The Faculty Lounge

Rosser on New Possibilities of Progressive Property

Erza Rosser has a very exciting article, "The Ambition and Transformative Potential of Progressive Property," up on ssrn.  It is forthcoming next year in the California Law Review.  His abstract is as follows:

The emerging progressive property school of thought champions and finds its meaning in the social nature of property. Rejecting the idea that exclusion lies at the core of property law, progressive property scholars call for a reconsideration of the relationships owners and non-owners have with property and with each other. Despite these ambitions, so far progressive property scholarship has largely confined itself to questions of exclusion and access. This paper argues that such an emphasis glosses over the race-related acquisition and distribution problems that plague American history and property law. The modest structural changes supported by progressive property scholars fail to account for this racial history and, by so doing, present a limited vision of the changes to property law that progressive scholars should support. Though sympathetic with the progressive property political and scholarly orientation and the policy arguments made regarding exclusion and access, I argue that the first priority of any transformative project of progressive property must be revisiting acquisition and distribution. 

I might think the reasons that progressive property scholarship does not focus more attention on the issues of acquisition and distribution have something to do with the difficulty of addressing long-ago crimes with regard to acquisition and also the difficulty of remaking the current distribution of property?  That is, I'm thinking that the reason progressive property scholarship focuses on the boundaries of exclusion is that exclusion and access are at the edges where it is possible to have change?  Or where people may not yet realize that they have rights of access.

The image is a pathway at Monticello, which I thought might suggest some of the possibilities of property scholarship and also remind us of Jefferson's writing on property in early America.

My Experiment With a Collaborative Exam

As I type this, my students are in the last stage of my grand experiment with a collaborative exam.  I wrote about this desire of mine a year and half ago here.  Despite some negative comments on that post, I wasn't dissuaded.  I still think there's value in having students work collaboratively, in particular because in the real world, much of what we do is in consultation with others (in various forms and to various extents, of course).

In that last post about the topic, I threw around a couple of ideas on how to make this work but wasn't happy with them.  I solved that problem this past winter, when I came up with the idea that I'm currently subjecting my students to.

This experiment is for my first year constitutional law course.  Their exam is today, but yesterday, 24 hours before their exam, I released to them the two big fact-pattern/issue-spotter questions on the exam.  They were told that they could work on those questions before the exam -- alone or with any other current student(s) in the course.  However, when they get to the exam, they can bring in no written materials whatsoever.  The same two questions will be on the exam, so they'll have to produce an answer on their own, albeit after having had the opportunity to work on the questions for the past day.

I did not release the entire exam to them, however.  The two questions that they received yesterday are worth 198 of the exam's 264 points (out of 400 points overall for the course - I have other graded components).  There are also three short answer questions on the exam, each worth 22 points.  They entered the exam this morning without having seen those questions (though they were told in detail the general type of question I'm asking (the same for all three)).

So, in essence, for the bulk of the exam, they will have had the opportunity to work on it beforehand, in groups if they want to.  However, they have to come into the exam and produce on their own.  I'm pretty happy with this solution, as it captures collaboration but with the goal that the students have their own individual understanding of the material.  Because that is what they have to write up, their own individual understanding of the material, that is what I will be assessing.

Of course, as with any exam format, I'm under no illusion that this is a perfect solution.  In fact, I've told them from day one that this is an experiment.  I've laid out my reasons for them so they understand what I'm doing, and I've also told them what I see as the downsides.  As I usually find as a professor, with this level of transparency, I've had virtually no pushback.

What are the downsides I see?  Many:

1) It may flatten the curve.  With many people working together, the quality of the answers should (hopefully!) go up, which could flatten the curve.  But, I'm ok with that for two reasons.  First, it provides more opportunity for learning the material, which is a good thing.  Second, I think there will still (always) be significant variation in understanding the material, parsing the facts and law, and writing it up.

2) Groupwork runs serious risks.  I told them on day 1 about this plan so they knew throughout the semester that they had to think about whether they wanted to work in a group, and if so, with whom.  But even so, there's the risk that someone will be pressured to be in a group with friends that might not be the best people to work with; that someone who knows the material but is less confident will be convinced of the wrong answer by people in the group; that someone might sabotage a group by knowingly giving wrong information; that a student who does little work will free-ride, etc.  I acknowledge these are risks, but at the same time, I'm not convinced they're any riskier with this structure than with study groups.  And, ultimately, someone can choose to work alone for the 24 hours beforehand.

3) Closed-book format.  The only way I could think to do it this way was, after the 24 hour collaboration period, to give a closed-book in-class exam, something I've never done before (my exams are always open-everything).  Otherwise, a student could bring in a pre-written answer.  After all, even if I restricted what they could bring into the exam to just the casebook and supplement, what would stop them from writing their answer in the margins?  So, the only way this works is by having a closed book exam, but I don't like what that does.  It rewards those who are better memorizers, not necessarily those who understand the material better.  To me, this is the biggest downside that if I could figure out how to cure in the future, I would be very happy.  If there's a way I could provide them with an electronic copy of the casebook just for the exam that they could use on their computer with the exam software, that would be a step in the right direction.

There are others, but these are the most significant downsides I see.  When I thought and talked it through (and I talked it through with everyone I could get within earshot of in December!), though, I figured it was worth a try.

Next week, I'll have a follow-up post about some ways I'm going to evaluate whether this "worked" or not, but in the meantime, I'd love to hear your thoughts on this experiment.

Upcoming ABA/AALS Criminal Justice Conference: Call for Papers

On Oct. 25-26, 2012, the ABA and the AALS will present a joint conference on criminal justice at the Washington Court Hotel in Washington, D.C. The first event of the conference, on the afternoon of Thursday, Oct. 25, is a workshop for scholarly papers relating to criminal justice.  All papers on criminal law, criminal procedure, or criminal justice topics are welcome.  Participants will present their work in a roundtable format, and abstracts or drafts will be shared among presenters and discussants in advance of the workshop.  Workshop presenters must also attend the criminal justice panels on Friday, Oct. 26. 

This is an excellent opportunity for academics at any stage of their careers, or those who would like to transition to academia, to workshop pieces at an early stage of development or obtain feedback on more developed pieces.  Workshop presenters will be responsible for their own travel and hotel costs, and will be required to pay the conference registration fee.  To apply to workshop a paper, please email an abstract of your paper of no more than 500 words to both Michael Mannheimer at mannheimem1@nku.edu and Laurent Sacharoff at lsacharo@uark.edu by Aug. 15, 2012.  Space is limited and presenters will be chosen by members of the organizing committee.

ABA Committee Recommends Provisional Accreditation for UMass-Dartmouth Law

The University of Massachusetts School of Law - Dartmouth (formerly the Southern New England School of Law) has been recommended for provisional accreditation by the American Bar Association Committee on Accreditation. The ABA's Council of the Section of Legal Education and Admissions to the Bar will vote on whether to accept this recommendation at its June 8, 2012 meeting.  This would be a far better outcome than SNESL enjoyed as a freestanding law school.  It was twice denied provisional accreditation by the ABA.  This is also good news for the newly appointed chancellor of UMass - Dartmouth, Divina Grossman.

Employment Outcomes VII: What’s Wrong With School-Funded Bridge Positions?

Among the many joys of having Judith Wegner as a colleague and a friend are that she is not only tireless in her thoughtful contributions to your work, she has the great gift of being able to see a complex situation clearly.  In response to my last post about how school-funded bridge positions are or could be paid for, Judith posted a Comment raising a number of very serious and legitimate concerns.  The issues Judith raises seem well worth further discussion, which I attempt here.

Are law schools funding bridge positions out of a desire to maintain their US News rankings and the prestige of their brands, rather than (or predominating over) a concern for the welfare of their students?  This is undoubtedly true for some of the schools that fund these positions, and quite possibly true for most or all of them.  Does that make school-funded bridge positions a bad idea?  In my view, not necessarily. 

Unlike any number of other tactics inspired by blind competition for US News rankings that are irrelevant or even inimical to the quality or value of the professional education a law school might offer, this is one that—properly administered (an important qualification discussed below)—could potentially complement the school's educational mission and directly enhance the value of a student's degree.  The fact that the school is engaging in the tactic for the sole or predominant purpose of improving its ranking may affect how the benefit is administered, which in turn may affect the degree to which the tactic actually benefits students.  But sometimes unintended consequences are good.

It does seem clear that private schools with more money are using some of that money to improve their placement numbers.  (See my earlier post here.)  But is this necessarily bad or invidiously unfair?  The fact is that richer schools can use their superior resources to benefit their students in all kinds of ways.  If they use those resources to fund postgraduate bridge positions, and those positions actually provide students with useful practice experience and improved entrée into a constricted job market, that’s a good use of resources.  And if a law school uses its superior resources effectively to provide greater benefits to its students, it deserves a higher ranking. 

Are students being forced to bear the cost of this benefit (assuming for the moment that it is a benefit, whether or not expressly so intended)?  In some sense they are.  Certainly if a school is spending (say) $1 million per year on postgraduate bridge fellowships, unless the money comes from a grant restricted to this purpose the school could spend that money on something else.  That something else could be reduced tuition across the board, or scholarships, or faculty salaries, or facilities improvements, or eggs benedict in the student lounge every morning.  But it's the dean's job to decide how to allocate the funds available to the benefits obtainable, and deciding to allocate this additional money to student placement and training (which is what the benefit is, assuming that there is one) is not inherently irrational or unfair. 

Okay, then, is it unfair that this benefit does not uniformly benefit all students at the school?  Not necessarily.  Nearly every educational benefit is consumed unevenly.  Some students use the library more than others; some use Career Services more than others.  Some students need the kind of special educational assistance programs most law schools provide, while others don't.  No one thinks it's “unfair” to provide this kind of extra help (often in the form of very expensive one-on-one tutoring) to only a relatively small portion of the class.  So to the extent that you could say that school-funded bridge programs are directly reflected in higher tuition (a doubtful proposition, as tuition reduction is only one alternative application of the funds at issue), neither the cost nor the distribution of the resulting benefit is obviously improvident.

Are school-funded bridge positions misleading to prospective law students who assume that high-priced or high-prestige schools offer better prospects for placement?  Quite possibly, at least up till now. And that’s a shame.  As an aside, I’d like to draw a distinction between schools that are high-prestige (which essentially reflects a reputation for quality in some general sense, often deserved) and those that are merely high-priced.  Many low-prestige law schools are as or nearly as expensive to attend as Harvard; and ironically it is the higher-prestige schools that disproportionately offer school-funded bridge positions to their recent graduates (see here). 

But back to the question—are school-funded bridge positions misleading prospective students?  US News has inexplicably treated holders of temporary school-funded positions as equivalently “employed” to those with full-time paying law jobs, while assigning 18% of its ranking to placement outcomes.  This has likely skewed those rankings, which are reportedly the single most influential factor affecting prospective students’ choices for application and attendance.  And while some schools reporting placement outcomes on their websites have expressly disclosed what proportion of their graduates hold school-funded positions, a number have not.  Starting next year, however, the ABA Section on Legal Education likely will require this disclosure, and US News has pledged to change the way it calculates the placement factor in its law school rankings (though it hasn’t said how yet).  All in all, the more we talk about it, the less misleading it gets.

All of which brings us down to the single most pragmatically important question:  Do these placements actually help students enough to be worth the candle?  The empirical data are incomplete, and I think the best we can fairly say is “maybe.”  As I’ve previously mentioned, we just don’t know how many of the recipients of bridge positions this year or last are finding long-term full-time law jobs, and it will be very difficult ever to determine how many would have gotten comparable jobs in a comparable time without the bridge positions.  Nor do we have very much detail regarding whether the existing programs are well administered, and thus as effective as they could be.  The positions need to be the right kinds of jobs, involving real supervised legal work (rather than mere clerical or administrative work, or cloistered research for academics).  The anecdotal data we have now suggest that many bridge positions are the right kind, but there is more to learn, and what we learn will likely suggest flaws in some programs.  The beneficiaries have to be the right kinds of students, generally those who will actually be materially more employable at the end of the placement than they were at the beginning.  We have very little data about this variable, but I would guess that a concern for selecting the graduates most likely to benefit from the bridge position is largely absent from most programs.

All told, then, an attitude of inquiry and even skepticism about this tactic is fairly merited.  But current educational and placement models are resulting in dispiriting and even disturbing outcomes.  Innovation is essential, and experimentation—with intelligent planning and due regard for the consequences of failure—should not be rejected out of hand.  And some of the best conceived experiments will fail.

--Bernie

Ladies of Liberty: DiFranco & DeMent

Ani DiFranco and Iris DeMent each have lyrics that expand far beyond the relatively narrow scope that politics plays in the life of a human being. They also have some inspirational and poignant songs that add to our political discourse.  Ani and Iris provide an opportunity to talk cyberlaw, ponder the move to a national popular vote and share some of their music.

“My country ‘tis of thee, To take shots at each other on primetime tv” – Ani, “‘Tis of Thee”

With election season in full swing, the flood of negative and misleading political ads (from all sides and SuperPACs) will soon drowned the airwaves . . . at least in swing states like Florida. 

When I teach Cyberlaw, I include Porter v. Bowen, a Ninth Circuit case holding that vote-swapping is protected by the First Amendment and not a violation of criminal or electoral codes.  Citizens formed a website whereby voters in safe states could swap their votes with voters in swing states. The purpose was to have the 2000 Green Party candidate, Ralph Nader, receive five percent of the national vote so that the Green Party would qualify for federal funds in future elections, without hurting Gore’s chances of winning the Electoral College. 

For example, a voter in Ohio that wanted to vote for Nader would vote for Gore, while swapping her vote with voter in say, Alabama (a safe state for Bush) or Massachusetts (a safe state for Gore), who would vote for Nader.  Shortly after this website began, at least one other website was created that allowed voters to swap votes for any third-party candidates with either Bush or Gore, thus expanding vote-swapping beyond Nader-Gore swaps.

I teach this case in Cyberlaw because, in addition to discussing how technological changes raise new legal questions, it also allows for a discussion on whether the Electoral College is something that remains desirable in our self-governing society.  After all, if there was no Electoral College, there would be no need to engage in vote-swapping.  While it’s hard not to forget that Gore won the national popular vote in 2000, it’s also worth noting that Obama’s “landslide” victory in 2008 was not so large when considering the national popular vote margin.  Obama won 67.8 % of the Electoral College (365 to 173), but only 53% of the national popular vote.  Does technology provide a reason to shift to a national popular vote?

Perhaps technological developments make a national popular vote system more practical than in the late eighteenth century. Whether one is in Wyoming or Washington D.C., real-time information is available through broadband, cable and radio. Is it not better for candidates to have an incentive to campaign in all fifty states by making every citizen's vote count in the final tally?  Is it likely that voters on the losing end in a safe state might be more motivated to actually vote if they know it’s not in vain? 

As I’m sure some here know, there is an organized movement for instituting a national popular vote.  The plan involves a legislative pact among states to provide all the electoral votes of a state to the national popular vote winner.  By December 2010, the District of Columbia and five states (Illinois, Hawaii, Maryland, New Jersey and Washington) have enacted legislation to implement the plan.  Together, they make-up one quarter of the electoral votes needed to deliver an Electoral College victory. The plan will only be implemented once enough states have enacted legislation to win the Electoral College.  The Brennan Center for Justice is listed among the endorsers of this national popular vote plan.

Here’s Ani performing a version of her 1999 song, ‘Tis of Thee, at Ralph Nader’s October 2000 Madison Square Garden campaign event.  In the March 2012 issue of Relix magazine, Ani shared some of her thoughts on Obama’s performance thus far. While she may be critical of the lack of tangible changes, she makes an important, if obvious, point about how a self-governing society functions:  “If he really felt, in this arena of dragons and monsters, that he had the force of the people behind him, he’d more empowered to act in the way that we want him to act.  But we as people kicked back and said, ‘OK, fix it.’”  

Turning to Iris DeMent, her 1996 song, Wasteland of the Free is one of my favorites.  Sadly, its message has only grown more descriptive of our society as the years roll on.

Finally, in preparing this post, I stumbled across an organization called, Ladies of Liberty Alliance. The self-described mission of this organization is to “address the shortage of female leaders in the fight for liberty.”  One has to think the organization’s founders have a sense of humor and musical acumen based on their clever acronym (LOLA) and domain name, www.iamlola.org. The “Chairman” (LOLA’s word), Angela Keaton, holds a J.D. from the University of Florida.  While I have not explored the specifics of LOLA’s agenda, it certainly seems like a group of engaged citizens that will not leave any president alone in the arena of dragons and monsters.

p.s. The only endorsements in this post are for the respective music of Ani DiFranco & Iris DeMent.

Mazzone to Illinois

I have recently learned that Jason Mazzone -- the Gerald Baylin professor at Brooklyn Law School (and blogger at Balkinization -- and perhaps most importantly reigning champion of trivia here at the faculty lounge blog) --  is moving to the University of Illinois.  Jason works across a broad spectrum from intellectual property to legal history.  I've been a fan for a decade or so now of his work on early national constitutional thought, including "The Creation of a Constitutional Culture."  

Among Jason's many works are the Copyfraud and Other Abuses of Intellectual Property (Stanford University Press, 2011) and "When the Supreme Court is Not Supreme" in the Northwestern University Law Review last year.

Congratulations to everyone!

Clarke Guest Post, "Religious Marriage and Legal Marriage and Freedom"

Here is a guest post by Brian Clarke of Charlotte School of Law on a topic of substantial interest in North Carolina these day: a proposed constitutional amendment banning gay marriage, which will be voted on next week.

Marriage. 

This word is causing a lot of fuss these days.  Around the state and across the country, well-meaning people are debating what this word means and whether North Carolina should codify one very narrow view of marriage and domestic partnership into its Constitution.  Newspapers across North Carolina and the country have weighed in against Amendment One.  North Carolina and the word “marriage” are clearly in the spotlight.  As a result, I decided to look at the word marriage, which seems to be at the heart of the rhetoric surrounding Amendment One (notwithstanding the fact that Amendment One’s plain language and potential impact go far beyond marriage). 

“Marriage” appears, at first glance, to be a simple word with a simple meaning.  Brides and grooms.  Husbands and wives.  But the meaning of the word is colored largely by the person reading or hearing it.  For some, “marriage” conjures images of the Bible and solemn religious ceremonies.  In others it may cause a smile as they think of their spouse.  Some may associate it with parties and good times with friends.  In still others, it may trigger a grimace of regret and pain.  A small group of folks may think of the hysterical speech in “The Princess Bride” given by the clergyman with a speech impediment (“Mawwage, that bwessed awwangement”).  Whether it is joy, love, fear, or sadness (or even humor), marriage is a word that is associated with many different emotions.  With the current debate on Amendment One, the emotional connection to the word “marriage” is, all too often, front and center.  Many people discuss marriage – and thus Amendment One – in a very emotional way.  And of course that is OK, as I have said, it is an emotionally significant word. 

However, the decision to amend the North Carolina Constitution should not be based on emotion.  As I think any adult can attest, decisions made on the basis of emotion are often not the best decisions and are decisions we often regret rather quickly.  This can be true when the decision is based on a positive emotion like love (or lust), but is far more often the case when the decision is based on a negative emotion like fear or hate or insecurity or jealousy.  At least in my experience, the best decisions are rational and logical and based on facts, not emotions. 

Library Trivia

Is it time for a little trivia, perhaps?  How about name that library trivia.  I've asked about library buildings before.  You may recall this trivia question about a Carnegie Library, which was absurdly difficult.  Jason Mazzone got it -- I have no idea how.  This one's likely a little easier.  Beautiful building and setting isn't it?  On what campus is this library located?

Employment Outcomes VI: How Should Bridge Positions Be Paid For?

We’ve been discussing school-funded “bridge” positions (here, here, here, here and here).  Let’s pause for a moment to reflect on how these positions are, or could be, paid for. 

The usual suspects in an academic budget present themselves.  For those schools that have significant endowments, the money could come from endowment funds, or from alumni contributions given for unrestricted purposes or specifically for this purpose.  Conceivably there could be nonprofit grant money, particularly for the public interest and nonprofit positions that comprise many of the bridge positions (and to some degree this could occur “off-budget” by way of direct grants to students as opposed to grants to the law school).  At state schools, the cost could be part of the funds the state’s legislature contributes to the school’s operations.

Finally, the money could be funded by student tuition.  This is a much less silly idea than it might at first seem.  I’ve already suggested that the right positions offered on the right terms to the right people might well be a sound strategy for helping certain recent graduates ease into the job market.  This strategy won’t be as helpful to some graduates as others, but it appears that it can make, and is making, a real difference to some.  And at a time when law graduates’ preparation for practice is increasingly (and in my humble opinion, fairly) criticized as inadequate, the strategy provides students in a position to make use of it a short but potentially very helpful practical apprenticeship.

So why not fund a set of these positions, calculated to approximate the number for whom it seems likely to make a difference, out of a tuition increase?  Economically, this is just asking students to buy targeted unemployment insurance for the members of their class, including themselves.  And while nothing is cheap, this is probably cheaper than you think.  With full appreciation that this is a very coarse calculation that will vary from student to student based on resources and needs, and from region to region based on cost of living, suppose you conclude that about 10% of your graduating classes will not have jobs upon graduation, will not be able to support themselves without one, and would substantially benefit in the legal job market in the medium term from 6-12 months of subsidized employment post-graduation.  (You can target the value of this benefit further by awarding the fellowships according to need, so that students who are better off financially can study for the bar and work at unpaid positions subsidized by their own or family resources.)  $2,000 per month, while hardly extravagant, probably covers rent, food, bar expenses and taxes in most places outside the biggest cities; some folks in some parts of the country could eke it out on less. 

At the high end, that’s (say) $24,000 for the year-long stipend.  But only 10% of the class is going to get one of these grants, so that’s $2,400 per student.  And since it’s spread over three years, that’s a maximum of $800 per student per year.  And even that contribution is overstated, because some students will drop out or leave after a year or two, leaving their contribution in the “insurance pool” without retaining any ability to claim on it, and some others who need and get the benefit will not use the full year’s worth.  If the school graduates the grant according to need, average cost per student goes down further.  And if other sources of funding emerge (alumni gifts; other grants; other budgetary sources), that also reduces the need to fund through tuition.

What this amounts to is targeted unemployment insurance, or from a different point of view an opportunity for a short postgraduate apprenticeship in practice, for a few hundred dollars in tuition per student per year.  Yes, a few hundred dollars more in tuition is a lot, though it’s dwarfed by the $35,000 to $50,000 per year most students are already paying.

It becomes pretty complicated to figure out what the effects on the job markets might be if the tactic becomes more common or even just more recognized.  And as I stressed at the outset, this is clearly not an effective employment strategy for every person at every school still looking for work at graduation.  But at some schools, it might be a very good idea for some people.  And it may be more affordable than you think.

--Bernie

Greensboro Federal Courthouse

Well, given that everyone seems to be talking about Senator Edwards' trial in Greensboro these days, I thought I'd dig deep in my collection of photographs and post one of the Greensboro Federal Courthouse.  I took this last December when I was out visiting Eric Fink at Elon Law School.  Very art deco!  I must admit it looks like a federal courthouse.

Jamestown Monument to the Common Law

Karen Tani's post on May 1 as law day reminded me that I have a picture of a monument to the Common Law at Jamestown, which I've been meaning to post.  It's inside the reconstructed church at Jamestown.  Perhaps not insignificantly, this monument was put up on May 17, 1959 -- the year after President Eisenhower established May 1 as "law day." (The picture of the monument is not the best picture, obviously -- sorry about that.  I was there late in the day and it was quite dark in the church.)

The tower of the original church is still there -- in fact, I used it as a trivia question recently.  I guess this is beside the point of this post, but I'm not a huge fan of reconstructed buildings at historic sites.  This one bothered me more than most; I'm not quite sure why.  I wish they'd just left the church tower by itself rather than adding that building in the early twentieth century (at the four hundredth anniversary).  Maybe sometime soon I'll be able to distinguish why I'm unhappy with this building.

Antebellum Grave Markers

Well, it's the end of the semester, so perhaps time to take a break for a moment and talk about a couple of grave markers I've seen over the past year.  This fits in particular with my post on a law student writing about ghosts trooping home through a churchyard, too!  

First, a gravestone from South Carolina, which talks about a virtuous young women.

It reads:

Sacred to the Memory of L. Agnes Pickens, who was born March 8, 1816 and died February 10, 1845.  She was one of the earth's loveliest daughters, and in all the varied relations of life as a wife, Mother, Sister, and Daughter she beautifully exemplified the Christian virtues in her daily walk.  Although suddenly summoned into the presence of her Marker her kindred relations and friends enjoy the consoling thought that she was transfered from the trouble of earth, to the joys of those who die in the Lord.

Very evocative of her and her times.  Let me try another, which is harder to read, so I'll have only an excerpt.  Long time close followers of the faculty lounge may recall that I sometimes post about the grave markers of students, especially at UNC.  So let me put up a marker from the lovely Jackson Cemetery in Lexington.  There are so many important markers there that I'd like to talk about, including that of Professor (and Judge) John W. Brockenbrough -- a surprisingly modern design for a person who was very traditional.  I'll bet there's an interesting story there -- and I hope to speculate on that some when I post a picture of his monument down the road.

Right now, though, I want to talk about a monument to a student at Washington College.  It reads in part:

Sacred to the memory of John Drury Brookes, born June 8, 1823, died August 29, 1842.  Looking to the [illegible] he came from Giles County, Tenn. to WASHINGTON COLLEGE whereby his Christian virtues he so endeared himself to his fellow students that we have erected this monument....

There is another monument in the Jackson Cemetery that I feel compelled to talk about -- it's to two brothers who died a few days apart in 1863 -- one killed at Vicksburg and the other at Chancellorsville.  One on side of the monument is a memorial to Lt. William Norgrove, aged 23 about (who died May 4, 1863 in Vicksburg and was buried there), and on the other side is a memorial to Edward Norgrove, age 19, who died on May 7, 1863 at Chancellorsville -- and is presumably buried there in Lexington.  I'm no supporter of the cause of the Confederacy.  However, I believe that memorials like these remind us of the extraordinary cost of war in lives and grief to everyone.  As I've remarked many times before, the burdens of war often fall hardest on those least able to bear them, like family memebers.

I've obviously chosen monuments for people who died young; those are often the ones that I find where their friends and relatives record the most pathos.  But sometime down the road I'll get back to posting about how the monuments to people who were fortunate enough to lead really long lives differ, such as the monuments in Raleigh's Oakwood Cemetery to long-time North Carolina jurists.

 

Life is a Carnival

Thank you to Jacqui, Dan and everyone for welcoming me as a guest here.

On April 19, 2012, Levon Helm died.  Before he left this world, he left us with much to celebrate.  Today, I thread The Band through this post to introduce myself and to pay tribute to a great drummer, singer, lyricist and person.

One of my fond high school memories is driving from Cincinnati, Ohio to a Notre Dame home football game with my father, Joseph P. Tomain, Dean Emeritus at the University of Cincinnati College of Law.  We drove in his, later to be mine, 1984 Corolla.  I don't remember who they played or if they won.  I do remember that our '84 Corolla lacked a cassette player. So, we brought a boom box.  We listened to the live recording, Before the Flood, by Bob Dylan and The Band. 
I'll always remember that trip and that boom box playing Before the Flood from the backseat. It's amazing how music can place and hold memories in our lives.  I went on to attend Notre Dame for undergrad and law school.

Speaking of Notre Dame, I enjoyed tuning into The Daily Show in March 2012 to see my Contracts professor, Cathleen Kaveny, discussing her forthcoming book, Law's Virtues: Fostering Autonomy and Solidarity in American Society.  My favorite line of the interview came when Stewart asked Kaveny, what's the difference between a Catholic institution providing health insurance that includes contraceptive coverage and paying an employee a salary who later spends some of that money on contraception.  Kaveny's reply:   "You could be a moral theologian."  Nice work, Prof. Kaveny!  The Band have their moments of moral theology, as well.  (see e.g. When You Awake).

Speaking of teaching Contracts, when I send an email to my class, I usually quote some lyrics and provide a link to a version of the song below my signature.  After Levon passed, I quoted "The Weight" and included a RIP for Levon.  While a few students had commented on evaluations that they enjoyed these treats at the end of my emails, none ever brought it up in person, until this one.  A twenty-something student stopped me after class to say he enjoyed the quote and had recently been watching Martin Scorsese's The Last Waltz in memory of Levon.  I'm happy to know that some students find a connection in this extra-legal dialogue.

Finally, I play in an Ultimate Frisbee league in Jacksonville, Florida.  (A couple of law students play in the league as well. Like the vast majority of Ultimate players I know, these law students are great people.)  When my team captain solicited ideas for our team name, I offered a few names in honor of Levon.  Our team adopted the name, "Cripple Creek."  While I'm thankful these youngsters indulged me and took a liking to Cripple Creek, my favorite team name idea was, "The Shape I'm In." (could be better, could be worse, but I digress)

Throughout May, I look forward to combining my love of law and music with various topics to share with the Lounging community.  And remember, Life is a Carnival.  Enjoy Being!

Testamentary Freedom and Gender Discrimination

As I've been working on testamentary devises in the Shenandoah Valley before the Civil War I've been thinking a great deal about the differences in how male testators treat their wives and daughters from how they treat their sons.  The key difference Doug Thie and I have been focused on is fathers who leave property in trust to their daughters and outright to their sons (and often how they make their sons trustees of the property left in trust to their daughters).  I've been interpreting this in a somewhat positive fashion -- as in they are leaving property in trust so that their son-in-laws can't get their mitts on the property.  

There's also a piece of this that I hope Dana Remus and I will be talking about in a paper down the road on how the pre-War trusts that restricted the beneficiaries' (most frequently daughters') rights to alienate their interests led the way to spendthrift trusts.  The cartoon version of the story of the spendthrift trust is that it emerged in the northeast as a way of protecting spendthrift children from losing their inheritance.  We're now thinking this may be been more a way of protecting women's property from their husbands (and there were some substantial restrictions on the wives' rights over the trust property, so that their husbands could not coerce them into giving up their property.)  These trusts pre-dated in many cases the married women's property acts of the 1840s and 1850s -- and also provided often more protection than those acts did.  And can I add that I think this trend emerged first in the south -- which is a theme Stephen Davis and I hypothesized in our forray into probate in an affluent county in Alabama before the War.  (Richard Chused has told some of this story already in his important work on the Married Women's Property Acts.)  The trusts smack of -- literally -- paternalism, of course.  I think there's also an important story to tell here about the gendered nature of the origins of the spendthrift trust.

Anyway, I see an important new paper, "Property and Belongingness: Rethinking Gender-Biased Disinheritance," by Shelly Kreiczer-Levy of the Academic Center of Law and Business Meital Pinto of Carmel Academic Center - Law School and the University of Toronto.  It explores the darker side of gender-discrimination in contemporary devises to children.  Beyond their exploration of the problem, I'm most interested in their proposed solution: to refuse to give effect to gender-biased devises.  I know we're now officially in pretty radical land, but sometimes I wonder if there should be forced shares for children as well as spouses.  Whatever one thinks about this, I think you'll enjoy the paper if you're a T&E teacher.  It illustrates some of the exciting work that's being done in T&E these days.

The image is a picture I took last summer of the James River outside of Lexington, Virginia.

Law Students, The Witching Hour, and Their Books

I'm wishing good things for my property students who're taking their exam tomorrow morning and thought that I'd post a fragment of a letter I came across in an archive about studying law.  It's a letter from 1846, from a law student to a friend of his back at Washington College (now Washington and Lee).  The student opens the letter in this way:

It is now quite late at night.  My watch is not running but judging from my fire and candle it can not be far from the witching hour when ghosts troop home from church yards.  Having just laid aside my law book over which for several hours I have been [hovering?] I set down to write....

What an opening, eh?  It really drives home the surroundings -- that his watch isn't working and so he doesn't know exactly the time, but he can judge it from how far the candle (and fire) have burned down.  What I did not realize until now is what the witching hour is -- apparently midnight -- and that the phrase "witching hour" came into our lexicon through Washington Irving's "Legend of Sleepy Hollow," or so wikipedia says.

The illustration is of Washington and Lee -- though I thought about using Rembrandt's Scholar by Candlelight, which I wrote about back in December.

Updated Faculty Visitors List ...

The updated list is here.

Please keep sending comments/corrections to me at:  JDL14@case.edu (or comment below).

 

Introducing Guest Blogger: Joseph Tomain

It is my pleasure to introduce a new guest blogger for May, Joe Tomain.

Professor Tomain is an Assistant Professor at Florida Coastal School of Law.  Prior to joining Florida Coastal, he served as a VAP at the University of Louisville Brandeis School of Law.  His teaching and scholarship focus on free speech rights, media law, cyberlaw, intellectual property and contracts.  This summer, he is participating at the Free Speech Forum, hosted by the University of Notre Dame’s London Law Centre, and at SEALS. Beyond law, his interests include playing Ultimate Frisbee and live music.

Welcome to the Lounge, Joe.  Looking forward to your posts!