The Faculty Lounge

A Phallacious Crime in Congo

From Reuters:
Police in Congo have arrested 13 suspected sorcerers accused of using black magic to steal or shrink men's penises after a wave of panic and attempted lynchings triggered by the alleged witchcraft.    
Reports of so-called penis snatching are not uncommon in West Africa, where belief in traditional religions and witchcraft remains widespread, and where ritual killings to obtain blood or body parts still occur.

Rumors of penis theft began circulating last week in Kinshasa, Democratic Republic of Congo's sprawling capital of some 8 million inhabitants.

Purported victims, 14 of whom were also detained by police, claimed that sorcerers simply touched them to make their genitals shrink or disappear, in what some residents said was an attempt to extort cash with the promise of a cure.

"It's real. Just yesterday here, there was a man who was a victim. We saw. What was left was tiny," said 29-year-old Alain Kalala, who sells phone credits near a Kinshasa police station.

Full story here.

Doug Glanville on Rookies and Veterans

Mr. Glanville--formerly of my beloved Phillies--writes in toady's New York Times:

You enter the big leagues (usually) as a young, vibrant, wide-eyed rookie, inspired and inspiring and still able to talk about your career with the excitement of a 5-year-old. Then, at the speed of light, you’re a seasoned veteran, with loads of “experience” by the ripe old age of 34, and it takes two whirlpool massages just to get ready for batting practice. ...

I understood that I was now entrenched on the other side of the bell curve. I was sliding downward into the “long in the tooth” spiked pit. My competition’s relatively minimal major league experience had become more valuable, in a way, than my library of experience. Somehow I had missed the transition point in my career where my value to a team had intersected with the value of a new kid on the block.

...

Young players don’t want feel dismissed just because they haven’t been around the block any more than veterans want to have their years of experience discarded. And after all, there are different types of contributions, to be made by young and old, that can get a team to the same place. It just depends on what you are looking for and how you want it done.

Read the whole article here.  Is this about law teaching, too?
Alfred Brophy

Easterbrook Discovers Effective Lie Detector Test

A major scientific finding has just surfaced in the Seventh Circuit.  In a new immigration opinion involving an asylum seeker, Judge Frank Easterbrook took a bold step into the land of pop psychology and endorsed a particular methodology of lie detection.   Like any good investigator, he first demolished other supposed methods of detecting deceit - demeanor, mannerisms, heavy sweating.  Then, citing what he apparently views sees as a definitive text on the issue - Richard Wisemans's Quirkology: How We Discover The Big Truths in Small Things, Basic Books, 2007 (and an extra value on Amazon,   when you follow their suggestion to buy it with Blind Spots: Why Smart People Do Dumb Things) - Easterbrook pronounces the definitive method to ferret out liars:

So what gives the liar away? Wiseman’s book recounts what is known about this subject. The major clue, apart from factual gaffes and inconsistencies that amount to confessions, is the amount of detail. “When it comes to lying, the more information you give away, the greater are the chances that some of it will come back to haunt you. As a result, liars tend to say less, and to provide fewer details”.  Id. at 59. Truth-tellers have normal amounts of memory failure. But “[w]hen it comes to relatively unimportant information, [liars] seem to develop super-powered memories and often recall the smallest of details. In contrast, truthtellers know that they have forgotten certain details and are happy to admit it.

Yeah, well, maybe.   In any case, at least a lawyer will know how to coach her clients the next time they have a case coming up in the Seventh Circuit!

H/T: Howard Bashman.

Workplace Prof Blog Books Millionth

Congratulations to Paul Secunda, Rick Bales and Jeff Hirsch as Workplace Prof Blog hits the notable Site Meter achievement of one million page views. 

In its three-plus years of existence, these folks have labored to produce a prodigious amount of content.  I thought only Co-op had figured out how the best way to bring in crowds, but based on Paul's announcement, apparently even Workplace it's own back catalog of sexy google material. 

Here's hoping that three years from now, The Faculty Lounge will be as vibrant as Workplace Prof!

Start-Up Possibilities

Inside Higher Ed reports this morning that NY  lawmakers have set aside funds to develop as many as three new law school in the state, one at a private institution and two as part of the SUNY system.  That would make 18 law schools in NY, adding to:  Albany,  Brooklyn, CUNY, Columbia, Cornell, Fordham, Hofstra, NYU, Pace, St. John's, SUNY Buffalo, Syracuse, Touro, Yeshiva, and New York Law School.

Market concerns tend to drive the debate over law school start-ups - do they really need 18 law schools in NY?  Competition for state and federal funding would mean less revenue allocated to established schools, right?  Will the reputation of established schools be enough to retain top tier students despite tuition discounts start-ups tend to offer?  I don't have the answer to any of these questions, but I'd welcome a broader discussion on the possibilities start-ups might hold for modernizing the process of legal education. 

I'd especially like to know whether its possible for start-ups to hold admissions numbers to a manageable size without pricing themselves out of the market.  I teach a substantive first year course every semester (Con Law - which I love), but I've yet to figure out how to divide 90 students in an 80 minute class into groups of 4 for any kind of meaningful group exercise.  The pedagogical literature tells me that the Socratic method is tired and outdated, and to the extent that was probably true even when we were law students, its especially true for the millennial generation we'll be teaching over the next decades.  For more on that see Millennial Law Prof.  Westlaw, Google and CALI help bridge the gap by bringing technology into the classroom,  but engaged inter-active problem solving - a critical part of lawyering - is hard to mimic in an over-crowded classroom.  New law schools appear to be taking the lead in providing valuable practice opportunities outside of the classroom - clinics, externship requirements, and the like.  But I don't know whether there's a corresponding focus on practice-oriented learning in the classroom - or whether start-ups are even in a position to make that part of their mission. 

Perhaps Dan can shed some light on this  . . .

On that note, the Inside Higher Ed article also notes that Drexel University’s law school received provisional accreditation in the shortest period of time allowed by the ABA - 18 months.  Bravo!

-Kathleen A. Bergin

Lemons Into Lemonade: Anti-Gay T-Shirt Spurs Great Free Speech Opinion

Kudos to Judge Ilana Rovner on the Seventh Circuit for her concurring opinion in Nuxoll v. Indian Prairie School District. 

A student in a suburban Chicago high school wanted to wear a "Be Happy, Not Gay" t-shirt on a Day of Silence - a date identified both nationally (and by the school's gay/straight alliance) as a time to draw attention to harrassment of gay people.  The school sought to bar the boy from wearing this shirt through the halls of Neuqua Valley High School, in Naperville, Illinois.  He sought a preliminary injunction against the school's action (which was denied) and he appealed to the Seventh Circuit. 

In a tepid opinion,  Judge Posner reversed the trial court.  Judge Rovner roared in concurrence.  She strongly backed the Supreme Court's decision protecting student speech in Tinker v. Des Moines Indpendent Community School District - and particularly worried that majority had improperly recast it as a case about viewpoint discrimination.  She also made powerful claims for the role of youth in shaping society and initiating political change.  She did not treat the t-shirt as deep political claimsmaking, but she accorded the issues of sexual orientation and identity deep respect by demanding that students be allowed to engage the issue in the high school.  One can easily make the case that the very act of suppressing Nuxoll's viewpoint, in this context, diminishes the seriousness of the issue in contention.

I particularly liked this passage:

I heartily disagree with my brothers about the value of the speech and speech rights of high school students, which the majority repeatedly denigrates. Youth are often the vanguard of social change. Anyone who thinks otherwise has not been paying attention to the civilrights movement, the women’s rights movement, the anti-war protests for Vietnam and Iraq, and the recent presidential primaries where the youth voice and the youth vote are having a substantial impact. And now youth are leading a broad, societal change in attitude towards homosexuals, forming alliances among lesbian, gay, bisexual, transgendered (“LGBT”) and heterosexual students to discuss issues of importance related to sexual orientation. They have initiated a dialogue inwhich Nuxoll wishes to participate. The young adults to whom the majority refers as “kids” and “children” are either already eligible, or a few short years away from being eligible to vote, to contract, to marry, to serve in the military, and to be tried as adults in criminal prosecutions. To treat them as children in need of protection from controversy, to blithely dismiss their views as less valuable than those of adults, is contrary to the values of the First Amendment.

In Larry Solum's words, get it while it's hot!

H/T to How Appealing.

Gore For President. And No, I Am Not Joking.

Weeks ago I argued that Gore was more likely than Hillary to score the Democratic nomination.  I continue to believe this is true - and that every time Hillary lands a punch, as she did to a non-negligible degree in Pennyslvania - it brings Al Gore all that much closer to the Democratic nomination.  Let me be clear: I am not predicting that Gore is actually likely to get the nod - only that he is more likely than Clinton to do so and that his odds are on the rise.   

Why does he make sense?  Hillary's successful efforts in Pennsylvania and Ohio suggest that Obama may have real trouble with these important states.  And polls show that many blue collar Dems will vote McCain.  But Hillary is loathed - seriously and totally hated - by large segments of America.  And given her campaign's approach to race in this campaign, it is far from clear that she could fully reconstruct the traditional Democratic coalition.  (Not for nothing, John McCain is hanging out with Hank Sanders near the Pettus Bridge in Selma.)  And let's be candid: a superticket, featuring both candidates, is at least as likely to lose voters than it is to win them over.  Not that either of these folks seems eager to try it out.

But the toughest reality of all is that, in a year of total discontent with Republicans, there are a flock of other Democrats who could probably win this thing.  Now, neither Obama nor Hillary would ever tolerate being displaced by a Joe Biden, Tim Kaine or even John Edwards.  After all, they've put their hearts and souls on the line for the nomination - and supporters might well feel betrayed if either surrendered the nomination to a non-candidate.  They could only step aside for Democratic royalty, for someone truly unique.  A former vice president.  A Nobel prize winner.  Obama and Hillary could, if they chose, hand the keys to Gore and leave the Democratic coaltion not only intact, but enlarged.

I've long supported Obama, and I continue to see him as the best choice for the job.  But I've been troubled by my anxiety that both he and Hillary would be headed for a November train wreck.  Recently I've been floating this Gore idea to friends.  Many people dismiss it initially as unrealistic.  But the more they ponder it, the more they get excited.  A certain depression has set in among Democrats who have not strongly aligned with the two existing candidates and the prospect of a Gore candidacy offers a lot of hope.  If, in a few weeks, the balance of superdelegates remains uncommitted and Hillary stays in the race, pressure is going to rise for a solution.  And you can bet that John McCain is praying that Al Gore isn't it.

Update: At RealClearPolitics, we now see that Steven Stark of the Boston Phoenix is also starting to think Gore.

Ice Cream Cakes Equal Love

No, this isn't a law post or one about ice cream cakes, per se.  Rather, it's about a beautiful Wednesday night and my own love for found objects - or in this case, found language.  One of the great virtues of my current job is its location.  Drexel is less than a mile from Center City Philadelphia and two blocks from the very Ivy campus at Penn.  It was there, by the Van Pelt Library, that I found myself spending twenty minutes channeling college.  Students were milling about, debating whether to hit the books or head directly to Quizzo.  Couples were strolling by, holding hands, laughing.  A lone individual here and there was enjoying a cigarette.  And all around me I heard people chatting.  And as one of those talkers passed me, on a cell phone, she left a single phrase in her wake: "Ice Cream Cakes Equal Love."

That was her gift to me - a snippet of the English language.  My own Duchamp readymade.  What could she have meant?  Was she discussing birthday cake choices, agreeing with a confidante that her loving boyfriend had made a telling choice?  Was she explaining her own decision to forgo the usual Duncan Hines (or was it Betty Crocker?) and instead shell out for the Carvel?  Or is there a more obscure explanation? I'll never know, and am left to project my own meaning on the words.

Perhaps I needn't even do that.  TM charges good money for a mantra - for the which the main required trait is its inscrutability.  Now I can sit quietly under the elms and ponder my ice cream phrase for hours.

Once upon a time, I would have tried to transform the phrase into a short story.  Today, though, it will have to stand on its own two feet.  A piece of art all on its own.  A readymade. 

Exams

Alas, it's that time of the year where many of us are either writing or grading exams.  Here at Willamette our semester ends mid-April, so I am hard at work grading my way through a stack of crim pro exams. 

I'm always curious what others do to make this task less onerous.  One of my colleagues suggests beer, but I will probably save that for after tenure.  Listening to music helps a bit;  Verdi's Requiem always seems to set the appropriate mood. Perhaps it's the echoes of my students in the "salve me, fons pietatis" (save me, thou font of mercy)?

I also tend to put my friends in the fact-pattern, which never fails to amuse me.  Puerile, perhaps, but reading about Miranda for the 80th time is just that much more bearable when the "defendant" discussed is a friend or family member.

But for true amusement, my hat goes off to Stephen Bainbridge, who has posted these hilarious exam-taking instructions:

Don't Flush, Get Arrested

Did you know that it is illegal to sell beer in Nebraska unless there is a simultaneous pot of boiling soup on the stove?  Or that  butter substitutes are not allowed in state prisons in  Wisconsin?  (Hm on that one.) Or that men commit a crime when they knit during fishing season in New Jersey?  You probably didn't but that's the point.  I love to cite such odd laws when I teach, and ask students what authority such legal restrictions have.  Most often, enforcement is left up to the officer, leaving a cursing man in Michigan straight to jail/court for using profanity in the proximity of women and children--and also an unsympathetic cop.

Some other good ones:

-Kentucky:  "No female shall     appear in a bathing suit on any highway within this state unless she be escorted by at     least two officers or unless she be armed with a club".

Nebraska: The owner of every hotel in Hastings, Nebraska, must provide each     guest with a clean and pressed nightshirt. No couple, regardless of marital status, may sleep     together in the nude. Nor may they have sex unless they are wearing the special nightshirts.

A collection of these laws, state-by state, can be found here.

Is An Online JSD Next? Serious Law Bibliographies For People With Time

Patrick O'Donnell, over at Ratio Juris, is putting up some substantial bibliographies in a variety of areas of law.  I can't  speak for their comprehensiveness - and indeed, he is taking on so much real estate that they necessarily reflect signficant choices on his part - but they sure would give an aspiring scholar (with time) something to gnaw on.  There are four up so far (and the links are listed below) but many others are due to follow.  I wonder whether the University of Phoenix will want to sign him up to run an online JSD (or will it be SJD)  program?

Criminal law bibliography

International law, human rights and comparative law bibliography

American Indian law bibliography

Bioethics, environment and ecology bibliography

Saving the Constitution from Lawyers: Part III

For nearly thirty years as a political scientist, I have focused my research and writings on two main subjects: the American presidency, and gun control. In both areas, I discovered full-blown constitutional theories that were starkly at odds with prevailing analysis and understanding. The more I examined these theories, the clearer it became that they distorted facts, ignored or misstated past writings, relied on selective analysis, and overstated conclusions, in a manner resembling the adversarial, advocacy-based American legal system -- a system well suited to American justice, in which one-sided arguments collide to produce a just outcome, but antithetical to scholarly inquiry. When applied to constitutional theorizing as published in student-run law journals, the result, in these instances, was stark distortion of any sane reading of the Constitution.

            One such example, examined in much greater detail in Saving the Constitution from Lawyers, is the Unitary Executive theory as applied to the president’s commander-in-chief (CIC) power. Advocates of a strong presidency can make a credible, “living Constitution” argument in support of the two-century expansion of presidential power as a necessary development for a large, powerful nation and where, for the most part, the public and the rest of the government have supported this development. Yet law journal writing in the 1980s and 1990s promoted an allegedly new “originalist” view, the Unitary Executive. First developed in the Reagan Justice Department, the theory then sought, and arguably found, scholarly legitimacy in the pages of law reviews. Its linchpins are 1) the claim that presidential power had declined, not increased, since 1789; 2) that presidents have sole and exclusive control over the executive branch, and 3) that the other two branches of government may not interfere with whatever the president declares to be within his sole prerogative. The first claim contradicts one of the most well established truisms of American governance, as presidential power has (with fluctuations) grown, not declined, since 1789. The other two claims represent a flat rejection of checks and balances in the separation of powers system. One may propose in the modern era that checks and balances are obsolete or ineffective, but one may not argue that the Constitution’s founders rejected the very power arrangement that is the centerpiece of American governance -- yet writers in law reviews have busily done just that. Then in 1996, law professor John Yoo published a 135-page law journal article arguing that the framers established presidential CIC powers modeled on the British monarchy, when in fact the framers did the reverse: they rejected giving monarchical powers over the military and war to the president. For all its pretensions and erudition, Yoo’s analysis, now shrouded with academic legitimacy and embraced by the second Bush administration, is a cartoonishly distorted depiction of what the founders said and wrote. Does America need this imperialist presidency today? That, at least, is an arguable proposition. Did the founders create such a presidency? Not a chance.

            Second, law reviews were the well-spring for a new theory of the Second Amendment’s “right to bear arms,” arguing that the amendment provides an individual right to own and use guns for purposes other than service in a government-regulated militia (as the first part of the amendment says: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed”). While popularly misunderstood, the amendment’s framers, court decisions, and history all confirm the militia-based meaning. But in 1960, a law student wrote an article for a prominent law journal asserting that the amendment protected personal self-defense (ignoring self-defense’s common-law lineage), and also a right to overthrow the government (a proposition of startling absurdity). Within ten years, two more articles appeared staking out this position; in the 1970s, six more were published; in the 1980s, 21 were published in law journals; in the 1990s, 58 (from the late 19^th century to 1959, 13 law journal articles all endorsed the militia view). Today, the Supreme Court is poised, for the first time, to embrace the law-review-invented individualist view in the Heller case. Should the Second Amendment be now read to protect personal self-defense because of threats from crime or terrorism? Perhaps. But did the founders create such a right? No.

Making A Party Out Of Hazardous Waste Disposal

Most of us realize that we are sitting on a pile of hazardous waste - from household chemicals to old computers, CRT's, and other items that look awfully tame when they're sitting on the shelf at Best Buy or Circuit City.  Hoover, Alabama makes disposal of these items a big event.  Maybe we should turn disposal of this waste into a big social gathering - making the socially responsible choice also a fun way to socialize with neighbors.  For next year's Earth Day, perhaps we could have a national hazardous waste disposal party!

Web Free Zones: Should Schools Ban Internet Surfing In Class?

The University of Chicago Law School announced this week that it is now blocking student web access in classrooms.  Not everyone is on board.  Doug Berman argues that:

I have never thought that my experience in the classroom, rather than the experience of my students, is of paramount importance.  Thus, unless and until my students tell me that they prefer a classroom setting without laptops or the Internet (or alumni/practitioners tell me that a web-friendly classroom was not helpful training for their future careers), I will keep trying to create and improve a 21st-century classroom experience for students rather than self-servingly conclude that preserving a 20th-century teaching environment is needed "to help [students] concentrate on course instruction."

I agree with Doug.  When I was in law school, students always found ways to avoid paying attention to the professor.  First among them, in that pre-technology age, was the New York Times Crossword.  (Now, of course, students do crosswords on line.)  I think that professors do need to find ways to engage students.  And I also think that web access offers benefits to professors who figure out ways to incorporate it.  I haven't always been successful in this project, but the few times that I've used the TWEN polling function during class, I've found it to be quite useful and interesting.

At the same time, however, Doug does ask a question worth further inquiry: is this surfing starting to bother other students?  My recent conversations with some first year students suggest that the answer to this might actually be yes.  Students are reasonably tolerant of surfers (and the real action: IM) but prefer that these folks sit towards the back, so everyone else doesn't get distracted by the action.  Students are essentially battling their own capacity to ignore visual noise in the classroom.  Which leads me to wonder whether an anonymous TWEN poll might yield some interesting empirical results on the issue of student support for web access.  Rather than doing some comprehensive national survey, a bunch of us could poll classes at our law schools.  And I'm not even sure we'd need IRB approval!

Any takers on organizing a TWEN polling project, across law schools, on this burning web access question?

File Under: Articles I need to read

Working on some stuff related to the Civil Rights Act of 1964 tonight.  And so I call up this twenty-year old but still vivid memory, from first year constitutional law.  Then-Professor (now Judge) Lynch was talking about Katzenbach v. McClung and he mentioned a student brought him a jar of Ollie's barbecue sauce.

I think Dreamland has the best ribs ("ain't nothing like 'em, nowhere")--but I know feelings run high on this one and I also believe that reasonable people can differ on this.  So I need to give the Ollie's sauce a try.  (Of course I'm partial to things with Dreamland in the name--Dreamland Theater in Tulsa, Dreamland Ribs in Tuscaloosa and Birmingham.)  And now that I'm doing some looking in Ollie's, I realize that its location as of the Katzenbach case was close to where Dreamland Ribs is now in Birmingham.  My, how the times have changed.

Also, I need to read Mark Wiener's The Semiotics of Civil Rights in Consumer Society: Race, Law, and Food--here's his abstract:

Cooking and constitutionalism. Food and racial equity. I intend the juxtaposition to be jarring, even humorous. I would like to view it as a subtle indication of a historical trend in which central aspects of legal memory have been repressed from contemporary civic practice and important intellectual questions, concerning semiotics in consumer society, have been neglected in mainstream legal scholarship. As I will explain, the story of Ollie''s barbecue suggests not only that cooking and constitutionalism are intricately linked, but also that the expansion of postwar economic life formed a material basis for this hidden bond. Considering the history of Ollie''s thus can both illuminate the deep historical meaning of the Civil Rights Act, and also point the way toward a more general field of research, the development of what might be called a legal semiotics of consumption. 

Coffee Or Nude Celebrity Photos: A Tale Of Two Evergreen Posts

  As Paul Secunda noted, the other day, some blogs benefit mightily from evergreen posts - blog entries that Google searchers visit again and again.  At my old blog, Concurring Opinions, it was an open secret that significant amounts of traffic arrived in the form of web surfers seeking out pitcures of Jennifer Aniston buck naked (or is it butt naked?)   But I was always pleased that my own personal obsession - Starbucks Coffee - drew repeated guests as well.  Looking at today's Site Meter for Co-Op, I discovered to my great surprise that, in the last day or so, my Starbucks Secret Menu post attracted 45 visitors, while Dan Solove's Jennifer Aniston Nude Photos and the Anti-Paparazzi Act entry drew a mere 40.  It sounds to me like the star of Friends is out of vogue, while Starbucks only grows in popularity!  Does this mean that Jenny's fan base is aging or the new Starbucks market repositioning is working?  I don't suppose we'll ever know...

Osama Obama: Invidious Racism?

Very recently, I heard someone refer to Barack Obama as "Osama Obama."  My response was that the comment was clearly racist, but another person disagreed, arguing that it was a legitimate way to express a founded anxiety over the political views of the Democratic front-runner.  At worst, in their view, it was a veiled critique of his ties to Islam. I'm not very sympathetic.  In my view, this comment is expressly designed to target Obama's difference.

The most salient part of his difference, within the perceptions of most non-African-Americans, is his race: he is seen to be non-white.  Of course, that is a highly contestable claim in its own right, resting on many problematic ideas which include: the notion that whiteness is a recognizable and agreed upon state; the presumption that whiteness is the pure, natural state of personhood which is sullied when a person has "non-white" ancestors (thus, for example, few white people contest whether he falls into the category of "non-white" or "black" - only whether he can be termed "white"); the idea that one's race is legitimately assessed by anyone other than the person himself;  and a failure to account for the empirical fact that many members of the group to which he has been assigned - African-Americans - do not see him as black in some essential way.

He is also identified as different because of his middle name - Hussein - which some see as a proxy for the fact that his father was Muslim and, in the minds of some, he remains essentially Muslim.  This essentialness depends on the idea that he either: a) is still a Muslim, but denies it; b) has deep sympathy for Muslims, or Muslim-related issues, because of familial ties; and/or  c) he is religiously different, which means either he is non-Christian or, in the new patois of the Bush era, he is a non-Judeo-Christian.  Perhaps the Osama title is designed to suggest that, based on his heritage, he cannot be counted on to support the political and social positions dominant among this newly discovered Judeo-Christian community.  Or, to be far more generous than I'm inclined to be, perhaps this is just a convenient rhyme with Obama that highlights what some Jews and evangelican Christians see as his sympathy for the plight of Palestinians.

My own feeling is that some staunch supporters of Israel believe that, because Obama is (seen as) black, he is presumptively likely to view Palestinians as oppressed.  I think that, deep down, these folks recognize that Palestinians are in fact oppressed - by the actions of multiple countries, for sure, but central among them Israel - and they assume a person with strong ties to another community that has has a long history of oppression will be be open to such such claimsmaking.  This does not mean that all black candidates are disqualified, but they must be extra- extra- rigorous in sending substantive and symbolic messages that they are Israel Right or Wrong types.

The question is, does it matter?  Is this title ever anything other than an appeal to Americans' basest insticts to fear and hate the other?  I cannot see any way in which this name-calling can ever advance good political judgment.  George Bush has been a staunch ally of almost all Israeli policy in the last eight years; would it be useful or appropriate to call him Bushstein?  Do we consider it OK to call our conservative black Supreme Court justice Uncle Thomas? 

Perhaps some folks would call Obama "Osama" even if he were a white Christian with liberal views - but I doubt it.  In my view, the name isn't cute or funny.  It's just political hate speech.

Podgor on Blogs and the Promotion and Tenure Letter

One of the things I enjoy doing (and hope to do some more of in the faculty lounge) is talking about scholarship.  Ellen Podgor's just posted a short essay, "Blogs and the Promotion and Tenure Letter," which appeared in the Washington University Law Review back in 2006.  It is about how much blogs should count in the tenure and promotion process.  (Like everyone else, I have some thoughts on this--which I talk about in an essay on the future of legal scholarship, "Mrs. Lincoln's Lawyer's Cat"--gotta read the essay to understand the title.  I liken bogging to lunch conversations.)

Here is Ellen's abstract:  " Should blogs count as legal scholarship for purposes of tenure? This essay looks at the line between legal scholarship and service. It considers the value of blogging and the role it should play in a person's tenure review." 

Alfred Brophy

Saving the Constitution from Lawyers: Part II

As all of you know, the publishing venue for the legal academy, law reviews, has two key traits: first, it is incomparably vast (over 600 publications are attached to the roughly 220 law schools in America; in all, there are over 1100 legal publications); second, virtually all law reviews are run by students. No other discipline has as many publication outlets, nor does any discipline allow students such control over its professional/scholarly publications. A century ago, when law journal writing was primarily case analysis and doctrinal writing, a large student role made some sense (although the system had its critic even then, such as Justice Oliver Wendell Holmes, who dismissed law reviews as the “work of boys”). In the modern era, however, it makes no sense.

            As I argue in Saving the Constitution from Lawyers, the vastness of the legal publishing realm means that virtually any sort of writing can eventually find a publication venue; student control means that the work submitted is not, and cannot be evaluated on its academic merits. Student editors, though hard-working, diligent, and intelligent, do not possess, and cannot be expected to possess, the knowledge to evaluate submitted work on its merits. Yes, they can find missing punctuation and erroneous citations, but these minor technical errors pale in the light of the fact that they are unqualified to judge whether a submission makes a legitimate argument, reflects proper knowledge of the field, does or does not duplicate existing writing, or even presents arguments and facts fairly and correctly.

            Contrast this with the gold standard evaluative system of every other academic discipline, peer review. The reason for peer review is fairly obvious: it is the best system yet devised to judge the merit of academic writing. Is peer review perfect or fool-proof? Of course not. But it has two unassailable advantages not found in student-run law reviews: first, publication decisions are made by professionals with subject matter expertise, which means that the submitted work can be evaluated on its merits; and second, the review process is normally blind, meaning that the reviewers’ names are not known to the author, so that the reviewers (under professional editorial control) can offer full and frank evaluations. The primary check against possible abuse by vengeful or unfair reviewers is knowledgeable editors who can weigh the relative merits of multiple reviewer comments, or solicit additional reviews if needed.

            Student editorship has its advantages, most notably that it is an excellent learning experience for top law students. But that hardly justifies the system: second year medical students would learn a great deal by being allowed to perform open heart surgery – but who in their right minds would agree to an improved medical school education by sacrificing hapless heart patients? Yes, it’s also true that law reviews publish many excellent articles. But this cannot be attributed to student editorship. Given the vast pool of submissions, law reviews would continue to publish many excellent articles if the publication decision were made by random drawing. 

            If law journal writing really didn’t matter, then student control wouldn’t matter, either. But law reviews do matter. In addition to serving the core goal of journals in every profession -- to advance scholarly knowledge -- they shape national legal debate and thinking, influence judges, legislatures, and executives, including the presidency, and public policy. In the final installment, I will discuss two examples of wayward constitutional theorizing cultivated in the pages of law reviews: the Unitary executive power theory of presidential commander-in-chief powers, and a new interpretation of the Second Amendment’s right to bear arms.

Diagnosing Disparity: Iowa Studies Racial Impact Of Criminal Laws

I suppose that one thing that distinguishes progressives coming of age during the Rehnquist court from those coming out of the Warren (and to a lesser degree Burger) eras is that the Rehnquist Left - if such a thing exists - sees legislatures as at least as likely a site for progressive legal change as the courts.  I suppose process-oriented conservatives can claim a victory here; people, like me, who worry about race and criminal law, now see democratic change as the most effective and durable path for change.  In that sense, the Obama candidacy is a real litmus test.  Although one can never be sure of his ultimate policy preferences, it appears that Obama may be the first criminal justice progressive heading up a major party ticket in over a generation. 

There is already definite good news, however, because there is evidence of some fresh activity at the state level.  Doug Berman reports today that Iowa has just adopted a new law requiring the state to examine the racial and ethnic impact of all new sentencing laws before passage.  Governor Chet Culver's website has more info here.  This follows release of a report last July by the Sentencing Project showing that Iowa incarcerates African-American offenders at a rate 13 times higher than whites (and twice the national average.)  Their research is consistent with my own findings in the discrete area of Megan's Law.  In Silence and the Racial Dimension of Megan's Law, I showed that Iowa and several other similar midwestern states had significant overrepresentation of African-Americans among those subject to both registration and community notification.  (This overrepresentation was substantially more noticeable in the midwest than, say, the deep south - evidence that race is every bit as much of an issue in the north as in the south.) 

For those of us who fear that courts are neither a likely, or a durable, source of policy improvement, this new development in Iowa is great news.  It sounds like sorts of proposals for change that many of us have begun to embed in our law review articles: a way to make democracy work better.