The Hoover Institution has released an interview with Justice Scalia on his new book, Reading Law, co-authored with Bryan Garner. It's 48 minutes of Justice Scalia holding forth on his interpretive philosophy in response to questions from Peter Robinson. You may view it here.
I've been meaning to put up a post for a while about the speakers in this year's legal history roundtable at Boston College. The schedule is as follows:
12: Annette Gordon-Reed “Law, Culture & Legacies of
Slavery,” Annette Gordon-Reed, Professor of Law and History at Harvard
Thursday, Oct 11:
Emily Kadens “The Continuing Problem of Custom from the Medieval Jurists
to Public International Law” Emily Kadens, Baker and Botts
Professor in Law at the University of Texas at Austin.
Thursday, Nov 1: Sir John Baker “The Legal History Nobody
Knows,” Sir John Baker, of St. Catharine’s College, University of Cambridge.
Thursday, Jan 10: Anne Fleming “A Crisis of Contract: The Rise and
Fall of Unconscionability as the ‘Law of the Poor,’” Anne Fleming, limenko Fellow and Lecturer on Law Harvard Law School.
Thursday, Apr 18: Michael Hoeflich “From Scriveners to Secretaries:
Legal Document Production in Nineteenth Century America,” Michael Hoeflich, University of Kansas.
As some of you may have been able to guess from the photos I
posted yesterday, I was in Bogotá, Colombia this past weekend as a guest of the
del Mercado del Valores de Colombia to speak at their III Seminario De Control Interno Y Compliance: Experiencias Y Mejores
Prácticas En Los Mercados De Activos Financieros.
This was really a fabulous program – well organized, with
excellent simultaneous translation and interesting speakers (the list is
below). Special thanks are due to Ana
María Prieto Ariza, Subdirectora de Divisas, for taking such good care of the
foreign speakers, and to AMV President Roberto Borrás Polanía for hosting
The conference was a particularly interesting mix of
different geographical and subject matter areas of expertise – US, Colombian,
and Mexican and legal, accounting, and risk management, in particular. Such a
combination always presents the danger that people will talk past each other,
but I didn’t find that to be the case here.
In fact, as we speakers discussed among ourselves at lunch and dinner,
we were all pleasantly surprised at the numerous points of commonality across
our presentations, and by how much we still had to share with each other after
the formal conference concluded.
I was at the seminar to talk about “rogue trading” – a topic
I also discussed at last year’s Risk Management Association annual Governance,
Compliance and Operational Risk Conference in Cambridge. This year, however, I spent a good chunk of
the presentation discussing the ongoing criminal trial of Kweku Adoboli, the
alleged UBS rogue trader accused last year of losing $2.3 billion. On Friday, the court added two additional false
accounting charges. Adoboli thus now
stands accused of four counts of false accounting and two counts of fraud by
abuse of position.
I’ll return shortly to talk some more about various elements
of the trial and, in particular, the differences and similarities between the
Adoboli case and other recent rogue trading incidents.
* Gerardo Hernández Correa, Superintendente Financiero de
* Roberto Borrás Polanía, Presidente, Autorregulador del
Mercado de Valores de Colombia (AMV)
* Leonardo Villar Gómez, Director Ejecutivo, Fedesarrollo
* Muna D. Buchahin, Vicepresidenta, Asociación de
Examinadores de Fraude Certificados (ACFE), México
* Kimberly D. Krawiec, Professor of Law - Duke Law School,
The notion of reparations encompasses debates about the relationship between individual and society, the nature of political community, the meaning of justice, and the impact of rights on social change. In international law, the dominant approach to reparations is based on individual rights. This normative framework is out of step with the understanding of reparationscirculating among many women activists. I develop a theoretical approach to justice and reparations that helps to explain the gap between the international normative framework and activist discourses. Based on distributive, communitarian, and critical theories of justice, I argue that reparations can be thought of as rights, symbols, or processes. Understandingreparations as either rights or symbols is rife with problems when approached from an activist and feminist theoretical standpoint. As decisions about reparations programs are and should be determined by the political, social, economic, and cultural context, a blueprint for ‘a feminist reparations program’ is impractical and ill-advised. However, the strongest feminist approach to reparations would depart from an understanding of reparations as a process.
A number of things interest me about this paper -- one of them is the continuing (and I might even say growing) emphasis on process. I think this is partly because what is available is process -- and maybe also because lawyers think process is important. The roots of that optimism lie, I suppose, deep in legal thought -- and we see this in all sorts of places, like the hard-look review of administrative law. Somehow we believe that if people will just look at the facts they'll reach the correct result.
There remains so much to talk about regarding past injustices and how to order claims made by the past on the present. I think reparations talk has a lot to contribute to this and a long, long way to go.
As further evidence that Kyle Graham's gotten exactly right what our motto should be here at the faculty lounge ("your go-to source for breaking news on Confederate monuments and eugenic experiments") ... and now that Owen's identified the Sussex County Court House, I want to talk a little bit about the Confederate monument on the courthouse's lawn!
And in particular I want to focus on the inscription in the front, "The principles for which they fought live eternally." This is in some tension with a monument at Appomattox Court House, whose monument speaks of "principles believed fundamental." Maybe I make too much out of the past tense on the Appomattox monument -- but certainly the Sussex monument is stark in its support of the principles of the war. And here's a picture of the entire monument with the courthouse in the background.
I highly recommend a visit to Sussex next time you're on I-95 south of Petersburg -- it's not too far off 95 and is an astonishingly beautiful hamlet.
One of these days I'll get back to talking about eugenics. I've been distracted of late with work on Nat Turner.
In judging the affirmative action program in Fisher v.
University of Texas, an important question is the extent to which the Texas legislature's “ten percent” policy provides an effective
race-neutral strategy for promoting diversity in the UT student body.
Under the Texas
policy, the state's public undergraduate institutions admit all applicants
whose grade point averages are in the top ten percent of their high schools’
graduating classes. (UT-Austin can limit top ten percent admissions to 75 percent of its entering class.) If colleges draw from the top ten percent at all high schools, their entering classes could mirror the ethnic and racial diversity of the high schools' students.
As I’ve written before, the Texas policy may be even more valuable in the incentive it
provides for improving the educational quality of public high schools. Consider the potential impact if there
were wider use of high class rank admissions policies.
You know what I think this blog needs? Some more pictures of pre-Civil War courthouses! Ok -- so maybe I'm alone in that thinking. But I am back from a research trip and have collected another photograph of a pre-Civil War courthouse. (I didn't visit a single cemetery, which was a disappointment but also a sign of how focused I needed to be on this trip.)
Where is the courthouse? And once we get that figured out, I'm going to have a picture of the Civil War monument on its front lawn -- and an observation that compares the inscription on it to the inscription on a Confederate monument at the Appomattox.
Well, here's a photograph from south of the Mason-Dixon Line
of a building that was occupied by General Grant for a time. Where is it? (And what's its pre-war history? This is on a spot of substantial importance for decades, I guess really centuries, before the war.)
“If law schools could build their programs from scratch, without the ABA-imposed condition that training must consist of three years' worth of material, what would and should they look like?”
That’s the concluding sentence from this post. While it may have seemed rhetorical in context, it really wasn’t intended to be. I planned to write out a whole series of follow-up posts with an entire outline for a brand new law school program. A business plan, with a price tag and everything.
But the blogosphere and other things have that habit of pushing forward anyway, and in the meantime I came across two other stories and posts that let me frame this follow-up more precisely.
One of the biggest drawback of having to work for a living, for many of us, is the fact that we have to commute to work. Whether the drive is short or long (mine is long), the trips to and from our school wear us down.
Fortunately, for those of us who work and live in New England, there is the fall. Somehow, the drive is easier when the scenery is glowing with the reds, yellows and browns of fall.
For some reason I don't know as I ever knew that George McGovern started off life as a historian -- his Ph.D. dissertation completed at Northwestern in 1953 was on the Colorado Coal Strike of 1913 to 1914 (known popularly as the Ludlow massacre). McGovern's passing sent me looking for his history writing -- I thought that I might add it to the senior theses and other early writing of the now famous -- and I landed on his 1972 book (co-authored with Leonard F. Guttridge) on The Great Coalfield War (Houghton Mifflin 1972). As long-time readers of the faculty lounge may recall, I love opening lines -- such Marshall Sahlins' How Missionaries Thought: About Captain Cook, for Instance ("Heinrich Zimmerman heard it directly from the Hawaiians: Cook was Lono."). And in the case of Anthony Wallace's Rockdale the opening couple of paragraphs.
I'd add McGovern's opening line to that list of powerful beginnings: "The exploiters have come and gone. The last industrialists abandoned the region thirty years ago."
From the Department of Missed Opportunities: Gene Kelly, attorney?
This morning's mail brought a flyer announcing "Pitt's Gene Kelly Centennial Celebration," an evening of film and memories hosted by Patricia Ward Kelly, the widow of the "Singin' in the Rain" star, Pittsburgh native, and University of Pittsburgh alum.
Everyone here knows that Gene Kelly graduated from Pitt. What we didn't all know was this (according to the flyer):
"Kelly enrolled in Pitt's School of Law but left soon after to concentrate on teaching dance."
The rest, as the saying goes, is history.
Help me out: What other notables dallied, formally, with law school before opting out, pre-degree, and pursuing (and achieving) the careers for which they became best known?
Thanks to a tip from Leah Campbell, I see this article from the Yale Herald on the naming of two new residential colleges at Yale. It has extensive discussion of the naming of Yale's colleges back in the 1930s, including the decision to name one of the colleges after Yale alumnus John C. Calhoun and what we make of that decision now.
For the next couple of weeks, the folks over at the Loyola LA Law Faculty Blog - Summary Judgments - are focusing on issues important to the upcoming election. They're calling the series Blogging the Ballot - thus the title of this post. Michael Waterstone writes:
Through this series, "Blogging the Ballot," we will provide legal commentary that tracks the political issues. We will be posting every few days until the election on a broad range of issues, including election administration, human trafficking, foreign policy and free speech.
Many thanks to Al and Dan for inviting me to visit the Lounge—something I do almost every day anyway—and an invitation I value very much. The invitation was triggered by many posts by Al concerning Southern Civil War monuments and statues. Those posts intrigued me, especially the monuments to the soldiers (but not to the generals!). Eventually, however, I was led to question the Rebel focus of Al’s posts, and he suggested that I join in. That led to deeper reflection about why Al’s Southern focus bothered me. So here goes:
I grew up in rural Baltimore County (outside the City) in the 1950s, a border state and city in every sense of the word. Hard as it may be for youngsters today (like my junior colleagues) to understand, the Civil War was then still played out at school and elsewhere. (In third grade, I remember singing: “We’ll hang Jeff Davis from a sour apple tree…”, although we had no idea what that meant.) The South was very popular in the war games played out by the kids, and, being the contrarian I am, I chose to be on the North’s side, without knowing anything about either side.. Eventually, I began to think vaguely about the issues. In high school we were taught that the tariff led to the “rift”; it took many years—thank you James McPherson—to realize that the tariff and related issues were merely a cloak.
The truth is that the Civil War was about race. The fabled land of the South was built on the bloody backs of slaves. That is the critical fact to remember about the Civil War. That is not to downplay the valor of the Southern soldier, or the genius of some of its generals (although Lee and Jackson had their tactical weak spots, and Forrest was a prominent early KKK member—something that the South seems to have forgotten, along with his massacre of black soldiers at Fort Pillow).
I plan to offer a few posts on this topic. Unlike Al, I do not have photographs of mine own to post; but the North is full of haunting statues of its own. Anyone who has been in rural New England knows the classic picture of an infantryman, often wearing a greatcoat and holding a rifle, standing at the edge of a now forlorn village green. Here are two examples (Unlike Al, I lack good lead-ins to let the reader guess as the picture.)
A while back, over at PrawfsBlawg, Martin Pritikin had a useful post collecting advice for legal academics looking to break into increasingly popular empirical legal studies (ELS). As Jeremy Blumenthal notes in the comments, Step 1 is to be sure to get IRB approval. This post addresses what I’ll call, with a nod to Cass Sunstein’s work on Chevron deference, IRB Step Zero: Determine whether your research needs IRB approval at all.
Don’t worry, it’s an easy step: As Jeremy’s plenary admonition to all wannabe ELS scholars implies, the answer is almost certainly Yes. Although the regulations in theory establish three risk-based tiers of review — human subjects research (HSR) otherwise subject to IRB review that the regulations nevertheless exempt; HSR that is eligible for expedited review; and HSR that requires review by a fully convened IRB (everything else) — in practice, the first two tiers tend to collapse into the third. In this sense, and now I borrow from Matthew Stephenson and Adrian Vermeule, IRB review has only one step.
A quick note of clarification: As I’ve noted before (here and here), several projects I have in the works, beginning with Regulating the Production of Knowledge: Research Risk-Benefit Analysis and the Heterogeneity Problem, forthcoming next June in the Administrative Law Review, argue that we suboptimally regulate knowledge production. Just to be clear, my argument in that article doesn’t depend on my argument here about the broad scope of the regulations and their failed attempt to achieve risk-based levels of review.* Consider this post a public service for ELS types. That said, I draw here on The Heterogeneity Problem's background section, where interested readers will find the relevant citations.
It's my pleasure to announce that Bill Reynolds, the Jacob A. France Professor of Judicial Process at the University of Maryland, is stepping into the lounge to sit with us for a spell. Bill's been on the faculty at Maryland for forty-one years and in that time has taught across a huge spectrum of courses, including recently Antitrust, Art Law, Business Associations, Civil Procedure, Constitutional Law, Contracts, Conflict of Laws, European Union Law, International Business Transactions, and Professional Responsibility.
Bill is also the author of a wide range of scholarship, including the book Injustice On Appeal: The United States Courts of Appeals in Crisiswith William Richman, with is forthcoming imminently from Oxford University Press. Selections of his recent work is available at ssrn. Before joining the Maryland faculty in 1971, Bill was educated at Darmouth College and Harvard Law School, where he was on the editorial board of the Harvard Civil Rights-Civil Liberties Law Review. He then clerked with Judge Frank Kaufman. Bill has also held visiting positions with Brooklyn Law School, SMU, and the University of West Virginia. He is currently of counsel with DLA Piper.