My friend Professor Carlos Ball of Rutgers Law School has just published The Right to Be Parents: LGBT Families and the Transformation of Parenthood with NYU Press. Cribbing now a little from the Press' webpage:
In 1975, California courts stripped a lesbian mother of her custody rights because she was living openly with another woman. Twenty years later, the Virginia Supreme Court did the same thing to another lesbian mother. In ordering that children be separated from their mothers, these courts ruled that it was not possible for a woman to be both a good parent and a lesbian.
The Right to be Parents is the first book to provide a detailed history of how LGBT parents have turned to the courts to protect and defend their relationships with their children. Carlos A. Ball chronicles the stories of LGBT parents who, in seeking to gain legal recognition of and protection for their relationships with their children, have fundamentally changed how American law defines and regulates parenthood. Each chapter contains riveting human stories of determination and perseverance as LGBT parents challenge the widely-held view that having a same-sexual orientation, or that being a transsexual, renders individuals incapable of being good parents.
To this day, some courts are still not able to look beyond sexual orientation and gender identity in order to fairly apply legal principles in cases involving LGBT parents and their children. Yet on the whole, stories are of progress and transformation: as a result of these pioneering LGBT parent litigants, the law is increasingly recognizing the wide diversity in American familial structures. The Right to be Parents explores why and how that has come to be.
You may recall that Carlos' previous work includes From the Closet to the Courtroom: Five LGBT Lawsuits That Have Helped to Change Our Nation (Beacon Press, 2005).
It compares the lives of two architects of "racial" deportations that took place in the spring of 1942: Benno Martin, the police chief (and lawyer) who oversaw the eastward deportation of thousands of Jews from Nuremberg, and Karl Bendetsen, the U.S. Army official (and lawyer) who oversaw the eastward deportation of thousands of Japanese and Japanese Americans from the West Coast.
It deploys this comparison to support an effort to explore some of the all-too-human forces that tend to lead societies—as they led Germany and the United States in the years after the war—away from honestly reckoning with the choices people make to harness their professional energies to advance systems of repression.
It's somewhere between possible and likely that you scoff at the fairness of comparing any American involved in the deportation of Japanese Americans with any German involved in the deportation of Jews. I try hard in the article to explain exactly how, and exactly why, this particular comparison is fair and useful. If you read the piece, let me know if you're at all persuaded.
Following up on Saturday's post on the SALT (Society of American Law Teachers) Faculty Salary Survey, I want to talk a little more about differences between salaries at tiers of schools (as measured by U.S. News' law school rankings). You may recall that Saturday's post discussed the differences between the median salaries of tenured faculty at four tiers of law schools (1-49, 50-99, 101-145, and not ranked). It showed that there was a statistically significant difference between the median salary at tier 1 schools and the remaning schools. Let's turn to a similar analysis of the salary of assistant professors by tier. (Apparently a number of schools have no assistant professors (they start entry-level untenured faculty at the associate level -- or they haven't done entry-level hiring in some years).)
Salary of Assistant Professors by Tier
Tier N M SD
1 4 113,489 4,912
2 16 102,224 13,927
3 14 100,770 9,313
4 15 92,395 7,919
All 49 99,719 11,785 Median = 99,000
Salary differs by tier: F(3, 45) = 5.05, p < .004
According to the Tukey multiple comparison procedure, only Tier 1 and Tier 4 salaries differ significantly.
THE SUPREME COURT’S decision striking down state statutes that criminalized gay sex was a constitutional landmark, and will remain famous long after today’s arguments over same-sex marriage come to seem just as antiquated as the early 1960s disputes over racially segregated public accommodations. Lawrence v. Texas, in 2003, arose from an unlikely confluence of unusual circumstances. Dale Carpenter’s assiduous unearthing of the case’s early history in Houston’s overlapping gay and law enforcement communities highlights how every great constitutional decision owes its existence to obscure individuals whose crucial contributions proved more essential to the final outcome than anything in the legal briefs or oral arguments.
I am not an expert in bankruptcy, so I confess that I may be missing something, but this morning's opinion in Hall v. United States leaves me puzzled. In short, farmers with continuing income may file for reorganization under Chapter 12 of the Bankruptcy Code. When they do so, their secured debts are entitled to preference (up to the value of the collateral) and certain priority claims (section 507 claims) are also entitled to priority payment. Everything else is treated as an unsecured debt, and holders of those claims get a pro rata share of what's left over after the secured and priority claims are paid. However, the Code provides that certain section 507 priority claims (essentially, taxes incurred by the estate) are to be treated as unsecured claims. In Hall, the debtor farmers filed under Chapter 12, then sold the farm and proposed to use the sales proceeds to pay their debts. They recognized a capital gain on the sale, and thus incurred a capital gains tax of $29,000. The Court ruled that this tax liability was not incurred by the estate and thus was a personal liability of the debtors. The Court's reasoning, in an opinion written by Justice Sotomayor, joined by CJ Roberts and Justices Scalia, Thomas, and Alito, was essentially rooted in the "plain meaning" of the text. As an outsider to the intricacies of bankruptcy, it seems evident that a tax that is incurred by the debtor on the disposal of an asset that is part of the estate is a tax that is incurred by the estate. And that seems to have been the intention of Congress as well.
As for methodology, the fact that Justice Sotomayor employed the "plain meaning of text" approach raises the questionof whether she is a convert to the Justice Scalia approach to statutory interpretation, or whether this is just an aberration that is peculiar to bankruptcy.
Bankruptcy experts should feel free to correct any errors or misimpressions I may have created.
Following up on my post about President Obama in Chapel Hill, I want to talk about Attorney General Eric Holder's graduation speech here on Saturday. I study graduation addresses at southern universities before the Civil War -- and especially at UNC -- as a way of divining something about public constitutional ideas. So it's a particular pleasure to link to General Holder's graduation speech. He linked this school's history to the Civil Rights struggle. Here are some key paragraphs:
This fight – for opportunity, equality, and justice – is the fundamental struggle that has always driven those who enter our profession. From the young attorneys and statesmen who assembled one summer in Philadelphia to draft a Declaration that shook the foundations of an empire, and set in motion the great American experiment that is now our sacred charge; to those who – here in North Carolina – ratified a state constitution calling for “all useful learning” to be “duly encouraged and promoted in one or more universities.” From the women who petitioned this state’s General Assembly in 1868 for the right to vote – and came back again in 1917, in 1919, and finally in 1920, when the Nineteenth Amendment took effect; to the UNC students and faculty members who – in the 1960s – marched down Franklin Street, organized sit-ins, and argued passionately for the civil rights of all.
This is the legacy of progress that our predecessors have established. It represents the inheritance – and the solemn obligation – of every scholar and leader. And – despite the advances that have been made even within my lifetime – make no mistake: the hardest work is far from over.
Today, this work goes on in the efforts of those who, despite setbacks and disappointments over the years, have rallied their fellow citizens – and who will no doubt continue to fight – to ensure that, no matter what you look like or believe; no matter where you’re from or how you worship; no matter who you are – in any sense– your best interests and basic rights will always be protected.
It goes on in the efforts of today’s Justice Department, as we take decisive action to guard against the disenfranchisement of voters; to protect the rights and liberties of every American; to expand access to quality, affordable legal representation for those who cannot afford it themselves; and to ensure the safety of our nation’s most vulnerable people, including children who are exploited or exposed to violence and drugs, the poor, and individuals with disabilities.
It goes on in the aspirations – and, most importantly, in the actions – that will define the journey you begin today; and in your determination to seize the breathtaking opportunities that lie ahead.
There were a few other remarks that personalized the address for the class -- including something about their efforts to keep their appearances in the law revue off youtube. The faculty weren't too successful at that, either! I guess it's no surprise that that video has a few more views than this one.
So, I’ve finally gotten out from behind the wheel of a car long enough to post something a bit meatier on the JP Morgan Whale Fail. As I predicted in my earlier post, the case is already generating much debate about the implications for the Volcker rule, and could conceivably impact the rule’s final content.
Jamie Dimon claimed in a conference call on Thursday afternoon that the trade, while flawed, was consistent with the Volcker rule’s proposed hedging exemption. I wonder whether that’s really the best rhetorical tack to take. If true, it will simply lead to calls for a stricter final rule, or renew calls for more drastic solutions, such as breaking up large, systemically important institutions.
For example, Sheila Bair is calling for a more narrow definition of the hedging exemption to the Volcker rule, and Barney Frank (who has to be one of the funniest guys on the hill) quipped that, though Jamie Dimon has spent months complaining about the $400 million that financial reform compliance will cost JP Morgan, the firm managed to lose five times that amount in a matter of weeks “entirely without any help from the government.”
In dispute is whether or not the Whale’s positions, about which few details are known at this point, was a hedge, which would be permitted by the Volcker rule, or a proprietary trade, which would not be. Dimon’s position is that the trade was simply a poorly-designed hedge gone awry -- people make mistakes, people made them here.
I’m skeptical of that explanation, though it could turn out to be true. Lisa Pollack at FT Alphaville has done a great job of speculating about the nature of the trades, based on a variety of public documents and statements. It’s a very complicated story and I won’t try to replicate it here, but you can head over to Alphaville if you’re interested in the nitty gritty. In brief, her theory is that JP Morgan was betting that the CDX.NA.IG.9 — a credit index that was launched in 2007 — would flatten.
There seem to me to be a couple of different possibilities here. One is that, as claimed by Dimon, the position started out as a hedge against JP Morgan’s credit exposure. Perhaps, though intended as a pure hedge, the design of the hedge was flawed from the start. Or perhaps the “hedge” had a bit of a directional bet built into the design. Notice that scenario one would appear to comport with the spirit of the Volcker rule, whereas scenario two does not.
However, Dimon’s contention appears to be that the error (assuming there was one) arose later, in connection with rebalancing the hedge:
The original premise of the synthetic credit exposure was to hedge the company in a stress credit environment. Our largest exposure is credit across all forms of credit. So we do look at the fat tails that would affect this company. That was the original proposition for this portfolio.
In re-hedging the portfolio, I've already said, it was a bad strategy. It was badly executed. It became more complex. It was poorly monitored.
So that brings up two other scenarios: one, the rebalancing, while intended to maintain a pure hedging position, was flawed; or two, the rebalancing was purposely off-kilter a bit, in order to take a directional position. Again, I’d think that one scenario meets the spirit of the Volcker rule and the other does not.
All of this to me simply highlights the difficulties confronting effective Volcker rule implementation and enforcement, about which I’ve written here on many occasions. Poorly constructed hedges may quack like a prop bet, but in order to effectively address the concerns underlying the Volcker rule, and other Dodd Frank reforms, regulators will have to be able to tell the difference before the firm announces a $2 billion loss.
Representing the Race tells the story of an enduring paradox of American race relations, through the prism of a collective biography of African American lawyers who worked in the era of segregation. Practicing the law and seeking justice for diverse clients, they confronted a tension between their racial identity as black men and women and their professional identity as lawyers. Both blacks and whites demanded that these attorneys stand apart from their racial community as members of the legal fraternity. Yet, at the same time, they were expected to be “authentic”—that is, in sympathy with the black masses. This conundrum, as Kenneth W. Mack shows, continues to reverberate through American politics today.
Mack reorients what we thought we knew about famous figures such as Thurgood Marshall, who rose to prominence by convincing local blacks and prominent whites that he was—as nearly as possible—one of them. But he also introduces a little-known cast of characters to the American racial narrative. These include Loren Miller, the biracial Los Angeles lawyer who, after learning in college that he was black, became a Marxist critic of his fellow black attorneys and ultimately a leading civil rights advocate; and Pauli Murray, a black woman who seemed neither black nor white, neither man nor woman, who helped invent sex discrimination as a category of law. The stories of these lawyers pose the unsettling question: what, ultimately, does it mean to “represent” a minority group in the give-and-take of American law and politics?
This is a very exciting time for books on race and law in the twentieth century -- you may recall earlier this week I blogged about Andrew Kahrl's The Land Was Ours, which also appeared this year from HUP.
Now that there's a new SALTSalary Survey out, I want to take a look at the relationship between law faculty salary data and U.S. News ranks. By way of background, SALT (the Society of American Law Teachers) requested information on salaries and on summer research grants from 200 law schools in the United states and Puerto Rico. The survey was conducted by email. Non-responding schools were followed up with another email and if necessary by telephone. Sixty-six schools responded -- a response of 33% . Many thanks, by the way, to Eric Janus, President and Dean of the William Mitchell College of Law, who conducted the survey.
In my recent paper on the relationships between U.S. News law school rankings and racial diversity (and several other variables), I divided the ABA-approved law schools into four groups to obtain a finer set of categories than the current two-tier U.S. News system. I’m using that four-way group again in this post, which deals with some results of the 2011-2012 salary survey published by SALT this month and with the 2013 U.S. News ranks.
Here is the classification of the 195 ABA-approved law schools:
Group. N Ranks Schools
1 50 1 - 49 Yale thru American, Pepperdine (tie)
2 50 51 - 99 Baylor thru Rutgers-Camden, Tulsa
3 46 101 - 145 St. Louis + 4 other schools thru Montana, North Dakota
4 49 Rank Not Published
Here are the responses by tier:
Tier Total Yes No % response
1 50 8 41 16.00
2 50 21 29 42.00
3 46 19 27 41.30
4 49 18 33 36.73
The response rate differs across tiers. (Chi-square = 9.41, df = 3, p = .02). Schools in Tier 1 were less likely than other schools to respond to the survey. None of the 28 highest ranked schools in the current U.S. News rankings responded. The highest ranked school that responded is the University of Iowa (rank 29), followed by North Carolina (38), Maryland (39), Ohio State (39), Arizona (43), Colorado (44), and UC-Hastings (44), which – perhaps incidentally – are all public schools.
Peer assessment is an important component of U.S. News ranks, so we would expect the above schools to be included among responding schools ordered by peer assessment (a 5-point scale), and most are. The responding schools with the highest peer scores are North Carolina (3.6), Iowa (3.4), Ohio State (3.3), UC-Hastings (3.3), Arizona (3.2), Florida (3.2), and Colorado (3.1).
Assessment of schools by lawyers and judges (another 5-point scale) is also a component of U.S. News ranks. The 7 responding schools with the highest cores on this dimension are North Carolina (4.0), UC-Hastings (3.9), Iowa (3.8), Arizona (3.7), Ohio State (3.6), Florida (3.6), and Colorado (3.4).
My colleague Barb Fedders has an op-ed in today's Raleigh News and Observer about the aftermath of Tuesday's vote on the North Carolina constitutional amendment regarding marriage. Barb responds to Mecklenburg County Commissioner Bill James' statement about the amendment that "The purpose is not just to prevent Massachusetts people coming down .... It’s also to put a big letter of shame on the behavior. We don’t want them here. We don’t want them marrying. If you’re going to do it in San Francisco, it’s your own business.”
Barb focuses on some of the positives that emerged from the vote, even if the result was not what many had hoped for. She says in response to James that
I’m staying because I am inspired by the people in small, rural towns who came out for the first time, who lobbied fellow parishioners, who knocked on doors in their neighborhoods. Because I am moved by the ministers who spoke out in favor of marriage equality when their congregations weren’t with them. Because the NAACP did the best, most principled work imaginable, drawing links between all forms of discrimination.
I’m staying because more than 800,000 people voted FOR us and our families.
I'm looking forward to Attorney General Eric Holder's graduation speech tomorrow in Chapel Hill. Perhaps this is the reason that I thought that I'd post a trivia question related to reparations. Who wrote the following:
Given the perceived failures of the traditional civil rights agenda in bringing about racial equality in the US, a number of black commentators argue that a program of reparations is the only legitimate means of making up for three-hundred plus years of slavery. More recently, some white commenatators have also supported a variant of the reparations concept -- for example, the government financing a Community Reinvestment fund that would be controlled by the black community and render affirmative action obsolete. Do such proposals have any realistic chance of working their way through the political system? Would there be any legal impediments to such a broadly-conceived reparations policy?
One hint here -- it wasn't me. Though I think those are really critical questions.
This will have to be a quick one today, but JP Morgan’s “whale fail” is going to make for some interesting news over the coming weeks. The timing couldn’t be worse for JP Morgan and the industry generally, it seems to me. Embattled over the Volcker rule, capital requirements, and numerous other issues, this is exactly the type of event that will lead reformers to call for a crack down, just as regulators are contemplating the final content of some important pieces of financial reform. I’ll be back in the near future with more on this story and the implications for the Volcker rule, in particular. In the meantime, news stories are in the WSJ, Forbes, and the FT, among others.
As I’ve mentioned before, I’m spending quite a bit of time with the Volcker rule these days, and I’m especially interested in the implications of this news for the continuing manuevering over the final content of the rule. According to news reports, the losses originated with the credit desk in the London unit of JP Morgan’s chief investment office, which the bank says “hedges positions and invests ‘excess deposits’.” As more information on the exact nature of the trades emerges, I suspect the case will present a beautiful example of the hurdles to Volcker rule implementation – namely, differentiating from a regulatory perspective trades permitted by the hedging and other statutory exemptions from prohibited proprietary trading. Surely it will impact the discourse surrounding the rule.
The major media coverage of Obama's change of heart (a/k/a evolution) on same-sex marriage has been to assert that the President now is in favor of same-sex marriage, but that he thinks the issue is one for each state to decide on its own. Some commentators in the blogosphere have noted that this position is at odds with the President's refusal to defend DOMA. Now comes Lyle Denniston to argue that Obama's position on DOMA is consistent with state autonomy on this issue. Denniston is an astute observer of constitutional issues, and thus I am loathe to disagree with him, but he's wrong on this matter. His basic point is that the administration's refusal to defend DOMA stems from the belief that DOMA interferes with state autonomy. As added evidence, Denniston cites the adminstrations's failure to add its voice to the legal opposition to California's Propostion 8.
The flaw in Denniston's argument is that DOMA does not interefere with state autonomy. DOMA does two things: First, it states that no state is "required to give effect to any public act, record or judicial proceeding of any other state ... respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other state ... ." Second, it limits the legal benefits accorded to married persons under federal law to married persons of the opposite sex. Contrary to Denniston's assertion, it does not federalize marriage law, although, of course, it does limit the federal benefits of marriage to traditional marriages. In that narrow sense, it "federalizes" an aspect of marriage law. But the other aspect of DOMA preserves state choices on this volatile marriage issue. The President cannot credibly claim that his opposition to DOMA is all about fostering state discretion on same-sex marriage. He wants it all ways -- he's for same-sex marriage, but he wants states to decide on their own, yet he's opposed to DOMA's preservation of state ability to do just that.
Holland & Knight (Jacksonville) hosts a program called Learning for Life, for high school students interested in law. The firm invites speakers with various legal backgrounds to share their experiences with the students. I had the privilege of being invited to provide remarks to this group last night. Most of the students were freshmen and they were impressive.
I gave them a short reading assignment in advance. The American University Law Review's 2009 Symposium commemorated the 40th anniversary of Tinker v. Des Moines Independent School District. Mary Beth Tinker contributed an inspiring foreword. Tinker wrote:
I have come to view the Tinker decision in the context of children’s rights and international human rights, and decided that if democracy means anything, it means that the ones affected by policies—including young people—should have a voice in those policies. By sharing my experience and the experiences of other youths, I found that I could empower students to be active participants in democracy, taking steps that may not always be popular, but could have important lasting effects and ultimately change history.
Tinker’s brief essay provided a good place to start our conversation and my theme: we live in a self-governing society and the youth have a voice. One student commented that he admired Tinker’s perseverance and ongoing dedication to her cause. Before discussing specific areas of law, I offered them four keys to empowerment: Read; Think for yourself; Engage in critical, analytical thought; and Question Everything.
The specific areas of law I covered were net neutrality, electoral reform and copyright. While I am sure some of the material went over their heads, I am certain that students are capable of understanding quite a lot given the chance. For example, I believe I successfully conveyed a sense of regulatory capture through this Q&A:
Me: What is your most difficult class?
M: What would you do if you could write the exam?
S: I would probably create an exam with questions that I could answer.
M: That makes sense. Do you think that is right?
To be sure, it’s not a perfect analogy, but I believe it conveys the idea that relational structures exist for a reason and that they can be abused.
Also impressively, a freshmen student was able to provide a good explanation of the how the Electoral College works. (Because most of these students were four to six years old in 2000, I thought I’d better ask if they knew who the presidential candidates were in 2000. At least one student knew the answer.)
When I discussed copyright, I explained the purpose of the copyright and patent clause to raise the issue of how long one must have exclusive rights to incentivize the creation of new works. After showing the actual text of the clause on a powerpoint, I attempted to translate that text in the next slide: “We want people to write new books and create new inventions because it serves the public interest. Thus, we will allow writers and inventors an exclusive right to make money off their work, but only for a limited time. Then, the whole public can use it.”
When I asked for how long they would need exclusive rights to be incentivized to create new works, the answers ranged from one year to a few years, a far cry from the life of the author plus 70 years after death that currently exists. After showing them the current duration, I showed them that the original duration under the Copyright Act of 1790 was 14 years. When I asked why this might have changed, it provided an opportunity to weave in the regulatory capture theme.
I hope the students enjoyed the experience and that my remarks help avoid what frustrates Calvin and many of us:
The book I've been working on for some years now -- University, Court, and Slave -- is about jurisprudence in the old South. Some of my key sources are writings by faculty and to a lesser extent students at southern colleges before the war. In this way I follow a few other people who of late have made pretty extensive use of academics' writings, notably Peter Carmichael's The Last Generation. One of the things I'm particularly interested in are student debates at their literary societies. I think there are some great things to be done with those debates, such as using them collectively as a gauge of what's on students' minds. We can also use them to assess the range and proportion of constitutional ideas in discussion in public. If I can set some time aside this summer I'll write a little bit about my preliminary work in these sources at Washington College, UNC, and Davidson -- all rather unrepresentative of the south, but that's a separate story.
So this leads to a question of just how much thinking actually took place in college? For another project -- the study of probate in Rockbridge County, Virginia -- I've been reading Washington College alumnus William Alexander Carruthers' The Kentuckian in New York -- a very mildly anti-slavery novel published in 1834. I was amused to see an extensive discussion of college life in the south around the 1820s. Do you care to speculate on how much of it related to the ideas students were learning and how much to their antics?
Folks looking for summer reading suggestions may wish to add to their list David Dorsen's recent biography of Judge Henry Friendly, entitled Henry Friendly, Greatest Judge of His Era. You'll find a description here, reviews here, here, and here, and an interview with the author here.
The book was published in March. If you've read the book, please share your thoughts with others in the "comments."
Ward Farnsworth, Associate Dean of Academic Affairs and Professor of Law at Boston University, has been named the new dean at the University of Texas School of Law. Farnsworth, a former clerk to Judge Richard Posner and Justice Anthony Kennedy, holds his JD from the University of Chicago. Brian Leiter comments on his book The Legal Analyst here.
Touro Law Center announced the appointment of Patricia Salkin as its new dean. Salkin is Associate Dean and Professor at Albany Law School. She became Associate Dean in 1998.
Salkin holds a JD from Albany Law School and is an expert in the area of land use. She has substantial political involvement in New York, having served on the transition teams for Eliot Spitzer (as both Governor and Attorney General) and Attorney Generals Andrew Cuomo and Eric Schneiderman.
There is a moderate and statistically significant relationship (r = .40, p < .001) between Asian American student enrollment and U.S. News peer assessment scores. The figure at the upper right plots all 191 schools with 2012 U.S. News peer assessment scores against their percentage Asian American student enrollment. This, you may recall, is a lot higher correlation than exists for African American student enrollment (except when you look at the top 16 schools -- in that case r = .46).
I hope there will continue to be some discussion of the possibilites for -- and desirability of -- including some measure (or measures) related to student diversity as part of the U.S. News law school rankings.