The Faculty Lounge

Candidates In Our Living Rooms: Nielsen Report Shows High Convention Viewership

The Nielsen Company - those old-tech folks who track TV viewership - has just released a report analyzing the extent to which Americans watched the Democratic and Republican conventions.  Here's the punch line: a ton of folks tuned in.  Specifically, almost 65% of all households - over 73 million homes in all - tuned into at least one of the two conventions.  Nielsen projects that something like 120 million actual human beings watched at least one convention.  Remarkably, most of those folks watched part of both conventions.

There was a clear age skew in viewership.  63% of those 55 years and older watched at least one convention; only24% of those in the 18-24 range did so. There is probably at least a loose correlation between viewership and voting - so this has to be seen as bad news for Obama.  In another non-shocker, those earning over $100,000 yearly watched the conventions at the highest levels - and preferred the McCain Show - with a steep dropoff below that economic line.  Another data point that won't suprise anyone: millions more people watched Sarah Palin's speech than Biden's.   

Interestingly, but not surprisingly, African-Americans had the highest viewership rates for the DNC fete among any race or ethnicity category studied: 63% watched it, compared to 48% of whites, 43% of Latinos, and 42% of Other.  (No wonder everyone is afraid of being othered!)  All groups except whites watched the DNC in larger numbers than the RNC.  By a hair, white viewers preferred the Republican ball.  Putting together the data in a way Nielsen may not have, taking into account existing income disparities by race, it suggests that people of color with lower incomes were substantially more likely to have watched the conventions than whites at similar income levels. 

One big unanswered question - something pretty important to the Obama campaign - is the degree to which younger audiences watched via the Internet.  Nielsen didn't study the Web (or CSPAN - one of the networks I watched).  For many young people, and even older folks like me, YouTube has largely eliminated the need to contort one's own schedule to the rest of the world.  (At the same time, it's made TV - and consequently, Nielsen - less relevant.) 

On balance, I'm buoyed by the fact that so many people were willing to subject themselves to fairly long, reasonably dull, convention speeches.  What these folks will do with this information is anyone's guess.  And the folks who are guessing with their money are leaning ever-so-slightly toward Obama.

H/T: Kos

My Morty

Well, I'm sitting here working over the text of my talk (on ideas of progress and the rule of law in antebellum literary addresses) for the conference honoring Morton Horwitz, which is this Friday and Saturday.   I'm thinking a lot about his work and his influence on me this afternoon.  He is, in addition to a keen interpreter of legal thought, a most humane and kind person.  So I thought that I'd post a little bit on this.  (The illustration is of Charles Demuth's 1927 painting "My Egypt," which is of a grain elevator in Lancaster, Pennsylvania.  I suppose that's Demuth's statement about what the modern pyramids look like.  And it's the inspiration for the title of my post.  The idea is that this is my interpretation of Horwitz; I completely understand others have different takes on his work.  Hi Nate!)

My relationship–-my many year love affair, really--with Morton Horwitz’ work began in the stacks of the Columbia Law Library sometime around the third week of September 1987.  Just about twenty-one years ago.  I was about a month into law studies and was–in addition to trying to read everything for class and a bunch of hornbooks, too–looking for something that would help me make sense of all the cases I was reading.  There was still talk of the way the common law evolves, particularly in my legal method and tort classes but also in contracts; and much talk also of the role of economic considerations, though not so much moral ones, in that evolution.  As to moral considerations, the one discussion I recall was my torts professor saying that he thought calling someone a communist was defamation per se.  So I began reading Transformation of American Law, 1780-1860, which I had heard a lot about but had not quite known what to do with when I’d opened it a few times as an undergraduate.

The Radical Vision: Essays for the Seventies

Fresh from my trip to Berkeley--and most interested in the history of that town, since I've now seen a bunch of the sites made famous during the 1960s--I pulled a reader off my shelf, The Radical Vision: Essays for the Seventies (edited by a couple of CUNY English profs, Leo Hamalian and Frederick R. Karl).  Yeah--that's the title.  It was published in March 1970, while the 60s were still going on.  I guess the 1960s continued until McGovern's nomination in July 1972.  (Or I suppose you might extend it to January 1973, when Roe v. Wade was decided, but I think President Nixon's trouncing of McGovern in November 1972 marked the end of the 1960s.)  Looking back on this from the perspective of 2008, what a title for a book?!  "The Radical Vision: Essays for the Seventies."

I bought it a few years ago--before I moved here--at a used bookstore on Franklin Street in Chapel Hill, when I was in town for a conference.  Why?  Well, I'm always interested in radical literature of the left and right and it seemed like it would make a nice addition to my collection of old documents.  (Right up on the shelf with Oliver Wendell Holmes' 1850 phi beta kappa poem to Yale (that's OWH senior)).  What really sold me was this: there's an essay by Harvard historian Donald Fleming in it!  There's nothing about Donald Fleming that says radical, so I was particularly interested in reading his contribution ("On Living in a Biological Revolution," which was reprinted from the Atlantic) and seeing how it fit with the rest of the essays.

As for the rest of the essays, they're radical all right.   There are some classics: Malcolm X's "The Black Revolution," Herbert Marcuse's "Liberation from the Affluent Society," Jerry Rubin's "A Yippie Manifesto."  Makes for some amusing reading.   I was particularly interested in the essay on the "people's park" in Berkeley by Sheldon Wolin and Dotson Rader's on Columbia.  The later because I spent a few years on that campus about two decades after the takeover.  Pretty interesting for a historian to see how quickly things change.  Two decades can work a complete revolution--or perhaps I should use a more "establishment" term, like makeover--in an institution. 

Anyway, professors come in for a lot of criticism in the volume.  What's Rubin say about us faculty?

Is All Law Local? Minnesota Teen Prosecuted For Flag Desecration

Proving that the Supreme Court really does have limited power, Winona, Minnesota police arrested a 14 year for flag desecration - viz, writing on, shredding, and burning a flag.  He faces three misdemeanor counts.  In the end, a conviction could not stand - unless the Court abandons Texas v. Johnson - but that doesnt mean that local officials can't cause chaos in this child's life.  He's gone through an arrest.  He'll likely need to hire a lawyer.  And his arrest record will probably hang around the NCIC database for some time.  And all for a crime that isn't.

Of course, some state officials have been using unauthorized authority for years in the form of illegal searches and seizures.  It's awful tough to convince a police-centered judiciary that a search was improper, regardless of lived reality, and even if evidence is ultimately excluded, the operation is a success.  The defendant has been pulled off the street and punished in the form of invasive process. 

Over time I've come to conclude that too often, the Supreme Court can say whatever it wants.  Local officials know better.

H/T: The Conspiracy

The Kindest Rankings of the “Top 25" Law Reviews

Talk of rankings--particularly of rankings of law journals--is a favorite of the legal academic blogosphere.  And it's fall, so it's time for hiring committee and promotion and tenure committee meetings.  So in the spirit of feeling good about our placements and those the people whose resumes we're reading, I thought that I'd post a table of the most generous rankings of law reviews.  This looks to what one might argue are the “top 25" law reviews–the reviews at the top twenty-five law schools according to US News’ peer assessment rank and the top twenty-five journals in terms of  the Washington and Lee Law Library’s ranking of citations and impact scores.  (Shout out to John Doyle for that terrific website.)  That is, if any school is in the top 25 (really 31, since there are ties between schools 24-31)  in US News' peer assessment rank or its lead law journal is in the top 25 in terms of citations by other journals or in terms of citation impact in journals, it's a top 25 journal.  Hey, 35 journals are in the top 25.  Don't you love new math?!

And just to be even rosier, I've assigned each journal a rank according to the journal’s best score on those three measures.  So we even have more than one number one journal!

Here's a ranking of law journals, ranking each journal according to its best score on the three factors  (US News peer assessment rank, citaitons rank, and impact rank).

The Credit Crisis Explained

I know I'm not alone in feeling like I understand about 35% of what's going on on Wall Street these days.  (And yes, I recognize that this 35% number is surely hubris; it must be more like 8%.)  For those of you who want a bit of a primer, take a look at Steven Levitt's post at the Times' Freakonomics page.  He enlists the intellect of Doug Diamond and Anil Kashyap to give some very helpful pointers.

If we're going through 1929 Redux, it would be awful nice to have at least a minimal understanding of what's going on!

Professor Nareissa Smith - Welcome to the Lounge!

Welcome to Professor Nareissa Smith, our latest guest blogger at the Faculty Lounge!  Professor Smith teaches Constitutional Law, Criminal Law and Criminal Procedure at Florida Coastal School of Law, and focuses her research on civil rights issues.  She's a graduate of Howard Law School, where she also taught Legal Reasoning, Research and Writing before making the move to Florida.  And like all well-rounded academics, Professor Smith makes time to focus on the non-academic.  She's a loyal fan of the ABC series "Lost" and intends one day to be crowned America's next Top Chef! Welcome Nareissa!

Negative Space in Antidiscrimination Law: Fat and Transgender Plaintiffs

Thanks to everyone here for having me as a guest.  I've kept quiet until now because I've been doing some thinking, about tenth grade art class, antidiscrimination law, and of course, the incredible awesomeness that is Gossip Girl's season 2.  I'll save my insights on Gossip Girl for a final exam in the near future.  For now, I'd like to air some thoughts my friend and co-author, Zak Kramer, and I have had about negative space in antidiscrimination law.   Zak and I have recently submitted a review essay on Professor Anna Kirkland's Fat Rights: Dilemmas of Difference and Personhood.  The review essay isn't up yet on SSRN, but I'll blog about it, and some other projects, during my time here at The Faculty Lounge.

Negative space, for those who may have blocked out art class, (or for that matter, all of tenth grade), is the space between or around objects in an image.  In our review essay, Zak and I focus on the negative space in antidiscrimination law that comes into focus in Fat Rights.  Antidiscrimination law does not protect against discrimination on the basis of being fat or transgender.  Yet antidiscrimination law has protected both fat people and transgender people. In her important and engaging book Fat Rights, Professor Anna Kirkland paints an illuminating picture of antidiscrimination law by highlighting its negative space – in particular, Kirkland highlights the absence of protection the law provides for fatness.  Kirkland also highlights how antidiscrimination law has protected fat people, even though it has not protected fatness.

In focusing on fatness, Kirkland identifies negative space outside antidiscrimination law’s bordering frame.  However, the picture Kirkland paints in Fat Rights reveals negative space not only at the edges of the antidiscrimination law picture, but in between its positive protections, as well.  After all, Kirkland’s book is not just about fat rights. Although she spends considerable time focusing on fat rights in particular – including the case law on fat discrimination, the few existing statutory and administrative protections against fat discrimination, and the growing scholarly literature on fatness – Kirkland attempts a more universal project about antidiscrimination law.  Kirkland’s universal project is to determine what the essence of antidiscrimination law is, in order to then determine what the essence of antidiscrimination law should be. In carrying out her universal project, Kirkland creates an entirely new way to talk about differences among people, thereby ensuring that conversations about antidiscrimination law will never be the same. In Fat Rights, Kirkland joins a growing community of scholars seeking to transcend antidiscrimination law’s categories to determine “which differences matter, which ones are incidental, and how to tell between them.”

The conversation about the future of antidiscrimination law’s categories can take place, as it does in Fat Rights, by examining fatness, a category that is clearly unprotected. An extension of the same conversation can take place by examining trangenderism, a category whose protection falls not wholly outside of antidiscrimination law’s protective frame, but in a pocket of negative space within it.  Because their transgenderism situates them within a protected category (sex), but in-between the two options that category presented (male and female), these plaintiffs have been able to fit their claims within existing protections. In this way, even though these transgendered plaintiffs’ claims have not been based on their transgenderism, their transgenderism has still mattered to the success of their claims.

In our Review Essay, we argue that plaintiffs in antidiscrimination law’s negative space – whether inside or outside the confines of its categories – share the frustration that the law sees them differently from how these plaintiffs see themselves.   By extending Kirkland’s discussion in Fat Rights to transgenderism, we use Kirkland’s book as a point of entry into the negative space of antidiscrimination law. While we enter the negative space Kirkland has deftly mapped, we enter it from inside antidiscrimination law’s protections rather than outside of them.

This Too Is Reality

Some people would call this editing. I'd call this both a smile-maker and a hint of why you just can't trust what's under your feet anymore. But then again, maybe you never could.

Presidential Power in the 21st Century

I actually meant to post about this great symposium, held last Friday, while it was going on, but it was gripping enough that I did not enable my wireless internet once during the conference--a true 21st century mark of interest!

Willamette Law celebrated its 125 anniversary this past week (the oldest law school in the Pacific NWest), and as part of the festivities, hosted a conference on Presidential Power in the 21st Century.  Run by Norman Williams, keynoted by Neal Devins, and complete with a lunchtime speech from Justice Ruth Bader Ginsburg, the conference tackled military force and international law (Beth Hillman and Peggy McGuinness); judicial process and individual rights (Trevor Morrison, Tung Yin and Steve Vladeck); the president and the law (Kenji Yoshino and Neomi Rao); and the president & the administrative state (Michele Gilman, Heidi Kitrosser, Sai Prakash, and Jerry Mashaw).

Now, I mention this conference not only so you can marvel at the great minds collected in one room (which you should) and kick yourself for missing it (ditto), but to flag that this impressive bunch have all agreed to write up their talks and publish them in a forthcoming volume of the Willamette Law Review.  Combined with the text of Justice Ginsburg's lecture, this will be a volume to remember.

A huge thank you to all of the symposium participants--we appreciate your hard work and splendid presentations, and look forward to the written versions!

Bartow on "Swingers" and Pornography Regulation

Ann Bartow has an article in the most recent edition of the Yale Law Journal's Pocket Part, responding to Alan R. Levy's How “Swingers” Might Save Hollywood from a Federal Pornography Statute.  Ann's piece is entitled "Why Hollywood Does Not Require 'Saving' From the Record Keeping Requirements Imposed by 18 U.S.C. Section 2257."   Read all about it here.

Alfred Brophy

McCain's New Fundamentalism Doesn't Pass The Laugh Test

We all know that John McCain was quoted as saying, several months ago, that the "fundamentals of our economy are strong."  That was a fair enough statement.  I'm sure he has no specialized knowledge on the topic, but plenty of smart folks shared that view with the Senator.  Now, however, he is desperately trying to back away from the comment.  Rather than admit error, he's playing a language game that seems ridiculous. 

McCain now claims that when he used the term "fundamentals" in the above quote, he was referring to workers - as in "well it’s obviously true that the workers of America are the fundamentals of our economy" and "“there’s nothing wrong with the workers of America.  I believe that they’re the fundamentals."

OK.  This nifty linguistic move won't make him lose his base or gain votes from Obama supporters.  It's hard to imagine that it's going to sway independents one way or another.  Mostly, it just disgusts those of use who were voting for Obama but still respected McCain.  I was foolish; I expected better.   

Chickenpox Kids Party Like It's 1966!

Chickenpox parties.  You drag your kid to a hotbed of contagious disease with the hope that little Grover (or little Hilda, as the case may be) comes down with the illness himself  or herself.  Have some cake, share straws, have some high contact play, and go home.  Although I get the idea of trying to control bad things, this always struck me as a kinda of weird approach -   only because chickenpox actually has a non-negligible rate of very undesirable outcomes.  (Yes, I recognize that the goal was to spare Grover a bout of the pox at age 30 - the very age at which I managed to suffer this plague.)

I thought that the varicella vaccine had rendered these shindigs unnecessary.  Why introduce your child to a dangerous illness when you don't have to?  Silly me!  I underestimated what happens when you mix "shots are dangerous" anxiety with the nostalgia for old medicine.  What do you get, according to the Trib?  Chickenpox Parties in 2008!

Megan Cummins, a shiatsu therapist from Chicago's Hyde Park neighborhood, said that at one party her children hesitated to share a drink box with the infected toddler, who had a runny nose and was covered in spots.  "My kids were sort of repulsed," Cummins said. She said her two older children attended three parties but never got infected. She still hopes to get them infected, but said that at times the parties felt awkward.

Awkward?  Aruably, it verges on abuse. Oh, those folks from Hyde Park.

In Case You Missed It: Sarah Palin/Hillary Clinton Spoof on SNL

It is interesting to see the use of humor to highlight the issue of gender in the presidential campaign.  In this amusing opening skit, Palin doppelganger and SNL alum Tina Fey makes a cameo. Amy Poehler reprises her familiar role as Clinton.

Randall Kennedy on The Meaning of the Presidential Election

This morning's Washington Post brings a column by Harvard Law Professor Randall Kennedy about the meaning of Senator Obama's candidacy.  Professor Kennedy writes:

Never before have my emotions been so exercised by a political campaign. For one thing, never before has a candidate so fully challenged the many inhibitions that have prevented people of all races, including African Americans, from seriously envisioning presidential power in the hands of someone other than a white American. With intelligence, verve and elegance, Obama has opened the public mind to the idea of a black president and made that idea broadly attractive.

The senator's progressive politics, cosmopolitan ethos and pragmatic style have turned me into an enthusiastic supporter, and I savor the prospect of his triumph. But I'm watching this election very closely as I teach a course about it this semester. And I know that the conclusion to this electoral drama is far from determined. Yes, political gravity would seem to favor the Democratic candidate after two terms of Republican control of the White House. Yet the possibility is very real: Barack Obama could lose.

If that happens, then what? How will I feel? How will other black Americans feel? How should people like me feel?

The concluding paragraph is:

Even if Barack Obama loses in November, he will have bequeathed to all America something that should bring comfort and pride to even the most disappointed of his followers. He has reached the edge of the pinnacle. And shown that we can stand atop it.

The rest of the column is here.

Alfred Brophy

The Fury of Angry White Mothers: I Saw Your Nanny

A new blog on the internets reaches new levels of upper middle class parental paranoia.   I Saw Your Nanny reports sightings of caregivers "being bad" with their charges.  Reported sightings include nannies (invariably "black," "of color," "AA" or foreign) who are invariably drunk, abusive, or inattentive in front of the Wobegonian urbanettes, who are invariably "blond," "adorable," and "precious."  One child, who looks "like a young Brooke Shields" (at 15 months) was under the care of a "thin Hispanic woman" who criminally turned her back in the presence of the child at a swingset in a public park.

Locating white nannies is more difficult because of the physical similarity between adult and child, and probably not as guiltily satisfying.  It's the racial schaudenfreude of parenting: ratting out someone else's Caregiver of Color.

Good thing the blog has links handy for Sex Offender Registry and Lost Child Information.  Good help is hard to find.

Shocking reports of Bad Black Nanny behavior after the jump.

So You Think You Can Dance?: Israel Makes Artist Dance For Admission

A recent story emerged yesterday about Alvin Ailey dancer Abdur-Rahim Jackson. Jackson, singled out due to his name, was forced to dance for Israeli troops in order to prove his identity -- although he produced a photo of him with the entire dance troupe.

I know he dances for a living, but I am sure that dancing to gain entry into a country wasn't a part of his career plans.

I guess as a black artist you never escape the roots of being a street performer. But, even dancing to prove your identity seems a little over the top -- even at an Israeli security checkpoint.

This takes racial profiling to a whole new level.

Pass the hat Adur. Remind them, however, that you don't accept Shekels!

Owed to a Native Son

As a new guest blogger in The Faculty Lounge, I thought I would ignite my entry by taking some time to acknowledge the birthday of internationally acclaimed African American novelist Richard Wright. Born on September 4, 1908, Wright would have celebrated his 100th birthday, if he had lived this long. Known for his unique ability to use literature to describe in vivid detail the physical and psychological horrors suffered by African Americans under the law, Wright’s novels still remain relevant today – particularly for those of us interested in emerging issues in civil rights and social justice.

Best known for his critical race novel, Native Son, Wright possessed a keen ability to use narratives set in law to explore issues of black oppression, black male rape mythologies, and the role of the death penalty in African American legal existence. A man interested in the intersectionality of race and punishment, Wright singly advocated for the release of an inmate who taught himself musical composition, arguing that the man was rehabilitated.

Although a prolific author, probably less noted, except among a core of emerging scholars, is Wright’s literary ownership over the Black Power era (1954-1975). His 1950’s trilogy of literary criticism (Black Power (1954); The Color Curtain (1956); White Man Listen! (1957)) provided a sui generis perspective on the major themes of radical internationalism, Third World solidarity, and anti-colonialism that would eventually permeate and characterize the Black Power Movement. As a scholar/activist interested in the legal history that emerged from that period, I guess I, too, am “owed to a native son.”

Happy Birthday Richard!

Donald F. Tibbs

Introducing Guest Blogger Elizabeth M. Glazer

We're very excited to welcome Elizabeth M. Glazer as a guest here at The Faculty Lounge.  Liz is an Associate Professor of Law at Hofstra University School of Law.  She received her B.A. and M.A. from Penn and her J.D. from the University of Chicago.  Quoting from her law school webpage, because I'd surely get it wrong if I tried to paraphrase,   Professor Glazer's research borrows principles from analytic philosophy in an effort to solve problems in constitutional law, statutory interpretation, and property law.  Her piece, When Obscenity Discriminates, was published in the Summer 2008 issue of the Northwestern Law Review.  We're looking forward to finding out what's next on her mind.  Welcome to the Lounge!

Welcome Guest Blogger Donald Tibbs

I'm very pleased to announce another great guest here at the Lounge: Donald Tibbs.  Donald is an associate professor at Drexel University Earle Mack School of Law (note my careful use of the brand!)  He joined us at Drexel this year after being on the faculty of Southern University Law Center for the past couple of years.  He received his J.D. from the University of Pittsburgh and his Ph.D from Arizona State University, and he served as a Hastie Fellow at the University of Wisconsin.  He is an interdisciplinary scholar, with a particular focus on issues of race and the law.  His first book, Black Power, Prison Power: Race and Legal Consciousness in the Making and Unmaking of the Jones Case is a study of the prisoner's rights movement in the 1960's.  It is forthcoming from the University of Georgia Press.  Welcome to the Faculty Lounge!