The Faculty Lounge

Moving picture.

 

Journalism and the New Media Ecology Conference at Yale Law School

And I'm told that registration is only $25, which includes Friday lunch and Saturday breakfast and lunch.

The Knight Law and Media Program of the Yale Information Society Project
cordially invites you to our upcoming conference "Journalism and the New
Media Ecology: who Will Pay the Messengers?" scheduled for November
13-14 at Yale Law School.  This conference will explore the changing
ecology of news media and examine new business models including
non-profit and foundation-funded models, government subsidies, and new
online pay models. The conference begins at 10 a.m. Friday with
welcoming remarks by Yale Law School Dean Robert Post '77 and Professor
Jack Balkin, the Knight Professor of Constitutional Law and the First
Amendment at Yale Law School.

Please register at your earliest convenience at
https://ems.resrunner.com/lawandmedia. Breakfast and lunch are included
as part of registration. For more information, please see
http://www.law.yale.edu/intellectuallife/10132.htm.

-Kathleen Bergin

Yale Law Journal Online

From the editors of the Yale Law Journal Online:

=======================================

The Yale Law Journal is pleased to present its new online platform, The Yale Law Journal Online (http://www.yalelawjournal.org/).  YLJ Online will continue the Journal's mission of providing accessible and substantive scholarship through the online medium.  It offers original essays on timely and novel legal developments and responses to articles in the print Journal, as well as adapted lectures and recordings/podcasts of featured pieces.  When the Journal launched The Pocket Part in 2005, it was the first law review to establish an original online companion; as the Journal nears its 120th anniversary, YLJ Online represents the next step in that endeavor.

The launch of YLJ Online's original content section features an essay by Hiro N. Aragaki, addressing the Hall Street v. Mattel litigation and manifest disregard, as well as responses by selected scholars to Michael Stokes Paulsen's The Constitutional Power To Interpret International Law (118 Yale L.J. 1762 (2009)).  In the coming weeks, YLJ Online will present a variety of essays and features on marriage, property, and corporate law, as well as a selection of pieces from the Hon. J. Harvie Wilkinson III and other participants in its inaugural Washington, D.C. conference on the Supreme Court’s certiorari process (http://www.law.com/jsp/article.jsp?id=1202433962900).

Among the many features that YLJ Online offers are Essays (4,000-6,000 words), Commentaries (under 2,000 words), Responses, adapted lectures and solicited pieces.  More information can be found on the Submissions page (http://www.yalelawjournal.org/submissions.html).  All YLJ Online publications are available and fully searchable through LexisNexis and Westlaw.  The Journal also provides all YLJ Online pieces in PDF/reprint format, and podcasts on its website/iTunes for selected pieces.

For questions regarding YLJ Online, please contact the Journal's Managing Online Editor, Jeff K. Lee, at [email protected].

Now available on YLJ Online:

Essay

Hiro N. Aragaki, The Mess of Manifest Disregard, 119 Yale L.J. Online 1 (2009).

Responses

Julian Ku, The Prospects for the Peaceful Co-Existence of Constitutional and International Law, 119 Yale L.J. Online 15 (2009).

Peter J. Spiro, Wishing International Law Away, 119 Yale L.J. Online 23 (2009).

Margaret E. McGuinness, Old W(h)ine, Old Bottles: A Response to Professor Paulsen, 119 Yale L.J. Online 31 (2009).

Robert Ahdieh, The Fog of Certainty, 119 Yale L.J. Online 41 (2009).

=======================================

Multimedia Comes to the Law Reviews.

This is a nifty idea:  a law review essay on the impact of oral advocacy in the U.S. Supreme Court that's published online so that the reader can click through and listen to audio clips of  Supreme Court arguments.

The essay is Stephen A. Higginson, Constitutional Advocacy Explains Constitutional Outcomes, 60 Fla. L. Rev. 857 (2008).

I like this idea.  (Not so crazy about the web design, but that's a different matter.)

 

Behavioral economics, carb phobia, and wheat futures prices . . . circa 1930

from the October 1, 1930, WSJ (Dow 204.90 -3.24 (1.6%)):

Wheat futures have plunged from 99 cents/bushel to below 73 cents in less than two months. This is sheer panic: “Wheat is selling below its worth and there is nothing behind this drive but unreasoning and unreasoned fear.” There has been one story after another advanced to justify the decline, from depression to German elections to Russian short-sales; none of these hold up to examination.  . . . “Sometimes an elephant will take fright at a mouse and create a stampede in the herd. Market psychology seems about on the same order.”

One man's opinion on why wheat prices are down: “some people consider it a disgrace to be fat. It is a hipless, thin limbed age, and that means a big falling off in the consumption of wheat.”

Weekend Links

'Academic doping' set to rise (HT: Freakonomics) Prior Lounge coverage of sports doping and cheating here and here.

An open letter to the Nobel prize committee: create Nobel prizes for the Global Environment and Public Health, and expand the prize for physiology or medicine to recognize contributions from across the life sciences. (New Scientist, via Tyler Cowen)

The 2016 Olympics to be held in Rio, following closely on the heels of the 2014 FIFA World Cup, also in Brazil.  Chicago lost out, with the prediction markets way off on this one.  Rio had the largest financial bid, plus a "distribution" of the Games advantage, because the games had never been to South America.  I only got to go to the Olympics once: the Atlanta games in 1996.  It’s definitely on my list of things to do again if I get the chance.

A B- for the U.S Constitution, due to sloppy penmanship, bad spelling, inconsistent capitalization, ambiguous text, and a price that makes a “$640 toilet seat for the Pentagon seem like a bargain.”

Hard times for Harvard lawyers.  (The Harvard Crimson, via Al Roth)

Funny healthcare videos from Gordon, and a funny summer vacation chart from Usha over at The Glom.

What with all the ACORN ruckus and an upcoming symposium at which I’ll discuss the costs of societal and legal pretense surrounding the existence of many “taboo markets” (one section of the paper originated with a blog post here at the Lounge over the summer, by the way– See Me, Feel Me, Touch Me, Tax Me), I seem to be noticing a fair number of posts about taxation and sex work these days. Omar Ha-Redeye has a post up at slaw.ca on Prostitution and Tax Expenses, and Slate has one on How Do Prostitutes Pay Their Taxes?  Surrogacy and taxation seems to be a growth industry as well, with recent papers by Bridget Crawford and Morgan L. Holcomb.

Facebook Prototype Measures Gross National Happiness . . . Yep, Mondays suck for everybody.

And these peaks at holidays are highly inconsistent with my own personal experience, not that this matters. . . 

Spit, “faggot,” and a tenure denial

  Yale law professor Bill Eskridge testifies before Congress on the pending Employment and Non-Discrimination Act of 2009, which would "bar sexual orientation and gender identity discrimination in the workplace by states as well as by private employers," and alleges that the University of Virginia Law School denied him tenure in 1985 because of his sexual orientation.  From the testimony (opens a .doc file), the relevant portion begins on page 83):

Late in the morning, as I was finishing up my class preparation, the chair of the committee stormed into my office and screamed at me for 10 minutes or so.  With clenched fists and a beet-red face, the chair of the committee threw a tantrum that included a string of accusations, such as “stabbing me in the back” and behaving in the treacherous manner that he and his colleagues ought to have expected of a “faggot.” . . . [I] was reduced to tears as the chair of the committee spat on me and called me dirty names.

Story from UVA Law Blog and Hunter of Justice, via Brian Leiter.

Update:  See this statement via Leiter from current UVA Law Dean Paul Mahoney, denying the allegations.

Update II: The UVA Law Blog has reprinted a January 31, 1986, article from the Virginia Law Weekly that discusses the incident in some detail, particularly student reactions.  

Update III:  Above the Law is now on the case, with an extensive story and links.  In it, Eskridge provides a lengthy response to UVA’a statement denying the allegations in Eskridge’s congressional testimony.

Bob Herbert on UC Berkeley

Bob Herbert has an Op-Ed in today’s New York Times regarding the financial situation at UC Berkeley, and the economic problems facing the UC system and the state of California more generally.  According to Herbert, “there are ominous cracks appearing in that cornerstone of American civilization” [i.e. the nation’s higher education system], and “Exhibit A is the University of California, Berkeley.” 

Says Herbert:

Berkeley is caught in a full-blown budget crisis with nothing much in the way of upside in sight. The school is trying to cope with what the chancellor, Robert Birgeneau, described as a “severe and rapid loss in funding” from the state, which has shortchanged Berkeley’s budget nearly $150 million this year, and cut more than $800 million from the higher education system as a whole.

This is like waving goodbye to the futures of untold numbers of students. Chancellor Birgeneau denounced the state’s action as “a completely irresponsible disinvestment in the future of its public universities.”

(The chancellor was being kind. Anyone who has spent more than 10 minutes watching the chaos of California politicians trying to deal with fiscal and budgetary matters would consider “completely irresponsible” to be the mildest of possible characterizations.)

Berkeley is laying off staffers, reducing faculty through attrition and cutting pay. Student fees will no doubt have to be raised, and the fear is that if the financial crisis continues unabated it will be difficult to retain and recruit the world-class scholars who do so much to make the school so special.

Read the whole thing here.  A roundup of links to prior Lounge coverage of the UC financial problems and the ensuing protests, walkouts, strikes, and calls from some UC faculty to eliminate certain campuses, departments, or people are here.

Non-Traditional Law Deans and Tenure

In the interests of FULL DISCLOSURE:  I'm on the dean search committee at my school and this post is NOT about any specific dean candidate so no inferences should be drawn about any of these comments with respect to our dean search. Nevertheless, it has been in the context of participating in our dean search that I have started thinking more generally about the following issues. 

It seems to me that in recent years, a number of law schools have moved away from appointing traditional academics as law deans (understandable, because the skill set isn't always obviously and immediately transferable between faculty member and dean).  So we've seen law schools appoint business people, retired politicians, retired judges, practitioners, university counsel etc as deans.

What are the pros and cons of this approach?  And what have those schools done about the tenure question?  In other words, do non-traditional deans generally get (or are they required under university/school rules to get) tenure?  If so, are they held to the same standards as more traditional academic dean candidates?

I can think of a handful of upsides and downsides on all these issues, but I'd really be interested in other people's thoughts and experiences.  Some of my own thoughts - and NOT necessarily those of the CRWU dean search committee - are:

Embryo Error Updates

Last week, I blogged about the Ochsner Hospital in Louisiana, which has indefinitely suspended operations at its in vitro fertilization center in Elmwood because of a mix-up in the labeling of frozen embryos.  Approximately 100 couples may be affected by the labeling errors, and two class action lawsuits have been filed against Ochsner so far.

It has now been reported that Ochsner can't find four missing embryos belonging to one couple that the fertility clinic froze more than two years ago, and two embryos belonging to another couple have disappeared. Ochsner insists that, although frozen embryos were systematically mislabeled, none have been transferred into the wrong patient.

I also blogged about Carolyn Savage, an Ohio woman who gave birth to a boy (which she delivered to the child’s genetic parents) after the Ohio fertility clinic where she underwent in vitro fertilization transferred another couple's embryos into her uterus.

The American Society for Reproductive Medicine (ASRM) executive director Robert W. Rebar has released the following statement regarding the recent embryo mix-ups.  The statement appears to suggest that ASRM intends to work with lawmakers to develop laws to supplement existing industry self-regulation, although it is vague about what form such laws may take:

 Even with these [ASRM industry self-regulation] efforts, the incidents reported this week make it clear that there is still work to do. As the leaders in reproductive medicine, we will redouble our efforts to develop systems that will assure our patients and the public that these kinds of mistakes will not happen. 

The time has come for policy makers to sit down with the leading experts in the field to explore ways we can codify our standards to give them additional regulatory teeth.

 We will lead an effort involving our members, representatives of patient groups, policy makers and other stakeholders to work together to come up with solutions.

(HT: Egg Donation & Surrogacy Law Blog)

Academic Freedom Around the Time of the Second World War

My sometimes co-author Sarah Ludington has an important new paper, "The Dogs that Did Not Bark: Academic Freedom, Tenure, and the Silence of the Legal Academy During World War II," up on ssrn.

Here is Sarah's abstract:

During World War II, the legal academy was virtually uncritical of the government’s conduct of the war, despite some obvious domestic abuses of civil rights, such as the internment of Japanese-Americans. This silence has largely been ignored in the literature about the history of legal education. This Article argues that there are many strands of causation for this silence. On an obvious level, World War II was a popular war fought against a fascist threat, and left-leaning academics generally supported the war. On a less obvious level, law school enrollment plummeted during the war, and the numbers of full-time law professors dropped by half. Of those professors “laid off” during the war, many took employment in government agencies and thus effectively silenced themselves. Finally, the American Association of Law Schools had only adopted a strong position on academic freedom and tenure in 1940. The commitment to academic freedom and tenure was insecure in many institutions and was only weakened by the severe economic strain of the war. To illustrate the effect of these larger forces, this Article tells the stories of five professors who criticized domestic policy during the war and the institutional consequences of their dissent. Of those professors, only one – a tenured professor at New York University – was fired during the war. While the basic building blocks of legal academies are the same today as they were in World War II, other factors such as strong institutional commitments to academic freedom and tenure, a robust First Amendment, and economic prosperity have significantly changed the roles that law professors are empowered to play in society, most significantly as the watchdogs of government.

I'm interested in the origins of academic freedom in the 20th century (and its absence in the antebellum era).  At some point I'd like to talk about how Sarah's paper fits with Robert Post's and Matt Finkin's story about the origins of academic freedom in For the Common Good.   (Why hasn't that book gotten more attention yet?  Been a busy summer and fall, I suppose.)  Of the many things of importance here, one lesson may be that academic freedom is of more recent vintage than we have previously thought.

A New Home For CUNY School of Law

Our friends at the CUNY School of Law are (or soon will be) on the move.  According to the press release earlier this week, the governing Board of Trustees has approved CUNY's acquisition of "a condominium interest in [the first six floors of] a 14-story environmentally green building at historic Court Square."  The move "will give the School nearly 70,000 additional square feet of space, enable it to offer a new, part-time program, and situate it within walking distance of numerous city subway and bus lines, the Long Island Rail Road, and the New York State Supreme Court building in Long Island City."  The new location "will expand accessibility for current and prospective students drawn to CUNY Law's high academic quality, nationally recognized clinical training, and public service mission.  Additionally, the space already contains classrooms previously used for staff training, as well as smart technology and study areas. And the larger space will enable the Law School to expand opportunities with a new part-time program."

The press release includes these remarks from Dean Michelle J. Anderson (pictured):

A move to this terrific new location will greatly enhance our ability to carry out our mission to diversify the legal profession and to train the next generation of public interest lawyers.  The easy commute to this new location creates more opportunities for our students to connect with the legal community and internships throughout the five boroughs.  [The proposed part-time program] would appeal particularly to older students, working parents, and those from working-class backgrounds[.]  Just as the Law School wants to make sure that everyone, regardless of race, class or ethnicity, has access to outstanding and affordable lawyers, we want to make an excellent legal education itself accessible to everyone, including those from underrepresented communities.  This expansion will help us to continue in CUNY Law’s efforts to diversity the profession.

Relocation is expected in time for Fall 2011 classes.

Capitalism and Urban Instability

Reading the Charlotte Observer, and all the hand-wringing over the departure of Bank of America CEO Ken Lewis, got me thinking about the costs of America's regulatory flexibility.  Charlotte residents are understandably terrified that the loss of Lewis could ultimately lead B of A out of Charlotte.  The city, once the home to two mega-banks, lost Wachovia to Wells Fargo not too long ago.  And the given the central role of banks in the local economy, the possibility that it might lose its second mega-bank is obviously scary.

This urban instability is now par for the course.  One huge cost of corporate consolidation is cities can be orphaned in the process.  While individuals can, perhaps, switch jobs (and cities) at relatively limited cost (OK - lets be candid...the cost is often immense), cities cannot populate, depopulate, and repopulate with similar ease.  It's problematic both socially - as relationships and communities are shredded by job losses - and economically.  Think of the waste when a place like Charlotte builds itself up, only to find itself vacant due to big corporate mergers.   That's probably a bit hyperbolic with respect to Charlotte which retains a major airport hub - a nice business magnet in itself.  But even these hubs can be abandoned after a merger: have you visited the oversized, underutilized Pittsburgh airfield recently?  

The question is whether this urban instability is a necessary feature of a competitive country.   We could prevent mergers that cause this result - or perhaps regulate the ability of companies to abandon cities quickly.  Imagine a WARN Act for cities, for example.   But that hardly seems practical - either in a regulatory or political sense.  And it certainly would fly in the face of market efficiency.   

But what is the alternative?  We know at least two approaches.  One: build a community that supports new entrepreneurship.  This fosters development of new businesses.  These new outfits will hire lots of locals and perhaps, ultimately, buy other businesses - thus stealing jobs from other communities.  Two: a race to the bottom.  Big tax and regulatory breaks for existing companies, located elsewhere, that expand - or relocate - to the community.  Think Boeing to Chicago (at the cost of $63 million in incentives) or Honda to Alabama (at the cost of $158 million in incentives.)  At least it costs a lot of money to shutter a factory and rebuild elsewhere.  But if Charlotte suddenly offers Boeing $300 million in incentives to move its starched shirts to Carolina, Chicago could be left in the cold.

And then Charlotte would be flush.  For a while at least, until an even richer suitor comes along.

Image: Charlotte

61

The number "61" should hold significance today for baseball fans.  On October 1, 1961, Roger Maris broke Babe Ruth's single-season home run record by going "yard" with his 61st four-bagger in the final game of the season.  Many fans were not happy to see Ruth's record broken, either hoping that the record would remain intact or, alternatively, be broken by the anointed one -- Mickey Mantle (who also threatened the record that year before finishing with 54 round-trippers). Maris deservedly won the American League's MVP award that year.  (Many folks forget that he also won the award the previous year.)

Roger played twelve seasons in the majors, breaking in with the Cleveland Indians in 1957, being traded to the Kansas City Athletics in June 1958, joining the Yankees in December 1959 (in a trade for, among others, Hank Bauer and Don Larsen), and wrapping up his career with St. Louis for two seasons.  He played in seven World Series, five with the Yankees and two with the Cards.

Some of his career stats include:

Games played:  1463

Batting average:  .260

Hits:  1325

Doubles:  195

Home runs:  275

RBI's:  851

Does Roger Maris deserve to be in baseball's Hall of Fame?  (He isn't the only back-to-back MVP recipient not enshrined, as Atlanta's Dale Murphy quickly comes to mind.)  For an article comparing Maris to others so honored (including Bill Mazeroski, Hack Wilson, Red Schoendienst, Phil Rizzuto, and Richie Ashburn), click here.  Maybe because I bleed Cardinal red I'm biased, but if I were on the Veteran's Committee I would vote in favor of Roger Maris.  How about other baseball fans out there?

Pictured:  Roger Maris card #9 in the 2007 Upper Deck Masterpieces set.

   

The Fourth Amendment ...

... diagrammed.

(from this site, where you can get sentence diagrams of the entire Bill of Rights!)

Call For Papers - AALS Section On Education

Every young, aspiring law prof wants to tell their dean that they'll be presenting at the AALS - right?  If you're into education law, this could be your chance!  A call for papers for the AALS Education Law Section is after the jump.  Submissions are due by November 1, 2009.

The Scholarship of Appearance

There's an idiom that captures the essence of this post, but it eludes me,  just as it appears to have eluded Randy Barnett.

(And Josh Blackman fails to note that the Balkin/Siegel tome is red.  Red!)