The Faculty Lounge

US News History Department Rankings

Amidst all the talk of US News' law school rankings, we might forget that US News ranks other programs--including, this year, history departments.  Here's a link to them.  The history rankings rely exclusively on peer assessment scores.  This invites comparison with the law school rankings' methodology, of course--and may also suggest some fruitful lines of additional analysis for ranking history departments.  I don't know whether students' entering credentials are available,  but that might provide some useful additional data--in part because a good deal of a student's experience in graduate school is the interaction with other students.

There's a four way tie for first--Berkeley, Princeton, Stanford, and Yale, each at 4.8); Harvard and University of Chicago are close behind at 4.7.  Chapel Hill and Cornell are tied for twelfth at 4.4. 

There  are specialty rankings for areas like African American History (Duke, Harvard, and Yale are tied for first; Chapel Hill is tied with Princeton for seventh), Colonial American History (Harvard, University of Pennsylvania, and Yale are tied for first; Chapel Hill is tied with Princeton for eight),  Modern U.S. History (Yale is first; Columbia University and Harvard are tied for second; Michigan, Penn, Virginia, and UNC are tied for eighth), and Women's History (Rutgers is first).  However, there are not specialty rankings for Southern history or for legal history.

No word on how Harvard's beloved History of American Civilization Program contributes to the Harvard history department rankings.

The illustration is Wilson Library at the University of North Carolina, which houses the fantastic Southern Historical Collection.

First Amendment Challenge Tests Animal Cruelty Law

Earlier this week the US Supreme Court granted cert in US v. Stevens, to decide whether depictions of animal cruelty merit constitutional protection. 

The statute, 18 U.S.C. § 48, makes it a crime to create, possess or sell images of animal cruelty, which is defined to include live animals being maimed, injured, tortured or killed if the conduct itself is illegal in the relevant jurisdiction.  The law was originally intended to curb the market in "crush videos" -  those  artistic gems that portray a stiletto clad dominatrix threatening to impale a kitten with her heel.  It's rumored the videos that hit the market in the 1990s didn't actually show the gruesome detail on film, though the squeals and cries of the animals could be heard off camera. 

  So far, though, reports say there have been only 3 other prosecutions under the statute, each involving dog fights, as was the case here.  It seems then, that the government is pressing the Court to uphold a statute it's not really looking to enforce.  Moreover, the statute itself includes an exception wide enough to run a horse through (ooh, sorry).  A depiction of cruelty is not prohibited if it "has serious religious, political, scientific, educational, journalistic, historical, or artistic value."  No doubt the government was trying to preserve the constitutionality of the statute since this exception loosely tracks the standard for judging whether sexualized material is constitutionally protected or is obscene.  But the exception in the obscenity context is precisely why so many of those prosecutions fail.     

Those are my baby girls Kenya and Brutus up on the left.  They get organic kibble, wheat-free snacks, and osmosis purified de-ionized water from Whole Foods.  They've gotten accupuncture.  They have a standing reservation at 'doggy day-care' every Friday, sometimes with a sleep-over and oatmeal bath.  And yes, every other night, they sleep in our bed.  That's Mousetrap on the right.  We got her from the auto-shop guy who found her in the alley.  She's in the bed too. 

The point is, I would have voted for this law in a heartbeat and think the First Amendment challenge could be overcome.  I'm just not sure it matters that much if we're looking at four prosecutions a decade.   

-Kathleen A. Bergin

On the Path of Walker Evans

It isn't every day that the New York Times puts Greensboro Alabama on the front page!  Here's a charming story on Walker Evans' photographs of rural Alabama, which he made for the WPA.  Some made their way into illustrations for James Agee's Let Us Now Praise Famous Men.  Reading about Greensboro and Eutaw makes me homesick these days, especially this description:

In Eutaw, where former Secretary of State Condoleezza Rice’s grandfather grew up, the son of a sharecropper, a town square is ringed mostly by covered walkways, the paint of storefronts tattered by rain and heat, a pastiche of faded green, chocolate and pink against a blue sky. “We don’t see many out-of-towners here,” said a man who stopped to ask if I needed directions.

But one cure for homesickness is writing about it--and I'm hoping that soon Stephen Davis and I will finish our empirical study of probate in antebellum Greene County (Eutaw is its county seat).   There's some mighty interesting stuff in there--for both social and legal historians.

You may recall we've spoken about Walker Evans' photographs before here in the lounge.

Grading Strategies: Any Ideas?

The time is coming upon us to earn our keep: the grading of exams.  Faced with stacks of bluebooks and Examsoft printouts, many us us vow each and every semester to pace ourselves in grading.  "Ten exams a day for two weeks, and I'll be done."  Some of us stick to this and easily set aside 2 hours a day for grading.  However, I might suspect that many attack grading ferociously, leaving the majority of the work to the very end.  Stacks and stacks of papers in piles upon piles, staring at us like a hungry dog needing to be fed.

I swear every year that I think the exams are conjugal--the reproduce in the stacks.  Just when you think you are done with your stack for the day, you find that there are six more that you did not spot.  And the pile looked so thin!  But somehow they hide in between the papers and creep up on you to say HA!  You are not done yet!

What strategies do you use to finish grading?  To get away from the siren song of cleaning that must be done (at that very minute), food to be prepared, emails to answer, calls to return, plants to water, or even Outlook boxes that must be color coordinated.  The possibilities for procrastination are endless.

This blog post calls for creative suggestions on How to Make Yourself Grade.  I have some ideas, and I invite others to share.  Here are some that I have heard:
-Grade on the subway without a specific destination (Pluses: no calls, emails, or fun colleagues, it's only $2; Minuses: impromptu dance-offs, people going somewhere fun (like home), neat mariachi bands)
-Rent a house in the country (Pluses: inspiring environment, the quiet, the remoteness; Minus: the cost of the rental)
--and the BEST I've heard so far:  take a plane to nowhere, and then come back the same day. (Pluses: uses FF miles in a productive way, no possibility of leaving, clouds; Minuses: none, really)

Any more?

(photo courtesy of Concurring Opinions)

Judge Bybee's Memo and Abu Zubaydah's Illegal Interrogation

Does Jay Bybee's August 1, 2002 memo provide legal authorization for the August 2002 waterboarding of Abu Zubaydah?  There is good reason to conclude that it does not.  Kevin Heller at Opinio Juris argues that the CIA failed to follow its own SERE program guidelines, and therefore went beyond the legal authorization.  He writes:  

"Bybee's 1 August 2002 memo was the only one issued before the CIA waterboarded KSM and Zubaydah.  And that memo makes clear (see particularly pp. 4-6) that Bybee's authorization was based on representations by the CIA that its waterboarding regime followed the guidelines . . . which were based on the use of waterboarding for training purposes at the SERE school.  Yet the CIA completely ignored the SERE guidelines when it waterboarded KSM and Zubaydah." 

I think Heller makes a very important argument, and would like to articulate further why the waterboarding of Zubaydah exceeded Bybee's August 2002 memo in particular.  Here's why. 

New Entry Level Law Faculty Hiring Updates

Larry Solum has updated his 2009 Entry Level Hiring Report, and it's got a new address: find it here.  

Coerced Confessions, Wrongful Convictions, Juror Reflections

Richard Danziger received a life sentence in 1990 for the aggravated sexual assault of a Pizza Hut employee who was raped and murdered in 1988.  Several years later, new DNA evidence established Danziger’s innocence, and he was released after serving approximately twelve years.  While in prison, Danziger was the victim of a brutal attack by another inmate and sustained serious brain damage, leading to seizures, mental problems, and partial paralysis that continue to adversely affect his quality of life.  Additional background reading here, here, here, and here.

Carol Bohls, Velma Diamond, and Liz Roland were three of the jurors at Danziger’s trial.  They recently penned an editorial that appeared last weekend in the Houston Chronicle.  The focus of the editorial is on the confession and testimony of Danziger’s alleged co-conspirator, Christopher Ochoa (also convicted, but later exonerated).  Here’s an excerpt:

We were horrified to learn after Danziger’s exoneration that Ochoa’s interrogation was characterized by lies about inculpatory evidence and threats that if he did not confess and testify against Danziger, he would receive the death penalty.  None of this came to light during the trial, however, because there was no record of the interrogation procedure. Had we been given the opportunity to see the context of Ochoa’s confession, including the coercive tactics that were used for hours against him, we would have at least had something to deliberate about.  We did the best we could with the evidence provided to us; unfortunately, that evidence was dangerously incomplete, undocumented and untrue.

The editorial continues, with a call for interrogation reforms. 

If interrogations are recorded in their entirety — from the reading of rights to the end — jurors will have access to a clear, complete picture of the circumstances that led to a confession. This is essential in order to effectively evaluate the quality of that evidence.  While many police departments have begun to record suspect interrogations, there is currently no requirement that they do so.  Some things are too important to leave optional, and we think this is one of them.  A complete record of suspect interrogations documents a crucial part of a criminal investigation, and it is essential for jurors to do their jobs well and reach justice.

The full editorial is available here.

Yale Law Announces Dean Search Committee; Paul Kahn To Chair

We now know who will be involved in the search for a replacement for Dean Harold Koh.  This from the Yale Daily News:

Law professor Paul Kahn GRD ’77 LAW ’80 will chair the eight-member committee,[Yale President Richard] Levin said. The committee, which will meet for the first time Thursday, also includes law professors Robert Ellickson LAW ’66, Douglas Kysar, John Langbein, Daniel Markovits ’91 LAW ’00, Tracey Meares, Susan Rose-Ackerman GRD ’70, James Whitman ’80 LAW ’88 and Michael Wishnie ’87 LAW ’93.

All those interested in the position, which probably pays pretty well and has a solid benefit package - including tuition remission for the tykes - should submit resumes ASAP.

Colorado's Philip Weiser Joins The March To The Obama Administration

Add this to the flow of faculty to (and periodically ebb from) the Obama Administration.  Phil Weiser, of the University of Colorado School of Law, will be joining the U.S. Department of Justice Antitrust Division as deputy assistant attorney general for international, policy and appellate matters.  Weiser previously served in the Antitrust Division during the Clinton years.  

Judge Louis Pollak Slams US News Rankings, Offers An Alternative List

Yesterday I noted the release of the first issue of the Drexel Law Review.  What I didn't mention was that Judge Pollak, the Inaugural Chair of Drexel Law's Visiting Committee and former Dean of both Yale Law School and Penn Law School, has an  article in this first issue offering some critiques of US News rankings.  Among various comments, he offers up this thought:

I argue that any serious attempt to measure the quality of a law school should include inquiry into a dimension unmentioned, let alone unexamined, by U.S. News & World Report—namely, how recent and current law students feel about their alma mater. A major difficulty, of course, is that a useful inquiry would be very difficult to design and carry out. But the larger difficulty is that the findings, while very likely of real interest (most especially to college seniors deciding which law schools to apply to) would be unquantifiable.  

Of course, we all know that law profs groove on rankings, even as they bitch relentlessly.  And prospective students want information.  Judge Pollak gets all that as well, and has ginned up his own version of law school rankings, a first cousin to the Brian Leiter and Paul Caron approaches.  Pollak's list clusters similar schools solely along the peer assessment axis and relies on 2009 US News survey data.  He concedes that it's "defective" and "very inadequate", but still "not quite as unmeritorious as the US News and World Report version."     The Judge Pollak Rankings - which are suprisingly reasonable - after the jump...

Bad Analysis vs. Bad-Faith Analysis

The Associated Press is reporting that President Obama might be open to prosecuting the lawyers who wrote the memos authorizing torture.  Brian Tamanaha has also posted a very interesting take on the memos, entitled "How We Know that the OLC Torture Memos were Not Issued in 'Good Faith.'" Tamanaha writes that the OLC's unquestioning acceptance of the CIA's assessment of the detainees' suffering demonstrates bad faith: "This is manifestly bad faith analysis because, as these statements make clear, the OLC lawyers had no independent factual basis for rendering their legal opinion. The OLC legal opinion, to put it more bluntly, is grounded entirely upon the self-severing assertions of individuals potentially subject to criminal liability."

 

But does bad analysis--even really, really, bad, self-serving analysis that results in untold suffering--necessarily equate to bad faith?  In a recent article, I argue that cognitive bias and associated blind spots may better explain such lapses.  The memo authors' reliance on the CIA's own self-serving assessment seems to fit in with classic bias blind spot research.  If the memo authors were truly trying to provide legal cover for a pre-ordained result, they did an amazingly bad job of it--one would expect a truly bad-faith author to manufacture the appearance of more reliable data, not to openly rely on self-serving assessments.  It seems more likely that the authors were simply blind to how the rest of the world would view their analysis, and never thought to question the reliability of the CIA's assessment.

 

So how could such bad analysis have been offered in good faith?  My article argues that John Yoo, in particular, was pre-disposed to suffer from certain cognitive biases.  First, he had a very strong political identity that correlated with the Bush administration's objectives.  His partisan feelings may have blinded him to the types of criticism his conclusions would face outside the echo chamber.  In addition, he had significant policymaking responsibility inside the administration, and I argue that the policy role may have led him to place a decreased emphasis on legal analysis--essentially, I think he was trying to write a legal memo while wearing a policy hat.  As a more general matter, I think the Bush administration was very poorly served by trying to hire "true believers" to provide legal counsel.  It is a tough balance for clients, because they want a lawyer who is loyal, but they need a lawyer who can accurately predict how outsiders will assess a case.  Hiring a lawyer with the same worldview as the client suggests that lawyer and client may share the same blind spots as well, to the detriment of both.

Yale Biographical Dictionary of American Law

I'm pleased to see that the Yale Biographical Dictionary of American Law is now out.  I'll have some more thoughts when my copy arrives.

What happens when your bickering children annoy you and you are a partner at a White Shoe NYC firm?

From the NY Daily News:

A prominent Park Avenue lawyer was arrested after cops said she got so angry at her young daughters that she kicked them out of her car - and drove off.

Madlyn Primoff apparently couldn't bear any more squabbling between her 10- and 12-year-old daughters Sunday and booted them out of the car in White Plains, Westchester County, authorities said.

The fedup Scarsdale mom - a partner at white-shoe firm Kaye Scholer soon relented and let her 12-year-old daughter back in when she caught up with the family car.

The younger daughter wandered around the corner to Mamaroneck Ave., where a good Samaritan spotted her in tears about 7:30 p.m., bought her ice cream and then approached a cop in a patrol car.

(Rest of story at link above)

Corporate Bankruptcies

In this tough economic climate, it seems that one can’t pick up the daily newspaper without reading a story on another corporate bankruptcy.  Might automaker General Motors be next?  Last week the WSJ quoted GM chief executive Fritz Henderson as saying bankruptcy remains a “probable” outcome.

With this possibility on the near horizon, SmartMoney reporters Dan Burrows and Will Swarts offer their timely article, “7 Big Bankruptcies That Rocked the Markets,” available here.

Drexel Law Review Debuts - There's Some Good Sh*t Here!

Danny Sokol asks the trenchant question of whether, given it's impressive student numbers and faculty productivity, you'd publish an article in the UC Irvine Law Review.  It's an interesting topic, but still a couple years off.  Meanwhile, the moment has arrived for the first issue of the Drexel Law Review.  In addition to several engaging articles,  there are a pair of remarkably strong student notes.   Lindsay Wagner's piece on sex offender residency restrictions is a highly thoughtful framing of this issue.   And I would be truly derelict if I didn't highlight Mary Mitchell's  impressive piece on the social shaping of inventiveness requirements in antebellum patent law.  

And everyone will enjoy the very cool graphics of the virtual law review version which allows you to turn law review pages at the click of a mouse!  

Legal Workshop ... Or Should We Say Legal Theory Clearinghouse?

Larry Solum's talking about an exciting new program from seven leading law reviews--Cornell Law Review, Duke Law Journal, Georgetown Law Journal, New York University Law Review, Northwestern Law Review, Stanford Law Review, and University of Chicago Law Review .  They're calling it the "The Legal Workshop" and it's already up.  The idea is that the on line magazine will have short versions of articles appearing in those seven journals and sometimes responses that will not appear in the print version (it looks like Richard Epstein's recent piece replying to Abraham Bell falls into this later category).  The articles I've seen so far have little in the way of footnotes, but you can link to the full articles from the website.  

The content is governed, I take it, by the journal that publishes the primary article.  They also deal with responses.  As the website notes about submissions, "Content on the Legal Workshop website is primarily based on content selected for publication in members schools’ print editions.  If you would like to submit a formal response to any content printed on the Legal Workshop, please contact the Legal Workshop Editor at the journal responsible for posting the original content."

Solum has some characteristically thoughtful remakrs about the workshop.  I would add that this may give those of us who're interested in skimming a lot of pieces a nice executive summary--more than a brief abstract, which usually isn't enough, and less than the evening-long detailed read a lot of these pieces require.  Of course I think this also raises the possibility that articles should, by and large, be shorter--more in the 3000-5000 word range.   A well-crafted essay can convey a lot in a short (or relatively short by law journal standards) compass.

I applaud every move to get us talking to one another and taking each other seriously.  This is the primary reason I love book reviews and am troubled by their apparent decline.  Also, this may signal a shift towards yet shorter pieces in law journals--a change I by and large welcome.  But the fear one has about this is that it leads to more slip-shod, fast analysis.  You'll recall the movement for slow writing is gaining some traction in other areas of the academy.

Apparently the leading forces behind this are the Stanford Law Review and the NYU Law Review. And a lot of work went into planning this.  Though it's on-line, this has been in the works for a couple of years.  The workshop's website reports:  "The idea for The Legal Workshop was originally conceived by Joe Ross, Volume 59 President of the Stanford Law Review. He and Erin Delaney, then Editor-in-Chief of the New York University Law Review, first solicited potential members for The Legal Workshop in the spring of 2007."

You can also choose subject areas to search, such as legal history--though I see there is as yet only one article in the legal history category.  But, hey, that's one more than appears under "Trusts and Estates."  Further evidence, I suppose, that I write in the wrong fields!  History of trusts law--the piece I'm working on right now (or that's sitting on my desk, waiting to be worked on anyway)--I guess is at the intersection of two tough areas to place in a leading law journal....  But then again, I'm still holding out some hope that this piece (on an empircal study of probate in antebellum Alabama--what sounds like a real snoozer of a topic) will cause people to go back and think there might be some interesting data in those old records--about the relationship of the market to slavery, the centrality of trust law to the market (even earlier than John Langbein and other trusts scholars have thought), and about the centrality of family and property in the lives of those long-dead people.

Eliminating federal habeas review of state cases

A fascinating new paper by Nancy King and Joseph Hoffman has been recently been posted to SSRN.  Entitled "Rethinking the Federal Role in State Criminal Justice," and forthcoming in NYU Law Review, the essay discusses the use of federal habeas review for state criminal cases, and concludes that it is a waste of time and resources:

This Essay argues that federal habeas review of state criminal cases squanders resources the federal government should be using to help states reform their systems of defense representation. A 2007 empirical study reveals that federal habeas review is inaccessible to most state prisoners convicted of non-capital crimes, and offers no realistic hope of relief for those who reach federal court. As a means of correcting or deterring constitutional error in non-capital cases, habeas is failing and cannot be fixed. Drawing upon these findings as well as the Supreme Court's most recent decision applying the Suspension Clause, the authors propose that Congress eliminate federal habeas review of state criminal judgments, except for cases including certain claims of actual innocence, retroactively applicable rules, or the sentence of death. The federal government should leave the review of all other state criminal judgments to the state courts and invest, instead, in a new federal initiative to encourage improved state defense services, an approach that can deter and correct constitutional error more effectively than any amount of habeas litigation ever could.

Those of you who follow sentencing and crim pro scholarship know that any new work by either King or Hoffman is well worth reading, so take some time out of exam-writing and grading and check it out!

Harvard Law School Grading

The Crimson has the  latest on the Harvard Law School's grading curve and how it awards honors.

Effects of US News Rankings

Posted by D. Daniel Sokol

Some of the questions I have about the effects of US News Rankings go to some of the immediate effects of the rankings:

1. Does the yield rate (those admitted who decide to matriculate) improve when there is a significant jump in the rankings?
2. Do employers looking to cut back recruiting at schools pay attention to whether a school has dropped out of the top  25, 50 or 100?
3. Do applications at schools that just broke into the top 25, 50 or 100 rise the next year relative to other schools?

Leaving Las Vegas

This story from the Las Vegas Sun discusses lateral moves by three UNLV law professors, with one or more of the departures prompted (at least in part) by recent state budget cuts to higher education.  The article also hints that others may be looking elsewhere.

UNLV has moved up through the law school rankings during its young history at an impressive  pace, to a great extent propelled by the rich talents of its stellar inaugural faculty and subsequent lateral and entry-level hires.  (I’ve always thought that UNLV has fielded one of the strongest cadres of commercial law talent in the nation, with Bruce Markell, Bob Lawless, Nancy Rapoport, and Keith Rowley.)   But it’s a given, in academic life, that colleagues come and go for a variety of reasons (money being only one of them).  Perhaps budget cuts during these difficult economic times will prompt an unusual number of departures at some schools.  But for everyone who leaves, hiring chairs will tell you there is no shortage of well-credentialed talent clamoring for a shot to fill the now-vacant slot.  UNLV has lost talent before (e.g., Lawless to Illinois, Carl Tobias to Richmond, etc.) but has always reloaded (e.g., Rapoport from UH).  My guess is that UNLV will be just fine – and continue to enjoy success.