The Faculty Lounge

Tony Kushner's Open Letter to CUNY Trustees

Playwright Tony Kushner has issued this open letter in response to the decision of the Trustees of the City University of New York to table a decision on awarding him an honorary degree after one Trustee accused Kushner of anti-Israel views.

According to the New York Times (here), Benno Schmidt, Chair of the CUNY board, has called for an executive committee meeting Monday to reconsider the decision.

“Freedom of thought and expression is the bedrock of any university worthy of the name,” Mr. Schmidt, a former president of Yale, said in a statement. “But it is not right for the board to consider politics in connection with the award of honorary degrees except in extreme cases not presented by the facts here.”

Too often, politics -- on the left and on the right -- are the basis on which honorary degrees are awarded (or opposed).  At the time of my undergraduate graduation, a group of students started to organize a boycott of the speech by then-President George H.W. Bush.  When the planned boycott lost traction, other students suggested a silent demonstration during which students would turn their backs to President Bush during the speech.

I stated publicly then and continue to believe that the graduating students had every right to take peaceful action if they chose, but that to boycott the speech or turn their backs to the President would be an outward manifestation of close-mindedness that was antithetical to the university's highest and best values.  Eventually students (myself included) wore white arm-bands (hey, it was the early 90's) to signal disagreement with President Bush's policies and the failure of the University Trustees to consult the students before making their selection.

The selection of commencement speakers and honorary degree recipients is indeed an emotionally-charged, symbolic, and (unfortunately, in my mind) political process.  But the move by CUNY Trustees to table the honorary degree for Kushner because of one Trustee's unsupported rant is close-minded and short-sighted.  Let's hope the executive committee does the right thing on Monday.

What's in Your Email Signature?

For a while, I've had colleagues suggest to me that I add a link to my university webpage and/or SSRN page at the bottom of my email signature.  I know many people now do this and some also include links to YouTube videos and other audio-visual materials highlighting their professional work.  I generally haven't included anything in my email signature other than my contact details because I figure anyone who is really that interested in me can easily Google me.  I guess this is because the only thing I ever seem to use other people's email signatures for is if I need their snail mail address to post something to them or their telephone number to call them.  I haven't really felt compelled to click on html links to SSRN pages or personal webpages myself.  So I wondered if others have thoughts on this.  I've been told it's a good advertisement for your school to include an SSRN page link in an email signature, but pretty much everyone has an SSRN page now so unless people are actually clicking on those links to find out what you've written (and where it has been placed and how often you publish etc), does it really serve any significant marketing function?  I mean, it's obviously not a big deal just to include it, but I do get rather annoyed at how long email signatures are getting these days particularly if you are having an email "back and forth" with someone and they haven't defaulted their email settings to not include the signature in a "reply" or "forwarded" message.

And obviously I know you can have more than one email signature and you can attach an appropriate signature for an appropriate audience ie one could use an email signature with a link to published works etc only when sending emails to people who might not otherwise know about SSRN (eg some practitioners who may not themselves post on SSRN) and use a different more streamlined email signature for other purposes.  But who really has the time to change signatures back and forth on a regular basis?

Hamline Law Professor Robin Magee Sues Dean

Professor Robin Magee of Hamline University School of Law has filed suit against its dean, Donald Lewis, as well as her local police chief.  She is claiming that Dean Lewis and the St. Paul, MN police chief colluded to have her fired.  She alleges that she's been targeted because she is critical of the police.

Magee hasn't taught at the law school since 2009 - she was suspended at that time under charges that she'd failed to pay state taxes.  She was convicted of misdemeanors and is currently appealing.  Find more details at the National Law Journal and TaxProf.

Mary Crossley Stepping Down From Pitt Law Deanship

Dean Mary Crossley announced, today,  that she is resigning as dean of the University of Pittsburgh School of Law, effective July 2012.  She has been dean since 2005.  The law school plans to conduct a search next year with the goal of seamless transition.  I imagine that she'll be a tough act to follow, but (as a correlate) she is creating an attractive vacancy. 

A Co-Working Studio for Law Professors? Writing Alone but in a Group

The folks who write for the New York Times Style section have the distinct ability to make things they write about sound . . . well, stylish.  I had a bit of the green eye today when I read (here) about the work habits of some freelancers and other independent types: "For rising tech stars, sharing a Brooklyn loft beats searching for a Wi-Fi signal at the local Starbucks." "140 characters in a Twitter post cannot compete with 26 characters in a Brooklyn loft," the NYT proclaimed.  

Co-working requires several individuals to pay a few hundred dollars each month for desk/computer space in a shared environment.  Folks who otherwise would be working alone have the companionship and possible synergies of working near other creative people.  The ground rules for functioning well in this kind of environment?   "1.  Show up, 2. Bring some work to do, 3. Don't be a jerk," according to a founder of one co-working space for freelancers. (Read the rest of the article here.)

Of the law profs I know, some folks can get summer writing projects done in their offices.  Others prefer a library or the comforts of home.  A few folks do good work on airplanes or a mini-vacation.  Some make "writing dates" with others (or themselves) at cafes.  But I don't know anyone who works in an expressly-designated co-writing space.

Might a co-writing studio work for law professors or other academics who need to write intensively over the summer?  Would it work only in large cities, where one could be reasonably assured that the co-writing space would not be filled with the same colleagues one sees at the office?  Or would such a project be doomed to fail, because law profs might have trouble with a few of the "rules"?   (My guess is that most would not have any trouble with the "bring some work to do" rule.)

 

Michael Martin Named New Fordham Dean

In what must be called an unexpected turn of events, Fordham University has selected Michael Martin as the new dean of the law school.  Martin has been the interim dean since the departure of Dean Bill Treanor for Georgetown.  Why is the news unexpected?  

Check back to the recent updates to our dean search list.  There were three finalists for the Fordham deanship: Tom Lee, Robert Schapiro, and David Partlett. After a flurry of activity - including a declined offer and withdrawl - there were no candidates left standing.  So it appears that the university simply moved forward on Dean Martin.

From the university administration's point of view, this makes a ton of sense.  What university president wants a key college operating without permanent leadership?  He probably perceived that Fordham couldn't afford another year of dean searching. And by his actions, the president is telling us that he liked working with Martin and trusted him.  In any other college within a university, this decision would probably have been a no-brainer.

Of course, when it comes to law schools things aren't so simple.  Standard 206 of the ABA accreditation regulations requires that a law school dean  be chosen with the advice and consultation of the faculty or a representative body thereof.  And the dean cannot have substantial faculty opposition.  

It is not at all clear that a university administration must hold a vote or even consult with the faculty at large when picking a dean.  For example, if the president's move was approved by the dean search committee (and I don't know if it was), this might qualify as the necessary "representative body."  Similarly, it seems like he could probably conduct a straw poll of faculty to insure the absence of substantial objection. And my understanding is that the faculty broadly respects Dean Martin.  

But this story is sure to generate some interesting buzz.

Update: I have learned that Dean Martin's candidacy was considered and supported by the dean search committee.  The committee includes eight law school faculty members.

Tulane Law Seeks Visiting Assistant Professor

Tulane Law School is accepting applications for a new two-year visiting assistant professor position supported by the Murphy Institute,  an interdisciplinary unit specializing in political economy and ethics.  The slot is designed for scholars focusing on regulation of economic activity very broadly construed (including, for example, research with a methodical or analytical focus relevant to scholars of regulation). It is also designed for individuals who plan to apply for tenure-track law school positions during the second year of the professorship.

The VAP will be expected to participate in scholarly activities at the law school and at the Murphy Institute, including faculty workshops, and will be expected to teach a law school course or seminar in three of the four semesters of the professorship (presumably the last three semesters).

To apply, please send a CV identifying at least three references, a law school transcript, electronic copies of any scholarship completed or in-progress, and a letter explaining your teaching interests and your research agenda to Adam Feibelman at [email protected].

Reading Cert Denial Tea Leaves: Catholic League v. San Francisco

Trying to read anything into denials of certiorari may be of even less utility than predicting outcomes, but the Supreme Court's denial of certiorari on Monday in Catholic League for Religious and Civil Rights v. City and County of San Francisco (10-1034) raises a few questions.  A little background:  San Francisco's legislative body adopted a resolution condemning Cardinal William Levada, the head of the Roman Catholic Congregation for the Doctrine of the Faith (sometimes called the Holy Office), for his decision to direct Catholic Charities to end adoptions by same-sex households.  The plaintiffs -- a Catholic civil rights organization and "two devout" Catholic residents of San Francisco contended that the resolution -- which characterized Cardinal Levada's action as "hateful,"  "callous," "ignorant" and "discriminatory" -- violated the Establishment Clause.  A panel held otherwise and the Ninth Circuit, en banc, affirmed.  A majority of the en banc court ruled that the plaintiffs had standing, but a somewhat different majority ruled that on the merits there was no Establishment Clause violation because the resolution was secular commentary on an issue of public concern.  Here is the Ninth Circuit's en banc opinion.

Now cut to the Seventh Circuit's opinion in Freedom from Religion Foundation v. Obama, in which a Seventh Circuit panel declared that atheists offended by the congressional requirement that the first Thursday in May (that's May 5 in 2011) be proclaimed by the President as a National Day of Prayer lacked standing due to want of personal injury in fact.  So, if the Court is happy to let stand the Ninth Circuit's generous view of personal injury in symbolic affronts to religious sensibilities will it be equally likely to let stand the Seventh Circuit's more restrictive view of the same issue?  Or is denial of cert in Catholic League a recognition that the outcome would be same whether decided on the merits or by a determination that the plaintiffs lacked standing?  Who knows, but it's mildly interesting to raise the questions.  Your thoughts?  

Updated Visiting Faculty List

A current version of the visiting faculty list for 2011-2012 is available here.  I note that it does not include VAP positions and it does not include visitors who do not hold permanent faculty positions at schools other than the school at which they are visiting.

Oakwood Cemetery in Raleigh

Recently after a meeting in Raleigh I had the chance to visit the Oakwood Cemetery there, which has been on my agenda for a long time.  It was dedicated in 1869 and, thus, isn't properly within my frame for scholarly study (given that my scholarly interests stop at the beginning of the war and pick up again in the early 20th century).  I'm usually more interested in pre-Civil War cemeteries, like the Old Raleigh Cemetery.  But I'd heard a lot about it and wanted to check it out.

It was even better than I'd imagined it would be -- in part because it's a lovely setting, but even more because there are so many people I study who are buried there.  My first stop just happened to be a section where Charles Manly, Jr. -- son of the man I study sometimes -- and Senator George Badger are both buried.  At first I thought that was the section of the cemetery were the UNC graduation speakers were buried -- but as I was wandering around I was drawn to a very unusual monument -- one with a bust of a decedent.  (See picture at the upper right.)  And you know what?  It was B.F. Moore!  I'm interested in him for all sorts of reasons -- he argued several hundred cases in the North Carolina Supreme Court, including one on behalf of a slave, Will, accused of killing his overseer.  And B.F. Moore gave a graduation speech at UNC.  Maybe if I get some time this summer I'll get around to the article on Moore that absolutely needs to be written, about how his Whig political philosophy -- which focused on the subordination of individuals to the rule of law -- led to his advocacy on behalf of slaves.  He's ripe for historical recovery, especially now that we're all interested in professional responsibility again.

Right near Moore is the grave of William H. Battle, a member of the North Carolina Supreme during the Confederacy whom I studied a long, long time ago.  (You can see the Moore monument behind and just to the left of Battle's monument.)  Dig the scales of justice on Battle's monument.  And close followers of legal education might recall that Battle also taught at the University of North Carolina's law school for a while before the Civil War.  Back in those days, law school was two years long and they read such books as Greenleaf's Evidence, Adams' Doctrines of Equity, Stephen on Pleading, Chitty's Pleadings, Fearne on Remainders, Cruise's Digest of Real Property, and Selwyn's Nisi Prius, and of course Blackstone's Commentaries.  Pretty scary stuff if you ask me -- a feeling I had when I saw an examination from the pre-Civil War UVA law school a while back.  All of which reminds me that I need to post a picture of the UNC"s first law building, out on Franklin Street.

But the high point -- and there were a ton of high points in my visit -- was the monument to Chief Justice Pearson, another North Carolina jurist I wrote about a long time ago.  Remember how I write about judicial decisions as monuments?  Well, get this -- one inscription on Pearson's monument reads "His epitaph is written by his own hand in the North Carolina Reports."  I love this -- more evidence of how people at the time understand opinions to be monuments.

There was also a monument to a student who died at UNC in 1852 and had a monument placed by the Dialectic Society.

In short, I'm going to be headed back there again for some really serious study when I have some more time.  I'm astonished at how many important pre-War politicians and lawyers are all there in one place -- further testimony, I suppose, to the importance of the constellation of ideas about Whig politics and cemeteries.

Kim Krawiec

This being spring, it's time for awards and Kim is too modest to talk about this, so I'm going to.  Duke Law School Dean David Levi announced last week that Kim has been named the Kathrine Robinson Everett Professor of Law by Duke's trustees.  I'm cribbing now from the Duke press release:

A highly regarded scholar in corporate law and financial markets who joined the Duke Law faculty in 2009, her research interests span a variety of fields, including the empirical analysis of contract disputes; the choice of organizational form by professional service firms, including law firms; banned commercial exchanges; corporate compliance systems; insider trading; derivatives hedging practices; and "rogue" trading.

“In 2000, she wrote an article in the Oregon Law Review making an argument that was unusual for the time but now appears prescient,” said [Duke University President Richard] Brodhead in his citation, “that banks had an incentive to reward ‘rogue’ trading because the increased risk meant they would profit from this activity.” Krawiec’s recent scholarship addresses issues of diversity in the corporate boardroom and organizational misconduct and trade within forbidden or contested markets, including the competing forces at work, such as altruism and money, in the “baby market.”

At Duke Law, Krawiec teaches Business Associations, Financial Derivatives, Taboo Trades and Forbidden Exchanges, and Readings in Ethics.

Of course, Kim is known to readers of this blog as an expert on board diversity, among many other topics.

The historian in me requires that I note that people interested in Kathrine Robinson Everett -- class of 1920 at UNC Law -- should consult her papers at Duke and the oral history collection at UNC.  And those of us over in Chapel Hill may recall that our law library is named after Kathrine Robinson Everett.

Whiter Boards And Dangerous Categories At The Huffington Post

Over at the Huffington Post, in Corporate Boards Getting Whiter While America Is Not, Janell Ross discusses the new Alliance for Board Diversity 2010 census, which shows that white men have increased their share of board seats in the Fortune 100 since 2004, while black men's share has decreased.  I’ll be back with much more on the new census later. 

But Ross also discusses the recent research that Lissa Broome, John Conley, and I have been doing on corporate board diversity, which I’ve discussed here, here, and here.  Says Ross: 

Another problem may be one that, for years, passed as the solution to all types of discrimination: ignore or at least avoid talking about difference.

When [Lissa L.] Broome and her research partners interviewed corporate board members around the country about the issue of diversity, many of the people interviewed expressed confidence that board diversity is valuable but were unable to articulate specific ways in which it affected decision making or shaped outcomes.

“I think part of the problem is that people are very uncomfortable talking about race and gender,” said Broome, who is white. “Talking about that is not politically correct or may not feel that way for a lot of these directors.”

As we say in Dangerous Categories: Narratives of Corporate Board Diversity:

This expressed reluctance to come to specific terms with general claims about the value of director diversity inspired our title phrase: dangerous categories. That is, while “diversity” evokes universal acclaim in the abstract, our respondents’ narratives demonstrate that it is an elusive and even dangerous subject to talk about concretely. The fundamental reason for this awkwardness is readily apparent: to argue that diversity matters in some specific way is to argue that diversity is a proxy for difference. Yet to suggest group-based difference is to open the door to both stereotyping and invidious comparison. Everyone in the debate has a vested interest in not walking through that door. Those who are not members of the excluded groups do not want to be heard to say that “they” are all alike, whereas those who are members do not want to point to fundamental differences that might be translated as “less qualified” or “needing assistance.” So we are left with narratives that simultaneously extol difference and express embarrassment with it.

I’ll be back with more detail and analysis on the Alliance for Board Diversity census shortly.  In the meantime, I know what you’re thinking: “Gee, Kim, what else have you written on this topic and where can I get an immediate copy?”  Your wish is my command.  Our forthcoming and existing works on board diversity include: 

Narratives of Diversity in the Corporate Boardroom: What Corporate Insiders Say About Why Diversity Matters

Does Critical Mass Matter? Views from the Board Room

Signaling Through Board Diversity: Is Anyone Listening?

Dangerous Categories: Narratives of Corporate Board Diversity

La Verne Law Seeks Contracts Visitor

The University of La Verne School of Law, just outside of LA in Ontario, California, has an unexpected need for a Contracts visitor in academic year 2011-12.  Contracts at La Verne Law is a year-long 6 credit course. The visitor will also teach Sales in the fall semester and an elective in the spring semester. Please direct inquiries to Associate Dean John Linarelli.

Because It's the Time of Year for Avoiding the Grading of Exams ...

... I offer you this.

The Fab Faux - Abbey Road Side 2 (mostly) from The Fab Faux on Vimeo.

Handwriting in the Computer Era

My Aunt Jody has the neatest handwriting of anyone I know.  When I was growing up in the 1970's, any day I received a letter from Aunt Jody was like a holiday to me.  First, receiving a letter back then was a very exciting thing.  As a young child, I was fascinated by the mechanics of a postal system that could deliver a letter from her hometown in southern Ohio to my home in the suburbs of Cleveland.  The multiple steps involved in mail delivery were the source of much wonderment in my my young mind.  The other special thing about receiving a letter from Aunt Jody was that she wrote in cursive.  I felt so grown up when, at 4 or 5 years old, I could understand adult handwriting.  Aunt Jody's script was and is beautiful and precise (true sample at right).  To this day, she has the best penmanship anyone in my family. 

Today, my fond thoughts of Aunt Jody's beautiful script are inspired by the hours I spent hunkered down with my students' bluebooks.  I have just begun grading the exams for my Trusts & Estates course.  In a class of about 90 students, approximately 75% elected to use the school-provided software for writing exams on computer.  (My school now uses Exam4 by Extegrity.)  Approximately 25% of my students wrote their exams long-hand.  This semester I was struck by the number of students in that latter group who wrote in block letters or print, instead of in script/cursive.  The New York Times has proclaimed (here) a downward trend in the number of young people who are skilled in the craft of cursive writing:  

With computer keyboards and smartphones increasingly occupying young fingers, the gradual death of the fancier ABC’s is revealing some unforeseen challenges.

Might people who write only by printing — in block letters, or perhaps with a sloppy, squiggly signature — be more at risk for forgery? Is the development of a fine motor skill thwarted by an aversion to cursive handwriting? And what happens when young people who are not familiar with cursive have to read historical documents like the Constitution?

I must confess that I had never considered the research-related implications of a preference for cursive, but it makes sense.  If one doesn't write much in script, one's "fluency" with it likely declines as well.  

 

That being said, my guess is that proclamations the death of fluent handwriting are a generational refrain.  As part of the licensing process to become an elementary school teacher in Ohio in the 1950's, Aunt Jody and other aspiring elementary school teachers took a required penmanship course.   Teachers-to-be received weekly assignments by mail from the Zaner-Bloser company (originally the Zanerian College of Penmanship established in Columbus, Ohio in 1888).  The teachers-to-be completed the assignments and then returned them to Zaner-Bloser for feedback and grading.  Conformity to the standard style (sample immediately above) was the basis on which teachers-to-be were graded.  Folks trained under that system no doubt lamented the inability of my generation to write in "proper" cursive.  

It's true that my handwriting doesn't hold a candle to Aunt Jody's, but it's not that horrible either.  And my students' handwriting is quite comprehensible.  So, I won't join the "death of handwriting" chorus but I will praise Aunt Jody's neat script all the same.

A Cert Pool For Law Review Submissions?

In a recent post, blogger Dustin Cho (a former HLR editor), argues that law faculty should share information about the offer practices of the various law reviews.  If professors knew both how quickly a journal reviews articles, and whether it uses exploding offers, they could submit articles to journals strategically.

Cho's post is reasonable, but unfortunately fails to account for the full scope of the whacked-out law review submission process.  Among other things, it appears that many journals engage in a review practice that consists principally of sorting high value authors out of the mix, reviewing their work first, and waiting for expedite requests regarding all other submissions. 

You can't blame journals.  When a mid-level law review receives 1500 submissions, knowing full well that hundreds of these authors would ultimately decline an offer if one was made, it becomes hard to figure out how to use the journal's limited reading resources - and how to do so in a way that does not totally undermine morale.  My sense is that the journals that read the highest percentage of submissions are at the edges of the rankings.  The super-elites, like HLR, seem to at least scan everything (and can do so because they have large boards made up of editors willing to kill themselves for the journal.  These journals also seem to devolve reading responsibilities far more widely than most law reviews.)  Journals with the least developed reputations receive small numbers of submissions and are therefore able to read them all.  But the journals in between are crushed by volume and cannot call upon the labor resources available to the super-elites.

One possibility might be for a group of journals to create the equivalent of a cert pool.  If 75 law reviews got together and pitched in two editors to read and review articles, they could burn through 500 articles quickly.  The journals could take a week or two break and then hold a draft.  Just as in football, for example,  journals would choose both on absolute quality and topical need.  Assuming that the 75 journals agreed not to poach each other, this would radically reduce the size of the pool of journals engaging in expedites.   And while some individual journals in individual years might be slightly weakened, I suspect that the overall boat would rise - while making everyone's life happier.

I'm sure one could come up with a number of complaints. 

What about variable quality of student memos?  What about strategic production of bad memos - when a journal wants to protect a piece for itself by burying it under a negative cert memo?   One way to address these issues - at limited cost - would be to assign every piece to two readers. 

How would you order the draft?  One could use lots - but one could also rely on W&L or USN rankings - on the theory that the better ranked journals will typically have their pick anyway.  The lower ranked journals still win, because they will get their first choice before the other journals select a a second (or perhaps third - see below) piece.

What about law school reputation - everyone wants their school to claw ahead, and this might flatten journal quality?  Perhaps, but I suspect that journals that work harder investigating and reading pieces will still do better. 

What about journals that publish more issues and need more articles - won't they be hurt in the process?  One possibility would be to weight the draft and give schools taking more pieces more picks each round.

University Of Manitoba Names Lorna Turnbull First Female Law Dean

The University of Manitoba has named Lorna Turnbull the new Dean of the Faculty of Law.  Her term runs until June of 2016.  Turnbull, who joined the faculty at Manitoba in 2001, served as associate dean from 2005-2010, and sits as interim dean, received her Bachelor of Laws from Ottawa and her JSD from Columbia.

Seeking Comments on a Draft: A Question of Etiquette

Posted at the request of a friend who is a law professor:

"I want to hear from law profs about the etiquette of asking faculty at other (higher ranked) schools to read and comment on article drafts being prepared for submission.  Is it important that the author actually KNOW the person before asking him or her to review an article draft?  Or to have some excuse for soliciting input (i.e., the article cites/discusses his or her work)?  Or is it OK to ask anyone in the relevant field, expecting that many will simply decline or be unresponsive?"  

Blogging On Law School Financial Aid & The New York Times

Lots of people have been reading and pondering yesterday's New York Times article, Law Students Lose the Grant Game as Schools Win.  (Listen to a podcast with article author David Segal here - go to 26:10 to cut straight to the discussion.)  I thought it might be useful to aggregate all the relevant blog posts.

Al Brophy had an early comment here.

Volokh features posts by Kenneth Anderson, Orin Kerr, and Eugene.  

Paul Caron has a post up (with extensive NYT excerpt) at TaxProf.

Law School Transparency proposes a new disclosure standard.

Mike Dorf talks about law schools and the antitrust exemption here.

Student comments on the piece are over at Nuts & Boalts.

Jerry Organ's paper The Impact of Scholarship Programs on the Culture of Law School is here.

Update:

The WSJ Blog weighs in here.

Jeff Lipshaw ponders the nature of full disclosure here.

Is Reading the Bible Outside the California DMV a Crime? Constitutionally Protected?

Members of an evangelical Christian church in Hemet, California were recently arrested for reading the Bible aloud within earshot of a group of people waiting for the DMV office to open.  They were charged with violation of California Penal Code section 602.1(b):  

"Any person who intentionally interferes with any lawful business carried on by the employees of a public agency open to the public, by obstructing or intimidating those attempting to carry on business, or those persons there to transact business with the public agency, and who refuses to leave the premises of the public agency after being requested to leave by the office manager or a supervisor of the public agency, or by a peace officer acting at the request of the office manager or a supervisor of the public agency, is guilty of a misdemeanor, punishable by imprisonment in a county jail for up to 90 days, or by a fine of up to four hundred dollars ($400), or by both that imprisonment and fine."

Here is a video of the event.  The justification offered by the arresting officer is that the waiting crowd was a "captive audience."  As a statutory matter, one must wonder whether the activity depicted in the video amounts to obstruction or intimidation.  Annoying perhaps, but obstructing? Intimidating?  However, the arrested preachers have filed suit in federal court alleging that their free speech rights under the federal and California constitutions were violated.  Here is the complaint.  Here is a news article from the Riverside Press-Democrat.  Prof. Carl Manheim of Loyola (LA) law school is quoted in the article to the effect that the complaint has little chance of success absent proof that Bible preaching was singled out for punishment.  I'm not so sure about that.

The parking lot and sidewalk outside the DMV office is very likely not a public forum.  Kokinda.  Thus, speech may be suppressed if the suppression is reasonable, meaning that the speech is incompatible with the normal activity of a particular place at a particular time.  This is a deferential standard, but one must wonder whether an annoying harangue (whether from a political candidate, a mentally disturbed person, a vendor of coffee, or a Bible reader) is incompatible with a parking lot and sidewalk outside an as yet unopened public office.  Moreover, the California Constitution extends free speech protection to persons speaking on private property voluntarily opened for public access.  The DMV's parking lot seems to me to be functionally identical to the public areas of the PruneYard shopping center, so the plaintiffs may have an even better constitutional case under the California Constitution. 

Prof. Howard Friedman, Religion Clause blog, first posted this issue.