The Faculty Lounge

Brownback on Slavery Apology

Yesterday's USA Today brought this story that Senator Brownback of Kansas and Harkin of Iowa may introduce legislation apologizing for slavery and Jim Crow laws.  (Jim Crow is the name of the period of segregation that followed the end of the Civil War in 1865.  It's typically said to have ended around 1965 with the passage of comprehensive federal civil rights legislation.)  We'll see where this all goes.  You may recall that there were hearings in the House Judiciary Committee last December on Congressman Conyer's H.R. 40--a bill to study the legacy of slavery in our country.

In the roundup of academics' writings on these apologies, you might be interested in reading University of Michigan Professor Gordon Beauchamp's "Apologies All Around" from the December 2007 American Scholar and University of Georgia Professor James Cobb's "The Politics of Apologies."  Both are skeptical of apologies.

Entry Level Law Faculty Hiring

Just a reminder for those interested in such things that Larry Solum is continuing to aggregate data on entry level law school hiring here.  Yale and Harvard are way out in front in terms of total hires, though past experience suggests that a few other schools will see their numbers rise as more data comes in.   

Interpreting the post-JD experiences of the various individuals, it appears that 34 of the 71 new hires listed have previous full-time teaching experience.  It is increasingly clear that VAP, and VAP-like, positions are a highly valuable credential for candidates on the law teaching market.  What is less clear to me is whether it is the VAP position itself, or the publications that come out of that extra time, that are making the big difference. 

Nader Names Former Public Defender As Running Mate

How easy it would have been to miss the news that Matt Gonzalez, a former San Francisco County public defender, has agreed to serve as Ralph Nader's running mate on the Green Party ticket.  Obviously, nobody - not even Gonzalez - is taking this candidacy seriously.  But as a former public defender myself, I have a particular affection for the guy.  He's a beer drinking poet who lived (and perhaps still lives) in a shared apartment in a middlin' part of SF.  He is exactly the kind of person who should have no shot at getting elected to anything, and certainly has no business becoming a permanent Wikipedia trivia feature.  Unlike Barack Obama, whom we're told hides a life-long laser-like ambition and drive, Matt Gonzalez seems the sort of fella who has been waiting for a bong hit all day.  Is that what we need for a Veep?  Perhaps not.  And God knows we don't need Ralph Nader for anything other than entertainment at this point.   But for those of us brought up on Richard Linklater flicks, Matt Gonzalez seems like a candidate out of Hollywood.  Or perhaps Texas.

Greetings from Monterrey!!

I'm blogging from the beautiful city of Monterrey, Mexico, nestled in the valley, surrounded by mountains.  Today, its the best job ever. 

The Facultad Libre De Derecho De Monterrey is hosting the third Global Legal Skills Conference through March 1.  More than 90 panelists from 8 countries are scheduled to present on topics that include innovating teaching strategies, teaching to ESL and adult learners, and how to develop an effective graduate law program.  Yes, its a true teaching conference where even scholarship presentations focus on strategies to improve student learning and institutional offerings. 

By luck of the draw I presented early, so my formal duties are over.  Now I get to soak up the wisdom of other presenters, like Jame Cross (Nova Southeastern) and Kristen Dauphinais (North Dakota) who this afternoon participated in a panel on Global Legal Skills in International Education.  Professor Cross coordinates The American and Caribbean Law Clinic at NSU, and spoke about opportunities her students have had to complete substantive projects for governments in Jamaica, the Bahamas and other Caribbean nations.  Professor Dauphinais spoke about developments in legal education at East African law schools, specifically in Uganda, Kenya and Ethiopia, where resources are limited but where students at some schools benefit from practical training programs before heading into the workforce.   

More updates tomorrow.  Right now, rushing to post before my batteries fail after losing my cord at the conference!

-Kathleen A. Bergin

1 out of 100 Americans are behind bars

An astounding article from the New York Times, based on a new Pew study, discusses the latest imprisonment rates:  1  out of every 99.1 Americans is currently in prison.  And that's just the averaged figure.  One out of every 36 Hispanic adults are imprisoned.  One out of every 15 (FIFTEEN!!) black adults are imprisoned.  Perhaps most troubling, one out of every 9 black men between ages 20 and 24 are currently behind bars (and 1 out of 100 black women). To pay for all this incarceration, states spent $44 billion of your tax dollars in 2007.

I'm speechless.  If this isn't a call to action, than what is?

Is it, like, ok 2 talk abt Britney n class?

Admit it! You know you love Britney Spears!  Her music is cheesy but catchy (toxic?), and I 'm a slave to it.  I must have (give me) more.  Her acting is questionable, but I have a sick appreciation for Crossroads.  I have been to known to follow her whereabouts via invasive paparazzi videos on Youtube.  I read other people's copies of Us Weekly, skipping over the stuff on shoes and bags.  Us is much more authoritative than Star--good photos--and In Touch--cheap, but aimed at Midwestern women--and People--which has too much about regular people.

But is such a subject rrrrigorous?  What sort of jurisprudential merit might we glean from Britney Spears?  One might feign disinterest in Ms. Spears, in an elevated attempt to align one's intellectual and cultural interests to the upper right quartile of the approval matrix.  Admitting to following developments in her life detracts from important issues such as international security and counterterrorism, subject matter jurisdiction, and the subprime mortgage crisis.  Perhaps.

It is undeniable, however, that the woman is a walking legal subject unto herself.  Copyright Law.  Family Law.  Conflict of Laws.  Wills and Trusts.  Land Use Law. (She moves at least every 8 months, and no one wants her as a neighbor).  Privacy Law.  Mental Health Law.   From a Family Law perspective, however, This Week in Britney perfectly mirrors almost every issue that we have or will cover in class.  Marriage?  She has two.  Annulment? The 55 hour marriage.  Custody?   Kevin vs. Britney.  Mental stability?  A whole kettle of fish.  Children?  Students truly understand the concept of best interest of the child in this context.

The pedagogical rewards from the inclusion of popular culture in the classroom are immense.  One of the best classes that I have ever taught involved a custody hearing (and this was last year, ages ago in the Britney timeline) of Spears v. Federline.  The students were extraordinarily serious and circumspect, and they dived into the project with all the satisfaction of a Jenny Craig champion at the 25th reunion.  Bridging the world they see and the regime that they learn is likely to stay with them long after the exam.  The process of intellectualizing the everyday forces personal engagement of our minds with our surroundings.  Segregating the two, like church and state (?) only maintains an unnecessary and irrational facade of scholarship and learning as solely worthy of rigorous subjects.

So is it better to engage popular culture in the classroom, or is it better to Leave Britney Alone?

Justice Alito's Note in the Yale Law Journal

Lots of discussion of late of Michelle Obama's senior thesis (digging pretty deep it seems to me for a story, but heck I love it when we actually read what others have written and take their ideas seriously).  That's the marrow of intellectual history.  You heard it here at the facultylounge last night--and you can read Elizabeth Redden's excellent article on it in this morning's insidehighereducation. 

Well, given all this focus on student writings, it may now be time to reflect on Justice Alito's note in the Yale Law Journal.  I wrote about it a couple of years ago at propertyprof.  My post was inspired by Ben Barros' Nothing 'Errant' About It: The Berman and Midkiff Conference Notes and How the Supreme Court got to Kelo with Its Eyes Wide Open.  Ben uses notes from the Justices' conferences in Berman and Midkiff to understand what the justices thought they were doing.  As an approach to legal history, reading judges' papers has much to recommend it.  Barros goes a little beyond, I think, purely legal history questions: he's interested not just in what the justices thought they were doing.  He's interested in how that might affect our thinking in subsequent cases.  And his paper suggests that Kelo's in line with Berman and Midkiff.

Alito's Note in the Yale Law Journal employed a similar methodology.  Alito read the justices' notes in the "release time" cases (separation clause challenges to schools' giving release time to students to attend religious instruction).  Alito had a very fine reconstruction of what the justices thought they were doing.  And it was more limited than how subsequent cases interpreted what the justices thought they were doing.  From that, I read Alito as suggesting that subsequent interpretations of those cases ought to be limited.  Pretty interesting methodology for reading precedent, actually: we should go behind what the justices wrote to further limit their opinions.

Linda Greenhouse Leaving the NY Times

According to today's news accounts, Linda Greenhouse - the Pulitzer winning Supreme Court reporter for the New York Times - has accepted a buyout offer from her employer.  This is a huge loss for Times readers because Greenhouse brings a tremendous 30 year base of knowledge about the Court. The 61 year old reporter is a Radcliffe grad with a Masters in the Studies of Law from Yale.  I don't what's next on her agenda, but I think any law school would be lucky to have her on its faculty.  It's hard to think that the Green Bag would consider her Deadwood!

College Senior Theses and the 2008 Election

I've been warning bloggers to remember that people may actually read what they write--and so to be cautious about what we write.   Now, lo and behold I hear people are talking about Michelle Obama's 1985 senior thesis at Princeton!   Talk about ancient history.  (Via Politico, the thesis is up in four parts here, here, here, and here.)  Not sure that we can draw a lot of inferences from what a college student wrote, twenty-two years ago.  However, I'm also excited to hear discussion that links literary output with ideology.  This is central to the mission of those of us who study "the history of the book."

This reminds me that some are looking even further back to Senator Clinton's Wellesley senior thesis.  I wrote a little bit about Senator Clinton's thesis last fall over at propertyprof and I'm going to post a little bit of it here....

Could The Texas Primary Turn The Lonestar State Blue?

One of the remarkable things about this primary season is that Clinton and Obama are contesting some states that rarely receive signficant attention from Dems in either the primary or general election.  Thus, few Texans have probably ever seen a political campaign ad for a Democratic presidential candidate.  Why would a Democrat ever waste the money on a Lonestar ad buy?  But this year, those ads are bouncing around the airwaves.  (Isn't that a quaint expression, given that almost everyone now ignores those free airwaves and purchases them via cable?)  This introduces an interesting question: is it possible that the very act of advertising and campaigning in Texas today could have a noticeable effect on the percentage of Texans who either vote, or are open to voting, Democratic this fall?  One interesting question will be whether these primary campaigns at least soften pro-Republican preferences to the point that McCain is forced to spend some amount of time or effort in the state.  No rational Democratic finalist would have spent millions on Texas in the general, but with the money now sunk, it might make sense to translate the investment into some value this November.

A Supreme Court Nominee Short List

Jeffrey Rosen has offered up his view that the Democrats have a very short list of viable Supreme Court appointees, should a member of the party be elected President.  Doug Berman replies, correctly, that Rosen has an inside-the-beltway view of the issue, and he presents six suggestions of his own - including the Chief Justices of both Georgia and Colorado. 

Of course, the Democratic Presidential race features two excellent potential Supreme Court nominees.  Similarly, New York's Eliot Spitzer looks like a reasonably attractive possibility.  Of course Hillary and Eliot might be seen, among activists, as  getting a bit long in the tooth.    If you want a Justice who will be around until 2060, it would be best to pick one closer to age 35.  The smart search begins right here.  I'll bet Ruth Bader Ginsburg has some great candidates coming online this July!

Photo: The Canada Supreme Court's official photo.  Talk about a festive adjudicatory body!

Green Bag's Deadwood Report

This morning's insidehighereducation brings the news that the Green Bag will be starting an alternative to US News: the "deadwood report."  What is that going to be? According to insidehighereducation:

Law schools, the editors write, “generally hold themselves out as institutions led by faculties whose members are committed to teaching, scholarship, and service.” They argue that the best teachers tend to be active scholars and vice versa, “and all the best lawyers of every stripe engage in service for the public good.... Evidence of the law schools’ commitment to this view is reflected in the practically universal requirement of high achievement in all three areas for tenure. And so we should be able to say with some confidence that a good law school will have a faculty consisting of hard-working teacher-scholar-humanitarians,” the Green Bag editorial says.

“The Deadwood Report will simply test the accuracy of that picture,” the journal’s editors write. “Our focus will be on the most dully objective of measures: whether the work is being done — whether each law school faculty member is teaching courses, publishing scholarly works, and performing pro bono service.” (The journal plans to start with teaching and research, turning only eventually to service, and notes that it does not plan — “at least not yet” — to answer what it calls the “trickier and more entertaining subjective questions: whether the teaching is effective, whether the scholarship is sound, whether the service is in the public interest.")

I'll be interested to see how this is operationalized.  You can read the editorial of Green Bag's editor, Professor Ross Davies of George Mason Law School, "Fair Warning to Law Schools ... and an Invitation to 1Ls, 2Ls & 3Ls," here.  The "invitation to law students" part--it's an invitation for students to take a high resolution picture of faculty who attend graduation.

We're all going to be talking about this for a while, I have no doubt. 

Fear For Sale: Volvo's Psychokiller Detector

I must not have been paying attention but I've only recently discovered, watching a Volvo ad, that the car now offers an optional "heartbeat sensor" - or psycho killer detector as another arch blogger put it.  This neat little product alerts a driver, on her key fob, if there is a heartbeat detected in a car.  This will help avoid those nasty horror-movie scenarios when a person is sitting inside the car waiting to assault the returning driver.

But seriously folks, does this happen a dozen times in the United States per year?  I'm always impressed with American ingenuity when it comes to translating pathological fear of rare crimes into profits.  It's really nice to see that political and media paranoia campaigns do more than just produce bad criminal justice policy.  They also generate sales.  This is old news in the sex offender registry biz where several sites offer free searches for a fee.

There are suggestions that a second use of this technology is to help remind parents when they've left children in the car.   That's a rare enough phenomenon, but it does happen.  Alas, Volvo's advertising is directed entirely to the psycho killer scenario since that frame apparently sells the donuts.

02138: The Magazine

Been reading the Harvard student magazine 02138.  I always appreciate ways to stay in touch with happenings in Boston.  I still check the Harvard Film Archives and the Brattle Street Theater (which opened in that extraordinary year of 1953) periodically, though my days of watching films there are now long past.

When I was a guest recently over at Mary Dudziak's shop, legalhistoryblog, I wrote a little bit about some research that Stephen Levitt and Roland Fryer have done on the KKK in the 1920s. 02138 wrote up Levitt and Freyer's paper.  It was a pretty kind treatment of that controversial paper,  IMHO.  I might understand that from college students who're enamored with one of their professors.   But at other times they're rather critical of some other Harvard faculty--sometimes even of Professor Fryer.  Take A Million Little Writers.  It's about the ways that Harvard faculty use research assistants to help with their, well, research and writing.  Here's a sample:

in any number of academic offices at Harvard, the relationship between “author” and researcher(s) is a distinctly gray area. A young economics professor hires seven researchers, none yet in graduate school, several of them pulling 70-hour work-weeks; historians farm out their research to teams of graduate students, who prepare meticulously written memos that are closely assimilated into the finished work; law school professors “write” books that acknowledge dozens of research assistants without specifying their contributions. These days, it is practically the norm for tenured professors to have research and writing squads working on their publications, quietly employed at stages of co-authorship ranging from the non-controversial (photocopying) to more authorial labor, such as significant research on topics central to the final work, to what can only be called ghostwriting.

Now, these disputes have been kicking around for a long time.  Perhaps it's my experience in a law firm (and as a law clerk) coming through.  But I don't find the process of using research assistants to help with data analysis or even drafting so odd.  Nor do I find it as troublesome.

For Marketa Irglova, Once Is Not Enough.

Glen Hansard and Marketa Irglova won the Oscar for Best Song tonight for Falling Slowly.  After Hansard gave his thanks, Irglova started to speak as the music ran her down.  This is pretty normal for the Academy Awards which seem to give particular audio space to the big money big winners.  Once, the movie that won this award, was made for $100,000 and a relatively few people have seen it.  (Count me among them.)  For the next five or ten minutes, I wandered around my living room, cleaning up, feeling very irritated.  Irglova should have been allowed to say something, I felt.  I don't know why I really cared about this petty indignity...but I did.  Then something I never expected, happened.  Jon Stewart called Irglova back on stage to give her a chance for a brief thank you.  So I'm left wondering: why?

Was there a national email uproar?  Was it the apparent sexism of only letting the man talk?  Was it Irglova's eagerness to get onstage, followed by her silencing?  Did the crowd boo during the break?  Or did someone at Academyland take individual responsibility and correct what we might call in the legal biz, plain error? 

This event was a reminder to me that in any given moment, even very minor things can seem important.  The Oscars are literally meaningless compared to the nightmare realities of American crime and criminal justice for example.  But for that moment, I was sucked straight into my TV.  Very disconcerting!

Brian W. Casey to Lead DePauw

The Harvard Crimson brings the good news that Brian W. Casey will be the next president of DePauw.  Brian practiced at Davis, Polk and also holds a Ph.D. from Harvard's History of American Civilization Program, then taught at Brown and served as an administrator there before becoming associate dean of the faculty of arts and sciences at Harvard.  I'm very happy for Brian and for the students and faculty at DePauw.  They're all lucky to have each other.

Racist Prosecution By Design: The Philly DA Training Tape

As we bid adieu to Charles Rosenthal, the Houston DA accused (among other things) of sending racist emails, it's a good time to remind ourselves that race and prosecution is a toxic mix.  We need only go back a to the 1987 Philly DA training tape (note that the tape says 1996 - and that's not right) where junior DA's are taught that: "let's face it, the blacks from the low income areas are less likely to convict and as a result you don't want those people on your jury...you're just being realistic."  Am I suggesting that all prosecutors or prosecutions are racist?  Not at all.  But given the outputs of our criminal justice system - the overwhelming disproportionate representation of minorities, for example - it seems to me that we have a special duty of vigilance when it comes to state sponsored racism.

Law Professor Housing Subsidies: The Rich Really Are Different

The Wall Street Journal reports today that Hans Smit, a legendary Columbia law professor, is holding firm in his efforts to sell his Manhattan home for $30 million.  He turned down a $20 million dollar offer for the crib (pictured at left) which he acquired from Columbia University, in 1979, for $325,000.  If he gets his thirty million, he'll have reaped a delicious 16% annual return on his investment.  If he ends up taking the chicken feed, he'll be suffering with a mere 15% annual return.  Either way, not bad for a pointy headed academic. 

With similar luck, the NYU law faculty ought to be pretty darn comfy 29 years from now!

Obama and the White Vote

"[T]here is no faster way to a society in which race doesn’t matter than to stop talking and acting as if it does."

The Boston Globe’s Jeff Jacoby wrote these words in defense of Barack Obama whose been remarkably adept at minimizing the relevance of race to his campaign.  To Jacoby, this is a good thing, and precisely what makes Obama "infinitely preferable" to candidates like Jesse Jackson or Al Sharpton whose campaigns were built around "racial grievances."  Jacoby continues:

The sooner we resolve to abandon the labels "black" and "white," the sooner we will be a society in which such racial labels are irrelevant. And what better moment to make such a resolution than this one, when white Americans by the millions are proving that the color of a person's skin is no longer a bar to anything in this country - not even the presidency.

Can we really draw this much from Obama’s cross-racial appeal?  Jacoby offers Obama’s success as proof that White voters have finally transcended race.  But it might show something less triumphant.  Perhaps White voters, some of us at least, see in Obama the hope of racial redemption.  Perhaps we support Obama not because we’ve risen above race, but precisely because we have not.  In the words of Dan Payne, maybe we're drawn to Obama because he's a Black politician "who doesn’t talk about discrimination, thus absolving white people of guilt for the prejudices he undoubtedly faced."

Are Pitbulls the Black People of Dogs?

The internet is a-chatter with criticisms and support of Breed Specific Legislation (BSL).  A simple Google search for “pit bull” brings up countless articles, blogs, videos, and posts of reports of pitbulls mauling children, pitbulls jumping fences, pitbulls with muzzles, and pitbulls locking jaws.  Enthusiasts from the other side recall pitbulls joyfully licking feet, pitbulls snuggling with infants, and pitbulls seeking belly rubs.  The diversity of experiences and interactions with this breed demonstrates the wide variety of animal personalities, while suggesting that the aggressive reputation of pitbulls has little to do with innate and immutable characteristics.  Rather, as many owners and activists argue, it is the aggressive treatment of the animal that unleashes the bad and dangerous behavior.  Under this logic, a quorum of Alpha Pomeranians with incidents of biting, mauling, and lunging could generate similar ire and fear, transforming the reputation of the dog from Toy Breed to Fighting Breed.