The Faculty Lounge

Creativity and Law Faculties

Kelly and Eric have both said their good-byes, and after spending a couple of months here, it is my time to wander on, as well. I've thoroughly enjoyed being here, and am grateful to Dan and the Lounge for the invitation. I started out back in August hesitantly replying to some questions posed to me as a current faculty candidate going through the AALS process. I haven't talked too much more about that process, and that won't change tonight, but I hope that once things are done, Dan and the rest of the Loungers (should that be capitalized?) will have me back for a follow-up post or two on the process and how it turned out.

In the meantime, I'll be joining the folks over at Madisonian.net to do my IP/IT/Information Law thing, but will also be here lurking and occasionally commenting.

For her sign-off post, Kelly brought us questions about school pets, and Eric Fink brought us fly fishing (I used to want to learn to fly fish, but now I think I could spend that same amount of time in the woods, and maybe even wading in the water, taking photographs -- not that I have time to do that right now, but still). For my last foray here, I want to start with this:

In the city fields
contemplating cherry-trees
strangers are like friends

Issa

And with that, I would like to ask: are there people in your schools who are creative outside of the law, but still with the written word? Are they novelists [book link]? Playwrites? Fiction writers (example [pdf])? Are they tenured? How do your colleagues view their non-law activities?

Thanks again to Dan and the gang for inviting me here and for being so welcoming during my visit.

So long, and thanks for all the fish

It has been a real treat to contribute to the Lounge this past month. Many thanks to the hosts for their hospitality, and to the readers for their kind indulgence. In parting, I wanted to make one last nod toward my peculiar obsession with law and fly fishing. 

In the pantheon of great Angler-Attorneys, two names are paramount: 

The first is G.E.M. Skues (rhymes with Huey, Dewey & Louie's), a London solicitor who revolutionized the world of fly fishing -- and set off the sport's greatest modern controversy -- through his advocacy of fishing with a nymph. To a non-angler, this may not sound all that earth-shattering. But to the early 20th century British fly fishing establishment -- dominated by a strict code of "dry fly only, cast upstream to a rising trout" -- Skues's advocacy of sunken flies was rank heresy. Even today, anti-nymph purism has its adherents, who insist that the dry fly is the only ethical and proper way to lure a trout. It was reading about this controversy that got me thinking about the "folk law" of fly fishing as a research subject. 

The second is Robert Traver (pen name of John D. Voelker), attorney, Michigan Supreme Court justice, and author. Best known outside angling circles for his legal thriller, Anatomy of a Murder, Traver is revered among fly fishers as one of the sport's greatest chroniclers. His "Testament of a Fisherman" nicely sums up the appeal of this pastime:

I fish because I love to; because I love the environs where trout are found, which are invariably beautiful and I hate the environs where crowds of people are found, which are invariably ugly; because of all the television commercials, cocktail parties, and assorted social posturing I thus escape; because, in a world where most men seem to spend their lives doing things they hate, my fishing is at once an endless source of delight and an act of small rebellion; because trout do not lie or cheat and cannot be bought or bribed or impressed by power, but respond only to quietude and humility and endless patience; because I suspect that men are going along this way for the last time, and I for one don't want to waste the trip; because only in the woods can I find solitude without loneliness; because bourbon out of an old tin cup always tastes better out there; because maybe one day I will catch a mermaid; and, finally, not because I regard fishing as being so terribly important but because I suspect that so many of the other concerns of men are equally unimportant - and not nearly so much fun.

If this description inspires any Loungers to try wetting a line, just let me know. I'll bring the bourbon and the tin cups. 

"Son, We Need to Talk ..."

What a loser this piece describes!

Bassoon!  *snicker*  Loser instrument!

Now French Horn, on the other hand, which I played -- that was cool.

Remixing the President

Via Michael Froomkin at Discourse.net, we find a set of 134 photos of President Obama posing with visiting dignitaries, remixed and . . . well, you have to just see it to believe it. Don't miss this piece of the remix puzzle, either. Or this one. The pre-remix originals are here.

Barney Turns 63

I have thoroughly enjoyed my visit to The Lounge this month, and I am signing off with a small bit of trivia. Remember Barney Bush? Today is his ninth birthday. So, in dog years, he is a seasoned 63. I don’t know whether Barney roamed The White House, but I have known of colleagues who bring their well-behaved dogs to work. So, my parting question is, what types of pets have you seen roaming the halls of your law school? Again, thanks so much to everyone at The Lounge for having me.

Nature or nurture?

Nature.

War on Terror

Oxford University Press has just released The War on Terror and the Laws of War.  From the introduction:

This book is about commitment, commitment to a tenet that has animated the development of the laws and customs of war since their inception centuries ago.  That tenet is that the authority of war must be tempered by limitations that mitigate the suffering inevitably caused by war.  Many might consider this premise intuitive. Certainly from the warrior perspective — the original source of the laws of war — conflict without regulation is almost oxymoronic, for it is through regulation that the moral legitimacy of that endeavor is preserved.  But as will be revealed in the chapters that follow, the intersection of a post September 11 decision to characterize the struggle against transnational terrorism as “armed conflict” with the law-triggering paradigm that evolved from the ashes of the Second World War challenged this tenet as never before.

The seven chapters are titled What Law Applies to the War on Terror? (authored by my South Texas colleague, Geoff Corn), Targeting of Persons and Property (written by Eric Jensen, a VAP at Fordham), Detention of Combatants and the Global War on Terror (by Georgetown adjunct law professor James Schoettler, Jr.), Interrogation and Treatment of Detainees in the Global War on Terror (by Richard Jackson, the former chair of the International and Operational Law Department at the U.S. Army Judge Advocate General's Legal Center and School), Trial and Punishment for Battlefield Misconduct (co-authored by Corn and Jensen), Command Responsibility and Accountability (written by New England School of Law professor Victor Hansen), and Battlefield Perspectives on the Laws of War (by Ohio Northern law professor Michael Lewis).

Criminal Law Prof News Items

For those of you on the criminal law side of academia, I've got two quick news items.

1.    Chris Slobogin at Vanderbilt has started up a Criminal Justice Program.  In this kickoff year, they've brought in a bunch of interesting folks to talk about...well...criminal law stuff.  They had a fall roundtable with Dan Kahan, Doug Berman, Kate Stith, Stephanos Bibas and others.  Of particular interest, though, is an upcoming January roundtable for faculty early in their careers.  That lineup includes our very own Laura Appleman, Roger Fairfax, Josh Bowers, Sam Buell, Bennett Capers, Barbara Fedders, James Prescott, Erin Murphy, Alice Ristroph, Eve Brensike, and Lea Johnston.  More info on the progam is here.

2.    Last minute crim prof visitor needed!  

STETSON UNIVERSITY COLLEGE OF LAW, in Gulfport, Florida  next door to St. Pete, seeks a one-semester coverage visitor for Spring 2010 to teach first-year Criminal Law.  They will consider individuals to teach just that one course or individuals who would teach a second course as well. For more details, the job announcement is here.  

Mid-week Links

Lipshaw on Leiter on Religion (Legal Profession Blog)

National Law Journal: The EEOC has announced a record $6.2 million ADA settlement of a nationwide class action against Sears over the firing of disabled workers.  According to the NLJ, it is the largest ADA settlement in a single EEOC lawsuit.

Inside Higher Ed (Via Hit & Run): “David Horowitz is getting backing from his usual critics after Saint Louis University sought to change or block (depending on who you are talking to) a planned lecture he was scheduled to give next week on the campus.”

Bryan Burrough on Marc Dreier at Vanity Fair.

Cultural Studies: Bad Image or Food Fight?

The Great Cultural Studies Debate, Michael Bérubé at Crooked Timber

Brad DeLong: Were Mark Yudoff to ask me, for example, I would have no hesitation in recommending that Cultural Studies at U.C. Davis be defunded--and the money transferred to U.C. Davis's fine History and Economics departments. (I knew the UC funding fights would pick up again!)

A humanities bubble?  The Times Higher Education (via Chris Bertram at CT): “The humanities are in the same state financial markets were in before they crashed. Assessing the growing mountain of toxic intellectual debt, Philip Gerrans considers going short on some overvalued research.”

Steve Bainbridge: It will be a cold day in hades the next time I agree to do anything for the AALS.

Paul Caron: The Next Federal Bailout: 'Great' Public Universities?

Mary L. Dudziak at Legal History Blog: On drones and the war power

Via Tyler Cowen, the current odds on the Nobel literature Prize.  Prior winners here.

 

Dancing with the Politicians

So Dancing With the Stars is actually one reality show (reality?  I use the term loosely) that I actually don't watch, but the Cleveland Plain Dealer ran a funny story about politicians who SHOULD be on the show and what results they would likely get - see what you think.

I like the idea of Sarah Palin dancing to "I Can See for Miles and Miles" and Condoleezza Rice dancing to "Stand by Your Man".  And of course John Edwards performs to "I'm too Sexy".

Mod Men & Law Firm Chic

It seems that the popular television show, Mad Men, has started an underground style craze, including an official competition.

The look actually reminds me of a crisper version of the mods – guys in my Southern California high school who wore vintage black suits, fedoras, and white socks, listened to Madness and The Specials, and caravanned in scooters.

As they say, everything old is new again, but would this look pass muster in a typical law firm?

Presidential Rhetoric and the Public Agenda: Constructing the War on Drugs

I will try to keep this shameless plug as brief as possible - my new book (with co-author Andrew Whitford) is now available (at Amazon or on the Johns Hopkins University Press site).

 Wait, don't hurt your mouse-hand clicking through too quickly - you might want to check out some of the ad copy below the fold before taking out your credit card  :-)

Judging Women Judges

Stephen J. Choi, G. Mitu Gulati,  Mirya R. Holman, and Eric A. Posner have a new article up on ssrn, "Judging Women."  Here's their abstract:

Judge Sonia Sotomayor’s assertion that female judges might be “better” than male judges has generated accusations of sexism and potential bias. An equally controversial claim is that male judges are better than female judges because the latter have benefited from affirmative action. These claims are susceptible to empirical analysis. Primarily using a dataset of all the state high court judges in 1998-2000, we estimate three measures of judicial output: opinion production, outside state citations, and co-partisan disagreements. We find that the male and female judges perform at about the same level. Roughly similar findings show up in data from the U.S. Court of Appeals and the federal district courts. 

I saw an earlier version of this this summer and it (no surprise) generated a ton of discussion.  One conclusion I took away from this is that the quality of judging (as measured by the measures here) is pretty even across courts.  I'm not sure what that says about judges' quality or the measures that Choi et alia employ to measure quality.

But this also makes think that there's some application for these methods in legal history.  Take the Jacksonian era, for instance.  The conventional wisdom is that Whigs were better lawyers, treatise writers, and judges than were Democrats.  (Of course, this conventional wisdom comes to us largely through Whig writers -- like Kent and Story!)  To put a blunt point on this, we think of Andrew Jackson as a president who did what he wanted and ignored the law.  So I wonder if we applied these sorts of measures, would we find that Whigs were "better" judges--did they write more and longer opinions than Democrats, were they cited more than Democrats outside their jurisdiction, and were there more disagreements between Whigs than Democrats?  I'm not sure what we'd find.  One thing that I'd also be interested in, is a measure of judges' "aspirations."  How often did they look to treatise and more general evidence (like treatises on history and economics) to bolster their opinions?

As with everything those folks do, I'm sure it'll generate a lot of attention.

Take Me I'm Yours

Yes, I’ve returned. 

Some of you may know that I messed around with blogging as early as January of 2003, when I launched IsThatLegal.  It was fun sharing some points of view and a bit of the truth as I saw it, even though sometimes my posts were accused of not being particularly strong in reason.  I was never right there at the top of the blawging world, but I was satisfied.

By 2008, I found that running a solo blog was more than I could handle.  Stories that I wanted to blog about were becoming increasingly hard to find, and the blogosphere had become too much of a heartbreaking world for me.  So I pretty much abandoned the project over at IsThatLegal.

Letting go turned out to be a lot easier than I thought it would be.  I haven’t exactly been crying in my sleep over the loss.

But I’ve continued to read a few blawgs, especially this one, and, well, I have again found myself tempted.  Dan and the rest of the loungers were gracious enough to invite me to hang out.  This is some fantastic place they’re running, so I decided to give it a go. 

We’ll see whether I’ve lost the knack.

Happy New Year! Westboro Baptist Love Campaign Targets Christ Killers

In honor of the High Holidays, the friendly folks from Westboro Baptist Church, in Topeka, Kansas, got up off their tucheses and came to Oklahoma University for a Rosh Hashanah protest last week.  I never really thought that Rosh Hashanah was the kind of thing one protested.  My bad.  This from the OU Daily:

Members of Westboro Baptist Church forcefully protested the Rosh Hashanah holiday in front of Hillel today, while another crowd protested and shouted across the street in opposition. Shirley Phelps-Roper, leader of the Westboro protest, said the church stopped at OU as part of a love campaign across the country to protest Jews killing Christ over 2,000 years ago. She said despite the common belief that Christ’s death brings salvation, members of the Jewish community should not have killed Christ.

“These people killed our Lord, and they know it,” Phelps-Roper said. “The hour of judgment is near and everything bad happening in the world is in part their fault for killing Christ.”

Westboro protestors held up signs reading “God hates fags,” “God hates Jews,”America is Doomed” and “God hates Israel,” among other derogatory statements.

This from our friends who attend funerals of fallen Marines, toting signs like "thank God for dead soliders."

Ain't free speech grand?

Update: A reader notes that the Westboro folks weren't afraid to visit the belly of the beast.  They protested Yom Kippur in Brooklyn this weekend. 

"The Giant Pool of Money"

If you haven't already listened to it yet, I encourage you to check out the episode of This American Life titled "Return To The Giant Pool of Money".  The episode recaps and augments an episode from May of  last year, "The Giant Pool of Money". These episodes offer perhaps the most accessible, concise and informative accounts of the recent financial crises that I have heard or read. Below the fold is a brief excerpt from the transcript of the original episode that can be downloaded free here. This passage discusses how the world's supply of money (aka "The Giant Pool of Money") took several hundred years to reach a total of 36 trillion in the year 2000 and subsequently grew to over 70 trillion just 6 years later (according to the more recent episode it's currently at about 80 trillion). That's a lot of money to invest and that growth led to ... well, listen to the podcast.

It's Legal! Welcome Eric Muller, Our Newest Permanent Lounge Lizard

It's Tuesday morning and we've got news!  We're very pleased to announce that Eric Muller is joining the Faculty Lounge as a new permanent member of the team.  Many of you are probably familiar with Eric as either a) an excellent legal historian; b) a professor at the University of North Carolina School of Law; or c) national chair of the Squeeze Fan Club creator of the Is That Legal? blog, one of the early (and great) law professor blawgs.  Readers who were born yesterday, or who somehow missed all of this, may know Eric from his thoughtful review of a tour of the White House of the Confederacy, first posted at (then deleted by) TripAdvisor - and later documented here.

The usual biographical information: Eric is the Dan K. Moore Distinguished Professor in Jurisprudence and Ethics and Associate Dean for Faculty Development at the University of North Carolina School of Law.  He graduated from Brown University and Yale Law School.  He was in private practice in New York, and served as an assistant U.S. Attorney in New Jersey, before joining the law faculty of the University of Wyoming.  He then moved to Chapel Hill, and UNC,  right before the Turn of the Century.  He has published a variety of excellent work, including two fine historical volumes:  Free to Die for Their Country: The Story of the Japanese American Draft Resisters in World War II and  American Inquisition: The Hunt for Japanese American Disloyalty in World War II.  Links to his publications are here.

And the man continues to think that Squeeze is one of the greatest bands ever.  A swell group, sure, but have they really held up over time??  Well, enough of this argy bargy!  Welcome to the Lounge!

Domain Names and Protest

Tomorrow's Cyber Law class includes a discussion of domain names as an example of the internationalization of legal regimes in relation to the Internet. While running through my final preparations (read: while procrastinating by catching up on my blog reading), I wandered smack dab into the Lyrical Legal Satyricon. And there, posted on the page, were two filings in a proceeding by Glen Beck (yes, that Glen Beck) to have the domain name "www.glenbeckrapedandmurderedayounggirlin1990.com" stricken from the domain name system. While I could go on and on (and, as my students will soon learn, and on some more) about the nature of Uniform Domain-Name Dispute-Resolution Policy, I won't. I will look briefly (no pun intended) at the two filings.

Beck (through his lawyers) argues that the domain name uses his trademark, and as such, should be canceled. Some of the filing's arguments are logically questionable. First comes the description of an earlier panel decision in "Hollenbeck Youth Center" (domain name disputes are handled through arbitration panels for a variety of reasons not relevant here), where the panel held that a protest site was registered in bad faith (one of the requirements for cancellation) because "no indication was given that the domain name resolves to a protest site rather than that of the complainant." Beck goes on to argue that the Hollenbeck situation is similar to the one he is confronted with.

When you look, though (and close looking is not required), you see that there is little to no resemblance between the two cases. The disputed domain name in the Hollenbeck Youth Center decision was "hollenbeckyouthcenter.org." It had been used by the HYC as its own domain name, but at some point they  failed to re-register it, and it then expired and was registered by the respondent (who used it to direct traffic to a different domain name that was critical of the HYC). The factual conclusion is fairly straightforward: Someone who followed what they knew (or thought they knew) was HYC's domain name could easily end up at respondent's site.

I cannot fathom how that is similar to the domain name www.glenbeckmurderedandrapedayounggirlin1990.com in relation to Beck's trademark, "Glen Beck." Yes, the disputed domain name incorporates Beck's mark, but it does more than that. And no one, and I think it's probably true to the absolute here, no one would think they are going to a Glen Beck owned/operated/approved site when they click on that link or type in that URL. There is no similarity between the two cases in that regard at all. So when looking at the filing, I wasn't sure exactly where the complainant was going.

In contrast, the response does a wonderful job of making the case for a critical attack on someone who is quite capable of launching his own attacks (and of using the power of technology to do it). I could quote at length from the response, but I'll just give you a taste, and then send you over to the Legal Satyricon to read the rest for yourself:

The raw materials of the Glenn Beck Raped and Murdered a Young Girl in 1990 meme (hereinafter, the “Beck Meme”) are twofold. The meme is a parody of from Glenn Beck’s own argumentation style mated with a Gilbert Gottfried routine performed during the Comedy Central Roast of “comedian” Bob Saget. During Gottfried’s speech, he kept repeating (in his trademark nasally voice) that there were rumors that Bob Saget had raped and killed a girl in 1990. Gottfriend admonished listeners to stop spreading this rumor – which had never existed in the first place. As there is no more sure fire way to destroy a joke than to explain it, much less in legal papers, the Panel is asked to view this short video of the performance. The humor equation is simple: (Outrageous Accusation) + (Celebrity) + (Question Why the Celebrity Does Not Deny the Accusation) = (Confirmation of the Falsity of the Accusation + Laughter)

After citing an example where Beck uses the technique explicitly, the filing goes on to argue that the use of the domain name in this way is legitimate (and supportive of its continued existence), and even important as an issue of freedom of expression. I really do recommend that you read the whole thing for references to the UK's "moron in a hurry test" and a bevy of other arguments that, from a domain name standpoint, are both pointed and, well, funny.

More on Facebook and the Perils of User Generated Content

According to CNN, the U.S. Secret Service asked Facebook to suspend the use of an application that allows users to create online polls when someone created a poll asking whether the president should be killed.  The possible answers were "yes", "no", "maybe", and "if he cuts my healthcare".

(Cross posted to madisonian.net)

Beast Books: Better, Faster, Cheaper ... or at least Faster

The New York Times has an article on a new agreement between Daily Beast and Peasus Books, to create a new imprint, "Beast Books."  The idea is to have Daily Beast writers produce books that'll come out sooner than the usual book.  The idea is to published them electronically first, then follow them up with a hard copy.

Check out this sentence from the Times story:  

On a typical publishing schedule, a writer may take a year or more to deliver a manuscript, after which the publisher takes another nine months to a year to put finished books in stores.

Umm, yes, much more than a year in my experience.  The first title and proposed print run .... 

The imprint’s first book, scheduled to be published as an e-book in December and a paperback in January, is “Attack of the Wingnuts: How the Lunatic Fringe Is Hijacking America,” by John P. Avlon, a commentator on CNN who has written extensively for The Daily Beast about left- and right-wing political groups.

Perseus has announced an initial paperback print run for “Attack of the Wingnuts” of 100,000 copies but may adjust after reviewing the number of digital downloads.

The full article is here.