One of my colleagues recently noticed that a number of law review articles are available for sale (or rather digital download) at amazon.com An example is here. She asked me if there were any legal problems with this and I replied that I didn't think so because presumably law reviews will not license the articles to amazon unless they have authority to do so under their publication agreements with the individual authors. We continued going back and forth on the issue because my colleague was uneasy that someone might be making money commercially from her work in a manner she had not contemplated. The pricepoint for these downloads from amazon is around $10 per article (or really $9.95 because that sounds so much cheaper). My assumption was that if individual law review articles are priced that way, it's probably due to the request of the publisher and amazon is probably getting a relatively small cut. In other words if this is like other electronic downloads that amazon does, amazon can release kindle books much more cheaply when the paper version publisher does not set a particularly high price (or when there is no paper version publisher and the author is engaging in e-publishing direct through amazon).
So, aside from the fact that very few people are probably buying articles from amazon that they could access from other sources more cheaply (or free), if less conveniently, I would assume that it wouldn't be amazon making huge profits from this. Are the law reviews actually making any money out of it then? And, if so, how does the pricing of an individual article compare to the pricing of an entire volume of the relevant law review? And how are journals deciding whether to release material on amazon and, when they do, are they releasing all of their published articles or just select articles that the editors think may appeal to a more general audience?
Today was our "get-to-know-you" day at the 2011 FASPE Law Program. We were at the Museum of Jewish Heritage, a very impressive Holocaust museum at the southern tip of Manhattan. Our group consists of twelve Fellows -- law students from Yale, U. Va., NYU, Duke, Michigan, and Columbia -- and three faculty members (me, Bo Burt from Yale, and Amos Friedland, an attorney at Quinn, Emanuel, Urquhart & Sullivan in New York).
After self-introductions, we spent a big chunk of the day discussing obedience to authority, the subject of Stanley Milgram's famous (notorious?) experiments from the early 1960s in which he deceived subjects into thinking they were required to apply increasing voltages of electric current to a person as part of a supposed study of how punishment facilitates learning. In fact there was no study of punishment and learning; there was only a study of whether (and under what circumstances) ordinary men (the subjects were all men) would agree to shock the living hell out of an innocent person -- to the point of seeming unconsciousness or even death -- simply because a labcoat-wearing scientist in a Yale laboratory told them that the experiment required them to. A phalanx of psychiatrists had predicted that only a vanishingly small minority of subjects would inflict pain as instructed; Milgram showed that virtually everyone would administer at least some pain when instructed to do so, and that many would agree to inflict lethal doses.
The connection that the FASPE curriculum is drawing between the Milgram experiments and the Holocaust is no stretch. Milgram commenced the experiments in 1961 when the trial of Adolf Eichmann in Israel was ongoing and the Nazi technocrat was advancing a defense based in part in the need to comply with the orders of superiors. The upshot of Milgram's findings were deeply uncomfortable: they made it hard to write off the Nazis' horrors as some special circumstance unique to Germany at a particular historical moment and, in a sense, put the whole human race in the dock alongside Eichmann.
It was a rich discussion. I was surprised by some of my own reactions to watching footage of the Milgram experiments themselves. I had always thought that what the Milgram experiments revealed was basic bloodthirstiness in humans -- that the experiments revealed that men would more or less mindlessly march their way all the way up the voltage scale. I thought the message of the Milgram experiments was almost exclusively about obedience. And while it's true that many subjects did prove themselves ultimately willing to inflict horrible pain when instructed to do so, the story now seems to me richer and more complex -- a story with space in it to think about how humans' instincts are not just to obey authority but also subtly to resist or at least temper it.
Watch this video from about 6:31 to the end (if you can bear it).
It's easy to focus on the main story line: a scientist instructs a guy off the street to fry his fellow man, and he does so. But what stood out for me today, very powerfully, was the subject's distress. This is not the man I thought the Milgram experiments revealed to us -- the obedient, authority-controlled automaton. This is a man in great distress (so great that I end up more furious at Milgram than at the subject), a man who, while ultimately complying, is exploring the horrible space he finds himself in for little ways to temper what he's being ordered to do. As the required voltage mounts, he depresses the lever for shorter and shorter times, to the point that it's barely making electrical contact. And he breaks from the script he's required to follow, imploring the man he thinks is strapped to the electrodes to "please answer the question!" (He understands at that point that he is "required" to shock the man if the man doesn't answer, and that within the system of the experiment, the man can't avoid the shock unless he answers. The script doesn't call for him to encourage the man to answer, or to warn the man that he'll get shocked if he doesn't answer, but the subject, while not defying the authority figure outright, does innovate small ways to try to temper things.)
Don't get me wrong; I am duly horrified that so many men (like the one in this video clip) ultimately comply with the voice of authority. All I am saying is that I saw a flicker of something else in the video today, something I was not expecting: an instinct not just to follow authority, but to fudge it.
Will any of this bear fruit as we continue in the coming days to reflect on questions of lawyer's roles in systems of oppression? I don't know--it's just the first day!
Our day today also included a tour of the core exhibit of the Museum of Jewish Heritage. Our docent was an Auschwitz survivor who told us her harrowing, even shattering story of losing her parents and all but one sibling to disease and the gas chambers while herself managing to survive. I think we were quite numb by the end of her presentation, but after dinner, we watched a video of another surivivor's testimony, and the differences in the narrations of the two survivors led to some very interesting discussion about what survivor testimony is and whether its telling and its hearing ought or ought not be governed by our ordinary standards of evaluation.
All in all, a fascinating first day.
Tomorrow morning we focus the lens a bit more closely on lawyer ethics. Daniel Markovits will be with us in the morning to talk about his controversial claim that lawyers are basically liers and cheaters (and are encouraged to be such by our ethical rules). And in the afternoon, we're off to the airport to catch a plane to Berlin.
In Down-Market Diversity and Bar Passage, I discussed how minority students, particularly Black/African-American, generally have lower LSAT scores than do White/Caucasian students. I also discussed how law schools near the bottom of the market of law students tend to enroll minorities with LSAT scores than more elite law schools. This is particularly true for Historically Black Law Schools. Based on the average LSAT 25th percentiles for the Fall 2006 through Fall 2009 entering classes of mainland law schools, the bottom four schools were Florida A&M (142.50), Southern (142.75), North Carolina Central (143.50) and Texas Southern (145.00), while District of Columbia (148.75) and Howard (149.25) were grouped around the 15th percentile.
If the ABA is serious about increasing the diversity of the legal profession, especially in increasing the number Black/African American lawyers, it needs Historically Black Law Schools ("HBLS"). For Fall 2005 through Fall 2009 combined, even though students at the six Hal's represented only 2.0% of entering classes, those students represented 16.3% of Black/African-American entering students. Within the jurisdictions in which they are located, students at HBLSs represented a much greater proportion of Black/African-American entering students—from 25.9% to 63.6%.
As I discussed in The LSAT-free Illusion, students with lower LSAT scores are at greater risk of failing the Bar. Thus, you would expect the Historically Black Law Schools to have low Bar passage rates, depending on the states in which their graduates take the Bar (Interpretation 301-6: Low LSATs and High Cut Scores”). You would also expect HBLSs to be at much greater risk from the proposed increases in minimum Bar passage rates.
As I discussed in ABA Standards and Bar Passage Rates, the Subcommittee on Bar Passage of the ABA Standards Review Committeeproposes to raise the minimum first-time and cumulative Bar passage rates for law schools. The minimum acceptable first-time Bar passage rate would rise from 15% below the state Bar passage rate for graduates from ABA-approved law schools to 10% below. The minimum acceptable cumulative Bar passage rate would rise from 75% to 80%. The justification for the proposed increases in the Interpretation 301-6 is that the current benchmarks are “inadequate” and “not rigorous enough” (Donald J. Polden, The Standards Review Committee's Comprehensive Review of Accreditation Policy Moves Forward, SYLLABUS, Vol. 42, Issue 4, at 5 (Winter 2011).
As I discuss in my April 2011 comments to the ABA, Endangered: Historically Black Law Schools (revised version, dated May 24, 2010), a 10% below first-time Bar passage rate was the measure used by the ABA before the adoption of Interpretation 301–6. Efforts by the Historically Black Law Schools (“HBLS”) to meet the “10% below” minimum by increasing the LSATs of entering students are associated with decreases in the enrollment of Black/African-American students at HBLSs.
The best example is The University of the District of Columbia--David A. Clarke School of Law ("UDC"), the successor to District of Columbia Law School, which was provisionally accredited by the ABA in 1991. After the law school merged with the University of the District of Columbia, it reapplied for ABA provisional accreditation in 1998. In 1999, UDC received an ABA Action Letter asking it “to examine the relationships of LSAT scores and UGPAs to performance in the law school’s academic program and to the first time bar performance.” Derek Alphran, Tanya Washington & Vincent Eagan, PhD., Yes We Can Pass the Bar. University of the District of Columbia, David A Clarke School of Law Bar Passage Initiatives and Bar Pass Rates—From the Titanic to the Queen Mary, 14 UDC/DCSL L. REV. 9 at 16 n.42 (2011). After the resulting study, UDC changed in its admissions policies” in 2000, id. at 16, and again in 2002, id. at 13 n.24. Its rationale was “the steady increase in statistical profiles of th/e entering class would lead to higher bar passage rates.” Id.at 14 & nn.30-31.
As shown in the following chart, from 1998 through 2005, the LSAT 25th percentile of UDC’s entering classes rose from a low of 138 to 149. At the same time, the proportion of entering students that were Black/African-American fell from almost 70% to a low of about 25% (it has since recovered to about 30%).
Click on chart to enlarge
More strikingly, as shown in the following table, Black/African-American students are no longer even a plurality of entering students at UDC:
Average Ethnic Distribution by School Fall 2007 through 2009 Entering Classes (Combined)
School
Asian/ Pacific Islander
Black/ African- American
All Hispanic
White Caucasian
Univ. of D.C.
5.9%
30.2%
11.7%
44.8%
Florida A&M
4.6%
41.2%
15.4%
36.1%
Howard
3.4%
78.4%
3.4%
5.6%
N. C. Central
2.5%
50.6%
2.6%
39.7%
Southern
0.4%
62.5%
1.2%
35.5%
Texas Southern
7.2%
49.0%
22.8%
18.2%
While the changes in the ethnic composition of entering classes are most dramatic at UDC, the ethnic composition of recent entering classes at the other Historically Black Law Schools are also notable. Over the three most recent academic years for which information has been published in the ABA-LSAC Official Guide to ABA-Approved Law Schools, at Florida A&M, North Carolina Central, and Texas Southern, Black/African-American students constituted at least a plurality of entering students, with the last two hovering near 50% of the class. Only Howard and Southern remain strongly Black/African American institutions. At four of the schools, White/Caucasian students had a substantial representation—at least 35%. At Texas Southern, the second-largest component of entering classes was Hispanic students. Only Howard had no strong representation of students from other racial or ethnic groups.
First-time Bar passage rates for at least half of the HBLSs have generally fallen below the 15%-below minimum, much less the proposed 10%-below minimum. If those HBLSs are going to satisfy 301-6, it will have to be on the basis of cumulative Bar passage rates. Again, the ABA does not publish information regarding cumulative Bar passage rates. But an 80% standard will be harder to meet than the current 75% standard.
An interesting law suit has been brewing between the tattoo artist who created Mike Tyson's famous facial tattoo and the Warner Bros studios in respect of Ed Helms' character in their recent release, The Hangover 2. In the movie, Helms sports a facial tattoo very similar to Mike Tyson's original tattoo. The case re-opens a murky area of copyright law relating to tattoos and body art, including questions of whether skin art is copyrightable. A few law review articles have touched on this issue previously, notably Cotter and Mirabole's article: Written on the Body: Intellectual Property Rights in Tattoos, Makeup, and Other Body Art, 10 UCLA Entertainment Law Review 97-138 (2003). It will be interesting to see what the courts do with this case.
I am very sad to report the passing of my colleague Professor Laura Chisolm who battled metatstatic breast cancer for some years with quiet dignity. When I joined the faculty at CWRU she was one of the few senior tenured women on the faculty and she was a strong mentor to those who came after her. She was a terrific and popular teacher and a good friend. There will be a memorial service for her tomorrow in Cleveland. Details have been posted at the Wills, Trusts & Estates Prof Blog.
"To criticise this feels a bit like kicking a puppy" and
But: “EU institutions had tried to stop them…” — seriously? Still, we suppose “Time to stick to the rules” beats “We blame hedge funds” … But it’s just as laughably trite.
This morning I begin a ten-day stint as a faculty member for the 2011 Law Program of the Fellowships at Auschwitz for the study of Professional Ethics (“FASPE”). The program, sponsored by the Museum of Jewish Heritage in New York, takes law student fellows to Berlin, Auschwitz, and Krakow to examine the roles played by lawyers and judges in the Holocaust. The focus is not solely historical. Rather, the program encourages fellows to think about their own developing professional identities and ethical commitments by reference to the collaborations of (and, I suppose, resistances by) German lawyers and judges between 1933 and 1945.
My main role is comparative. What I will contribute is an account of the roles played by lawyers and judges in the removal and incarceration of Japanese and Japanese Americans in the United States at around the same time as the Nazis were hatching and implementing the “Final Solution.”
I've got more than a passing interest in the Holocaust story itself, though. My dad was born in Germany in 1931, two years before Hitler came to power. My grandfather, a teacher of languages, was stripped of his civil service position by the Nuremberg laws in 1935 and was incarcerated at Buchenwald in November 1938 as part of the so-called Kristallnacht pogrom. While he and my grandmother and dad and aunt were able to leave Germany at the end of December 1938, his brother Leopold (about whom I have written before, here and elsewhere) was not able to get out. German law permitted the “aryanization” of his and his wife's dry goods store late in 1938. In April 1942 they were deported to Poland, where they were murdered.
As the program gets underway, I'm aware of a couple of challenges (and I'm sure that many more will crop up along the way).
For one, I am, as a general matter, drawn more to narrative than to theory. I didn't plan the curriculum (apart from the small section that's directly about Japanese American internment), but I suspect that it will offer participants theoretical frameworks within which to consider the roles lawyers played in the Holocaust. I am curious to see how these will sit with me: will I resist or benefit from efforts at theoretical framing?
For another, I come into the program (ironically) a bit skeptical about whether the Holocaust will offer lessons about ethics and professionalism that will be useful to American lawyers and law students. At the end of the day, will there be more to say than “don't facilitate genocide?” Is the Holocaust, in its mind-boggling extremity, really a source of moral lessons that can be generalized? (This question is reminiscent of one that a recent New York Times review asks about the Museum of Tolerance in Los Angeles.) Might I, as the expert on “mere” racial incarceration (as distinguished from racial murder), end up having more to offer the group than our experts on the Holocaust? Or, because the moral implications of collaborating with a system of “milder” racial oppression are more ambiguous, might I instead end up having less to offer the group?
I have lots of questions right now, and no answers.
Today's schedule has us discussing obedience to authority in the morning. We'll look at the famed Milgram experiment and discuss Freud's “Thoughts for the Times on War and Death.” After a lunch break, we'll turn our attention to disobedience to authority, considering Plato's “Apology of Socrates” and “Crito” as well as the case of Daniel Ellsberg. We tour the core exhibit of the Museum of Jewish Heritage in the late afternoon, and in the evening we'll talk about how one witnesses and assesses the testimony of Holocaust survivors.
I'll end this post with a photo. It's the view out my hotel window: Ground Zero. I suppose that looking out on a mass grave – a place where a conflagration left a gaping hole – is an apt starting point for a trip that will take me, in less than a week's time, to Auschwitz-Birkenau.
Because life really is better than fiction. The St. Paul Pioneer Press ran Tim Pawlenty's announcement that he is running for President alongside obituaries in yesterday's paper. Not a good sign.
CNN has a nice story detailing recent discussions at William and Mary, Brown, and Emory about their connections to slavery. Mark Auslander provides particularly apt comments in the story -- and this reminds me that I am very much looking forward to his forthcoming book, The Accidental Slaveowner.
Thanks to Eric Muller, who called this article to my attention.
demonstrate by concrete action a commitment to providing full opportunities for the study of law and entry into the profession by members of underrepresented groups, particularly racial and ethnic minorities, and a commitment to having a student body that is diverse with respect to gender, race, and ethnicity.
For law schools near the bottom of the market for law students—those with lower LSAT profiles of entering classes—diversity often means taking minority students at high risk of failing the Bar.
The mean LSAT scores (and standard deviations) of the largest racial and ethnic groups for the 2009-2010 testing year were:
LSAT Testing Year 2009-2010 Means and Standard Deviations, by Ethnicity
Assuming normal distributions, the following table shows the percentage of 2009-20010 takers with LSAT scores above certain scores, by ethnicity:
LSAT Testing Year 2009-2010 Percent above LSAT Score, by Ethnicity
140
145
150
155
160
165
Asian/Pacific Islander
88%
75%
59%
40%
24%
12%
Black/African-American
59%
37%
18%
7%
2%
0%
Hispanic
75%
56%
36%
19%
8%
3%
White/Caucasian
92%
80%
62%
41%
22%
10%
One would expect that the schools with highest LSAT profiles would enroll minority students with the highest LSATs. As schools above them take the higher-LSAT students, law schools with lower LSAT profiles would only be able to enroll minority students with increasingly lower LSAT scores. As discussed in The LSAT- free Illusion, those students are at increasingly higher risk of failing the Bar.
Within each law-school group, the rank order of the LSAT means of the ethnic groups is consistent with the rank order shown in the first table above. As group LSAT mean falls, so does the mean of each of the ethnic groups. The only exception is in group 6, where the LSAT mean of Black/African-American students was higher than that in group 5.
Law schools at the bottom of the market for law students must often choose between diversity and maintaining Bar passage rates by trying to raise the LSAT scores of entering students. Here the first clause of Standard 212 comes into play: the commitment to diversity must be “[c]onsistent with sound legal education policy and the Standards”.
But more on that in the next installment.
Updated to add LSAT scores and to correct entries in second table.
Last Friday, Acting Solicitor General Neal Katyal publicly chided the WWII-era Solicitor General's Office for concealing evidence inconsistent with the government's stated rationale for the mass removal and detention of Japanese Americans in the Korematsu and Hirabayashi litigation in the US Supreme Court. It was a welcome statement. Here it is:
It has been my privilege to have served as Acting Solicitor General for the past year and to have served as Principal Deputy Solicitor General before that. The Solicitor General is responsible for overseeing appellate litigation on behalf of the United States, and with representing the United States in the Supreme Court. There are several terrific accounts of the roles that Solicitors General have played throughout history in advancing civil rights. But it is also important to remember the mistakes. One episode of particular relevance to AAPI Heritage Month is the Solicitor General’s defense of the forced relocation and internment of Japanese-American during World War II.
Following the attack on Pearl Harbor, the United States uprooted more than 100,000 people of Japanese descent, most of them American citizens, and confined them in internment camps. The Solicitor General was largely responsible for the defense of those policies.
By the time the cases of Gordon Hirabayashi and Fred Korematsu reached the Supreme Court, the Solicitor General had learned of a key intelligence report that undermined the rationale behind the internment. The Ringle Report, from the Office of Naval Intelligence, found that only a small percentage of Japanese Americans posed a potential security threat, and that the most dangerous were already known or in custody. But the Solicitor General did not inform the Court of the report, despite warnings from Department of Justice attorneys that failing to alert the Court “might approximate the suppression of evidence.” Instead, he argued that it was impossible to segregate loyal Japanese Americans from disloyal ones. Nor did he inform the Court that a key set of allegations used to justify the internment, that Japanese Americans were using radio transmitters to communicate with enemy submarines off the West Coast, had been discredited by the FBI and FCC. And to make matters worse, he relied on gross generalizations about Japanese Americans, such as that they were disloyal and motivated by “racial solidarity.”
The Supreme Court upheld Hirabayashi’s and Korematsu’s convictions. And it took nearly a half century for courts to overturn these decisions. One court decision in the 1980s that did so highlighted the role played by the Solicitor General, emphasizing that the Supreme Court gave “special credence” to the Solicitor General’s representations. The court thought it unlikely that the Supreme Court would have ruled the same way had the Solicitor General exhibited complete candor. Yet those decisions still stand today as a reminder of the mistakes of that era.
Today, our Office takes this history as an important reminder that the “special credence” the Solicitor General enjoys before the Supreme Court requires great responsibility and a duty of absolute candor in our representations to the Court. Only then can we fulfill our responsibility to defend the United States and its Constitution, and to protect the rights of all Americans.
Kudos to General Katyal for publicly drawing lessons from the excesses in the SG's wartime advocacy.
The Justice Department's misrepresentations to the Court in Hirabayashi were even more extensive than this statement relates. The SG's brief in that case hammered away repeatedly at the idea that the mass removal and detention of Japanese and Japanese Americans in 1942 were a response to a threatened Japanese military invasion of the West Coast (as distinguished from spot raids, shellings, and other lesser forms of assault). Yet Justice Department lawyers knew at the time they drafted the Hirabayashi brief that the top leadership of the Army and Navy had privately informed Congress in February of 1942 that they were not preparing to meet a Japanese coastal invasion and did not believe such an assault was threatened.
So there was even more for General Katyal to repudiate than he described in his statement.
If you're interested in learning more about the misrepresentation to the Court in Hirabayashi, go here (pdf).
The obvious question is whether these measures, if enacted, would constitute a breach of the guarantee of free exercise of religion. Note that the only exception to the flat ban is when it "is necessary to the physical health of the person on whom it is performed because of a clear, compelling, and immediate medical need with no less-destructive alternative treatment available, and is performed by a person licensed in the place of its performance as a medical practitioner." Note also that in applying that exception, "no account shall be taken of the effect on the person on whom the operation is to be performed of any belief on the part of that or any other person that the operation is required as a matter of custom or ritual." Under the rule of Employment Division v. Smith a law that prohibits the exercise of religious conduct is valid so long as the law is of general applicability and does not single out religious conduct for disfavorable treatment. Defenders of the proposed anti-circumcision laws will claim that the narrow exception is only for compelling health reasons and that the law is otherwise of general applicability. But there are two reasons to question this defense. First, the qualification to the exception makes it clear that the law is designed to ensure that it will apply to circumcisions that are the product of religious belief. That impeaches the claim that this is really of general applicability. While it is not constitutionally required to afford an exception for religiously motivated circumcisions, the specific prohibition of such a claimed exemption surely is evidence of a motive to suppress this religious conduct. An analogue would be a law banning all consumption of wine except where there is a compelling need to imbibe wine for health reasons, but on no account is the exception to be interpreted to apply to those instances where a person's emotional health is in danger by reason of the inability to participate in any ritual consumption of wine. Four members of the Court (in the Hialeah case, involving the Santerians) thought that evidence of a purpose to suppress religious conduct was sufficient. That purpose is evident here, though it is not the only purpose. Second, even if purpose analyis is irrelevant, one would like to know the proportion of all infant circumcisions that are religiously motivated. To the extent that is a very high proportion, the argument that the effect of the law is neutral diminishes. According to this article in the New York Times the proportion of circumcised males in the U.S. is about 80%, but the rate of new circumcisions has dropped dramatically.
According to this poll of Wall Street Readers, 77% of the respondents are opposed to the San Francisco proposal. I know -- it's hardly a scientific sampler of public opinion.
UPDATE: A commenter wonders whether the hybrid rights argument has traction here. Employment Division noted that strict scrutiny should apply when a free exercise claim is joined with another claim of a constitutional violation, and cited Yoder for that proposition. Yoder, of course, involved a claim that the Wisconsin compulsory education law violated both free exercise and the fundamental liberty to direct the upbringing of one's children. The Ninth Circuit's view of the trigger of this hybrid rights analysis is that each claim must be colorable. Thomas v. Anchorage Equal Rights Commission, 165 F. 3d 692 (9th Cir. 1999); Miller v. Reed, 176 F. 3d 1202 (9th Cir. 1999). So, the question becomes whether the claim that a parent has a fundamental right to direct the upbringing of their male child by subjecting him to religiously inspired circumcision is colorable. Certainly the claim is colorable; the ultimate question of whether the government has a compelling interest in prohibiting a parent from so directing the child's upbringing is debatable. So, I think the answer is that this may well one of those rare instances where the hybrid rights idea operates to impose on San Francisco (or any other government that enacts such a law) the burden to prove that it is necessary to ban circumcision in order to achieve a compelling government interest.
I understand that today is the fortieth anniversary of the release of Marvin Gaye's "What's Going On?" album. That was one of the first cds I bought when I first got a cd player way back when -- I think it was inspired more by an advertisement for some hi-fi system than by an understanding of the social significance of the record. But whatever. That was a long time ago -- so long ago, in fact, that I've since lost the cd. Probably a victim of one of my many moves -- or maybe I loaned it to someone. Who knows.
Be that as it may, this reminds me of a post I put up at propertyprof about five years ago on Marvin Gaye's rendition of the National Anthem at the NBA all star game in 1983. (Here's an NPR story from 2003 about it.) It's a great, great story, which has taken on mythic proportions. There was fear Mr. Gaye wouldn't show up, then that the rendition wouldn't go well and, afterwards, about how he held the audience. It was his last appearance on national television. There was also fear when the tape began to play that they'd put in the wrong tape, because the first few seconds didn't sound like the National Anthem.
One aside here: Mr. Gaye was running late and the officials at the game asked an usher to stand in, which she was happy to do. That vignette reminds me of one of my heroes, Ralph Ellison. Mr. Ellison was working away in mostly anonymity until his 1952 novel Invisible Man appeared. There are many, many talented people out there whose talents we may never know. We were fortunate to learn of Ellison's talents--but that usher, who might have filled in for Mr. Gaye, remains anonymous. The most recent example of suddenly (though belatedly) recognized talent that comes to mind is James Carter's rendition of Po Lazarus, which Alan Lomax recorded in Mississippi in 1959. Lo those many years later, it was used as part of the soundtrack to O Brother Where Art Thou? And, after some searching, Mr. Carter was located in Chicago, given a big check, and a Grammy.
Here's a link to a video of Mr. Gaye singing the "Star Spangled Banner" on youtube. And here’s a nice article about it, too.
Barak’s recent paper on the “rabbinic cartels” reminded me that I wanted to provide some updates on Kamakahi v. American Society for Reproductive Medicine et al., No. 11 CV 1781, complaint filed (N.D. Cal. Apr. 12, 2011), a federal antitrust class action seeking damages and an injunction in connection with the American Society for Reproductive Medicine’s guidelines for compensating oocyte donors. I’ve blogged about the case, and about the oocyte pricing guidelines and oocyte market more generally, several times, including a series of posts ending with this one.
ASRM published a Bulletin last week stating that it was retaining counsel in the case and beginning work on the defense. This prompted some renewed discussion from commentators on blogs and in legal sources. I have to say that I have been pleasantly surprised at the thoughtfulness of some of the discussion and commentary relating to the case.
Egg markets tend to be an emotional topic – far more so than sperm markets. Our intuitions about egg markets, as with many taboo markets, are often laden with unrecognized class prejudices and anxiety about the body, especially women’s bodies. And, those emotions and intuitions can sometimes lead otherwise sensible people into very insensible arguments that they would never accept in other contexts.
The whole egg donor compensation debate is like fun house mirrors. What you see depends on where you stand. If you think egg donation is a step along the slippery slope to child selling, you will see any compensation as too much and likely argue for only altruistic “compensation-free” egg donation. You will likely welcome any limit on payment for egg donation and likely be offended by elitist pricing. You probably would be inclined to support ASRM’s ethical recommendation that legally amount to price fixing.
If you don’t see egg donation as inherently wrong (or almost wrong), you may be more inclined to let market forces regulate prices but might be interested in regulating the manner in which egg donation is performed, medically and legally to protect the rights of both the donor and the recipient.
This interesting legal lawsuit forces a re-evaluation of third party donation and the rights of egg donors. Third party reproduction is inherently complicated because the rights of various parties must be equally protected. Throw in donor compensation in the “marketplace” of egg donation and lines of obligation and responsibility can become even more confused particularly if IVF medical providers also provide egg donor services.
And this exchange between Pamela Madsen and Darlene Pinkerton over at The Fertility Advocate is particularly interesting. In it, Pinkerton, Founder of A Perfect Match (and who, according to this, has resigned from SART because of the ASRM-SART efforts to limit donor compensation) weighs in. She argues:
The compensation issue with ASRM has not been about making sure the donor isn’t placing herself in harm’s way. We can put many safeguards in place to make sure that she fully understands what she is doing so she is making a truly informed decision and not being coerced to do something she doesn’t really want to do. We can make sure they have psychological evaluations and counseling (BTW: not even required by ASRM) and we can make sure they have legal counsel to go over the consent forms and to make sure their rights are protected (again not required by ASRM)… If this is truly about protection of the donor, then why isn’t ASRM insisting on this for every single donor? Why isn’t ASRM actually protecting the donor regardless of compensation she is receiving? Every donor should have counsel, because a donor who works at a fast food place may be more swayed by $5000 than the donor who is asking for more than $10,000 but is a medical doctor or attorney, like some of my donors are. If they don’t evaluate each donor and allow her legal counsel how can they possibly set a dollar number and say that it is unethical? They can’t, which is why I think the dollar amount is far more self-serving. (emphasis added)
[M]aximum wage restrictions are an odd – one might argue, backwards -- response to concerns over the financial coercion of poor women. The ability of any sum to coerce action is a direct function of that person’s financial need. Egg donor compensation caps, without reference to the potential donor’s financial status, do nothing to address financial coercion objections. Ironically, the most likely effect of the ASRM price cap is to drive from the market for eggs used in fertility treatments the most highly desired egg donors, who tend to be better-educated and of a higher socioeconomic status. These donors should be in a better position to evaluate the risks of egg donation against the monetary benefits and should be less susceptible to the “coercive” effects of monetary compensation, because they are more likely to have other income opportunities to choose from.
And this comment from Pinkerton on the incentives of fertility centers with in-house donor programs versus those without is also very interesting and raises a point about variation in the market that I had not thought of before:
So let’s be real… the majority of physicians making these rules have their own in-house donor programs and stand to lose $$ if they can’t be financially competitive with compensation. The ones that don’t have their own donor programs could care less how much a donor is paid as long as everyone agrees and has counsel. Coincidence? I think not. . . .
The whole post is here and well worth reading in full, as is an earlier post on the suit by Pamela Madsen.
Now, lest you think that the blogosphere is full of only thoughtful, useful commentary on the case, don’t worry. There’s plenty of rubbish flying about and I’ll be back next week to highlight some of it for you.
I am pleased to hear that Margaret Raymond, the William G. Hammond professor at the University of Iowa, will be the next dean at the University of Wisconsin. The Wisconsin Law Journal's story is here. And the UW press release is here.
Cribbing now from the Wisconsin Law Journal's article:
Raymond is a William G. Hammond professor of law at Iowa and has been with the school since 1995. She has served in a number of campus leadership roles, including president of the University Faculty Senate. She earned her law degree from Columbia University and has a bachelor’s degree from Carleton College. She served as a clerk to the late Justice Thurgood Marshall of the U.S. Supreme Court and Judge James Oakes of the U.S. Court of Appeals for the Second Circuit.
This is very exciting news for Margaret and the University of Wisconsin!
Given that the trend in Bar passage rates of persons with the same LSAT score (see The LSAT-free Illusion), the Bar passage rates of law schools also follow the same trend—lower Bar passage rates as the LSAT “profile” of entering classes fall. In their study of the July 2004 Texas Bar exam, Stephen P. Klein, Ph.D. and Roger Bolus, Ph.D. found that the differences in the average scores of Texas law schools followed the schools’ mean LSAT scores:
[T]here are large differences in bar exam passing rates among schools. We found that almost all of these differences can be explained by differences in the admissions scores of the students they graduate. For example, there is a nearly perfect relationship between a law school’s mean total bar exam scale score and its mean LSAT score (the correlation is .98 out of a possible 1.00). Many of a law school’s graduates do better or worse on the bar exam than what would be expected on the basis of their own LSAT scores, but these differences almost entirely balance out when the data are analyzed by school. (Response to Question 5) (emphasis added).
In my article, Unpacking the Bar: Of Cut Scores and Competence, 32 J. LEGAL PROF. 67 (2008), I found that law school first-time Bar passage rates fell as the “middle” LSAT of entering classes fell. The cumulative Bar passage rates of law schools are not published in the ABA*LSAC Official Guide to ABA-Approved Law Schools, so a similar study of the association of law school LSAT profiles and cumulative Bar passage rates is not possible, but I would expect a similar result.
The LSAC National Longitudinal Bar Passage Study did not identify by name the law schools attended by students participating in the study. The Bar Passage Study organized law schools into six “clusters” based on varying attributes of the law schools included in the study of Fall 1991 entering classes:
Description of Law School Clusters LSAC Bar Passage Study
Cluster
Description
Group
1
Among least expensive. Slightly below average in size. Slightly above average in selectivity, UGPAs and LSATs. Mostly public schools. (50 schools)
3
2
The least selective, below average in cost, and smaller. Lowest proportion of minority students. Lower UGPAs and LSATs. (18 schools)
5
3
Larger, more expensive, less selective, and lower UGPAs and LSATs than Cluster 1. Mostly private. (50 schools)
4
4
Highly selective, with UGPAs and LSATs among highest in country, but below Cluster 5. Among the more expensive of the law schools. Average size is significantly larger than any other group. (14 schools)
2
5
Most selective and most expensive. Highest UGPAs and LSATs. Much smaller than Cluster 4 schools and much larger than Cluster 6 schools. (16 schools)
1
6
Among the smallest and the least expensive. High proportion of minority students. (7 schools)
6
The “Group” numbers are the LSAC Bar Passage Study clusters, in the reverse order of their LSAT means, from high (Cluster 5) to low (Cluster 6).
The Bar passage rates of the law-school Groups generally followed the LSAT means of each Group:
LSAT Means and Bar Passage Rates LSAC Bar Passage Study
Group
LSAT Mean
First-Time
Cumulative
1
41.4
0.942
0.982
2
38.5
0.896
0.953
3
37.1
0.910
0.960
4
35.2
0.883
0.947
5
32.5
0.806
0.917
6
28.6
0.659
0.779
Looking at Table 1, you might wonder why Interpretation 301-6 might be troublesome. The first-time Bar passage rate in Groups 1 through 5 are above the 80% benchmark for cumulative Bar passage rates. Only Group 6, the group that includes seven schools with generally high proportions of minority students, seems to be at risk. Even in Group 6, cumulative Bar passage rates are with 2.1 percentage points of 80%.
The Bar Passage study was based on Fall 1991 entering classes, and Bar exams beginning in Fall 1994. Since that time, several states have increased their minimum passing scores. SeeDeborah J. Merritt, Lowell L. Hargens & Barbara F. Reskin, Raising the Bar: A Social Science Critique of Recent Increases to Passing Scores on the Bar,69 U. CIN. L. REV. 929 (2001). Using the Multi-State Bar Examination’s 200-point scale, state cut scores vary from a low of 128 (Alabama) to a high of 145 (Delaware), with a median of 135. California has the second-highest cut score at 144. (For a list of state cut scores, see Chart 9 in National Conference of Bar Examiners, Comprehensive Guide to Bar Admission Requirements (2011).
In Unpacking the Bar, I found that state cut scores had an inverse relationship with law-school Bar passage rates: as state cut score rise, law-school Bar passage rates fall. Because the relationship is non-linear, the effect of cut scores is especially pronounced for low-LSAT schools.
Because the first-time Bar passage benchmark is 15% (or 10% under the proposed increase) below the passing rate for ABA-approved law schools, law schools with LSAT scores lower than the average LSAT of in-state takers from ABA-approved schools are most at risk.
So, who is at risk on the Bar exam? Students with lower LSAT scores. Law schools with lower LSAT scores lower than the other law schools in the state, especially in high cut-score states, such as California.
Amidst the confirmation controversy over Berkeley Law Professor Goodwin Liu, you might be interested in his Questionnaire for the Senate Judiciary Committee. It is here. The Questionnaire has an extensive list of his publications beginning at page 8. The Questionnaire also has links to many of Professor Liu's articles and speeches.
The Senate Judiciary Committee's webpage with materials for other nominees in the 112th Congress is here.
And it's about law school transparency. It's right on the merits. Suffice to say, however, it would have been better if it hadn't quoted Bob Morse from US News kvetching about inaccurate reporting (does critiquing deceptive reporting really require a cite to US News?) and suggested that Morse's letter is one indicator that "independent oversight must surely be part of any reform proposal"?
I've cut and pasted the email I just received after the jump.
The University of Arkansas School of Law has announced that Stacy Leeds will take over as dean on July 1. Leeds is the interim associate dean for academic affairs, professor of law, and director of the Tribal Law and Government Center at the University of Kansas School of Law.
Leeds is a citizen of the Cherokee Nation and the University of Arkansas reports that she is the first American Indian woman to serve as a law school dean. She has extensive judicial experience in Native American courts - currently serving as the Chief Justice of the Supreme Courts of both the Kaw Nation and the Kickapoo Tribe of Oklahoma.
Leeds received her J.D. from the University of Tulsa and her L.L.M. from Wisconsin, where she was a Hastie Fellow. And that's not all: she also holds the record for most 3-pointers in the Division 3 NCAA Women's Basketball Tournament!
Next Wednesday I'll be starting a ten-day stint as a faculty member for a fellowship program that allows law students to study professional identity and ethics by examining the roles lawyers and judges played in the Holocaust. The program, called FASPE, is run under the auspices of the Museum of Jewish Heritage in New York. My contribution will be to offer a comparative look at the roles played by lawyers and judges in the incarceration of Japanese Americans in the United States.
If I'm feeling up to it, I hope to blog about the experience here. I say "if I'm feeling up to it" because I'm expecting it to be emotionally exhausting. We start with two days in New York (cheerfully at a hotel that looks out on Ground Zero), then have two days in Berlin, several days at Auschwitz, and a couple of days in Krakow. I've been looking forward to the trip for months, but in these final days my anticipation is mixing with a sense of faint dread. That's a whole lot of sadness and trauma packed into ten days.
But already the trip is paying a black-humor dividend! I went online today to check out the hotel where our group will be staying in Oswiecem, Poland, and found this:
The words at the top made me laugh very hard. I am still laughing. I worry that this makes me a bad person.
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