Or, almost. A new study shows that a trucker's risk of collision rises 23 fold when the driver is texting. If the DWI Blog is to believed, this is roughly the risk associated with driving with a blood alcohol content of .15 - that is, almost twice the legal limit. It's the equivalent of a 180 pound person having 7 drinks and hitting the highway. Right now only 14 states prohibit this activity. But panic is around the corner! I can't imagine we'll wait long before the majority of the states ban driving-while-texting.
The UK's Human Fertilisation and Embryology Authority has
indicated that it will reconsider its restrictive caps on payments to egg and sperm
donors, due to donor shortages and the resulting reproductive tourism.Via the BBC:
More and more British couples are going
abroad for infertility treatment since the ban on payments was introduced.
The number of women using donated eggs
and sperm fell by 25% and 30% respectively between 2004 and 2006. . . .
Anonymity for sperm and egg donors was
removed in 2005 - another factor thought to be behind the donor shortage.
The maximum any donor can receive in
expenses is currently £250.
[HFEA head] Professor Jardine told the
BBC a payment comparable to the cost of a cycle of IVF treatment - around
£3,000 - might be more appropriate for women who donate eggs.
I discuss these and other shortcomings of the current U.K. fertility
system in this working paper.HFEA rules requiring donor registration
and limiting egg donor compensation to lost wages and reimbursable expenses have
caused severe gamete shortages, and there are waiting times, the length of
which vary by region, for many patients using NHS funding for fertility
treatments. As a result, many British citizens pay out-of-pocket for treatment
and seek less expensive fertility treatments abroad, rather than dealing with
the wait lists, restrictive regulations, and other impediments to treatment in
the U.K.
Issues surrounding egg and sperm donor payments in the U.S.
have been a frequent topic of discussion here at The Lounge.See, for example:
Given that the 8/5/09 deadline is less than two weeks away, I thought I'd repost my thoughts on the FAR form.
Recent posts here and elsewhere have started to address the topic of faculty hiring and the upcoming AALS Faculty Recruitment Conference. For the candidate who will be attending the Conference for the first time, helpful information is only a click away (visit The Faculty Lounge, Prawfsblawg, Taxprof, Concurring Opinions, etc.). I’d like to offer a few remarks on the FAR form itself.
1) Deadlines. A visit to the AALS website indicates that the deadline for inclusion in the first distribution of FAR forms is August 5. The first distribution becomes available to law schools on August 13, and committees often begin their deliberations sometime before, or just shortly after, Labor Day. DO NOT MISS THE DEADLINE OF AUGUST 5. Yes, some folks whose FAR forms appear in the second or third distributions may be granted interview opportunities. But don’t bet on it. First, given the current state of the economy (especially as it has affected state schools), the number of candidates is likely to increase (might the first distribution break the magical mark of 1,000 this year?) and the number of hiring slots may decrease. Every year the talent pool seems to get deeper, and this year we might be up to our necks in impressive credentials. Many interview slots will be taken by those who make the first distribution and become the focus of attention at a committee’s initial meeting, leaving few interviewing opportunities for those in the second or third distribution. Second, your commitment to the process may be questioned if your FAR form dribbles in late.
2) Geographic restrictions. Think long and hard about listing any geographic restrictions on the FAR form (e.g., “within 40 miles of Boston,” “New York City area,” “east of the Mississippi River,” etc.). Sure, committees don’t want to court a candidate who is NEVER going to move to its location, and the honesty is appreciated. But given the ever-increasing difficulty in landing a teaching gig, candidates may wish to keep an open mind and not foreclose numerous possible opportunities by imposing a geographic filter. And if you do have location restrictions, consider mentioning any non-obvious reason. A restriction to a particular city or state presumably means you have family constraints. But telling hiring committees that you’ll relocate “only to a blue state” or you won’t relocate to “Texas, Arkansas, North Dakota, Tennessee, Iowa, Nevada, Wisconsin, Ohio, and South Carolina” only sends a message that you’re a bit goofy (absent additional details).
3) Subjects you wish to teach. This field of information often is a school’s primary filter. While some schools may hire “the best athlete available,” many slots are subject-sensitive. Be honest, but be somewhat flexible. For example, if you’re a securities lawyer and want to teach in that field, don’t list ten securities-related courses to the exclusion of all others (maybe tax candidates can get away with this, but I remain skeptical). And regardless of your primary teaching interests, add one or two first-year courses to the mix. Almost all of us teach in the first-year program at some point during our academic career. One upside of teaching a first-year course is that you can develop a “following” for your upper-level courses and seminars.
4) Scholarship. If you’re constrained by the limited space on the FAR form, be sure and drop additional information in the “comments” section. Consider adding any works in progress here, also. But any work you list should be far enough along that you can provide a lengthy draft on request. Don’t mention works that are mere ideas, abstracts, tentative outlines, etc. Save those for your research agenda memo.
5) Proofreading. Ask at least three people to proofread your form for accuracy before you submit it to the AALS. Committees get to know a candidate (and the candidate’s potential for quality teaching and scholarship) initially through the FAR form. Make a good first impression! Avoid typographical errors, spelling mistakes, etc.
The Tour de France ended
yesterday, with Alberto Contador in yellow, and Lance Armstrong on the
podium in third.Like Gordon, I love
the Tour de France for many reasons, including that the French just aren’t that good at it
anymore. I even went to the Tour last year, watching several stages in
person (including the final stage on the Champs-Élysées) and rode part of the
course (the flat part, but I did gain a new respect for the Mistral).See one of my photos from the final
stage at right – that’s me, stalking George Hincapie, who gave me a water bottle
in exchange for a glass of champagne).
The drama of the mountain stages, Lance’s comeback, Phil and
Paul (and Bobke, “Tour DAY France”), the unofficial norms
– and their interesting enforcement mechanisms -- that guide professional
cyclists’ behavior . . . and the doping scandals.Yes, if you’re a fan of the Tour, or of cycling more
generally, you’re familiar with the doping issues the sport has faced in recent
years.
Even this year’s “clean Tour” has failed to escape the
doping cloud.Nor is the Tour
likely to avoid such controversy in the future.Aside from the history of the sport and the
continuing
doping allegations, power
outputs have climbed suspiciously in the past decade -- even accounting for
technological changes such as a reduction in the weight of the equipment,
stiffer bikes, and better components.And Contador’s record-breaking climb on the Verbier this year was
sufficiently impressive to generate a rash of speculation about his potential
doping.
(See the chart at right from
The
Science of Sport for a comparison of Contador’s Verbier climb to famous
Tour climbs of the past (and see their posts here
and here
for an elaboration of the comparison and its limitations, including factors
such as wind, climb length, and race situation).
Doping problems aren’t unique to cycling, of course.Baseball,
track
& field, and a number of other sports have faced doping scandals in
recent years.Moreover,
controversial attempts to limit advancing technology’s impact on sport aren’t
limited to drugs.As existing swimming
records fall around the world, FINA officials voted on Friday to ban
the high-tech swimsuits that have made it possible, which have been likened
by some to “doping on a hanger.”
A few weeks ago, I blogged about this year’s Reith Lectures,
given by Michael Sandel.Although
the topic of that post was Sandel’s take on immoral
markets, another important theme of the lectures is sports doping, which
will come as no surprise to those who have read Sandel’s book, The Case
Against Perfection, or Richard Posner’s Duke Law Journal response to it
(my colleagues Doriane and Jim Coleman also weigh in, in the same journal
issue, here).
As would be anticipated by those familiar with Sandel’s
prior work, he opposes sports doping, believing that it detracts from the
athlete’s achievement; “remake[s] nature, including human nature, to serve our
purposes and satisfy our desires;” and poses the danger of transforming “three
key features of our moral landscape—humility, responsibility, and solidarity.”
(The usual caveats that a short blog post will doubtless fail to convey some of
the nuances of either Sandel’s or Posner’s positions, and that you should read
the full originals to get the whole picture, naturally apply).
Posner, in contrast, argues that the sports doping “problem”
is largely self-correcting. Sports
doping thus can mostly be left to the free market because:
If what the public wants from sports
performances is to observe hierarchies of innate qualities, then it is in the
financial self-interest of the owners of professional sports teams, and for
that matter the owners of amateur sports teams (such as universities), to
prevent drug taking or other interventions that alter or obscure the relevant
hierarchies.
There may be collective action problems, however.Although doping bans may benefit team
owners and athletes as a group, individuals have an incentive to defect from
the agreement.Here, according to
Posner, is where public enforcement can play a beneficial role, through, for
example, “criminal penalties on athletes who engage in forms of doping that
both are difficult to detect and reduce the economic value of the sport.”
But it seems to me that Posner’s description, with it’s
focus on resolutions to potential collective action problems, doesn’t
sufficiently account for an important function of both public and
industry-operated doping bans, at least in the context of the Tour.The crowd does, to employ Posner’s terminology, prefer
spectacle to sport, so long as we think that we’re getting sport, rather than
spectacle.If so, then the
collective best interests of the industry dictate apparent – rather than real –
control and enforcement (perhaps within some limits).
Maybe it’s not earth shattering to suggest that the sport of
cycling, just like numerous other
industries, may benefit from the PR boost of cosmetic
compliance.Yet the point is
rarely raised in debates on doping bans, which often boil down to discussions
over the pros and cons of regulation versus free markets, and are less likely
to address the potential benefits and costs (of which there are both) to a
largely cosmetic, as opposed to real, regulatory or industry self-regulatory
regime.
We loved Contador’s heroic feat on Verbier – it was
exciting.Just like we loved Floyd Landis’s
epic 2006 comeback; Tyler Hamilton’s superhuman 142 km solo
breakaway, stage win, and fourth-place GC finish with a broken collar-bone;
and Vinokourov’s spectacular mountain-top breakaway.Because, as Phil says in this video of the relevant Vino footage, “everyone loves a fighter.”
. . . Until we found out they were all doping, that is.
Maybe the Tour exists
because – not in spite – of doping.
And it’s a wonderful spectacle. Vive le dope! Vive le tour!
In the series of posts that I'm doing on the paper Stephen Davis and I have up on ssrn about wills and trusts in the old South, I thought that I'd start by talking a little bit about the county where we centered our empirical work: Greene County, Alabama. We're talking about a southern place--a place of much beauty and mystery ... and, of course, much brutalization and misery, too.
I should mention up front that there's a fantastic book on Greensboro (which is now the county seat of Hale County--but in the antebellum era what is now Hale County was part of Greene County), by Guy Hubbs of Birmingham Southern College. Guy's book, Guarding Greensboro, is about a company of Confederate soldiers from Greensboro ("The Greensboro Guards"). The Guards existed for a couple of decades before the war, so Guy takes a long look at them and their surrounding community. It's a great book and if you're interested in how historians combine social history (based in such sources as census records and land and legal records and army records, too) and intellectual, cultural history, based in such sources as newspaper records and individual diaries and memoirs it's a terrific model for how to do that kind of history. We were able to base a lot on Guy's description of the Greensboro community.
Among the gems we learned from Guy is that there was at least one prominent antislavery person (John Hartwell Cocke) in operation in Greene County--who set up a plantation with the idea of allowing the enslaved humans working on it to run the plantation. The hope was that this would be an experiment in freedom. But much, much more common was the brutality associated with the plantations of the deep South. For instance, we learned from Loren Schweninger's wonderful project on petitions regarding slavery about a lawsuit among heirs to one fortune of a Greene County planter in this period. Those haunting records detail the extraordinary brutality on the plantation.
But beyond that, it's possible to construct something of the intellectual culture of Greene County. Remember, this is a place that was ruled by Native Americans until the early 1800s. In fact, the Indian Mounds at Moundville, Alabama--one of my favorite places on earth--still stand as testimony to their world. But by the early 1830s, Greene County was a place producing extraordinary wealth--and it was a world where those at the top of pyramid were enamored of the ideas of technological and economic progress. This was the era of the market revolution and the wealthy of Greene County embraced that revolution.
They used all the new technologies they could lay their hands on: technology for drilling deep wells, the steam engine for harvesting crops and for moving up the Black Warrior River from the Gulf. I would also add that they used the technology of law, including trusts, to accomplish their purposes. And they started schools to promote those ideas--the grandly titled Southern University was founded there in the late 1850s. I would love--love--to know more about the curriculum there. One might gage a little bit of the culture from statements made by Joseph Wright Taylor (editor of the newspaper the Eutaw Whig and later a member of the board of trustees of Southern University) at the University of Alabama in 1848. Taylor justified the Southern universities for their role in defending slavery. “The University is useful in enabling the State to protect the peculiar rights and institutions which belong to it, as one of the Plantation States of the South,” Taylor said.
Even before Southern University opened, Greensboro was home to a female seminary and elsewhere in Greene County was Henry Tutwiler's Green Springs Academy. (The Eutaw Female Seminary, constructed about 1840, is pictured at right.) Little is known about Green Springs Academy, though Tutwiler was a most important figure--early on trained at the University of Virginia and an advocate for the American Colonization Society, he left the University of Alabama in the mid-1830s, as it moved from the Enlightenment ideas of Jefferson towards the embrace of a proslavery zealotry of John C. Calhoun. We know little of the female seminary, though we do have one published essay by its president, C.F. Sturgis,on the duties of masters towards slaves. It never ceases to surprise me how much we can learn about the past by looking at the writings of long-dead people. People in Greene County were engaged in the intellectual defense of slavery, as well as the use of the system of slavery. One source of records that has been used little, however, are the probate office records--the wills and probate records they contain. And to that I'll turn shortly.
The top image is of the Southern University in Greensboro, from the Library of Congress' Historic Buildings Survey. Mighty impressive for a building constructed in the 1850s, isn't it? (The building, which housed the Greensboro Academy from 1965 to 1973, was destroyed by a tornado in 1973.) The bottom image of the Eutaw Female Seminary is also from the LOC's website; it's still in Eutaw; I think it's now a public building.
While I'm still reeling from the news that Harvard University Press' display room is closed, I see that HUP has signed a deal with Scribd to distribute HUP books in electronic format. One thing that's interesting is the split of revenues from the deal: HUP gets 80%, Scribd keeps 20%.
“We think it’s exciting to get a big publisher like Harvard involved, especially because we went to school there,” said Adler, a former Biophysics concentrator. NYU and MIT's University Presses have also already signed on with Scribd. The company started discussing a deal with HUP about a month ago, according to Adler, after HUP started uploading books to the Web site on their own. Scribd, which attracted the attention of venture capitalists soon after it was launched in March 2007, currently has almost 50 million users, according to Adler. Books purchased through Scribd can be read on electronic devices, including the iPhone and Amazon Kindle.
Our friends over at LawLibrarian Blog have been on this story for a while.
Well, I was up Hillsborough recently to check out some of the historical sites up there. (I wrote a little bit about Thomas Ruffin's grave not too long ago.) On the way back, there was a crew working on the power lines. And you know what? They had a machine directing traffic: the machine was a portable stop sign, which eliminates the need for a person to stand there with a sign and shift from stop to slow.
So I grabbed my camera and took a picture of it. I'm not sure if the guy on the right in the background is controlling the arm or not--which I suppose has some bearing on just how similar this is to Skynet of Terminator fame. However, it certainly seems like the NC Department of Transportation has figured out some more ways of cutting costs and human jobs. Now that computers are taking over the role of college counselors and traffic signals at road construction, they're probably not too far behind taking over law professor jobs, too.
Hey, the New York Times is reporting that scientists are worried about this. So one question I'd have about this is, how do we start making nice with the machines before they get too angry with us?
I think I read somewhere in the New York Times this weekend that President Obama described the incident involving the arrest of his friend, Harvard Prof Henry Gates and its aftermath as a "teachable moment" - a phrase I only came to know and love after moving to the United States strangely enough. Don't think we Aussies describe "moments" as "teachable", perhaps suggesting that we suffer from a deplorable lack of intellectual curiosity.
In any event, being a teacher, and not wanting to let the moment slip away, I started thinking of hypotheticals that, if I could answer them, might illustrate something about race relations and the appropriate role of the president in this context.
- What if Obama had said that the police "acted unfortunately", rather than "stupidly"? Or the police "may have overreacted"? Would this have raised less consternation?
- What if the police had been called to the house of a white Harvard professor? Would they have arrested him (assuming a man rather than a woman for fear of getting into gender relations as well)?
- What if the president had been a white man or white woman (oops - slipped back into gender there) and said the police had "acted stupidly"? Would this have gained the same traction as the first black president having used those words in this context?
I'm sure there's a million more hypos one could come up with .....
Mary Dudziak, at Legal History Blog, discusses
books and book reviews of interest to legal historians, including Charlotte
Brooks' new book, Alien Neighbors,
Foreign Friends: Asian Americans, Housing, and the Transformation of Urban
California (University of Chicago Press, 2009) (see
here); The Classical Tradition,
Anthony Grafton, Glenn Most, Salvatore Settis, (eds.), Harvard, 2009 (here); and a book review round up (with links to a number of reviews) is here.Also at Legal History Blog, Dan Ernst
discusses Tamar W. Carroll’s review of A. Cheree Carlson, The Crimes of Womanhood: Defining Femininity in a Court of Law
(Urbana: University of Illinois Press, 2009) here.
At TaxProf
Blog, Paul Caron has many clever tax-savings ideas, including donating your
home to the local fire department so that they can
burn it down.This one may not
work if you’re an ESPN commentator, though (and you know who you are), so check
it out with Paul first.
Reproductive
Rights Prof Blog has their typically thorough coverage of
reproductive rights issues, including several posts on the changing views (or
not) on abortion (here,
here,
and here).
Most readers are already familiar with Larry Solum’s
recurring Sunday
Legal Theory Lexicon, of which last Sunday’s topic was originalism (there’ll
be a new Legal Theory Lexicon today). Despite Larry’s position that the posts provide a very brief
introduction to the subject matter in question each week that is aimed at law
students (especially first-year law students), I’ve always found these posts interesting.I realize that probably demonstrates
my lack of legal theory sophistication, at least relative to Larry.
And at PrawfsBlawg Howard
Wasserman asks Jon Stewart What’s
In A (Jewish) Name? And is the
issue that it’s Jewish or that it’s complicated? With a name like “Krawiec,” I can sympathize with the “some
names are not meant for marquee lights” sentiment. I’d be much more famous, I’m sure, with a surname like Hudson,
or Taylor, or Hudson-Taylor.
Yesterday's local newspaper reported that 33-year-old Ri Hyon Ok was publicly executed last month in North Korea. The story also mentions that her husband, three children, and parents have been sent to a political prison.
The crime?
Ri Hyon Ok was accused of distributing the Bible.
Something to think about today as many of us sit on our cushioned pews and worship our God in air-conditioned comfort.
Compare INVASION Of THE BODY SNATCHERS
(Walter Wanger Productions 1956) (depicting pod people as merely pointing
silently at humans that had not been replaced) with INVASION Of THE BODY
SNATCHERS (Solofilm 1978) (depicting pod people as pointing and emitting shrill,
piercing screams to identify humans that had not been replaced).
The search for a way to sneak in a pinpoint cite to that one
begins . . .
For those craving a visual, see below.Surely, a spoiler warning is
unnecessary for this classic, but this gives away the ending.
When Officer Crowley, Professor Gates, and President Obama sit down to a beer at the White House (or perhaps it should be at a neutral place, like Fenway Park--next time the White Sox play the Red Sox?!), just what kind should they drink?
Since we love lists here at the faculty lounge -- lists of laterals, lists of dean searches, lists of what we all make (or at least what those of us in the public sector make), list of coffee houses, lists of best restaurants in America -- maybe it's time to start talking about ranking beers? Close readers of the faculty lounge will recall that I'm no fan of coffee mixed with beer. Make a choice; it's either time for a stimulant or time for a sedative. Not both. Plus, I just don't like the taste of beer poured into a coffee cup that's not been washed out. Perhaps my more sophisticated colleagues will school me in what a rhubarb I am because of that statement.
I imagine that Kim Krawiec would like the market to decide this one, so we could look for evidence of what beer's sold the most (or maybe what beer's sold the most in the upscale grocery stores or something).
Probably time to get the spreadsheet out and start running some correlations on price and rank. Hey, this could lead to a whole genre, running parallel to the US News law school rankings literature out there.
So which beer? Well, chef2chef lists the top 10 as:
Yuengling (Pennsylvania)
Guinness
Westvleteren
Duvel
Ommegang Abbey Ale
Kostritzer Schwarzbier
Fantome
Rochefort 10
Heineken, and
Carlsberg.
I've only heard of four of those (and only had three of them). They'll probably have some Boston beer. Sam Adams is cliche, but that would be my guess. (Though they might try something basic and classic like Bud or Miller.) However, it might be Yuengling, which has really remade its image. I recall when it was a bottom shelfer -- right alongside Schmidt's and Ballentine (alas, long since defunct--or I think they're defunct; maybe they're being marketed again). But Yuengling's sort of yuppified now. At least it's respectable to drink around my high-fallutin' colleagues, more or less.
Just remember, as beer is the drink of reconciliation, archeologists also believe it's what caused civilization in the first place. (See, you never know when something you read in college will come in handy while blogging ... twenty two years later!)
Update: Actually, I guess it'll be Blue Moon beer. Officer Crowley was having a Blue Moon (a fancy label for Coors, I now understand) and a burger in Tommy Doyle's Irish Pub in Kendall Square when he spoke with President Obama.
Update 2: The New York Daily News has an article on this exact topic. They suggested Samuel Adams Boston Lager; Guinness; Goose Island Honkers Ale; Pabst Blue Ribbon; and Blue Moon Belgian White. The Daily News says "They can't drink Budweiser
because it's no longer an American-owned company. They can't drink
Coors or Miller, because they're owned by staunch Republicans. PBR is
the next best thing for an all-American beer." (Isn't Blue Moon owned by Coors?! But then again maybe it would be in the spirit of reconciliation to have a good old American beer like Miller or a Coors product.)
Update 3: The sit-down now looks like it's going to be on Thursday, but each person's going to drink a different kind of beer?! According the Boston Globe, Crowley will be drinking Blue Moon (no surprise given update 1, above); Gates will be drinking Red Stripe, and Obama will be drinking Bud (shows what the New York Daily News knows, eh? -- see update 2 above). Though now I see that there's a rule that the White House only stocks domestic beers.
Update 4: Well, what do you know? Sounds like they'll all be drinking different beers. Maybe I can find some colleagues around the office this afternoon who'll go out and celebrate "beer diplomacy" with me at one of the hot spots around Chapel Hill. Top of the Hill at 6 anyone?! I like the image of presidential beer cans that CBS News has cooked up. Or maybe I should pull out my old copy of W.J. Rorabaugh's The Alcoholic Republic: An American Tradition -- about alcoholism in the the antebellum era -- to celebrate the day. See, never can tell when things antebellum will appear in one of my posts, can you?
Update 5: Over at foxnews.com, Carolyn Smagalski is suggesting Victory Hop Devil Ale from Downingtown, Pennsylvania. I mention this because I grew up in West Chester, the next town over from Downingtown. She also suggests Sam Adams' Utopias, which has an astonishing alcohol content (25%).
So we now know, it was Blue Moon, Bud Light, and Sam Adams. Next time people have a beer summit, though, they might think about Everest beer. It's from Nepal. Their slogan? "Be on top with Everest Beer."
I'd told myself that I wouldn't blog about Henry Lewis Gates' arrest, because I have nothing to add that hasn't been said better by someone else already. But I now have a title for one of the articles that certainly will be written about this....
I've already written about the virtues of Rashomon for teaching law students about different perspectives. (Though I've also noted that perhaps Tommy Land reaches the current generation of students better.) So ... amidst all of the talk of race this week, it seems to me that the title of one of the articles that will emerge from this should be "Rashomon on Ware Street."
Ah, lovely Ware Street. Is it named after Henry Ware, a person I sometimes study?
Something that hasn't gotten the attention it deserves in the blogosphere is the conversation that Richard Posner had with a Duke Law School class led by David Levi and Mitu Gulati. The Duke Law Journal has recently printed it. The conversation covers a lot of ground (like Posner's shifting political orientation and the confirmation hearing for Chief Justice Roberts -- notable for Posner's amusing lines, "The senators have staff who prepare tough questions for the nominees. But the senators don’t know how to follow up on the question that someone else created. The result is that if you are adept like Roberts, you can get away with not answering the question. He got away with saying things like that stuff about balls and strikes."). The conversation is mostly focused around Posner's book, How Judges Think.
We hear about the intended audience for How Judges Think -- academics, law students, some lawyers. Not other judges (I guess this shouldn't surprise us). HJT invites a comparison, obviously, with Cardozo's Nature of the Judicial Process -- and I suppose his audience was similar. (One of my favorite lines in the conversation is about academics' ususal audience: that they usually write for an audience of one. That's certainly true for some of my work -- though I didn't realize other people generally had such limited (?) goals.)
And we learn about what judges think about academics' criticism of their opinions (not much):
But the criticism of opinions is not terribly useful. Judges don’t pay a lot of attention to these critiques. They don’t think law professors are giving them much in the way of useful, constructive criticism. And it is not that useful to be looking backwards at errors in past opinions. By the time a judge reads a law review article criticizing or analyzing an opinion of his, it is likely that a lot of time has gone by since the opinion was written. Happy judges don’t want to look back at their mistakes.
We hear about the vagaries of the evolution of the law, how tests and metaphors emerge by almost happenstance:
I had a case that involved bits and pieces of evidence of discrimination. I talked about the “mosaic of discrimination.” Years later, I realized that a “mosaic” rule had emerged. But that was ridiculous. You don’t need a mosaic. Judges love clichés. They are always grasping at clichés.
Judge Posner also makes a common criticism of academics -- that we are too esoteric and divorced from practice. I think he's someone who can deliver that message in a way academics can hear it:
Today, the leading academics do not see intellectual profit in writing a treatise or a restatement. Today, cutting-edge law articles use social science. They draw from fields like psychology, economics, et cetera. They don’t work with doctrine as much. Much of the current academic publishing ends up being too academic and esoteric. As for the restatements and treatises today, they are competent. But the work of producing them is not engaging the leading academics any longer.
The interview is really entertaining; Judge Posner has some great turns of phrases. Let me, though, highlight a couple of things that are perhaps of particular interest to legal historians. When I first read How Judges Think, I wondered, does it also describe "how judges thought?" That is, is there something to the American judicial method that's fairly stable across time?
One of the things that Posner suggests is that studies of judicial biography are good ways of getting at how judges think (or thought). That's obviously correct -- if we want to see how the whole world fits together, looking at how the world fits together within one individual is a great way of going about it. Jurisprudential biographies are the way to go -- looking to how judges' ideas fit together; I'm not so sure we need so much of their more personal details. (Of course, we then need to put together a series of those studies, to get a sense of what's idiosyncratic to one judge and what's stable across a bunch of them). He says:
I thought something like my book on Cardozo was more useful as a way of studying judicial behavior than full-length biographies, but the suggestion hasn’t been picked up. Andy Kaufman’s biography of Cardozo, though lengthy, is the best of the judicial biographies. Bruce Murphy’s biography of Douglas is also good, though it has inaccuracies. I published an article on judicial biography some years ago, Judicial Biography, that you might find useful.
And there is one other part of particular interest to historians and other social scientists who come to the law teaching world: that being in a law school changes the teacher and scholar. Historians who teach in law schools are changed by the needs of the students and the institution and those changes and experiences enrich us as scholars. There's a two-way exchange of ideas.
Anyway, I go on too long -- read the whole conversation here.
An earlier post raised the topic of Triple Crown winners -- a player who, in a single season, leads his league in homers, runs batted in, and batting average. The great Carl Yastrzemski was the last player to achieve this accomplishment, in 1967. Only ten other players have won the Triple Crown since 1900: Rogers Hornsby (2x), Chuck Klein, and Joe Medwick in the National League, and Nap Lajoie, Ty Cobb, Jimmy Foxx, Lou Gehrig, Ted Williams (2x), Mickey Mantle, and Frank Robinson in the American League.
Nine other players have achieved the "career" Triple Crown, leading the league in those three offensive categories, but not in the same single season (e.g., home run and RBI leader in one year, and batting average leader in a different year).
How many of the nine can you name?
Pictured: Rogers Hornsby, from the Topps 2009 "Career Best Legends" 15-card set.
In the Wall
Street Journal, Judge Richard Posner takes on the Consumer Financial
Protection Agency Act of 2009:
The plan of the new agency reveals the
influence of “behavioral economics,” which teaches that people, even when fully
informed, often screw up because of various cognitive limitations. A leading
behavioral economist, Richard Thaler of the University of Chicago Booth School
of Business, wrote “Nudge: Improving Decisions About Health, Wealth, and
Happiness” last year with Cass Sunstein, who is President Barack Obama’s
nominee for “regulatory czar.”
Mr. Thaler, whose views are taken
seriously by the Obama administration, calls himself a “libertarian
paternalist.” But that is an oxymoron. He is a paternalist with a velvet
glove—as the agency will be. Through the use of carrot and stick, the agency
will steer consumers to those financial products that it thinks best for them,
whatever they naïvely think.
. . .
Behavioral economists are right to
point to the limitations of human cognition. But if they have the same
cognitive limitations as consumers, should they be designing systems of
consumer protection?
At Baseline
Scenario, Elizabeth Warren returns to blogging (many will remember that
before she became head of the Congressional Oversight Panel, Warren was a
frequent contributor to Credit Slips,
which it seems just
turned three – happy birthday Credit Slips!) to discuss “Three Myths about
the Consumer Financial Protection Agency":
MYTH #1:CFPA
Will Limit Consumer Choice and Hinder Innovation
MYTH #2:The
CFPA Will Add Another Layer of Regulation and Increase Regulatory Burden
MYTH #3:Prudential and Consumer Regulation Cannot Be Separated
Warren also has a YouTube video on the proposed agency:
There’s been a lot of coverage of the Gates arrest, of
course, including here at the Lounge.But a few sources you might not have seen include two (very different) posts
over at Crooked Timber. One is by Brandon
del Pozo, a captain in the NYPD (now working for Internal Affairs on
internal police corruption cases, but with experience as a beat cop
in Brooklyn and Manhattan, and as a police instructor). He is also a Ph.D.
candidate in philosophy at CUNY. He gives his perspective on police discretion
and the Gates arrest.
Moskos, a sociologist, spent a year as
a beat officer in Baltimore. While police practice in the US varies
substantially from jurisdiction to jurisdiction, some aspects are (I suspect)
reasonably general, including the use by police officers of their zone of discretion
to try to expand their authority beyond that which they are theoretically
supposed to exercise.
If you answered "yes" to these questions, then perhaps you should apply to be the founding dean at the start-up law school at the University of North Texas. More info here.
On Monday, I
noted that 21 UC San Diego department heads had signed a letter sent to all
UC Chancellors urging them to preserve its elite, world-class research campuses
– namely UCSD, UC Berkeley, UCLA and UC San Francisco – by imposing deep cuts
on or closing down the system’s less-renowned campuses, kicking off what Dan
and I have termed the “UC
Civil War” (because we like drama).
Now, it seems the debate over how to deal with impending
state budget cuts has expanded to UC Berkeley, and to the law school, in
particular.On July 16, Robert
Cooter, Professor of Law, and Aaron Edlin, Professor of Law and of Economics,
both at UC Berkeley, published an op-ed
piece in the LA Times, urging the University to consider layoffs, rather
than salary cuts, as a means to deal with the budget shortfall, because “[a]
crisis is a terrible thing to waste.”
Say Cooter and Edlin:
Across-the-board salary cuts are the
simplest way to balance the budget, but they are rarely the best. In the
corporate world, smart organizations more often choose layoffs than salary
cuts. And with good reason . . .
With employees paid up to 20% below
what peer institutions pay, the best will leave. Yes, even in this recession,
the best people will leave for other jobs or retire or switch professions. And
those who remain will suffer from low morale.
Growth has led to bloat at UC. The
bloat and bureaucracy stifle creativity and productivity. The bloat is in
unproductive workers and unproductive jobs. Many jobs have little to do with
our core missions of teaching and research. Within jobs, there is task bloat --
mission creep creates too many assignments of little import.
These problems are endemic to most
large organizations, but they are particular problems for one like UC, where it
is almost impossible to fire an unproductive worker, whether staff or tenured
professor, and always easier to hire a new one.
On Wednesday, Kristin Luker, Professor of Law and Sociology
at UC Berkeley, responded with an
op-ed of her own, arguing that “Robert Cooter and Aaron Edlin are such ...
economists! And they're such men.”[Luker notes that she is friends with Cooter and Edlin and her response
seems friendly, but since that fails to add to the drama quotient I’ll ignore
it.] Says Luker:
But as the nation ponders what Supreme
Court justice nominee Sonia Sotomayor meant by her "wise Latina"
remark, this case shows us what she had in mind . . .
The "staff" lurking in the
background of the Cooter and Edlin Op-Ed article are disproportionately women
and people of color, and they work for wages even further below the prevailing
market because they lack the bargaining power of professors and the ability to
pull up stakes to move to better options. More important, many of them work at
UC because they have a moral commitment to what the university system
represents at its best: a chance for a better future for individuals and for
communities. Yet their contributions are often invisible precisely because of
who they are and because circumstances kept many of them from getting the
advanced degrees they would have gotten in a world where talent was unerringly
recognized and rewarded.
Luker concludes that the University should indeed think
critically and carefully about how it goes about its business, but
that, if she is right, “many professors will find themselves just a little bit humbler,
and many staff will find themselves with much healthier paychecks.”
As Lounge readers are no doubt aware, the issue of how and
where to cut back in the face of declining revenues is not one unique to
Berkeley, or even to the UC system.Most of us are experiencing financial difficulties right now, and are
struggling with the best mechanisms for addressing them.Across the board salary cuts and
furloughs are a commonly-employed solution, because they appear “fair” and
avoid the far more difficult and controversial questions of who we are as an
institution, who we aspire to be, and which institutional members (both faculty
and staff) are doing the most to help achieve those goals.
As I’ve made clear in prior posts, I’m not a subscriber to
the “We
all contribute in our own ways” philosophy. A crisis is a terrible thing to waste -- Cooter,
Edlin, and Luker seem to me to agree on that point, despite their disagreement
about where to go from here. I
hope that more law schools embrace the financial crisis as an opportunity to seriously
reconsider our academic goals and the best mechanisms for meeting them – but I’m
not hopeful.
Thanks to a friend's post on Facebook, I've just learned that Facebook now has a default feature that allows Facebook advertisers to use your news feed and wall to sell their products. As explained by Facebook itself,
Facebook occasionally pairs advertisements with relevant social actions from a user's friends to create Facebook Ads. Facebook Ads make advertisements more interesting and more tailored to you and your friends. These respect all privacy rules. You may opt out of appearing in your friends' Facebook Ads.
If you're like me, and you prefer not to have your Facebook page (including, presumably, your images) become the basis for a sale - that is, if you prefer that your life not be commodfied- let me encourage you to follow these instructions and opt out.
Click on SETTINGS up where you see the Logout link. Select PRIVACY SETTINGS. Select NEWS FEEDS AND WALL. Select the tab that reads FACE BOOK ADS. There is a drop down box, select NO ONE. Save your changes.
OAKLAND, California (CNN) -- Oakland's
bid to become the first U.S. city to tax proceeds on medical marijuana passed
Tuesday by a landslide vote. About 80 percent of voters chose to impose the tax
on Oakland's medical marijuana facilities, according to the Alameda County
Registrar of Voters.
Interestingly, Steve DeAngelo, a leader of one of the city's
cannabis clubs, helped lead the effort to get the tax approved, despite the
fact that his business will now have to pay more than $350,000 from the new tax
next year. Oakland's City Council supported the tax.Says councilwoman Rebecca Kaplan, “Given that the medical
cannabis dispensaries are something that was legalized in California, why not
have revenue from it?”There was
no formal opposition to the new tax, although some anti-drug groups believe
“that the tax sends the wrong message.”
Levitt asks (and answers):
Why is DeAngelo so eager to pay these
taxes? I’m almost certain it is not because he is an altruist.
The real answer, I suspect, is that he
is generating $19 million a year in revenues selling in a market (medical
marijuana) that is barely legal. And DeAngelo probably suspects that taxation
will increase the likelihood that his business remains legal, for two reasons.
The first reason is that taxing a good
implicitly says that the government acknowledges the legitimacy of the
activity; we tax legitimate goods, and we fine and imprison those who sell
illegitimate goods. Second, while experts suggest that marijuana itself is not
very addictive, new sources of tax revenue surely are addictive! So once the
revenues start coming, government won’t want to turn off the spigot.
Although Al
Roth beat me to the punch, I was immediately reminded of Nevada SB369,
which would have imposed a tax on the legal Nevada brothel industry.Unlike the Oakland pot tax, SB 369 died this
spring after a 3-4
vote in the state’s Senate Taxation Committee, despite support from many
sex workers and the brothel industry.
The arguments on both sides were similar to those raised in
connection with Oakland’s pot tax.Noting the state’s desperate fiscal situation, Senate Taxation Committee
Chairman Bob Coffin supported
the tax.Coffin argued that,
although the brothel industry welcomed the tax and the idea of generating tax
revenue from the brothels had been discussed for years, “people weren’t willing
to get their hand’s dirty.”“I
don't know why people won't recognize that we have a legal industry,” said
Coffin.“I'm willing to go in and
do the dirty work if no one else will.”
The bordellos are practically begging
the state of Nevada to tax them, hoping the extra revenue for schools, parks
and health care will endear them to the public and give them more political
security and, ultimately, more business.
But the politicians are not interested.
The costs of societal and legal pretense surrounding the
existence of many markets in which women are the primary suppliers is a topic
about which I’ve written before (see here, here, and
here) and
to which I’ll return again this fall for a symposium in the North Carolina Law
Review – assuming that I can stop blogging long enough to finish this draft . .
.
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