It's that time again: the annual compilation of law school faculty movement. As always, I am indebted to the other bloggers who publish this information and those of you who reach out to give me news. Brian Leiter - at this point, my primary source for this chart - suggested, back in August, that this year's list might be thinner than in prior years. Jacqui Lipton recently concurred. We shall see. You can review the progress of this year's law school dean searches here.
CALL FOR PAPERS: For a proposed symposium to mark the 25th anniversary of the
United States Supreme Court’s landmark opinion in Batson v. Kentucky (1986), the University of Iowa College of Law invites submissions. The symposium is
prompted by a need for reflection upon what a quarter-century of experience with the revolutionary
constitutional restrictions that Batson and its progeny have imposed on peremptory jury challenges
means for the criminal justice system. Submitted work should be prompted by the Batson doctrine
(its impact, consequences and implications for the future) or, more broadly, by other concerns
regarding the theory and function of the peremptory challenge.
Written as a comment on Philip Hamburger's book, Law and Judicial Duty, this essay explains why the history of judicial review remains a difficult area for scholarship. American judicial tradition espoused that judges had an obligation to declare as void laws repugnant to the constitution. The essay suggests that the source of this duty, as well as the meaning of both the constitution and laws of the land, changed over time. The essay proposes that scholars perceived American judicial review as problematic only when this tradition conflicted with an increasingly rigid belief in separation of powers. The essay concludes by suggesting that Marbury's significance derives from its status as the last time an American judge could declare that striking down a law as repugnant to a constitution was the simple consequence of expounding the law. The comment ultimately argues for recovering the time-honored meaning of "expounding" as applied to the work of judges.
For those who can't get enough of reality (and I use the term loosely) TV, here's a story about the Aussie version of Top Model where the name of the runer up was incorrectly announced on air live as the name of the winner. You have to feel sorry for the host of the show, don't you? (At least they gave the runer up a good consolation prize - she got to meet with "Elite Model Management" along with the winner...)
Jewish students at the University of Texas are organizing a petition drive. Their goal: to move next year's class Texas - Oklahoma matchup off of Yom Kippur. The petition reads:
Next year, Texas-OU weekend falls on Yom Kippur, the holiest day of the Jewish year, a day dedicated to fasting and repentance. The event is more than the game itself. It is the state fair, the fried foods, college GameDay, and the atmosphere of a neutral site game that cannot be duplicated. Over ten percent of undergraduate students at the University of Texas (as well as countless alumni, season ticket holders, and other supporters) are Jewish. For them to be forced to choose between the holiest day in Judaism, and the biggest day of the year for Texas football (and the events surrounding the game) is unfair.
Sunset should be a bit after 7 that night. Perhaps they can defer the game til 9:00 - giving fans time to run home from synagogue, snarf a bagel with whitefish salad, and get settled on the couch. And fans who plan to attend the game can simply atone in Dallas. Surely there will be a market for the Yom Kippur-only "Red Rivalry Membership Special" at local shuls.
The Supreme Court has adopted a new policy on audio recordings. As announced today, the Court will release MP3 recordings of the week's oral arguments on the Court website each Friday. This will be a boon for all those law school Supreme Court seminar courses. Orin Kerr has thoughtful comments on the thinking behind this decision.
A couple years ago, Brannon Denning (Cumberland) and Marcia McCormick (St. Louis now, Cumberland then) graciously invited me to join them as a co-author on a book project that would be a comprehensive "how-to" on becoming a law professor. They continued to be gracious even though I'm positive my role was largely as kibitzer. Brannon, in particular, was dogged in pitching the book to publishers, and the ABA's Publishing Division picked it up.
According to a new survey from the Pew Forum on Religion and Public Life, the people who know the most about religion - even controlling for educational level - are atheists, agnostics, Jews and Mormons. This from the Chicago Tribune:
A majority of Protestants, for instance, couldn't identify Martin Luther as the driving force behind the Protestant Reformation, according to the survey, released Tuesday by the Pew Forum on Religion & Public Life. Four in 10 Catholics misunderstood the meaning of their church's central ritual, incorrectly saying that the bread and wine used in Holy Communion are intended to merely symbolize the body and blood of Christ, not actually become them. Atheists and agnostics -- those who believe there is no God or who aren't sure -- were more likely to answer the survey's questions correctly. Jews and Mormons ranked just below them in the survey's measurement of religious knowledge -- so close as to be statistically tied.
Other interesting data points:
36% of people said that Brown v. Board of Education was a trial about teaching evolution in schools (31% picked Scopes)
59% of people name Joe Biden as Vice-President
72% of people said that Susan B. Anthony led the movement for women's right to vote
59% of people knew that antibiotics only kill bacteria, and not viruses
What surprises me is that anyone finds this surprising. Why, it is wasn't so long go that Janis Joplin's song "Mercedes Benz" was used in another of their commercials -- even though Joplin's song was a critique of materialism.
I know for myself that understanding the "why" that underlies what I'm doing makes all the difference in my doing it well. Mostly because I thought it would be a neat thing to do, and later partly rationalized as a way of myself being a student in a completely new area as to which I had no intuitions of correctness at all, I took up English style horseback riding about eighteen months ago. (I leave it to you, dear reader, to spot the horse's ass in the picture to the left.) I wrote about it in another forum, pointing out the relationship between fear and learning (I'm pretty sure that there's something to the parallel between my fear of falling off the horse and the fear some students have of being embarrassed when called on in class.) For the uninitiated, there are three basic gaits in riding (the fourth, the gallop, is not basic to this particular discipline): walk, trot, and canter. The trick in riding is about like the trick in driving a car or, I suppose, flying a plane: learning how to handle the controls so that you can speed up, slow down, and steer. The main difference is that the controls (called "aids") in riding take most of your body, from your ankles up at least to your eyes, and you are applying them to an animate creature who is capable of taking exception (a buck is nature's way of reminding you about that).
"Tempers flared and neurons fired Monday at the Yale Law School, where students and faculty discussed McDonald v. Chicago, a Supreme Court decision on gun rights with 'huge historical significance,' as Law School Dean Robert Post LAW ’77 said." So begins Mitchell Murdock's article from today's Yale Daily News. Read the rest of the story, of a debate between Akhil Amar and Jed Rubenfeld, here.
Baseball fans -- especially those who enjoyed Ken Burns' "nine inning" series on baseball that premiered in the 1990's -- will want to catch his new film that brings forward his earlier work. "The Tenth Inning" will air in two parts and premieres on PBS this week. Check local listings for dates and times in your area. You can read more about "The Tenth Inning" by clicking here.
Way back when I started blogging I told myself that I was going to talk about scholarship. One of the things I'm hoping to get back to is talking about recent scholarship I've been enjoying, so....
David Rabban's forthcoming book, Law's History: Late Nineteenth-Century American Legal Scholarship and the Tranatlantic Turn to History is the subject of extensive discussion by Adam Hofri-Winogradow, Ron Harris, Assah Likhovski, Roy Kreitner, and Rabban himself in the Jerusalem Review of Legal Studies. The symposium is available on ssrn. You can read Rabban's thoughts on this general topic in his 2003 article, "The Historiography of Late Nineteenth-Century American Legal History," available at bepress.
Call me pernickety, but I have a personal grudge against the word "snack", as in "who is bringing snack for the kids' bocce team" or "she won't be hungry for the seitan tacos because she had snack." Remember when a pack of pretzels called for an indefinite article - as in "did you have a snack at school today" - or perhaps a plural - as in "did they have snacks at the end of the meet?"
It's hard to provide a precise explanation for this odious turn, but we know one thing: the stature of the casual munch is on the rise. Snack has been installed as the fourth, and in many cases, fifth meal of the day. Breakfast, snack, lunch, snack, dinner. The nutrition experts and pediatricians are wringing their hands about this development for good cause: all the extra meals may end up fattening up our youngsters. And the experts fear that this leads to lifelong obesity, early onset diabetes, etc. etc. etc.
But I'm agitated for a different reason. I just can't get comfortable with new singular. In my view, a parent ought to send a snack, or snacks, to school. And if we surrender to this snack-attack at school, can we at least draw a hard line at our front doors? At home, if nowhere else, I want to know my child is having a snack - two snacks if she chooses both the Pirates Booty and the Oreos.
And yes, I did choose pernickety over persnickety - much as I prefer kerfuffle to kerfluffle.
In a post a few days ago I introduced Keith Petty's article Professional Responsibility Compliance and National Security Attorneys. I'm going to wrap up my comments on that article in this post.
As I mentioned in my prior post, Petty makes clear early on that his article is not an attempt to determine whether or not the authors of the torture memos should be subject to professional sanctions or criminal liability. Instead, Petty attempts to prescribe an approach to government legal ethics that would have prevented the flawed reasoning of the memos and tries to outline an even more ambitious goal: provide guidance for future attorneys practicing in the tense times of national crisis.
Some of our readers may notice that the ethical legal process Petty advances is based in large part on a framework first proposed by Harold Koh, which analyzed government compliance with international legal obligations, known as the “transnational legal process.” (Harold Hongju Koh, Why Do Nations Obey International Law?) As applied to the laws of the profession, the ethical legal process consists of three stages—interaction, interpretation, and internalization—and adopts the competing theoretical models described in my prior post.
During the interaction phase, the attorney is confronted by an agency head, combatant commander, or the President with a situation of national import requiring quick, decisive action. The trust of the policy-maker enables the legal advisor to become engaged at the onset of the process. Requests for legal advice after a decision has been made leaves the government attorney with the unenviable task of crafting legal arguments to support what may be bad policy, which in turn creates morally ambiguous advocacy positions. As such, the lawyer must insert himself into the process early on so she can give legal advice rather than support flawed policy as a latecomer.
I'm curious about Petty's interaction phase, particularly his reform recommendation. Petty believes that by inserting the lawyer into the process at an earlier point they are less likely to be captured by the wishes of their superior. I'm not so sure. Think of the prosecutor who, while supervising an FBI agent may come to sympathize with that investigator's travails. The attorney in the policy making context may also become so embedded in the development of a policy that they become wedded to it. Perhaps having the attorney involved at an early stage is beneficial, but I think there still needs to be a second set of objective eyes brought in at a later point in time. I'm pretty sure Neal Katyal made this point in this article.
Second, Petty describes "the interpretive or discursive phase" of norm articulation. Ethical application of the law depends on the interpreted legal norm at issue and the professional responsibility that accompanies the manner of its implementation. As demonstrated by the fall out surrounding the issuance of the OLC memos, excluding other relevant advisors and issuing opinions that seek to unilaterally reshape constitutional and international legal obligations diminishes the independent, candid nature of the advice given. The effectiveness of the interpretive phase, therefore, depends upon clarifying ambiguous obligations, inter-agency communication, and openly vetting policy-decisions that may be contrary to the law.
This point, of open discussion and vetting is one I made in this article. There, I critiqued the process the Bush administration followed when it created the military commissions. Specifically I noted that the institutional designers who created the commissions followed an insular process that was resistant to normative pressures that would have urged conformity with the requirements of Common Article 3 of the Geneva Conventions (the position ultimately adopted by the Supreme Court in Hamdan). Interestingly, Petty takes this point and applies it to the context of ethical compliance, arguing that a recursive process of clarification, vetting, and deconstruction of legal opinions can result in better outcomes. I agree with the broader point, although I wonder how in a time sensitive context this can be achieved. That's more of a managerial or organizational point than a normative-legal analytic one, but I think it's important to consider. Stated differently, how can the "interpretive or discursive phase" be operationalized? It's a question of going from law as theorized to law as practiced.
Finally, Petty notes that consistent ethical compliance can be fully realized only after the individual has adopted the norm at issue as part of his or her internal value set. This is referred to as internalization, the final stage of the ethical legal process. Organizational factors play a large role in enhancing the ethical compliance of its members. OLC, for example, has a long tradition of integrity and ethically minded practice, which many argue was derailed in the first years of the “war on terror.” In order to reassert its ethical tradition, OLC might implement a variety of organizational measures, including whistleblower protections, assigning attorneys a “gatekeeper” function, and PR norm articulation through internal regulations and guiding principles. Petty argues that if these practices were in place in 2002-2003, and had the leadership fostered an environment of ethical compliance, then the problematic reasoning of the torture memos may have been avoided.
Petty ends by noting that times of crisis inherently generate negative influences on legal advisors’ ethics. Too often the discourse that shapes the application of the national legal authority results in zero sum compromise, either due to policy differences or political motives. Legal advice charged in these terms will neither advance security objectives nor the rule of law. It is at this point, Petty concludes, that the ethical legal process is crucial to providing an honest appraisal of the awesome power of the executive authority in national security decisions, deterring misuse in the process. By enhancing compliance with professional responsibility obligations; this process, he argues, will reinforce the rule of law and ultimately contribute to national security. I'm not certain that I agree with all of Petty's reform recommendations, and perhaps I'm cynical, but I'm not sure that what he proposes can be operationalized. Nevertheless, as I alluded to in my first post, this is the type of legal scholarship we need more of in the national security law subfield.
I just received an interesting email from our bookstore regarding a course I'm teaching outside of the law school, the passage that caught my eye was this:
Due to the requirements of the Higher Education Opportunity Act PL 110-315, we must comply by providing the book list for each course offering on our class schedule earlier than we have been accustomed. In this case, for the spring 2011 semester, the deadline for your list of required textbook/s is October 20, 2010. This allows time for the bookstore to search for most cost effective texts available to them and our budget minded students.
That got me a little curious about what exactly PL 110-315 says about textbooks. I found some guidance here. With regard to textbooks the Higher Education Opportunity Act in Section 133 states (as summarized by the Department of Education):
The HEOA supports the academic freedom of faculty to select high quality course materials for their students while imposing several new provisions to ensure that students have timely access to affordable course materials at postsecondary institutions receiving Federal financial assistance. These provisions support that effort and include the following:
When textbook publishers provide information on a college textbook or supplemental material to faculty in charge of selecting course materials at postsecondary institutions, that information must be in writing (including electronic communication) and must include
the price of the textbook;
the copyright dates of the three previous editions (if any);
a description of substantial content revisions;
whether the textbook is available in other formats and if so, the price to the institution and to the general public;
the separate prices of textbooks unbundled from supplemental material; and
to the maximum extent possible, the same information for custom textbooks.
To the maximum extent practicable, an institution must include on its Internet course schedule for required and recommended textbooks and supplemental material
the International Standard Book Number (ISBN) and retail price;
if the ISBN is not available, the author, title, publisher, and copyright date; or
if such disclosure is not practicable, the designation “To Be Determined.”
If applicable, the institution must include on its written course schedule a reference to the textbook information available on its Internet schedule and the Internet address for that schedule.
A postsecondary institution must provide the following information to its college bookstores upon request by such college bookstore:
the institution’s course schedule for the subsequent academic period; and
for each course or class offered, the information it must include on its Internet course schedule for required and recommended textbooks and supplemental material, the number of students enrolled, and the maximum student enrollment.
Institutions disclosing the information they must include on their Internet course schedules for required and recommended textbooks and supplemental material are encouraged to provide information on
purchasing used textbooks;
textbook buy-back programs; and
alternative content delivery programs.
The HEOA also requires the Government Accountability Office (GAO) to study the implementation of this section and report to Congress (See Non-institutional Studies, Reports, and Summits, U.S. Government Accountability Office (GAO) Studies and Reports, Textbook Information)
The Secretary is prohibited from regulating on this section of the HEA, but will monitor institutions and review student complaints relating to these provisions.
The next time your bookstore sends around an email hounding you for your textbook order...just remember, its the law...
UPDATE: Ha! I wrote that post before noticing Al Brophy's post below, referencing Judith Wegner's post here.