The Faculty Lounge

Life is a Carnival

Thank you to Jacqui, Dan and everyone for welcoming me as a guest here.

On April 19, 2012, Levon Helm died.  Before he left this world, he left us with much to celebrate.  Today, I thread The Band through this post to introduce myself and to pay tribute to a great drummer, singer, lyricist and person.

One of my fond high school memories is driving from Cincinnati, Ohio to a Notre Dame home football game with my father, Joseph P. Tomain, Dean Emeritus at the University of Cincinnati College of Law.  We drove in his, later to be mine, 1984 Corolla.  I don't remember who they played or if they won.  I do remember that our '84 Corolla lacked a cassette player. So, we brought a boom box.  We listened to the live recording, Before the Flood, by Bob Dylan and The Band. 
I'll always remember that trip and that boom box playing Before the Flood from the backseat. It's amazing how music can place and hold memories in our lives.  I went on to attend Notre Dame for undergrad and law school.

Speaking of Notre Dame, I enjoyed tuning into The Daily Show in March 2012 to see my Contracts professor, Cathleen Kaveny, discussing her forthcoming book, Law's Virtues: Fostering Autonomy and Solidarity in American Society.  My favorite line of the interview came when Stewart asked Kaveny, what's the difference between a Catholic institution providing health insurance that includes contraceptive coverage and paying an employee a salary who later spends some of that money on contraception.  Kaveny's reply:   "You could be a moral theologian."  Nice work, Prof. Kaveny!  The Band have their moments of moral theology, as well.  (see e.g. When You Awake).

Speaking of teaching Contracts, when I send an email to my class, I usually quote some lyrics and provide a link to a version of the song below my signature.  After Levon passed, I quoted "The Weight" and included a RIP for Levon.  While a few students had commented on evaluations that they enjoyed these treats at the end of my emails, none ever brought it up in person, until this one.  A twenty-something student stopped me after class to say he enjoyed the quote and had recently been watching Martin Scorsese's The Last Waltz in memory of Levon.  I'm happy to know that some students find a connection in this extra-legal dialogue.

Finally, I play in an Ultimate Frisbee league in Jacksonville, Florida.  (A couple of law students play in the league as well. Like the vast majority of Ultimate players I know, these law students are great people.)  When my team captain solicited ideas for our team name, I offered a few names in honor of Levon.  Our team adopted the name, "Cripple Creek."  While I'm thankful these youngsters indulged me and took a liking to Cripple Creek, my favorite team name idea was, "The Shape I'm In." (could be better, could be worse, but I digress)

Throughout May, I look forward to combining my love of law and music with various topics to share with the Lounging community.  And remember, Life is a Carnival.  Enjoy Being!

Testamentary Freedom and Gender Discrimination

As I've been working on testamentary devises in the Shenandoah Valley before the Civil War I've been thinking a great deal about the differences in how male testators treat their wives and daughters from how they treat their sons.  The key difference Doug Thie and I have been focused on is fathers who leave property in trust to their daughters and outright to their sons (and often how they make their sons trustees of the property left in trust to their daughters).  I've been interpreting this in a somewhat positive fashion -- as in they are leaving property in trust so that their son-in-laws can't get their mitts on the property.  

There's also a piece of this that I hope Dana Remus and I will be talking about in a paper down the road on how the pre-War trusts that restricted the beneficiaries' (most frequently daughters') rights to alienate their interests led the way to spendthrift trusts.  The cartoon version of the story of the spendthrift trust is that it emerged in the northeast as a way of protecting spendthrift children from losing their inheritance.  We're now thinking this may be been more a way of protecting women's property from their husbands (and there were some substantial restrictions on the wives' rights over the trust property, so that their husbands could not coerce them into giving up their property.)  These trusts pre-dated in many cases the married women's property acts of the 1840s and 1850s -- and also provided often more protection than those acts did.  And can I add that I think this trend emerged first in the south -- which is a theme Stephen Davis and I hypothesized in our forray into probate in an affluent county in Alabama before the War.  (Richard Chused has told some of this story already in his important work on the Married Women's Property Acts.)  The trusts smack of -- literally -- paternalism, of course.  I think there's also an important story to tell here about the gendered nature of the origins of the spendthrift trust.

Anyway, I see an important new paper, "Property and Belongingness: Rethinking Gender-Biased Disinheritance," by Shelly Kreiczer-Levy of the Academic Center of Law and Business Meital Pinto of Carmel Academic Center - Law School and the University of Toronto.  It explores the darker side of gender-discrimination in contemporary devises to children.  Beyond their exploration of the problem, I'm most interested in their proposed solution: to refuse to give effect to gender-biased devises.  I know we're now officially in pretty radical land, but sometimes I wonder if there should be forced shares for children as well as spouses.  Whatever one thinks about this, I think you'll enjoy the paper if you're a T&E teacher.  It illustrates some of the exciting work that's being done in T&E these days.

The image is a picture I took last summer of the James River outside of Lexington, Virginia.

Law Students, The Witching Hour, and Their Books

I'm wishing good things for my property students who're taking their exam tomorrow morning and thought that I'd post a fragment of a letter I came across in an archive about studying law.  It's a letter from 1846, from a law student to a friend of his back at Washington College (now Washington and Lee).  The student opens the letter in this way:

It is now quite late at night.  My watch is not running but judging from my fire and candle it can not be far from the witching hour when ghosts troop home from church yards.  Having just laid aside my law book over which for several hours I have been [hovering?] I set down to write....

What an opening, eh?  It really drives home the surroundings -- that his watch isn't working and so he doesn't know exactly the time, but he can judge it from how far the candle (and fire) have burned down.  What I did not realize until now is what the witching hour is -- apparently midnight -- and that the phrase "witching hour" came into our lexicon through Washington Irving's "Legend of Sleepy Hollow," or so wikipedia says.

The illustration is of Washington and Lee -- though I thought about using Rembrandt's Scholar by Candlelight, which I wrote about back in December.

Updated Faculty Visitors List ...

The updated list is here.

Please keep sending comments/corrections to me at:  JDL14@case.edu (or comment below).

 

Introducing Guest Blogger: Joseph Tomain

It is my pleasure to introduce a new guest blogger for May, Joe Tomain.

Professor Tomain is an Assistant Professor at Florida Coastal School of Law.  Prior to joining Florida Coastal, he served as a VAP at the University of Louisville Brandeis School of Law.  His teaching and scholarship focus on free speech rights, media law, cyberlaw, intellectual property and contracts.  This summer, he is participating at the Free Speech Forum, hosted by the University of Notre Dame’s London Law Centre, and at SEALS. Beyond law, his interests include playing Ultimate Frisbee and live music.

Welcome to the Lounge, Joe.  Looking forward to your posts!

Adventures in Law-Firm Management: Manhattan DA Investigates Former Dewey LeBoeuf Chair For Financial Crimes

The New York Times reports that Manhattan DA Cyrus Vance, Jr. is investigating the recently displaced Chair of troubled New York law firm Dewey LeBoeuf, Steven Davis, for financial “misconduct,” and that the firm is also contemporaneously conducting its own internal investigation.  Beyond the schadenfreude some will be tempted to indulge, so what?  There is nothing new about a large law firm overextending itself in one way or another, and losing the confidence of its key partners.  We’ve seen that with some regrettable frequency in the last ten years:  Brobeck, Heller, Thelen, WolfBlock, Thacher Proffitt, and Howrey to name a few.  There is also nothing new about a rogue managing lawyer using his firm as an instrument of fraud:  Scott Rothstein and Marc Dreier are two especially audacious recent examples, both involving tens or hundreds of millions of dollars. 

But this is neither of those.  The Times does not report what kind of “misconduct” the DA is investigating, so we need to guess.  It is possible that the concerns relate to the 2007 merger between Dewey Ballantine and LeBoeuf Lamb, and the representations that the merging firms made to one another in that transaction (which, if knowingly false, could conceivably amount to securities or other criminal fraud on one partnership or the other).  This is long enough ago that there may be limitations issues. 

It is possible that the DA’s concerns have to do with Dewey’s unusual recourse to a privately placed debt offering in 2010 to borrow $125 million to sustain firm operations.  (See here.)  Law firms virtually always borrow from commercial banks; in fact, many of the larger firms borrow from Citibank, which has widely recognized expertise in lending to large law firms.  Dewey’s debt offering was, if not unprecedented, extremely uncommon and raised some eyebrows at the time.  (Aside:  Is any reader aware of any other private or public debt issue by a law firm?  Please post in the comments if you are.)  Perhaps the DA is investigating the disclosure accompanying the private placement or the use of its proceeds.

Dewey’s partners have also complained bitterly of late that the firm squandered its birthright on salary guarantees to certain managers and key “rainmaker” partners, including a number of laterals recruited with such guarantees.  When times got hard, partners without guarantees suffered the brunt of the firm’s disappointing performance so that it could honor the guarantees.  Perhaps the DA is investigating firm management’s authority to have extended such guarantees (particularly to themselves, if in fact they did), or what kind of disclosure to the partnership was or wasn’t made regarding them.

The point for right now is that we don’t know what conduct people suspect may have crossed the line from plain old bad management to financial or securities fraud.  But if any crime was committed, it does not appear to be the more recurrent one of a single partner or small group of partners stealing clients’ or third parties’ money, with predictable spillover effects on other partners depending on their degree of notice or knowledge.  This investigation sounds more like a Tyco (management looting the company’s own assets) or Worldcom (accounting fraud on investors). 

Sadly, there’s nothing particularly unusual about this kind of financial or securities fraud—lawyers defend issuer, underwriter, officer and director clients in these kinds of cases every day of the week, and have done so since there were securities laws.   Some of those clients are exonerated, and some are not.  But what’s different and, I think, unusual about this situation is that here the prosecutor may eventually contend that the Tyco or the Worldcom is a large, old, white-shoe New York law firm (two, actually); that the Dennis Kozlowski or Bernard Ebbers (so few Bernies in the world, Lord, and two of them have to be Bernie Ebbers and Bernie Madoff!) is the law firm’s managing partner; and that the victims of any fraud that may be alleged are owners (partners, or in the case of institutional debt holders, we could say investors in a sense somewhat different from a commercial bank) in a large law firm.  Can any reader remember another case in which financial fraud of this particular kind by large law-firm management may have been at issue?  Please enlighten us in the Comments.

In fairness to all involved, I want to stress that all we appear to know at this point is that the Manhattan DA is investigating.  No charges may be laid, and if they are, they may not be proved. But if proof of foul play does emerge, does it tell us anything new or interesting?

One possible insight is that we as lawyers are subject to the same flaws and follies as our clients.  That’s nothing new, of course, but this is the first time of which I’m aware that the principle has penetrated in this way and to this degree at a large, white-shoe New York firm.  Why now?  It seems likely that, whatever other principles are at play, the astronomical compensation expectations by large-firm partners and the frank competition for rainmaking talent among large law partnerships have eroded the more detached managerial long view that may have been more prevalent in a different age.  For reasons I have no space to explore here, this kind of competition is inevitable in contemporary markets for legal services and legal talent.  But if, as Richard Abel and others have convincingly argued, “professionalism” is a bulwark against competition, competition’s ascendancy spells professionalism’s decline. Our responsibility at this point is not to waste time wringing our hands and eulogizing les neiges d’antan, but to figure out how best to manage here and now.

Another possible insight from these events is that it illustrates the continuing decline of “real” law partnerships, or to put it in more conventional jargon, the increasing disconnection of ownership from management in larger law firms, and the predictable agency risks and costs that result.  With the profoundly increased size and concentrated management power at larger law firms (and larger accounting firms, for that matter), law partners are less and less partners, and more and more nonmanagerial owners more analogous to shareholders in larger companies.   And a quick look at any securities litigation advance sheet is all the reminder you need about what happens to them from time to time. 

--Bernie

Employment Outcomes V: Some Speculation On Who Gets School-Funded Bridge Positions, And Whether They’re A Good Idea

We’ve been examining the phenomenon of law school-funded “bridge” positions—short-term jobs for recent graduates funded by the school, which apparently have become strikingly more common since the legal job market began its collapse in late 2008.  Are they a good idea?

In my view, whether bridge positions are a good idea depends on who’s getting them, and what they are.  For the most part, it seems safe to say that most of the people getting these positions are people who have not found a job by graduation.  (This may not be universally true:  In response to an earlier post in this series, a commenter who claimed to be a recent Yale Law graduate asserted that Yale’s “fellowship” program exists primarily not to help place students not otherwise employed, but rather to assist graduates who have existing employment options find the scarcer government and public interest jobs that they would prefer to the private-sector offers they already have.  The marked increase in school-funded bridge positions since the collapse of the legal job markets strongly suggests that, assuming the comment is accurate, the motivations and needs of Yale Law and its graduates are not typical.)

Why are these individuals not yet employed?  If we overgeneralize a bit, we can find some plausible reasons.  One group still unemployed at graduation is as employable—whatever that entails—as their classmates who already have positions, but seek (or are capable of promptly getting and will accept) jobs such as those in government, nonprofits and very small firms that often require bar passage before an offer, and sometimes even as a condition of an interview.  These students are doing fine, but are on a “glide path” that, because of the nature of the job they seek and will eventually obtain, is naturally somewhat longer than that for the recipients of some other positions. 

Now let’s focus on the students who are unemployed at graduation because they are less employable than their classmates.  Most likely they have one or a combination of three principal features:  (1) Suboptimal class standing; (2) Deficient interview or other interpersonal skills; and/or (3) Lack of motivation or work ethic.  My guess is that poor personal skills are largely independent of poor grades and poor motivation; that is, they accompany one of the other two more or less as often as they don’t.  Substandard grades and substandard motivation are probably somewhat correlated:  while some people with poor grades have worked hard but lacked some combination of the educational or cultural preparation and raw ability to do well, others have found that they dislike the material or dislike hard work (or both), and have not performed in school up to what some educators would call their “potential.”  To be clear, I appreciate that these are gross oversimplifications and omit all kinds of other plausible causes (e.g. substantial competing commitments such as single parenting; personal crises during school; etc.).  But because of the importance that most employers attribute to law school grades, poor class standing is a significant stumbling block more or less regardless of its cause.

For which of these students is a bridge position a good idea?  Simply put, it will be for those who will become materially more employable because of the experience, references or other qualifications the short-term position will provide them.  In part that will depend on the kind of bridge position they occupy.  Positions directly with the subsidizing law school will be largely unhelpful in this regard—most employers will not be impressed with students who have spent time since graduation shelving books in the law library, and will be only marginally more impressed with most work as an academic, administrative or research assistant.  Nor do many positions like these much help candidates slower to develop interpersonal and workplace survival skills learn how to fit in and get along.  Real legal work with a public interest or nonprofit organization, on the other hand, can provide actual hands-on workplace and practice experience that is easily generalizable to private or government practice, and a reference from an experienced practitioner who can speak to the candidate’s performance as a practicing lawyer.  And while hard quantities are scarce, it does appear that most of the bridge positions schools currently fund involve a monetary “fellowship” or “stipend” for recent graduates while they provide otherwise unpaid short-term assistance to public interest, nonprofit or government legal agencies.  In short, the limited and anecdotal evidence available suggests that quite a lot of these school-funded positions are the right kind to increase the graduates’ employability.

What’s more, in the current oversubscribed job markets, there appears to be a fair complement of less employable recent graduates for whom this experience makes a difference.  This is illustrated (if not measured) in the real world by the limited information we have about what happens to recipients of school-funded positions, which suggests that a fair number actually do find full-time paying law jobs.  How many of these students would have found jobs without the bridge position is anybody’s guess, of course, but it would not be unreasonable to guess that it’s fewer.

So, at least at present, we can hazard that the right kinds of positions for the right kinds of candidates can be helpful in easing transition into the legal job market for some of those less obviously or immediately attractive to legal employers. 

How can, or should, such positions be paid for?  I’ll address that in the next post.

--Bernie

Robert Schapiro Named Dean Of Emory Law

Emory University School of Law has announced the appointment of Robert Schapiro as the school's permanent dean.  He  has been serving as interim dean since last July.  Schapiro is a graduate of Yale Law School and clerked for Justice Stevens.  He has been on the Emory faculty since 1995.  My understanding is that he passed on at least one other juicy job opportunity over the last couple of years - a gamble that seems to have paid off with a very nice outcome.  

Newton on Recent Supreme Court Citations of Law Reviews

Brent Evan Newton, who is the deputy staff director at the US Sentencing Commission and teaches at the Georgetown University Law Center, has recently posted an important paper, "Law Review Scholarship in the Eyes of the Twenty-First Century Supreme Court Justices: An Empirical Analysis," on ssrn.  It appeared in volume four of the Drexel Law Review.  Newton's abstract begins:

An analysis of the twenty-first century Justices’ citations of law review scholarship — how often they cite articles, the professional identities of authors of the cited articles, and the rankings of the law reviews in which the cited articles appear — provides an excellent prism through which to assess today’s law reviews. In addition to having had varied and rich legal careers as practitioners, policy-makers, and lower court judges, the majority of the current Justices were, at earlier points in their careers, full-time law professors. Presumably, the Justices are able to separate the wheat from the chaff in the law reviews. The present study examined whether something meaningful can be gleaned from an analysis of the modern Justices’ practice of citing law review articles.

This article describes the results of an empirical study of the nearly two thousand “signed” opinions authored by the Justices — majority opinions, plurality opinions, concurring opinions, and dissenting opinions issued after oral arguments — dated between January 1, 2001, and December 31, 2011, which cited at least one American law review article. Opinions were coded to determine the following: (1) whether one or more law review articles (including law student “notes” or “comments”) were cited in the opinions; (2) which Justices wrote the opinions citing law review articles; (3) the professional status of the articles’ authors at the time that the cited articles were published (as a full-time law professor, legal practitioner, judge, law student, or “other”); and (4) the ranking of the law reviews that published the cited articles according to Washington and Lee University School of Law’s “combined score” ranking system (the “W&L” system). The results of this coding project are contained in a lengthy appendix to this Article, which lists all 1,023 cited articles in the 1,961 opinions issued in 792 cases.

The present study demonstrates that the Justices in the twenty-first century have cited law review articles less frequently than their predecessors did in the 1970s and 1980s, when at least one Justice’s opinion in approximately half of the Court’s cases cited one or more law review articles (with an average of 0.87 articles cited per opinion). During the first decade of the twenty-first century, one or more Justices cited at least one article in 37.1% of the Court’s cases (with an average of 0.52 articles cited per opinion). In 21.3% of the Court’s cases, one or more law review articles were cited in the majority opinion. Justices considered “liberal” in their judicial philosophies cited law review articles in their opinions much more frequently than did Justices considered judicial “conservatives.” 

Of the cited articles in opinions issued between 2001 and 2011, 62.3% of authors were full-time law professors, while 37.7% were law students, legal practitioners, judges, or persons who were not primarily associated with the bench, bar, or legal academy (including researchers with think-tanks and full-time professors from departments in a university other than a law school, such as economists, historians, and political scientists). An examination of the authors who were not full-time law professors revealed that the four sub-groups each constituted roughly one quarter of the total.

Read the remainder of the abstract and download the paper here.  You'll also want to download the appendix, which lists all of the cases decided by the US Supreme Court between 2001 and 2011  and what, in any, law review scholarship they cite.  Makes for some pretty interesting reading.  This follows up on some themes that Newton discussed recently in "Preaching What They Don't Practice: Why Law Faculties' Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy," which appeared in the South Carolina Law Review.

Criminalizing Pregnancy

Featured in today's New York Times is a very disturbing article entitled "The Criminalization of Bad Motherhood,"which reports on a new trend of punishing  women who take drugs during their pregnancy, whether or not there is damage to the child once born.  Currently, this kind of fetal criminal endangerment law is only found in Alabama, but there is a movement to spread these laws to other states. 

As the article points out, these type of laws are not only harsh but sometimes counterproductive:

Critics of Alabama’s chemical-endangerment law argue that drug use by pregnant women is best treated as a health issue, not a criminal one. Addiction, they say, can be treated, but drug users have to be willing to seek help, which they might be less likely to do if they fear arrest. “To simplify a complex medical and psychosocial issue into a criminal issue is really just like using a hammer to play the piano,” says Dr. Deborah Frank, a pediatrician and director of Boston Medical Center’s Grow Clinic for Children. “The whole definition of addiction is compulsive behavior in spite of adverse consequences — like the person who keeps eating doughnuts even though their doctor tells them they’re morbidly obese and going to die of a heart attack.” Deterrents, experts like Frank say, don’t work well when it comes to addicts and may even be counterproductive.

We live in a society that criminalizes more and more behavior each day, with little to show for it but growing prison populations.  Adding criminal sanctions for pregnant drug abusers is just the latest example of a foolhardy and costly trend.

Falling through the cracks

This semester, I made good progress in Business Associations, so I had time to spend a day on insider trading.  I asked my students how many had taken Professional Responsibility (75 out of 90) and, of that number, how many had learned that attorneys could not trade on client information (2 out of 75). Even if I don't teach insider trading in the future, I will certainly take 10 minutes to warn my students.

Large firms will warn their new hires not to trade on client information. But, many graduates of Maryland will work at small firms. Since 2008, 40% percent of our graduates took jobs in private practice, of which a third worked at firms with fewer than 10 lawyers. Can professors rely on small firms without HR staff to warn our graduates about insider trading?

Here's another example, albeit less important. In law school, I learned that important cases were reprinted in the reporters. When I first saw A.2d, I assumed "2d" referred to importance rather than chronology. I graduated from law school still thinking A.2d was a minor league for the more important Atlantic Reporter.

What else falls through the cracks in the law school curriculum?

William Carter Named Dean of Pitt Law

The University of Pittsburgh School of Law has named Professor William Carter of Temple as its new dean.  Carter, who holds a JD from Case Western University, is a constitutional law and civil rights scholar.  Prior to joining Temple, he was a member of the Case law faculty.   He will take over the position this coming July.  

Baltimore Law Picks A Washington Insider As Dean

First came New York Law School.  Then Brooklyn Law.  Now Baltimore has joined the club of law schools appointing high powered politico lawyers as dean.  The University of Baltimore School of Law announced the appointment of Ronald Weich, the assistant attorney general for legislative affairs, to head up the program.  Welch previously served as chief counsel to Harry Reid and Ted Kennedy.  He holds a JD from Yale.

There is little question that Weich will bring some valuable connections to the law school on both the placement and development side.  He'll probably need a moving van to carry his Rolodex.  This is a definite upside for the law school.   In a couple of years we'll have to see how this wave of non-academic deans works out.  My guess is that Weich must be talented at the use of both hard and soft power.  His challenge, I suppose, will be to figure out the appropriate use of each tactic in a very different working environment.

 

Louisville Dean Jim Chen Stepping Down

Jim Chen, who has served as dean at the University of Louisville School of Law, will be stepping down on June 30 at the end of his five year term. Chen, who clerked for Justice Thomas and previously taught at the University of Minnesota, plans to return to the faculty after a year of leave.  

Obama in Chapel Hill

Well, since I last wrote about President Obama's visit to UNC, a few things have happened.  Yesterday I was able to get a ticket and then this morning I went -- later than I should have -- to Carmichael auditorium.  I'd been watching people line up from my office window since I don't know maybe 8:30 (which is probably 1/4 of a mile away from the auditorium, which tells you something about the line).  The doors opened at 10.  But, having gotten my ticket late I figured I'd be nonchalant about this and arrive at the auditorium late as well, which as it turns out appeared to be a rather bad idea ...  because the auditorium was already full by the time I made it through security.  I and everyone else arriving with me and I guess after me was pushed back to the overflow room, Woollen Gym.  This happens to be where FDR spoke when he was here.  That was a while ago, obviously.  We were all clinging to the hope that Obama might make an appearance.  For there was a stage with a huge American flag in back and a microphone.  As we watched the introductions and then the pledge of allegiance and the singing of our national anthem on the giant screen, all broadcast from Carmichael, things began to look bleak.  I was standing there reading Greg Dorr's fabulous book on eugenics, Segregation's Science.  In short, I was concluding "it does not look likely."

Then, suddenly, Obama entered the room the crowd broke into screams of "yes we can!"  I dropped Segration's Science on the floor (sorry Greg!  --  I'll talk about your book in a later post) and pulled out my camera.  Obama said something along the lines of, "I know you all didn't get a seat in the auditorium, so I wanted to come by and say hi."  Then he shook everyone's hand (except, perhaps, for me -- I was working on trying to get some pictures--with less success than I would have liked).  All in all I can say that I've never seen the mood of a room change so much so quickly.  I guess that's no surprise.  Further testimony to the idea, keep hope alive.  Afterwards everyone was looking at their cameras and cell phones and texting -- a very cool scene to look around the room and see everyone peering into their technology.

Next up for politicial celebrities in Chapel Hill is Attorney General Eric Holder, who's speaking at the law school graduation in May.

Presidential Trivia: College Version

Given President Obama's impending visit to UNC -- he'll be speaking here at Carmichael Gym on Tuesday -- I thought about trying to get a ticket.  But when I saw the line yesterday, I figured, what the heck: I'll just go back to work.  That lead me, however, to ask, what kind of presidential trivia I could use related to UNC.

I ruled out on based on James K. Polk, though I thought about asking what building he listened to graduation speeches in when he returned to campus in 1847.  (The answer to this and much more is in my article on jurisprudence in UNC graduation addresses before the Civil War.  Next up in that series, by the way, I think will be Wake Forest graduation addresses -- or maybe Davidson College. Some North Carolina school, anyway.  Ok--product placement over.)

I settled on a more recent presidential trivia question.  What is the building pictured here and which future president lived in it when he was a student at UNC?  There is, so far as I can tell, no marker commemorating this on the building.  And now I wonder about whether there are any markers outside the places Obama lived while he was at Columbia or Harvard?  Or whether there are markers commemorating where sometime Durhamite Richard Nixon lived when he studied at Duke law?

The Administrative Law of Sterilization

Continuing on a series of posts on the North Carolina sterilization victims compensation movement, I want to talk  some about the administrative law of sterilization -- particularly the process by which people were selected for sterilization and how the approval process worked.  This is a topic on which there is less information than I'd like, because -- completely understandably -- the patient records are not generally available.  Johanna Schoen provides important information on this in her book Choice & Coercion: Birth Contrl, Sterilization and Abortion in Public Health and Welfare.  

What we do have, in addition to the statute, are two administrative manuals that told state officials how to proceed with sterilization petitions before the Eugenics Board, which was the body that had to give approval for publicly-funded sterilization.  The 1948 Administrative Manual is here, courtesy of the fabulous North Carolina State Library.  It's the first one that the state produced.  It has a brief history of the North Carolina movement for sterilization -- and points out in particular that North Carolina was influenced by California's experience.  The Manual cites the 1935 pamphlet, Eugenical Sterilization in North Carolina, which relies on Gosney's and Popenoe's study of 6000 sterilizations in California.

Following the North Carolina statute, the 1948 manual details who may be sterilized -- the "feebleminded, epileptic, and mentally diseased" -- and the circumstances in which this may happen: "when it is believed that such an operation would be for the best interests of the individual concerned, or for the public good, or when it is believed a child or children might be born who would have a tendency to serious mental or nervous disease or deficiency."

Then the manual gives specific instructions regarding who has the responsibility and power to file sterilization petitions --  the executive head of a penal or charitable organization or the county superintendent of public welfare and it gives instructions regarding the forms to use depending on whether the person to be sterilized is institutionalized or resident in the community.  Form 1 was for institutionalized individuals; form 2 was for people resident in the community.  The instructions for filing out those forms note that "the social information presented by the petitioner should contain all of the circumstances surrounding the person's life insofar as they have a bearing upon ... A.  The likelihood of the person to procreate a child or children who would have a tendency to serious physical, mental, or nervous disease or deficiency, and B. The reasons why it is considered to be for the public good that the individual have the operation."  I guess it's telling that the instructions do not call for specific evidence of why this is in the best interest of the individual, even though the sterilization statute says that is one reason supporting sterilization.

Consent?

Is Nominal Tuition The New "Maximum Sentence"?

People who teach or practice criminal law often laugh when they reporters describe a defendant as "facing 25 years" for what is plainly a modest offense.  It is the usual tradition in journalism, when covering a criminal matter, to report a defendant's maximum legal statutory exposure.  Far less often, reporters note the sentence that experts believe a defendant actually faces.  

I wonder whether a similar phenomenon is happening in coverage of rising tuition costs.  As I noted in my recent post on the AAUP's study on faculty salary, stated tuition has been rising steeply in recent years.  But what is less clear is whether the average tuition paid has undergone a similar increase.  There are several reasons why schools might hike their nominal tuition, while spending a significant portion of that new revenue on financial aid. 

One, schools might have a taste for economic redistribution.  It's easy to imagine that a school might seek to recover a greater portion of the actual cost of education from affluent students, while distributing some of that increase to needy students. 

A second reason might be a taste for merit-based distribution.  Taking no position on what schools consider merit - and it's not clear to me that GPA and SAT (or LSAT) scores are a great definition - one could imagine that schools want to use weaker students to fund the recruitment of stronger students.  Indeed, my impression is that this is a dominant approach these days.  While it might appear that this behavior only benefits strong students, and the institution itself (in the form of US News rankings improvement, for example), it is true that lifting up the quality (and perhaps reputation) of a school benefits the full-freight students as well.   On the other hand, there is the problematic possibility that to the degree that poorer students (coming from weaker schools) aren't as meritorious - along the SAT/GPA metric - we are effectively redistributing from the poor to the affluent.  Schools can address this by building out scholarship strategies that incorporate multiple factors that do not focus exclusively on metrics closely associated with affluence.

A third reason might be that schools want to be seen as expensive because prospective students use price point as a proxy for quality.  I don't sense any market presumption that  the cheapest private school is the best; to the contrary, we assume that elite schools are expensive.  You can be expensive and non-elite, but it's almost impossible (with the exception of a tiny number of outliers) to think of an elite private college that is not expensive. 

There are surely other reasons to raise nominal tuition.  I haven't seen actual tuition revenue data but I'm guessing that it has increased markedly at public institutions.  I'm less certain about private schools.   If tuition has indeed spiked among these schools, it's worth pondering why that happens.  Faculty salary is one possible culprit, but the AAUP study certainly casts that into doubt.  Increased emphasis on research - even among schools that never focused resources this way - might flesh out the story a bit.  

But for now, I'll remain skeptical about how much tuition has actually increased (among private schools at least).  There is real empirical work to be done here.  The media and the public will continue to call out universities for price hikes and I'll continue to wonder whether this is another case of statutory maximum sentences. 

Expletives, Nudity and Violence

After watching the “Hunger Games,” I was reminded how society can get things backwards when worrying about harms to children. Despite the graphic scenes of teenagers slaughtering each other, the movie has a PG-13 rating. In contrast, movies are supposed to receive an R rating if they include sexually-oriented nudity or if they include some of the “harsher sexually-derived” expletives, especially when used in a sexual context.

This more severe treatment of nudity and profanity than of bloodshed tracks first amendment doctrine. Supreme Court justices seem more worried about the F-word and bare buttocks than about vicious violence. Just last year, the Court invoked the First Amendment to override California's ban on the sale of violent video games to minors. Two years ago, the Court rejected a federal statute that outlawed "crush" videos depicting the torture and killing of animals. But in the discussion at oral argument earlier this year about foul language and indecent images on television, the justices indicated a willingness to maintain some censorship of expletives and nudity by the Federal Communications Commission.

Is it really the case that children suffer greater trauma from hearing curse words and viewing sexual images than from seeing brutal murders? Is it really true that the profanity and pornography on The Sopranos were more troubling than the cold-blooded executions that were vividly depicted in the series?

Maybe there's no harm to kids from watching people being maimed, decapitated or dismembered on the big or little screen. But surely there's no greater harm from seeing a bare breast or hearing a dirty word.

 

Corruption in Walmart de Mexico

The New York Times has published an expose of corruption in Walmart de Mexico. The Times reports that Walmex paid $24 million in bribes. After a brief internal investigation, Bentonville decided to scuttle the investigation by allowing executives implicated to write the final report.

Like many people teaching Corporations this semester, I have mixed feelings. Of course, I want wrongdoing exposed and punished. But, why couldn't the Times have run this story the week before I taught Caremark?

Update: This blog discusses Walmart de Mexico and the FCPA. Here's an article on Walmart's legal troubles, which, entirely by coincidence, quotes me.