Ranking will become dominant). This is hard to know.
We held our last faculty meeting of the semester this week. One agenda item that generated robust debate was the idea of offering a “bounty” for scholarship placement. For example, an article placed in a “top ten” journal might trigger a $5,000 cash bonus, an article placed in a “top twenty” journal might trigger a $3,000 cash bonus, etc. Assuming that such a policy is a good idea (and, for the record, I’m opposed to any such proposal), the devil is in the details. (If your school has such a policy, please send along a copy to me and I’ll route it to our committee chairperson.)
One colleague challenged the notion that any such policy would modify our behavior in any way, assuming that we already are driven to seek the best placements possible. That statement made sense to me at the time of the meeting, but I’ve given additional thought to the proposition. And I’ve come up with a few situations where a cash incentive might affect behavior.
1. Professor Jones doesn’t ask for expedited reviews or play the “trade up” game. Perhaps a cash bonus might prompt Professor Jones to rethink his placement strategy.
2. Professor Jones doesn’t ask friends at top-tier schools to “walk” her paper down to the student editors. Perhaps Professor Jones might start making those awkward phone calls for a chance at $1,000 ... $3,000 ... $5,000.
3. Professor Jones has an article ready to submit to journals. The article is not time-sensitive. Professor Jones is visiting at a “better” school next semester. Thinking that “better” letterhead might trigger “better” placement (and increase the likelihood of a cash bonus), might Professor Jones defer submission for a few months?
4. Professor Jones receives an invitation to contribute an article to a symposium issue to be published by a "top fifty" journal. Might Professor Jones decline the invitation, given that this placement won't trigger any cash bonus?
5. Professor Jones accepts an offer from a “top fifty” journal. Three days later, she receives an offer from a “top twenty” journal. Professor Jones gets no cash bonus for a “top fifty” placement, but she’ll receive a very nice “reward” for a “top twenty” placement. Might Professor Jones reconsider her initial acceptance?
Perhaps readers might offer other situations where “placement incentives” could affect behavior.